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 latgitsl] Killing (Euspb 
 
 CITED "E. R. C." 
 
 ( OM'IM'ED BY 
 
 IBnttHlj ISnlinn (Eases 
 
 CITED "B. R. C." 
 
 The Extra Annotations following this volume 
 should invariably be examined. They give every 
 citation of the cases reported in this volume of 
 E.R.C. in the decisions of this country and Canada, 
 also in the more important English decisions, indi- 
 cating which citation the exact point involved a?id 
 the disposition made by the Court. An additional 
 feature is the atialysis and citation of these cases in 
 the leading text books and Annotated Reports.
 
 fcngltelj Kitting (Eaa^s 
 
 ARRANGED, ANNOTATED AND EDITED 
 
 ROBERT CAMPBELL, M. A. 
 
 OF LINCOLN'S INN 
 
 ASSISTED I!V OTHEK MEMBERS OF THE BAR 
 
 WITH AMERICAN NOTES 
 
 BY 
 
 IRVING BROWNE 
 
 VOL I. 
 
 ABANDONMENT— ACTION 
 
 EXTRA ANNOTATED EDITION 
 OF 1916 
 
 ROCHESTER, N. Y. 
 
 THE LAWYERS CO-OPERATIVE PUBLISHING CO. 
 
 1916
 
 THE USE MADE IN THIS WORK OF THE LAW REPORTS PUBLISHED BY THE 
 
 COUNCIL OF LAW REPORTING IS BY THE PERMISSION" OF THE 
 
 COUNCIL KINDLY GIVEN FOR THIS PURPOSE. 
 
 Copyright 1S94, 
 By Stevens & Sons, Limited. 
 
 Copyright assigned to The Boston Book Company, 1002. 
 Copyright assigned to The Lawyers Co-operative Publishing Company, ions 
 
 Copyright 1916. 
 I'.v The Lawyers Co-operative Publishing Company.
 
 PREFACE. 
 
 It is proposed, in this Work, to collect and arrange in 
 alphabetical order of subjects, the leading authorities of 
 English Case Law on points of general interest, and to 
 illustrate their application by English and American 
 notes. 
 
 The matter under each alphabetical heading will be 
 arranged in sections, in an order indicated at the com- 
 mencement of the heading. The more important and 
 Ruling Cases are set out at length, subject only to abridg- 
 ment where the original report is unnecessarily diffuse. 
 The less important or subordinate English cases are briefly 
 stated in the English Notes. The American notes point 
 out the effect of American authority upon cognate points. 
 
 Our aim is to furnish the practitioner with English Case 
 Law in such a form that he will readily find the informa- 
 tion he requires for ordinary purposes. The Ruling Case 
 will inform him, or refresh his memory, as to the prin- 
 ciples ; and the Notes will show in detail how the prin- 
 ciples have been applied or modified in other cases. 
 
 The ordinary English Digests fail in usefulness by their 
 want of information as to the principles of the decisions, 
 and as to the relative importance and authority of the 
 cases contained in them. Comyns' Digest was, indeed, an
 
 IV PREFACE. 
 
 exception, and was a most valuable book in its time. But 
 it is bewildering in arrangement, and largely encumbered 
 with now obsolete matter. 
 
 Collections of Leading Cases are generally fragmentary, 
 and wanting in any system of arrangement. Saunders' 
 Reports are, however, in some measure a precedent, and a 
 suggestive example to show that a comprehensive work on 
 somewhat similar lines may be of great use. The object 
 is to adapt the mass of existing authority to modern 
 requirements. 
 
 The object of the American notes will be to point out 
 the agreement or the disagreement of the American Case 
 Law with the English, and to direct attention to the lead- 
 ing and the most recent cases in all the States, thus com- 
 mending the work to the American as well as the English 
 practitioner. This will be done concisely. The principal 
 citations of the Ruling Cases in the American reports will 
 be given. Reference will also be made in every instance 
 to the most authoritative, and especially to the latest, 
 American text-w T riters on the subject in question. 
 
 R. CAMPBELL. 
 
 IRVING BliOWNE. 
 
 March, 1894.
 
 TABLE OF CONTENTS. 
 
 VOLUME I. 
 
 PAGE 
 
 ABANDONMENT 1-155 
 
 Section 1. — Cases where Abandonment may be made and 
 Total Loss claimed. 
 
 No. 1. Goss v. Withers 1 
 
 No. 2. Allen v. Sugrue \ 
 
 No. 3. Irving v. Manning/- 20 
 
 No. 4. Farnworth v. Hyde ) 
 Section II. — Where Abandonment is necessary in order 
 to claim Total Loss. 
 
 No. 5. Fleming v. Smith 37 
 
 Section III. — Total Loss without Abandonment. 
 
 No. 6. Roux v. Salvador 46 
 
 No. 7. Potter v. Rankin 1 ~~ 
 
 (Rankin v. Potter) > 
 
 Section IV. — Criterion oe Time in Cases of Abandonment 
 and Total Loss. 
 No. 8. Hamilton v. Mendez } 119 
 
 No. 9. Bainbridge v. Neilson > 
 No. 10. Mitchell v. Edie 132 
 
 Section V. — Effect of Abandonment in transferring 
 Rights. 
 No. 11. Case v. Davidson \ 
 
 Davidson v. Case (in error) \ 
 
 ABATEMENT 156-193 
 
 Section I. — As to Joinder of Plaintiffs. 
 
 No. 1. Dockwray )\ Dickenson 256 
 
 Section II. — As to Joinder of Defendants. 
 
 No. 2. Boulston v. Sandiford 166 
 
 No. 3. Kendall v. Hamilton 175 
 
 No. 4. Mitchell v. Tarbutt 183
 
 VI TABLE OF CONTENTS. 
 
 ABATEMENT (contin ued). 
 
 PAGE 
 
 Section III. — Various Causes of Abatement. 
 
 No. 5. Sylvester's case 1SS 
 
 Section IV. — Requirements of a Good Plea in Abatement. 
 
 No. 6. Warner v. Irby , 191 
 
 ACCELERATION 194-202 
 
 Lainson v. Lainson 194 
 
 ACCIDENT (inevitable) 203-3(37 
 
 No. 1. Davis v. Saunders 203 
 
 No. 2. The Uhla 210 
 
 No. 3. Forward v. Pittard ) .-, . 
 No. 4. Nugent v. Smith ) 
 No. 5. Fletcher v. Rylands » 
 
 (Ilylands v. Fletcher) > 235 
 
 No. 6. Nichols v. Marsland ) 
 
 No. 7. Nitro-phosphate, &c. Co. v. London & St. Katherine 
 
 Docks Co 276 
 
 No. 8. Vaughan v. Taff Vale Railway Co 290 
 
 No. 9. River Wear Commissioners v. Adamsou 308 
 
 No. 10. Jacobs v. Credit Lyonnais 338 
 
 No. 11. Rothes (Countess of) v. Kirkcaldy Waterworks Co. 351 
 
 ACCORD AND SATISFACTION ........ 368-405 
 
 No. 1 Pinnel's Case > o^ 
 No. 2. Foakes v. Beer ) 
 
 No. 3. Bidder v. Bridges 393 
 
 No. 4. Richards and Bartlett's Case 398 
 
 No. 5. Adams v. Taplin 400 
 
 No. 6. Case v. Barber 403 
 
 ACCOUNT 40G-45S 
 
 Section I. — Jurisdiction of Court of Equity. 
 
 No. 1. Taff Vale Railway Co. v. Nixon 406 
 
 No. 2. Smith v. Leveaux 419 
 
 Section II. — What may be recovered on a Stated Account. 
 
 No. 3. Laycock v. Pickles 425 
 
 No. 4. Cocking v. Ward 433 
 
 Section III. — Settled Accounts, how far conclusive. 
 
 No. 5. Dunbar v. Lem 439 
 
 No. 6. Brownwell r. Brownwell 446 
 
 Section IV. — Accounts between Tenants in Common. 
 
 No. 7. Henderson v. Eason 449
 
 TABLE OF CONTENTS. Vll 
 
 PAGE 
 
 ACCRETION 453-497 
 
 (of Subject Matter of a Right) 
 
 No. 1. R. v. Lord Yarborough 458 
 
 (of Titlk). 
 
 No. 2. Doe d. Christinas v. Oliver ) 
 
 No. 3. Swan c. Western Bank of Scotland > 
 
 4b0 
 
 ACCUMULATION 498-520 
 
 No. 1. Thellusson v. Woodford) . (< 
 
 Woodford v. Thellussou ) 
 
 No. 2. Lord Southampton v. Marquess of Hertford .... 514 
 
 ACTION (Kight of; 521 et seo. 
 
 Section I. — Arises generally from Every Injury. 
 
 No. 1. Ashby r. White 521 
 
 No. 2 Scott v. Lord Seymour . 533 
 
 No. 3. Harrop r. Hir.st 547 
 
 No. 4. Wedgwood c. Bailey 555 
 
 Section II. — For Cause affecting the Public. 
 
 No. 5. Crosby v. Leng 559 
 
 No. 6. Att.-Gen. r. Shrewsbury (Kingsland Bridge Co) • • 567 
 
 No. 7. Ricket v. Metropolitan Ry. Co 573 
 
 No. 8. Mayor, &c. of Lyme Regis v. Henley . . • . . . . 601 
 
 Section III. — Where adeemed or abridged by Statute. 
 
 No. 9. Hammersmith Ry. Co. v. Brand 623 
 
 No. 10. Bradlaugh v. Clarke 667 
 
 No. 11. St. Pancras (Vestry) v. Batterbury 682 
 
 Section IV. — Arising out of Contract with third Persons. 
 
 No. 12. Lloyd's v. Harper . . . . > fiRfi 
 
 ins: Co. ) 
 
 No. 13. In re Empress Engineer 
 No. 14. Lumley v. Gye ) 
 No. 15. Bowen v. Hall > 
 
 ro6 
 
 Section V. — Cases of Loss where there is no Right of 
 Action. Damnum absque Injuria. 
 
 No. 16. Chasemore v. Richards 729 
 
 No. 17. Sutton r. Johnstone ) _ rfi 
 
 Johnstone v. Sutton (in error) ) 
 
 No. 18. Kennedy v. Brown 789 
 
 No. 19. The Queen v. Lords Commissioners of the Treasury . 802 
 
 Section VI. — Where the Right survives.— Actio personalis moritur 
 cum Persona. Will be contained in Vol. II.
 
 TABLE OF ENGLISH CASES. 
 
 VOL. I. 
 
 Note. — The Ruling Cases are shown by distinctive type. 
 
 PAGE 
 
 Aaron v. Alexander 527 
 
 Abbot of Peterborough's Case . . 463 
 
 of Ramsey's Case .... 403 
 
 Abbott v. Smith . . . 170, 171, ISO 
 
 Abley v. Dale 333 
 
 Acatos v. Burns 69 
 
 Acton v. Blundell 257, 737, 739, 702, 703 
 
 Adams r. Bafeald 713 
 
 Adams v. Tapling . . . 400, 371 
 Addison v. Overend . . . 157, 104 
 
 Agacio v. Forbes 100 
 
 Ajudhia Buksh v. Mussamut Ruk- 
 
 inin Kuar 200 
 
 Aldred's Case . . 241, 243, 240, 207 
 
 Aldridge v. Bell 139 
 
 Allen v. Havward 257 
 
 Allen v. Sugrue 20,34 
 
 Allgood v. Blake 324 
 
 Allison v. Bristol Marine Insurance 
 
 Co Ill, 348 
 
 Allwood v. Henckell 49 
 
 Alton v. Midland Ry. Co. . . . 187 
 
 Amies v. Stevens 218 
 
 Anderson v. Martindale . . . . 101 
 
 • v. Oppenheimer . . . 271 
 
 v. Royal Exchange Ass. 
 
 Co 52, 57 
 
 — v. Wallis . 33, 52, 56, 128 
 
 Andrews v. Royal Exchange Ass. 
 
 Co 138 
 
 Anon 192 
 
 453 
 
 Appleby v. Myers 348 
 
 Annorie v. Delamirie 661 
 
 Arthur v. Wynne 347 
 
 Ashby v. James 431 
 
 Ashby v. White 521, 527, 529, 684, 
 
 721 
 
 Ashley v. Harrison 714 
 
 Assievdo v. Cambridge . . 6, 10, 13 
 Atkinson v. Newcastle Waterworks 
 
 Co 529 
 
 PAGE 
 
 Atkinson v. Ritchie 345 
 
 Atlantic Mutual Ins. Co. v. Huth 69 
 Atty.-Gen. v. Cockennouth Local 
 
 Board 509 
 
 17. College of Physicians 794 
 
 v. Ely, Haddenham, & 
 
 Sutton Ry. Co. . . 794 
 
 v. Great Eastern Ry. Co. 794 
 
 v. Great Northern Ry. Co. 794 
 
 c. Oxford, Worcester, & 
 
 Wolverampton Ry.Co. 570 
 
 r. Rees 476 
 
 - v. Reeve 477 
 
 Atty.-Gen. r Shrewsbury (Kings- 
 land) Bridge Co 567 
 
 Atty.-Gen. v. Tewkesbury & Great 
 
 Malvern Ry. Co 288 
 
 Atty v. Lindo 110 
 
 Austen v. Great Western Ry. Co. 187 
 Australasian Steam Navigation Co. 
 
 w. Morse 68 
 
 Backhouse v. Bonomi .... 556 
 Bagnall v. London & N. W. Rv. Co. 
 
 241, 216 
 
 Bailey v. Bailey 684 
 
 — ». Warden 786 
 
 Baillie v. Mondgliani 35 
 
 Bainbridge v. Neilson . . 112, 17 
 Baird v. Williamson . . 241, 246, 259 
 Baker v. Moore ...... 570 
 
 Ball, Exp., Shepherd, In re . . .' 504 
 
 Ball v. Herbert 404 
 
 Ballacorkish, &c. Mining Co. v. 
 Dumbell & Harrison .... 759 
 
 Ballantine v. Goldim? 543 
 
 Ballard v. Tomlinson . . . 271, 758 
 Balston v. Bensted 733, 749, 755, 762 
 
 Bamford v. Turnley 257 
 
 Bankers' Case, The 807 
 
 Barber ». Flemiii"' 77
 
 TABLE OF ENGLISH CASES. 
 
 PAGE 
 
 Barber v. Nottingham & Grantham 
 
 Ry. Co 247, 354 
 
 Barclay v. Bank of New South Wales 400 
 
 p. y Gana . 218, 223, 224, 229 
 
 v. Stirling .... 146, 152 
 
 Barker v. Blakes 138 
 
 ■ v. Hodgson . . . 345,347 
 
 Baron de Bode, In re, The . . . 805 
 
 Barrington's Case 337 
 
 Barwis v. Keppel 778 
 
 Basset v. Basset 501 
 
 Beale v. Beale 501 
 
 Beast on p. Scliank 347 
 
 Beckett v. Ramsdale, Hodgson, 
 
 In- re 170,180 
 
 Beddall v. Maitland . . . 559, 565 
 Bedreeclmnd v. Elpbinstone . . 825 
 Benett v. P. & O. Steam Boat Co. 218 
 Benson v. Chapman .... 44, 85 
 
 Berkley v. Elderkin 684 
 
 Bidder r. Bridges 393 
 
 Biffin v. York 334 
 
 Biiks v. Allison 333 
 
 Biscoe v. Great Eastern Ry. Co. . 288 
 
 Bisse <;. Harcourt 190 
 
 Bixby p. Umdap 720 
 
 Black v. Ballymand Commissioners 759 
 Blackburn v. Warwick . . . ' . 445 
 Blad's Case, Blad v. Bamfield . . 543 
 Blake p. Land & House Property 
 
 Corporation . . . . 272 
 
 v. Lanvon 713 
 
 Bliss p. Smith" 418 
 
 Blower v. Great Western Ry. Co. 219 
 
 Bloxham v. Hubbard 158 
 
 Blyth v. Birmingham Waterworks 
 
 Commissioners . . . 302 
 
 v. Tladgate .... 172. 1S6 
 
 Bonomi v. Backhouse 240, 245, 217, 
 
 257 55b' 
 Boson v. Sandford 167, 169, 17S, 184 
 
 v. Midland Great Western 
 
 Ry. of Ireland Co 303 
 
 Boulston v. Sandiford 166, 1S4, 187 
 
 Bourne v. Gatliffe 232 
 
 Bowen v. Hall 717 
 
 Boweu v. Hill 555 
 
 v. Sandford 759 
 
 Bower v. Hill 550, 553 
 
 Bowler v. Spathurst 1S9 
 
 Box p. Jubb 267, 270 
 
 Boyfield v. Brown 35 
 
 Bradburn v. Bot field 160 
 
 Bradlaugh t>. Clarke .... 667 
 
 Bram p. Marfell 759 
 
 Brand p. Hammersmith Ry. Co. . 302 
 
 Brashear p. Mason 807 
 
 Bray v. Haller 193 
 
 Brenan p. Crawley 430 
 
 Bretherton v. Wood . . 173, 174, 187 
 
 PAGE 
 
 Brett v. Cumberland 609 
 
 Brewster v. Kitchell 310 
 
 Briggs r. Oliver 206 
 
 Bright v. Legerfon 448 
 
 Bristow p. James 186 
 
 Bi'kish Africa Co. v. Companbria 
 
 de Mozambique 541 
 
 Broadbent v. Imperial Gas Co. COO. 658 
 
 v. Led ward . . . . 158 
 
 p. Ramsbotham 732, 736, 748 
 
 Broder v. Sailard 269 
 
 Brotherstone v. Barber .... 129 
 
 Broughton v. James . . . . . 519 
 
 Brown v. Best 753 
 
 v. Hawkes 787 
 
 p.Smith 17 
 
 p. Wootton 181 
 
 Browne p. Houghton 519 
 
 Browning v. Provincial Ins. Co. of 
 
 Canada. 140 
 
 Brownloe v. Mitchell ..... 673 
 
 Brownwell v. Brown-well . . 446 
 Brunswick (Duke of) v. Hanover 
 
 (King of) 817 
 
 Bryan v. Slate . 720 
 
 Buccieuch (Duke of) v. Metropo- 
 litan Board of Works .... 663 
 
 Buddie v.. Wilson 187 
 
 Bullock v Dommitt . . . . . 347 
 
 Burdet v. Hopegood 504 
 
 Burgess p Carpenter 720 
 
 ■ — v. Wheate 673 
 
 Burnett p. Kensington .... 48 
 Buron v. Penman .... 536, 819 
 
 Burt v. Victoria Graving Dock Co. 295- 
 Butler p. Hunter .... 216, 257 
 
 Butterniere p. Hayes 435 
 
 Bvrnc p. Boodle 206 
 
 — p. Schiller 348 
 
 By well Castle, The 214 
 
 Cabell p. Vaughan . . 160, 171, 178 
 Caledonian Ry. Co. p. Ogilvie 596, 597, 
 
 636, 639 
 
 » p. Walker's Trus. 596, 
 
 597 
 
 Calvert p. Gordon 696 
 
 Calye's Case 229 
 
 Cambefoot p. Chapman .... 18a 
 Cambridge p. Anderton 42, 50, 62, 66, 
 
 84, 85 
 Cameron v. Charing Cross Ry. Co. 575. 
 
 581,589 
 
 Cammed v. Sewell 536 
 
 Campbell p. Thompson .... 69 
 
 Carlewis p. Clark 371 
 
 Carlisle (Cor]>.) p. Wilson . . . 417 
 Carrick v. Errington . . . 196, 199 
 Carrington (Lord) p. Payne . . 197
 
 TABLE OF ENGLISH CASES. 
 
 XI 
 
 PAGE 
 
 Carriugfcon v. Taylor . . . . . 715 
 Carstairs v. Taylor . . . 263,272 
 Case v. Barber 403 
 
 v. Davidson 141 
 
 Cattle v. Stockton Waterworks 720, 727 
 
 Cayzer v. ( larron ( !o 214 
 
 Cazalet v. St. Barbe . . . 128, 152 
 Chad wick v. Trower . . . 2-12, 214 
 
 Chaffers v. Goldsniid 530 
 
 Chalmers v. Dixon 269 
 
 Chamberlain v. Napier .... 310 
 v. West End ut' London, 
 
 & Crystal Palace Ry. Co. 579, 539 
 
 Champernoon v. Hill 169 
 
 Chapman v. Pickersgill .... 526 
 
 ■ v. G. W. llv. Co. . . . 232 
 
 Charkick, The ..'... . 818 
 
 Chasemore v. Richards . 729, 257, 
 
 271, 763 
 Chauutler v. Kobinson .... 211 
 Cliedington's (Rector of) Case . . 201 
 
 Cheetham v. Ward 172 
 
 Child I;. Sand 186 
 
 Chhmery v. Blackbiirne .... 142 
 
 Christianberg, The 544 
 
 Cliurchman v. Tunstal . 607, 609, 617 
 City of Glasgow Ry. Co. v. Hunter 303, 
 
 663 
 Clare & Hodges Claim .... 190 
 Clark, Li. re, Clark v. Randall . . 200 
 
 v. Hart 448 
 
 Clerk v. Gelly 168 
 
 Clothier i\ Webster 302 
 
 Clough v. London & N. W. Ry. Co. 82 
 Clowes v. Staffordshire Potteries Co. 367 
 
 Clutterbuck v. Coffin 371 
 
 Cobequid Marine Insur. Co. v. Bar- 
 
 leaux 68 
 
 Cochrane v. Cochrane .... 519 
 Cocking v. Ward . . . 433, 800 
 
 Coe v. Wise 288, 620 
 
 Coggs v. Bernard . 21S, 222, 223, 226, 
 
 229, 231 
 
 Cole v. Wilkes 169 
 
 Cologan v. London Ass. Co. 50, 65, 82 
 
 Colt y. M'Mechen 218 
 
 Constitution, The 818 
 
 Cooke v. Eshelby 160 
 
 Cooper v. Barber 739 
 
 <>. Parker 378 
 
 v. Wit ham 561 
 
 Cossman v. West 69, 111 
 
 Couch v. Steel 528, 6S4 
 
 Couldery v. Bartrum 370 
 
 Coultha'rt v. Cleinentson . . 691,697 
 Cowper-Essex v. Acton Local Board 663 
 Cox v. Burbidge .... 250, 252 
 
 v. Mitchell . . . 189,535,543 
 
 Cracknell v. Thetford (Mayor) . . 303 
 Craft v. Boite ....'... 323 
 
 PAGE 
 
 Cranmer's Case 201 
 
 Craven v. Brady 199 
 
 Crawley v. Crawley 513 
 
 Crcllia v. Brook ' 192 
 
 i'. Calvert 192 
 
 Crompton v. Lea .... 269. 762 
 
 Crosby v Leng 559 
 
 Croucli v. London & N. W. Ry. Co. 21 i, 
 
 Crowhiirst v A iiirrsli.-ini Bmial Board 2 > s 
 Crunibie v. Wallsend Local Board 55S 
 
 Crump r. Lambert 666 
 
 Cullcn v Morris 529 
 
 Cumber v. Wane . . . 370,374,394 
 
 Cunningham v. Dunn 347 
 
 Curlewis v, Clark .... 394. 397 
 Cflrrie v. Bombay, &c. Insur. Co. ii5. 41 
 Cutter v. Powell 350 
 
 Dacres v. Dunkin 190 
 
 Dalby v. India & London Life 
 
 Ass. Co. 81 
 
 Dale v. Hall .... 222, 224, 229 
 Danford v. McAnulty . . . . 3/2 
 
 Danieil v. Sinclair 444 
 
 Darley v. Langworthy . . . . 197 
 Darley Mam Colliery Co. v. Mitchell 557 
 Davenport v. Rvlands . . 400, 558 
 
 Davidson v. Case 141 
 
 Davies v. Bush 483 
 
 v. Mann 214 
 
 Davis v. Garrett 288 
 
 Davis v. Saunders . . . 203, 232 
 
 Davy v. Mitlbrd 67 
 
 Day v. McLea 391 
 
 Dawkins v. Paulet .... 785, 788 
 
 v. Lord Rokeby ... 786 
 
 Dawson v. Remnant 429 
 
 De Paiba v. Ludlow 7 
 
 Dean v. Hornby 18, 89 
 
 Decatur v. Paulding 807 
 
 Denn v. Dicker 5 
 
 Dennis v. Tovell .... 309, 32S 
 
 Devereux i\ Barclay 174 
 
 Devonport (Mayor) v. Plymouth 
 
 Tramways Co 682 
 
 Devonshire (Earl) ». Gibbons . . 610 
 
 Dewell v. Moxon 174 
 
 Dhegetoff v. London Ass. Co. . . 411 
 Dickinson v. Grand Junction Canal 
 
 Co. ..... 735, 742, 747, 752 
 
 Dickson v. Clifton 1^7 
 
 Dietrichsen v. Cabburn .... 724 
 
 Digges v. Hammond 466 
 
 Dinwiddie v. Bailey . . . 421, 124 
 Dixon v. Adams 371 
 
 v. Metropolitan Boara of Works 
 
 295, 304 
 
 v. Reid 31
 
 Xll 
 
 TABLE OF ENGLISH CASES. 
 
 Dobree v. Napier . . . . 536, 543 
 
 Dockwray v. Dickenson 
 
 156 
 
 Doe ». Clarke 
 
 505 
 
 
 47S 
 
 
 162 
 
 i v. Lancashire .... 
 
 505 
 
 v. Martvn 
 
 483 
 
 Doe v. Oliver .... 
 
 480 
 
 Dormout v. Furness Rv. Co. . 
 
 620 
 
 Doss v. Secretary of State for India 
 
 826 
 
 
 3/1 
 
 
 50, 07 
 
 Drage v. Hartopp .... 15 
 
 9, 193 
 
 Droglieda Corp. v. Fairtlough . 
 
 389 
 
 Duchess of Kingston's Case 
 
 501 
 
 
 439 
 
 Dunn v. Birmingham Canal Co. 
 
 304 
 
 Dyson v. Rowcroft .... 
 
 51, 65 
 
 East Anglian Ry. Co. v. Eastern 
 
 Counties Ry. Co 628 
 
 East India Co', v. Syed Ally . . 825 
 East & West India Docks, &c. Ry. 
 
 v. Gattke ' . 583 
 
 Eastern Counties Ry. Co. v. Marriage 628 
 
 Eaveshaff v. Austin 199 
 
 Egan v. Kensington Union . . . 792 
 Eggiugton v. Lawson .... 26 
 Eglington v. Norman . . . 309,337 
 
 Ekins v East India Co 536 
 
 Elliott v. Rossell .... 22-2, 2 30 
 
 Ellis v. Earl Grey 807 
 
 1'. Maxwell 513 
 
 Embrey v. Owen .... 734, 738 
 
 Emery v. Macklow 162 
 
 Empress Engineering Co., /// re 699 
 
 Evans v. Lewis 178 
 
 v. Manchester, &c. Ry. Co. 684 
 
 v. Powis 371 
 
 v. Stevens 192 
 
 w.Walton 720 
 
 Everth v. Smith 110 
 
 Ewen v. Jones 085 
 
 Eyre v. Marsden 513 
 
 20, 32, 84. 
 
 . 816, 
 
 Pabrigas v. Mostyn 
 
 Fall v. Chambers . 
 Farnworth v. Hyde 
 Feather v. Reg. 
 Fife (Earl of) v. Duff 
 Filliter v. Phippard 
 Fineux v. Hovenden 
 Fish v. Chapman . 
 Filch v. Sutton . 
 
 v. Weber . . 
 
 Fitzgerald v. Pole . 
 
 Flavel, In re, Murray v. Flavell 
 
 Fleming v. Manchester (Mayor of) 
 
 371, 
 
 V. 
 
 768 
 411 
 100 
 817 
 194 
 245 
 549 
 224 
 381 
 195 
 128 
 704 
 305 
 
 PAGE 
 
 Fleming v. Smith . . 37, 85, 91, 99 
 Fletcher v. Rylands 235, 272, 273, 345 
 Foakes v Beer . . . 340, 390, 394 
 Foley v. Hill 421, 423 
 
 v. United Marine Insur. Co. 77 
 
 Ford v. Colesworth 347 
 
 v. Metropolitan & District Ry. 
 
 Cos 597 
 
 Fordyce v. Bridges 335 
 
 Fores v. Wilson 715 
 
 Forester v. Secretary of State for 
 
 India 826 
 
 Forward r. Fittard 216, 215, 218, 
 
 221, 225, 234 
 
 Foster c. Great Western Rv. Co. . 669 
 
 Foulkes v. Met. Dist. Ry. Co. . . 187 
 
 Foxtwisl v. Tremaine 189 
 
 Freeman v. Last India Co. ... 69 
 Freemantle v. L. & N. W. Ry. Co. 302 
 Fritz v. Holisoa ...."' 558, 619 
 Fuller v. Fuller 196,201 
 
 Gage v. Newmarket Ry. Co. . . 628 
 
 (iami\ v Gaudy 704 
 
 Gardner v. Salvador 52 
 
 Garnet t v Bradley 669 
 
 Garrett v. Hundley 159 
 
 v. 159 
 
 v. Hooper 193 
 
 Garside v. Trent, &c. Navigation . 232 
 
 Geang v. Swaine 371 
 
 Geddes v. Bann Reservoir (Pro- 
 prietors) 304 
 
 Gt'iinaine v. Frederic 186 
 
 Geruon v. Royal Exchange Ass. Co. 139 
 
 Gervais de Clifton 816 
 
 Gibraltar Sanitary Commissioners 
 
 v. Orfila 620 
 
 Gibson v. East India Co. . . . 823 
 
 v. Preston 621 
 
 Gidley v. Lord Palmerston . . . 807 
 
 Gildart v. Gladstone 367 
 
 Gladstone v. Ottoman Bank . . 819 
 
 Glassford v. Scott 491 
 
 Glennie v. London Ass. Co. . 51, 57 
 Glover v. North Staffordshire Ry. Co. 578 
 Goddardu. O'Brien . . 371, 390,394 
 Godsal v. Boldero ... 81, 125, 129 
 Goff v. Clinkard .... 222, 229 
 
 Goldsmid v. Gillies 44 
 
 Good v. Cheeseman 392 
 
 Goodright v. Opie 201 
 
 Goring v. Goring 371 
 
 Goss\\ Withers ... 1, 58, 122 
 Govett v. Radnidge . . 170,173,187 
 Grand Junction Canal v. Sliugar . 459 
 Grant v. Secretary of State for India 827 
 Grant & Co. v. Coverdale, Todd, & 
 
 Co 346
 
 TABLE OF ENGLISH (ASKS. 
 
 xm 
 
 PAGE 
 
 Gratitudine, The 69 
 
 Gravenor v. Stevens . . . 170, 190 
 
 Graves v. Legg 323 
 
 Great Western Ry. Co. v. Blower 230 
 
 Green v. Button 709 
 
 v. Royal Exchange Ass. Co. 
 
 6-2, 110 
 
 v. Tribe, Love, In re . . 200 
 
 Greer v. Poole 340 
 
 Gregory *>• Piper 215 
 
 — • v. Williams . . . 693, 701 
 
 Griffith v. Young 435 
 
 Griffiths v. Vere . . . 511, 513, 518 
 Grill v. General Iron Screw Collierv 
 
 Co "219 
 
 Gulliver v. Wickett 505 
 
 Halley, The 340, 542 
 
 Hamilton v. Mendez 112, 58, 89, 
 
 122, 131 
 H'uninack v. White . . 204, 245, 255 
 Hammersmith Ry. Co. v. Brand 
 
 623, 596, 597 
 Hammond v. Schofield .... 181 
 Hand, In re .... 
 Hardcastle v. Howard 
 Harmau v. Tappeudeu 
 Harris v. Baker . . 
 
 v. Carter . . 
 
 v. Watson . . 
 
 Harrison v. Harrison . 
 Harriss v. F.iwcett 
 Harrop v. Hirst . . 
 Hartley v. Cummings 
 Ha.sk ins v. Roysler 
 Hawes v. Birch . . 
 Hawkins v. Gathercole 
 Haylou v. Brown . . 
 Heathcote v. Crookshank 
 Helps v. Hereford . . 
 Hemming v. Pu<jh 
 Henderson v. Eason 
 Henry v. Golduev . 
 Hereford & South Wales 
 & Engineering Co., In l 
 Herbert v. Paget . . 
 Heme v. Hay . 
 Heydon's Case . . 
 Hibbs v. Ross . . . 
 Hickie v. Rodonache . 
 Higginsv. Butcher 
 His^gs v. Maynard . . 
 Highmore v. Primrose 
 Hill v. Managers, &c. 
 
 v. Metropolitan Asvl 
 
 Hills v. Croll . . , 
 Hobart v. Butler . 
 Hobsou t>. Todd 
 Hodsfkinson v. Ennor 241 
 
 449 
 
 324. 
 
 Board 
 
 805 
 381 
 531 
 608 
 371 
 371 
 510 
 691 
 547 
 713 
 720 
 372 
 675 
 561 
 371 
 483 
 423 
 456 
 189 
 
 702 
 609 
 26 
 675 
 327 
 154 
 561 
 207 
 436 
 666 
 30'i 
 724 
 70' 
 
 TAGE 
 
 Hodgson, In re, Beckett v. Rams- 
 dale 170, 180 
 
 v. Ambrose 20 J 
 
 v. Blackiston 49 
 
 Hoffman v. Marshall 40 
 
 Hoggins v. Gordon 702 
 
 I Loldsworth v. \\ ise L8 
 
 Ilolgate v. Shutt 444 
 
 Holmes v .Mather 205 
 
 Hopkinson v. Lee 161 
 
 Huber v. Steiner ...... 543 
 
 Hudson v. Harrison 139 
 
 v. Tabor 288 
 
 Hull & Selby Ry. Co., In re . . 476 
 
 Humberston v. Humberston . . 501 
 
 Humphries v. Cousins .... 270 
 
 Hunt v. Downian 526 
 
 v. Royal Exchange Ass. Co. 
 
 33, 51, 56, 139 
 
 Hunter v. Young 163 
 
 Hiudman v. North E. Ry. Co. . 270 
 
 Hurst v. Us borne 80 
 
 Hutchinson v. Gillespie .... 684 
 
 Hutton v. Harper 334 
 
 Hyde v. Trent, &c Navigation . 232 
 
 Hyman v. Helen 544 
 
 Ibberson v. Neck 401 
 
 Idle y. Royal Exch. Ass. Co. 62,66, 111 
 India (Secretary of State for) v. 
 Shamachree Boye Subaba (Tan- 
 
 jore Case) 825 
 
 Irving v. Manning .... 20, 34 
 
 Iveson v. Moore . . .576, 595, 619 
 
 Jacaud v. French .... 
 Jackson v. Union Marine Insur 
 v. Pesked. . . . 
 
 Jacobs v. Credit Lyonnais 
 J agger v. Jagger .... 
 
 Janson v. Ralh 
 
 Jersey Case 
 
 Johnstone v. Sutton . . 
 Joll v. Lord Curzon . 
 Jones v. Festiniog Ry. Co. 
 
 Co, 
 
 v. Gwynn . . . 
 
 v. St. John's College 
 
 v. Smith .... 
 
 Jull v. Jacobs .... 
 
 263, 
 282 
 
 160 
 
 111 
 
 616 
 
 338 
 
 513 
 
 67 
 793 
 765 
 
 173 
 268, 
 627 
 769 
 346 
 159 
 200 
 
 243 
 
 Kaltenback v. Mackenzie . .41, 130 
 Kearney v. L. B. & S. C Ry. Co. 206 
 
 !> ■ ■ 'ii v. Pearson 346 
 
 •• Rickeringill .... 715 
 Case . 283, 286, 607, 610
 
 XIV 
 
 TABLE OF ENGLISH CASES. 
 
 PAGE 
 
 Keightley v. Watson 16] 
 
 Keith's Case 494 
 
 Kelly v. Walton 138 
 
 Kciii|) v. Halliday 35, 81 
 
 Kendall v. Abbott 201 
 
 Kendall v. Hamilton . . 175, 170 
 Kendall v. London & S. "VV. Rv. 
 
 Go 219, 230 
 
 Kennedy p. Broun . . 789, 438 
 Kensit v. Great Eastern Ry. Co. . 760 
 King v. Denfsou 201 
 
 v. Hoare .... 177, 179, 183 
 
 v. Westwood 609 
 
 Kirk v. Keg. . . . '. . . . 815 
 
 v. Gibbs 347 
 
 Knight v. Faith . S3, 91, 93, 9S, 100 
 Knowles v. Haughton .... 438 
 
 v. Michel 436 
 
 Lade v. Holford 517 
 
 Lainson v. Lainson .... 194 
 Lamb v. Vise 6S9, 693 
 
 p. Walker 556 
 
 Lambe v. Sinvthe 193 
 
 Lambert r. Bessy . . . 240, 24(5, 260 
 Lampleigh v. Brathwaite . . . 799 
 
 Lane v. Cotton 218,817 
 
 v. 609 
 
 Laugridge v. Levy . . 528, 709, 727 
 Langston v. Wetherell . . . . 162 
 
 Lantsbcry v. Collier 517 
 
 Latless v. Holmes 330 
 
 Lavaroni v. Urnry .... 218, 223 
 Law v. Foothill and Rawlins . = 190 
 Lawrence v. G. N. By. Co. . 282, 302 
 
 Lawrie v. Douglas 219 
 
 Laycock v. Pickles .... 425 
 
 Leake v. Robinson 518 
 
 Leatham v. Terry ....... 142 
 
 Leduc v. Ward * 181 
 
 Lee v. Bayes 564 
 
 Levick v. Shafto 159 
 
 Levit v. Staineforth 160 
 
 Levy v. Laugridge . . . • • 709 
 
 v. Merchants Insur. Union Co. 69 
 
 Lewis v. Bucker 25 
 
 Liggins v. Inge 754 
 
 Linwood v. Squire ... . 159 
 
 Liver Alkali Co. v. Johnson 218, 224, 229 
 
 Llovd v. Arehbowle 159 
 
 . — - v, Guibert . 219, 222, 342, 345 
 Lloyds p. Harper . . . 686, 701 
 
 Loddington v. Kime 501 
 
 London Association of Shipowners, 
 
 &c. v. London, &c. Docks, Joint 
 Committee 571, 598 
 
 London B. & S. C. Ry. Co. v. 
 Truman 305 
 
 London & N. W. Ry. Co. p. Bradley 635 
 
 London & Tilbury Ry. Co. v. Trustees 
 of Gower's Walk Schools . . . 663 
 
 Long v. Blaekall 505 
 
 Longden v. Simson . . . 511, 513 
 Lonsdale (Karl of) v. Nelson 
 Love, In re, Green v. Tribe . 
 
 v. Wyndhain . . 
 
 Lovelace v. Cocket 
 Lubbock *• Inglis . 
 Lumley v. G-ye 706 
 
 Lundey c. ^\ agner 
 Lyme Regis (Mayor) o. 
 
 Lynch v. Kuiglit . . 
 Lynn (Mayor) v. Turner 
 Lvon r. Fishmongers Co 
 — v. Mel Is . . 
 
 Zemin 
 
 M. Moxham (The) . 
 M' Andrews v. Vaughan 
 Macbeatli v. Haldimand 
 
 McCarthy v. Abel . 122 
 McCombie r. Davies . 
 McCoy v. Danbey . . 
 McDonald v. Bryce . 
 MeGowan v. Middleton 
 McHenry v. Lewis 
 Mclver v. Henderson 
 McMahon v. Burchell 
 McMauus v. Bark . . 
 McMasters v. Slioolbred 
 Madias Ry. Co. 
 
 Carvatenagarum 
 Madrazo v. Willes . . 
 Magdalen College Case 
 Mangone v. Douglas . 
 Manning o. Newnham 
 Marpesia (The) . . 
 Marsack v Webber . 
 Marsh v. Keating . . 
 Marshall v. Holloway . 
 
 v. Parkes 
 
 v. York, &c 
 
 Martin v. Crockett, 
 Marzetti v. Williams 
 Mason p. Hill . . 
 Sainsbury 
 
 H.v 
 
 Mawman v. Gillet 
 Max p Roberts . . 
 May, Li re .... 
 v. Burdett . . 
 
 p. Taylor . 
 
 Maybury p. Mudie 
 Medeiror p. Hill . . 
 Melhada v. Porto Alegre 
 Mellish v. Andrews . 
 Mellor v. Spateman . 
 Mentone v. Athawas . 
 Merle (The) . . . 
 
 , 618 
 
 , 200 
 
 ... 501 
 
 • . . 372 
 
 ... 174 
 
 719, 722, 724, 
 
 727. 728 
 
 . 70?. 7 24 
 
 Henley 601, 
 
 621 
 
 . . . 722 
 
 607, 609, 617 
 
 . 760 
 
 , 224 
 
 , 142 
 
 Co. 
 
 Ry. C 
 
 151, 
 
 543 
 52 
 816 
 153 
 . 174 
 . 263 
 . 513 
 . 559 
 
 189, 543 
 . 18 
 . 452 
 . 371 
 . 128 
 of 
 
 263, 271 
 . 817 
 
 669, 672 
 . 205 
 32, 51 
 . 207 
 . 792 
 . 564 
 . 518 
 . 65 
 . 187 
 . 43 
 . 552 
 
 733, 753 
 . 81 
 . 1 59 
 . 173 
 . 791 
 
 251, 262 
 . 158 
 . 193 
 . 340 
 
 o. . 701 
 
 , 65, 138 
 . 549 
 . 347 
 . 310
 
 TABLE OF ENGLISH CASES. 
 
 XV 
 
 PAGE 
 
 Mersey Dock Trus. v. Gibbs . . 620 
 Metrop. Bd. of Works v. McCarthy 596, 
 
 597 
 Midland Iusur. Co-, v. Smith . . 565 
 
 Miller ». Woodlall 153 
 
 .Miner v. Gilmoiir 734 
 
 Mingay v. Hammond 792 
 
 Mitchell v. Darley Main Colliery Co. 557 
 Mitchell v. Edie . 132, 49, 63, 83 
 Mitchell v. Sultan of Johore 817, 818 
 Mitchell v. Tarbutt . 183,187 
 
 Mogul Steamship Co. v. McGregor 727 
 Monev v. Leach . . . . . . 817 
 
 More*. Hill 800 
 
 Morris v. Hunt . 791 
 
 Morrison v. Parsons 142 
 
 Morse v. Slue 167, 218, 222, 223, 221. 
 
 229 
 
 Moss v. Smith 31, 34, 79 
 
 Mosfyn v. Fabrigas . . 536, 540, 541 
 Mount v. Harrison .... 66, 111 
 Mountsteplien ??. Brooke . . . 178 
 Mullett v. Shedden . . . 50, 62, 65 
 Munden v. Brunswick (Duke of) . 818 
 
 Munni v. Brotlie 489 
 
 Muuster v. Lamb 787 
 
 Murray v. Flavel, Flavel, /// re. . 701 
 Mussumat Isnam Bandi v. Hurgovind 
 
 Ghose 478 
 
 Mutrie v. Binney .... 189, 514 
 Myers v. Defries 669 
 
 Nabob of the Carnatic v. East India 
 
 Co 824 
 
 Napier, In re 806 
 
 Naylor v. Taylor 17, 129 
 
 Nebraska City v. Campbell . . . 621 
 Nelthorpe v. Dorringtoii .... 157 
 New River Co. v. Johnson . . . 354 
 
 Newman v. Walters 371 
 
 Newton v. Harland 565 
 
 — v. Stewart 193 
 
 Nichols v. Marsland 262, 282, 284, 2SS 
 Nitro Phosphate. &c. Co. v. Lon- 
 don & St. Katerine Docks Co. 276 
 Norfolk's Case (Duke of) . . . 501 
 Norman v. Thompson .... 881 
 North Shore By. Co, v. Pion 661, 760 
 
 Northey v. Strange 504 
 
 Notara v. Henderson . . . . 219 
 
 Nowlan i\ Geddes 171 
 
 Nugent v. Smith 216, 233, 264, 310 
 
 Oakley v. Portsmouth & Byde Steam 
 
 Packet Co. 218 
 
 O'Connor v. Spaight 412 
 
 Odell v. Cormack 181 
 
 Ogilvy v. Caledonian Ry. Co. 576, 588, 
 
 596 
 
 O'Neill v. Lucas 
 
 Onlie's Case 
 
 Original Hartlepool Co. v. Gibb 
 
 PAGE 
 
 513 
 
 399 
 619 
 
 Padwick v. Hurst 421 
 
 v. Stanley . . . 421,124 
 
 Paine v. Partridge' 606, 607, 609, 617 
 Palmer v. Hutchinson . . . . 616 
 
 v. Lawson 404 
 
 v. Mallett 101 
 
 Paradiue v. Jane 288, 310, 329. 345, 
 
 Parkes v. G. W. Ry. Co. ... 366 
 Pa dement Beige, The . . . . 818 
 Parmeter ». Todhunter ... 44. 69 
 
 Pairv v. Aberdein 18, 50 
 
 Parsons v. Scott 33, 44 
 
 Pasley v. FrReman 527 
 
 Pastorius r. Fisher 754 
 
 Patterson v. Bicliie . . . . 18, 128 
 
 Peachy v. Rowland 257 
 
 Peacock v. Harris 436 
 
 Peninsular & O. S. N. Co. v. Shand 342 
 Penny & South Eastern Ry. Co., Re 
 
 576, 639 
 
 Peter v. Kendal 609 
 
 Petrie v. Bury 159 
 
 Peruvian Guano Co. v. Bockwoldt 544 
 Peyto's Case ....... 401 
 
 Phelps v. Lvlc 159 
 
 Phillips v. Claggett 158 
 
 v. Evre 542 
 
 — v. Phillips . . . 418, 421, 424 
 
 Pliipps v. Kelynge 515 
 
 Pianciani v. London & S. W. Ry. Co. 
 
 218 
 
 Pickard v. Smith 246 
 
 Pickering v. Barclay 218 
 
 i\ James 530 
 
 Pilkiugton v. Scott 713 
 
 Pilley v. Robinson 1S2 
 
 Pineliou v. Chilcott . . . 436, 800 
 Pindar w, Wadswortli .... 552 
 Pinnel'a Case 368, 370, 374, 390, 
 
 391, 393 
 
 Pixley v. Clark 257 
 
 Planlamour v. Staples .... 134 
 Pole v. Fitzgerald ... 14, 117, 128 
 
 Pollen v. Bridges 565 
 
 Pond i\ King 7 
 
 Popham v. Breainore 607 
 
 Porter v. Lopes 454 
 
 Potter v. Brown 543 
 
 v. Campbell .... 76,86 
 
 Potter v. Rankin 70 
 
 Powell v. Fall 268 
 
 —v. Lay ton .... 166, 187 
 
 Pozzie v. Shipton 187 
 
 Price t'. Ley burn 435
 
 XVI 
 
 TABLE OF ENGLISH CASES. 
 
 PAGE 
 
 Provincial Iusur. Co. of Canada v. 
 
 Leduc 19, 140 
 
 Pryce v. Belcher 530 
 
 Pulbrook v Lawes 4-3/ 
 
 Pullers. Halliday 152 
 
 v. Staiuforth . . . . 19, 151 
 
 Quare Lane v. Cotton .... 812 
 
 Quarman v. Burnett 327 
 
 Queen Dowager's Case, The . . 80S 
 
 Race v Ward 733 
 
 Rajah of Coorg v. East India Co. 823, 826 
 Rajah Salig Ram v. Sec. of State 
 
 for India 826 
 
 Ralli V. Janson 67 
 
 Randall v. Cockran .... 81, 93 
 
 Rankin v Potter 70 
 
 Ratcliffe v. Evans 529 
 
 Rawlins' Case 484, 497 
 
 Rawson v. Johnson 347 
 
 Rawston v. Taylor . . . 736, 748 
 Read and Headman's Case . . 556 
 
 Read v. Bonham . . . . _ • 50, 139 
 
 ■ v Victoria Station & Pimlico 
 
 Rv. Co 354 
 
 Readhead v. Midland Ry. Co. 208, 232 
 Re"-, v. Bradford Canal Navigation 
 
 Co 306 
 
 ij. Eastern Counties Ry. Co. . 578 
 
 v. Commissioners of Sewers 
 
 . »r Essex 271 
 
 Reg. v Commissioners of Treasury 
 
 802 
 Reg. f Commissioners of Treasury 805 
 
 — — v of Woods and 
 
 Forests 807 
 
 v Duchess of Buccleugh . . 607 
 
 v. Leigh 310 
 
 v. Lesley 536, 543 
 
 c Skinner 787 
 
 «. Williams 620 
 
 v. York & North Midland Ry. 
 
 Co ' • 288 
 
 R,ex v. Clark ..... 668, 673 
 
 v. Commissioners of Sewers for 
 
 West Somerset . . 282 310 
 
 v. Commissioners of Treasury 805, 
 
 S10 
 
 v. Cross 619 
 
 v. Hymen .... 668, 673 
 
 v. Inhabitants of Kent . . 606 
 
 v. of Lindsay . 606 
 
 v. Jones 619 
 
 ». Kerrison .... 606,610 
 
 t7. London Docks Co. . 577, 5^8 
 
 v. Malland .... 668,672 
 
 — — v. Mayor of Spool .... 60 
 
 Rex v. Oldsworth 474 
 
 v. Pease . . 299, 627, 635, 639 
 
 v. Russell 619 
 
 17. Stoughton 606 
 
 Rex 17. Yarborough (Lord) . . 458 
 Rex v. Young & Clennie . . . 172 
 Reynolds v. Kennedy . . 771, 777 
 
 v. Pinhowe 37<> 
 
 Rice v. Shute . 170, 173, 174, 179, 1J-6 
 
 Rich 17. Kneeland 223 
 
 Richards & Bartlett's Case 398, 371 
 
 Richards v. Butcher 163 
 
 v. Heather 171 
 
 Roper v. Holland 
 Rosetto v. Gurney 
 Ross v. Fedden 
 
 v. Johnston , 
 
 Ricket v. Metropolitan Ry. Co. 
 
 573, 553, 636 
 
 Ricketts, Lire 806 
 
 Riley v. Home 222 
 
 River "Wear Commissioners v. 
 
 Adamson 308, 2S8 
 
 Roach v. Havncs ' 197 
 
 Robertson v Clarke . . . . 50, 62 
 
 v. Fleming .... 704 
 
 v. Hartopp .... 553 
 
 v. Macdonough . . . 801 
 
 Robinson v. Bland 342 
 
 v. Hardcastle . . . . 502 
 
 Rodonaclu v. Elliot .... 19, 1 
 
 Roe v. Quartley 505 
 
 Rogers v. Head 
 
 , HlO 
 30 34 
 . ^72 
 . 174 
 
 Rosslyn's Trust 513 
 
 Rothes (Countess) v. Kircaldy 
 
 Waterworks Commissioners 351 
 Rouquette v. Overmann . . 340 
 
 Roux y. Salvador 46, 42, 83, 90. 91. 
 
 93, 99 
 
 Rowe v. Pickford 232 
 
 Ruddiman v. Smith 272 
 
 Rughoobur Dval Sahoo v. Kishen 
 
 Pertab Sahe'e 479 
 
 Russell v. Men of Devon . 60S, 609 
 
 Rustomjee v. Meg 816 
 
 Rylands v. Fletcher 235, 262, 2<'>4, 
 275, 2S2, 288, 309 
 
 St Pancras Vestry v. Batterbury 
 
 682 
 
 Sampson v. Hoddinott .... 555 
 
 Santos v. Illidge 536 
 
 Saville 17. Roberts 769 
 
 Scales v. Pickering 366 
 
 Scatter wood v. Edge 501 
 
 Schieffelin v. Harvey 230 
 
 Schinotti t?, Bumsted 530 
 
 Scott v. Godwin . 158, 160, 164, 165 
 
 v. London Dock Co. 
 -tt r. Lord Seymour 
 
 244. 
 533 
 
 255 
 206
 
 TABLE OF ENGLISH CASKS. 
 
 XV] 1 
 
 PAGE 
 
 Scottish Marine Co. of Glasgow v. 
 
 Turner 153,154 
 
 Scratton v. Brown 476 
 
 Seago v. Deane .... 436, S00 
 Sedgworth v. Overend . . . 157 
 
 Senior v. Metrop. Ry. Co. . 579, 589 
 
 Sharpe v. ( Hadstoues 142 
 
 Shawe v. Eelton 64 
 
 Sheehan v G. E. Ry. Co. . . . 163 
 Sheffi sld v. Lord Orrery .... 502 
 Shelley's Case ....... 201 
 
 Sheperd v. Wakeman 709 
 
 Shepherd, l,i re, E.rp. Ball . . . 56 1. 
 
 Sheppard v. Baillie 171 
 
 v. Hills 684 
 
 Sliurv f- Pigott 753 
 
 Sibree v. Tripp .... 371, 390, 394 
 
 Sidney v. Shelley 196 
 
 Sinebriek v. Salmond 347 
 
 Sims v. Bond 159 
 
 Simmons v. Pitt, 513 
 
 Simpkin v. L. & N. W. Ry. Co. . 30 t 
 
 Simp&on v. Thomson 154 
 
 Sirdar Bhagwau Liugh v. Sec. of 
 
 State for India 8-26 
 
 Sjoerds v. Luscombe 345 
 
 SkiniKT v. Gunton 716 
 
 v. Stocks 159 
 
 Slings bv's Case 161 
 
 Smith, In re 806 
 
 >- v. Cunningham .... 519 
 
 (-.Fletcher . . . 269,2^8 
 
 v. Kenrick 241, 246, 258, 269, 
 
 754, 762 
 Smith v. Leveaux . . . 419, 423 
 Smith v. Loud hi & S. W. Ry. Co. 
 
 214,303 
 
 v. Midland Ry. Co. . . 303 
 
 w.Robertson . . . . 17,129 
 
 v. Shepherd 218 
 
 u.Smith 159 
 
 v. Weguelin 81S 
 
 Snow v. Whitehead 271 
 
 Somes v. Sugrue 67 
 
 Sorsbie v. Park 161 
 
 South Eastern Ry. Co. v. Martin 418, 421 
 
 Southcoat v. Stanley 621 
 
 Southampton (Lord) v. Hertford 
 
 (Marquis) 514, 518 
 
 Spence v. Chadwick 345 
 
 Spencer v. Franco 14, 117 
 
 Spiller v. Paris Skating Rink Co. 701 
 
 Splidt v. Bowles 142 
 
 Spratt v. Caledonian Ry. Co. . . 66 1 
 
 Spring's Case 556 
 
 Sree Eckowrie Sing v. Heeraloll Seal 479 
 Steininan v. Magnus .... 397 
 Stephenson, In re, Stephenson v. 
 
 Stephenson 199 
 
 Stephenson v. Hart 174 
 
 PAOF 
 
 Stewart i\ Greenock Marine Insur. 
 
 Co 92, 9S, 152, 154 
 
 Stilk v. My rick 371 
 
 StocKport Ry. Co., In re ... 663 
 
 Stone v. Marsh 563 
 
 Stowell t\ Zouch 46 1 
 
 Sti-atfield v. lialliday 172 
 
 Stringer v. English, &c. Insur. Co. OS, 
 
 79, 83 
 Strousberg v. Republic of Costa Rica 
 
 MS 
 
 Stubbs v. Railway Co 349 
 
 Sturgeon v. Wiugfield .... 496 
 
 Sussex Peerage Case 235 
 
 Sutton v. Clarke . 186, 241, 216, 255 
 Sutton v. Johnstone .... 765 
 Swan v. Western Bank of Scot- 
 land 487. 496 
 
 Swiiilen v. Lord Chelmsford 793, SO] 
 
 v. Swiufeu ?89 
 
 Sykes v. Dixon 713 
 
 Sylvester's Case 188 
 
 Symonds v. Darknoll 168 
 
 Taff Vale Ry. Co v. Nixon . . 406 
 
 Talbot v. Jevers 513 
 
 Tanjore Case, Secretary of State for 
 
 India c. Kamachee Boye Sahaba 825 
 
 Tarleton v. McGawley .... 714 
 
 Taylor v. Neri 714 
 
 Teed v. El worthy 159 
 
 Tenant v. Goldwin 245, 247, 250, 252, 
 
 255, 270 
 
 Tench v. Cheese 513 
 
 Tennent v. Glasgow (Earl) . . . 263 
 
 Tewart v. Lawson 518 
 
 Thelluson v. Sliedden . . . . 126 
 Thellusson v. Woodford . .498 
 
 Thomas v. Birmingham Canal Co. 303 
 
 V. Heatho'rn 371 
 
 v. Reg 815 
 
 v. Sorrell 526 
 
 Thompson v. Rowcrof't .... 142 
 v. Roval Exchange Ass. 
 
 Co. . . 51,57 
 
 Thornelv v. Hebson 129 
 
 Thornhill v. Evans 791 
 
 Thorpe v. Thorpe 387 
 
 Tickell v. Short 430 
 
 Tipping v. St. Helen's Smelting Co. 257 
 
 Tobuitf. Reg "816, 817 
 
 Tomlinson v. Gill .... 6S9, 694 
 
 Topham v. Morecraft 800 
 
 Touehe v. Metropolitan Ry. Ware- 
 housing Co 701 
 
 Townsend's Estate, In re, Townsend 
 
 v. Townsend 200 
 
 Tozer v. Child 530 
 
 Tregonwell v. Sydenham . 195, 199
 
 XV1U 
 
 TABLE OF ENGLISH GASES. 
 
 gauuii v.u. v 
 
 21 S 
 
 
 485 
 
 
 69 
 
 
 200 
 
 C. Rv. Co. 
 
 305 
 
 
 666 
 
 
 214 
 
 
 43 
 
 
 245 
 
 
 526 
 
 
 7'.) 1 
 
 • 
 
 163 
 
 
 818 
 
 
 734 
 
 Trent & Mersey Navigation Co. v. 
 
 Wood . . . 
 Treviban v. Lawrence 
 Trouson v. Dent 
 Truell v. Tyson 
 Truman v. L. B. & S. 
 
 v. Ry. Co. 
 
 Tulf v. Warmnn 
 Tiiuim v. Edwards 
 Turbervil v. Sliamp 
 Turner v. Harting 
 
 v. Phillips . 
 
 Turquand v. Fearon 
 Twvcross v. Dreyfus 
 Tyler v. Wilkinson 
 
 Uhla, The 210 
 
 Underwood v. Robertson . . . 65 
 Uzielbi v. Boston Marine Insur. Co. 69 
 
 Yallance v. Falls 681 
 
 Van Gelder v. Sowerbridge, &c. Soc. 163 
 
 Van Omeron v. Dowick .... 69 
 
 Vaughan v. Tafif Vale Ry. Co. 296, 
 
 263, 282, 627, 635, 639, 662 
 
 Vavasseur v. Krupp 8 IS 
 
 Vernon r. Jeffreys 165 
 
 Vicars v. Wilcocks 721 
 
 Vicary v: Warne 792 
 
 Vick v. Edwards 4S3 
 
 Virgil, The 213 
 
 Virgo, The 207 
 
 Wadsworlh v. Queen of Spain 
 Walker i>. Baird . 
 Wall v. McNainara 
 Wallis v. Hodgson 
 Walter v. Cronin . 
 Walton v. Waterhou.se 
 Warden v. Bailey . 
 Ware v. Polhill ' . 
 Warner p. Irby . 
 Warren v. Matthews 
 Waterfall, Exp. . 
 Watts v. Brooks . 
 Weale v. Lower 
 Weatherall v. Thornburgl 
 Webb, In re .... 
 
 . 817 
 817, 819 
 
 . 768 
 
 . 504 
 
 . 720 
 
 . 347 
 
 . 785 
 
 . 517 
 
 . 191 
 
 . 777 
 
 . 179 
 
 . 438 
 485, 496 
 
 . 513 
 
 . 232 
 
 Wedgwood v. Bailey . . . 
 Welfare v. L. B. & 8. C. Ry. Co. 
 Wells v. Abraham ...... 
 
 v. Watling 
 
 Westbury v. Powell 
 
 West Cumberland Iron, &c. Co. v. 
 
 Kenvou 
 
 Western Counties Ry. Co. v. Wind- 
 sor, &c. Ry. Co 
 
 Westmoreland Green & Blue Slate 
 Co. r. Fielderi 
 
 Wetherell i\ Langston .... 
 
 Whalley v. Lane. & Yorks. Rv- Co. 
 
 Whattoff v. Frisby . . . * . . 
 
 Wheatlev v. Golney 
 
 Whelpdale's Case 
 
 Whiuctrp Pi Hughes 
 
 White v. Gascovne 
 
 v. Spettigue 
 
 Whitehead v. Hughes .... 
 Whitfield v. Iiord de Despencer . 
 
 Wilkinson v. Byers 
 
 Wiiks v. Hungerford Market Co. 
 
 William Lindsay, The .... 
 Williams v. Groncott 
 
 r. Morlaud 
 
 Willoughbv p. Backhouse . . . 
 
 Wilson v. Foster 
 
 V. Newberry ..... 
 
 — v. Royal Exchange Ass. Co. 
 v. Watldelt ... 269. 
 
 Windsor, &c. Ry. Co. v. Reg. and 
 Western Counties Ry. Co. 8 5 
 Wiusmoie r. Greeubank . . 526 
 Winterbottom v. Lord Derby 
 Withers v. North Keut Ry.'Co 
 AVolmcrshaussen, Re . 
 Wood p. AVand .... 
 Woodford r. Thellusson 
 Workman v. Great Northern Rv 
 
 Co 2S3 
 
 Wright v. Howard . . . 734 
 
 555 
 
 207 
 564 
 552 
 549 
 
 269 
 
 337 
 
 685 
 159 
 270 
 434 
 193 
 171 
 319 
 193 
 564 
 162 
 817 
 370 
 
 576, 
 587 
 207 
 241 
 754 
 399 
 129 
 268 
 33 
 
 ,762 
 
 , 817 
 , 708 
 596 
 28S 
 172 
 734 
 498 
 
 ,"288 
 , 753 
 
 Yalding r. Tay 169 
 
 Yates v. Why'te 154 
 
 Youle v. Harbottle 174 
 
 Young v. Rudd 379 
 
 v. Turing . . >. . . 26, 34
 
 TABLE OF AMERICAN CASES. 
 
 VOL. I. 
 
 Abbott v. Broome . . 
 
 o. Mills . . 
 
 Adams i". Barrett . 
 v. Krothinghara 
 
 v. Gillespie 
 
 o. Nichols . . 
 
 Addisou i». Overend . . 
 Adsit v. Brady .... 
 Ahlliauser v. Butler . 
 Albrittiu v. Mayor 
 Aldrich v. Tripp 
 Alexander v. Baltimore Ins. 
 v. Dorsey . . 
 
 Co 
 
 Allaire v. Whitney 
 Allen v. Thomas . . . 
 Almy v. Daniels . . . 
 American Ex. Co. v. Smith 
 Am. Ins. Co. v. Francia . 
 Ames v. Gilman . . . 
 
 v Union R. Co. 
 
 Amory v. Lord . . . 
 Amoskeag M. Co. v. Goodale 
 Anderson v. Baker 
 
 o. Doty . 
 
 ■ v. May . 
 
 ■ v. Milhkin 
 
 Andiug v. Levy 
 
 And over, &c. Turnpike v. Gould 
 
 Anne Arundel Co. v. Duckett 
 
 Anueiy a. De Saussure 
 
 Appleby v. Brown 
 
 Applin v. Van Tassel 
 
 Arnold v. Lyman . 
 
 Atlantic Dock Co. v. 
 
 Atty-Gen. v-. Cohoes Co. 
 
 v. Eau Claire 
 
 v. N. J. R, &T. Co 
 
 v. Williams 
 
 Mayor 
 
 At wood v. Fisk 
 Ayres, ex parte 
 
 Bachelder v. Lovely . . . 
 Backenstass v. Stahler's Admra 
 
 ;i. 
 
 PAGE 
 
 598 
 566 
 479 
 
 201 
 
 U7 
 210 
 164 
 829 
 5 15 
 622 
 622 
 
 45 
 350 
 555 
 70(i 
 455 
 215 
 
 45 
 801 
 728 
 520 
 554 
 531 
 599 
 
 531 
 432 
 685 
 622 
 454 
 432 
 82S 
 706 
 1S8 
 572 
 572 
 573 
 572 
 566 
 827 
 
 497 
 164 
 
 Bacon v. Cobb . . 
 Bagwell v. Babe 
 Bailey v. Hoppin . 
 — — — v. New York 
 Baird v. Katcliff . 
 
 v. Supervisors 
 
 Baker v. Jewell . . 
 Ball v. Slack . . 
 Ballentine v. No. Mo. R. Co. 
 Ballew v. Alexander . . . 
 Baltimore, &c. R. Co. v. Fifth B 
 Church 
 
 ipt 
 
 v. Kemp 
 v. May . 
 v. School Dist 
 *•. Sulphur Spr 
 
 &c. Dist, 
 v. Woodruff 
 
 Bangor House Proprietary v. Hinck- 
 ley 
 
 Bank v. Bonney 
 
 v. Groves 
 
 v. Rollins 
 
 Hank of Rochester v. Monteath 
 
 Harlow v. Myers 
 
 Barnard v. Shirley .... 
 Barnes v. District 
 
 Barry v. Foyles 
 
 Bell c. Adams 
 
 v. Hansley 
 
 v. Layman 
 
 v. Twilight 
 
 Bellinger v. N. Y. Cent. R. Co. 
 
 Bennett v. Ford 
 
 v. Waller 
 
 Benson v. Morrow 
 
 Bentley v. Harris 
 
 Bernier V. Russell .... 
 Bevard v. Hoffman . . • . 
 Bigelow v. Randolph . . . . 
 
 Bird v. Bird 
 
 v. Smith ...... 
 
 Bixby v. Dunlap 
 
 Bizzell v. Booker .... 
 
 ■> 
 49/ 
 ()22 
 801 
 828 
 164 
 479 
 233 
 506 
 
 666 
 174 
 546 
 209 
 ings, 
 23t 
 307 
 
 685 
 546 
 405 
 546 
 173 
 706 
 762 
 622 
 171 
 497 
 210 
 164 
 497 
 665 
 209 
 497 
 479 
 424 
 532 
 532 
 621 
 457 
 391 
 72S 
 209, 216 
 
 I, 
 
 31, 
 
 i,
 
 XX 
 
 TABLE OF AMERICAN CASES. 
 
 Co 
 
 Blackmail v. Webb . . 
 Blakeslee v. Mobile Lis. Co 
 Blauchard v. Baker 
 Bliss v. Greeley 
 Blood v. Blood . . 
 
 v. Harrington 
 
 Bloodgood v. Avers 
 Blymire v. Boistle . 
 Blythe v. Deliver, &c 
 Board v. Hackett . 
 Boardmaii v. Gore . 
 Bobo v. Patton . . 
 Bolianou v. Pope . 
 Boliou v. Bohon 
 Bolivar Mauuf. Co. 
 Mauuf. Co. . . 
 Bonesteel v. Todd . 
 Bonslog v. Garrett 
 Bonsteel v. Vanderbili 
 Bootli v. SpuytenDuyvil 
 Bosley v. Chesapeake lus 
 
 X 
 
 K. 
 
 Boston, &e. R. Co. v. L 1 
 Boston Rubber Co. v 
 
 Wringer Co. . . . 
 Bosion Type Foundry v. 
 Bostwick v. iMenck 
 Boulter v. Hamilton 
 Bourlier v. Maeauley 
 Bowker ?'. Childs . 
 Bowman v. Teall . 
 Bowne v- Joy . . 
 Boyd v. Hitchcock 
 Brackett v. Sears . 
 Bradlie o Maryland I 
 Brewer v. Maurer . 
 
 v- Union Ins Co 
 
 Brick v. Plymouth Co 
 Bright v. Call'inan . 
 Brinley v. Avery . 
 Briston v. Lane 
 Broadbent v. Imperial 
 Brooklyn Bank V. l)e 
 Brooks v. Martin . 
 
 — i v. White . 
 
 Brown v. Collins . 
 
 v. Harris . 
 
 v. Illius 
 
 v. Johnson 
 
 v. Kendall . 
 
 — v. O'Brien 
 
 v. Phillips . 
 
 v. Railroad Co 
 
 — v. Vandyke 
 
 v. Warram 
 
 v, Watson 
 
 Browning v. Springfield 
 Bruen v. Hone . 
 Brumby v. Smith 
 Brunson v. Martin 
 
 1a 
 Peerless 
 
 Spooner 
 
 554, 
 
 ponset 
 
 M.Co. 
 
 o. 36 
 
 190 
 
 Co. . 
 
 -light Co 
 uw . 
 
 . 302, 
 
 208, 209, 
 
 208,' 760, 
 
 431, 
 
 598, 
 
 S02 
 497 
 555 
 761 
 418 
 191 
 761 
 70li 
 233 
 431 
 566 
 351 
 706 
 49/ 
 
 555 
 183 
 431 
 350 
 348 
 , 15, 
 130 
 566 
 
 403 
 191 
 559 
 49/" 
 72s 
 392 
 23:^ 
 546 
 398 
 801 
 
 36 
 706 
 
 20 
 403 
 432 
 190 
 706 
 600 
 400 
 4.S.S 
 398 
 271 
 349 
 763 
 183 
 208 
 7(16 
 497 
 367 
 446 
 173 
 59'.) 
 62-? 
 4 V 
 
 .PAGE 
 
 Buchanan V. Comstock .... 559 
 
 Buel v. Selz 424 
 
 Buffum v. Tilton 190 
 
 Bull v. Bull 391, 403 
 
 Bullard v Raynor 432 
 
 v. Roger Williams Ins. Co. Ill 
 
 Bullock v. Babcock 210 
 
 Bunge v. Koop 391 
 
 Burden v. McElmoyle .... 432 
 
 Burr c. Beers 705 
 
 Burroughs v. Housatonic Ry. Co. b07 
 
 v. Saterlee 761 
 
 Burrows v. Pixley 598 
 
 Burston v. Jackson 497 
 
 Burl v. Brewers', &c. Ins. Co. . 112 
 
 Butt erBeld «. Byron 34S 
 
 Butterworth v. Hoe 828 
 
 Bvbee v. Hageniaii 497 
 
 Cabe v Jameson . . 
 Calnll v. Eastman . . 
 Calking i\ Baldwin 
 Callanan v Gilnian 
 Campbell v. Smith . 
 
 c. Wallace . 
 
 Cannon v. Barris . 
 Canton Cotton Warehouse v 
 Cape Girardeau, &c. R. C 
 
 me.l 
 
 Capen v. Poster . . . 
 Carman v. Railroad Co. . 
 Caroon v. Rogers . 
 Carpenter v. Kent 
 v. Stevens . 
 
 Carr v. Security Ins. Co. 
 
 v. State .... 
 
 Carroll i\ Staten Island R. 
 Carson v. Railroad Co. . 
 Carter v. Bennett . . . 
 
 v. Harrison . . 
 
 Carver v. Coffmau . 
 
 Co 
 
 Case t'. llotchkiss . . . 
 Cassady v. Clarke . . . 
 Castle v. Duryea . . . 
 ( "aughey v. Smith . 
 Central, &c. Co. v. Kent 
 Chahoon v. Ilollenliack . 
 Chambers v. Baldwin . . 
 Chapman v. Atlantic. &c. R 
 
 v. Copeland 
 
 ( 'base v. Silvcrstone . . 
 ( 'hat held v. Wilson . . . 
 Cliaizel v. Bolton . . . 
 Chesapeake Ins. Co. v. Star 
 Cliesley v. King 
 ( ' ieau'o r. Saimlass 
 
 rw , fro. R. Co. v. Hall 
 
 v. Penned 
 
 — v. Sawyer 209 
 
 Pott 
 v. Ki 
 
 760, 
 
 402 
 272 
 685 
 600 
 706 
 165 
 566 
 598 
 
 431 
 531 
 367 
 682 
 446 
 351 
 36 
 827 
 209 
 7 ii3 
 801 
 5X1 
 457 
 4:2 
 348 
 210 
 728 
 20S 
 165 
 72S 
 307 
 554. 
 960 
 763 
 545 
 140 
 761 
 621 
 665 
 307 
 233
 
 TABLE OF AMERICAN CASES. 
 
 XXI 
 
 Child v. Boston .... 
 Childress v. Emory . . . 
 Chope r. Eureka .... 
 Clirisman v. Bruce . . . 
 Chubbuck p. Vernam . . . 
 Cliurcli v. Bedient .... 
 
 v. Frost .... 
 
 Cinciuuati Ins Co. v. Bakewell 
 
 c. Duftiek 
 
 Cit\ of Dayton r. Pease . 
 — ! — Demopoiis v. Webb . 
 
 Emporia v. Soden 
 
 Newcastle p. Runey 
 
 Tiffin v. McCormack 
 
 Claire v Claire 
 
 Clapp v. Pawtucket Inst. 
 Clark v. Abbott .... 
 
 p. Baker • 
 
 v. Basse 
 
 v. Franklin .... 
 
 v. Te unison .... 
 
 v. Warner .... 
 
 Clarkson v. Phoenix Ins. Co. 
 Cleary v. Sohier .... 
 Clendinen p. Black . . . 
 Clinton Bank p. Hart . . 
 Clinton v. Myers .... 
 Coal Co. v. Sanderson . . 
 Coal Creek M. Co. v. Ross . 
 Cobb v. Arundell .... 
 Coffee v. Eastland . . . 164 
 Cogswell o. N. Y.. &c. R. Co. 
 
 349 
 
 349 
 
 17 
 307, 
 
 Cohen v. Charleston F. & M. Ins. 
 
 Co 36, 
 
 Col burn v. Mason 
 
 Cole v. Fisher 
 
 Collard p. Crane 
 
 Collier v. Valentine 
 
 Collins v. Chartiers Valley Gas Co. 
 
 v. Lemasters 
 
 Colt v. Mc.Mechcn 
 
 Colton v. Onderdonk 
 
 Commonwealtli v. Frost .... 
 Condict v. Grand Trunk R. Co. 
 
 Conkey v. Kingman 
 
 Conrad v. Ithaca .... 621, 
 
 Conway p. Reed 
 
 Cook v. City of Burlington . . . 
 
 • v. Darby 
 
 p. Litchfield 
 
 v. McCabe .... 349 
 
 p. Mc( 'lure 
 
 Coombs v. Williams 
 
 Copelin p. Phoenix Ins. Co. . . . 
 
 Corning p. Corning 
 
 Cory v. Silcox 
 
 Cossman v. West 
 
 Covanhovan v. Hart 
 
 Cox t'. Skeen 
 
 I.^i 
 191 
 622 
 531 
 446 
 19 
 559 
 l;;(i 
 155 
 621 
 572 
 761 
 572 
 
 2; 3 
 
 431 
 164 
 398 
 497 
 349 
 350 
 202 
 195 
 2D 
 
 , 350 
 801 
 183 
 763 
 763 
 497 
 431 
 
 , 174 
 665. 
 666 
 
 110 
 457 
 210 
 191 
 231 
 762 
 182 
 233 
 272 
 682 
 231 
 191 
 7^7 
 210 
 479 
 566 
 5 16 
 350 
 479 
 191 
 
 36 
 210 
 554 
 
 45 
 763 
 706 
 
 Coxe v. Gulick . . . 
 ( !raig v. Peo] 1 • 
 
 v. U. S. Ins Co. 
 
 Craighead v. Bank 
 ( Iraue v Waggoner . 
 Crauford v. Tyrrell 
 Creed v. Banmann 
 Creighton v. Evans 
 Croiniueliu v. Coxe 
 Crooker v. Bragg . . 
 Crosby v. Bennett . 
 v. Fitch . . 
 
 454 
 
 553- 
 
 Cross v. Guthery 
 
 p. Moore 
 
 Crossmau v. Universal Rubber Co. 
 
 Culla «' Beadieston 
 
 Cunninghaui v. Railroad Co. 
 Culler v. Bouuey 
 
 Dale v Bartley 
 
 D miel v. Swearengen 
 
 Daniels v. Balleutiue 
 
 v. Hatch . 
 
 v. Keokuk Water \\ 
 
 Dart v. Dart .... 
 Davidson v. Thompson . 
 Davis v. Fuller .... 
 
 v. Willis .... 
 
 Davy v. Hallett . . . 
 Day v. N. Y., &c. R. Co. 
 Deal v Bogue .... 
 De Armond p. Bohu . . 
 Del)lois v. Ocean Ins. Co. 
 Deland v. Hiett . . . 
 Dement v. Rokker. 
 Deming v. Grand Trunk R. 
 Denny v. N. Y. Cent. R. Co 
 De Peau v. Russell . . 
 Dermott v. Jones . 
 Detroit v Blakeby 
 Detroit, &c. R. Co. p. For 
 Dewey v. Alpena School Di 
 Dexter v. Norton . . . 
 
 v. Providence Aqned 
 
 Dickerson v. Talbot . . 
 Dickey p. American Ins. Co 
 v. Ijciuscott . 
 
 Co 
 
 Dill v. White .... 
 Diller v. Brubaker . . . 
 Dist. Township v. Smith . 
 Dodge v. Commissioners 
 Dodson v. Hays . . . 
 Doe p. Dowdall . . . 
 
 v. Penfield . . . 
 
 Dole v. Erskine . . . 
 Donohue v. Woodbury . 
 Dorr v. New Eng. M. Ins. 
 
 v. Union Ins. Co. . 
 
 Doster v. Brown . . 
 
 bes 
 st. 
 
 uct 
 
 Co. 
 
 451 
 
 347 
 
 PAGE 
 
 190 
 
 572 
 20 
 
 4: 12 
 455 
 599 
 18S 
 554 
 59S 
 555 
 685 
 233 
 566 
 432 
 545 
 418 
 827 
 208 
 
 202 
 728 
 215 
 391 
 666 
 497 
 456 
 5 5 5 
 174 
 155 
 438 
 161 
 545 
 
 36 
 391 
 165 
 350 
 234 
 
 19 
 347 
 622 
 438 
 347 
 348 
 762 
 497 
 130 
 350 
 18:5 
 
 400 
 348 
 367 
 455 
 496 
 191 
 210 
 402 
 20 
 140 
 350
 
 XX 11 
 
 TABLE OF AMERICAN CASES. 
 
 Doswell v. Buchanan . 
 
 Douglas v. Cliapin . . 
 Douglass v. Phoenix Ins. 
 Dow v. Johnson 
 
 Drake v. Brander . . 
 
 v. White . . 
 
 Draper v. Hitt . . . 
 Dresser v. Dresser 
 
 Driukard v. Ingrain . 
 
 Dudley v. Briggs . . 
 
 v. Mayhew 
 
 Dumont v. Kellogg 
 Dunbar v. Johnson 
 
 Dutilh v. Gatliff . . 
 
 Dygert v. Bradley . . 
 
 Co 
 
 20 
 
 Railro 
 
 ad 
 
 Earl v. Shaw . . 
 Early v. Friend 
 East v. Cain . . . 
 Eastman v. Meredith 
 Eaton v. Boston, &c. 
 Edsall r. Merrill . 
 Elile v. Purdy . . 
 Elliot v. Porter 
 Ellis v. Ellis . . . 
 Ellsworth v. Eogg . 
 Elwell v. Burnside 
 Embree v Hanna . 
 Embry ». Devinney 
 Erwin v. Scot ten . 
 Evans v. Wells . . 
 Eve v. Mosely . . 
 Everts v. Beach 
 Exchange Bank v. Rice 
 
 Fahn ik Reichart . . . 
 Fair i'. Stickney Farm Co. 
 Farmers', &c. Bank v, Polk 
 Farnum v. Peterson . . 
 Fenwick v. Phillips . . 
 Fergusson v. Brent 
 Ferrall v. Bradford . . 
 Ferry v Stephens . 
 Field v. N. Y. Cent. R. Co. 
 Fielder v. Childs . . . 
 Fillew v. Besley . . . 
 Flaherty v. Mo ran . . 
 Fogg v. Nevada, &c. Ry. C 
 
 v. Virgin .... 
 
 Fosdick v. Gooding . . 
 v. Norwich Ins. Co 
 
 454. 
 
 J 5 
 183 
 
 4-97 
 
 173 
 545 
 78S 
 545 
 351 
 392 
 456 
 448 
 728 
 685 
 554 
 432 
 130 
 215 
 
 140 
 45 G 
 193 
 G21 
 GUI 
 457 
 1G5 
 188 
 193 
 392 
 45 G 
 546 
 191 
 183 
 405 
 392 
 455 
 705 
 
 Fossion v. Landry . . . 
 Foster v. Jack .... 
 
 v. Lookout Water Co 
 
 t\ Tucker . . . 
 
 Foulke v. San Diego, &c. R 
 Fowler v. Jenkins . . . 
 v. Smith . . . 
 
 Co 
 
 209 
 
 20S 
 41 S 
 418 
 497 
 392 
 215 
 182 
 392 
 307 
 455 
 347 
 764 
 599 
 173 
 1G5 
 112 
 598 
 801 
 622 
 566 
 438 
 763 
 39S 
 
 Francis v. Schoellkopf 
 Frazier v. Brown . 
 Freas v. Truitt .... 
 Freeland v. Heron 
 Freeman v. Howell 
 Fugure r. Mut. Soc . 
 Fuller v. Kemp . . . 
 
 v. McCall . . . 
 
 Fulton Ins. Co. v. Goodman 
 
 PAGE 
 
 59S 
 700, 7G2 
 432 
 431 
 431 
 705 
 402 
 141) 
 130 
 
 Gaffney v. Peeler 
 
 Gallagher v. Dodge 
 
 Galveston v. Posnainsky 
 Gal way v. Met. Ry. Co. . . . 
 Gandy v. Chicago, &e. R. Co. . . 
 Gardner v. Columbian Ins. Co. 
 Garland v. Towne .... 208, 
 
 Garr v. Redman 
 
 Gates v. Steele 
 
 Gault v- Humes - 
 
 Gciser v. Kershner 
 
 Geismer v. Lake Shore, &c. R. Co. 
 Georgetown v. Canal Co. 
 Georgetown, Ac. H. Co. v. Doyle . 
 r. Eagles 
 
 Gerow v. Providence, Washington 
 
 Ins. Co 
 
 Gerrish v. Clough 
 
 Gibbes v. Beaufort 
 
 Gibson v. Prestou 
 
 Gilbert, &c. Co. v. Butler . . . 
 
 Gilberl v. Diekerson 
 
 Gilchrist i\ Association . . . . 
 
 Gillert v. Hallett 
 
 Gillespie v. Palmer 
 
 Gillett v. Maynard 
 
 Gilmore v. Carman 
 
 Gihnour v. Ewing 
 
 Gladfelter v. Walker 
 
 Glaessuer v. Anheuser, &c. Ass 'n . 
 Giendon Iron Co. v. Uhler . . . 
 Globe Ins. Co. v. Sherlock . . . 
 Godfrey v. City of Alton. 
 Goetchius v. Matthewson 
 Goldman v. Rosenberg . 
 Gomila v. Hibernia Ins. Co 
 Gordon v. Goodwin . . 
 v. Moore . . 
 
 31 
 
 Gorhani v. Gross . . . 
 Gould v. Hudson R. R. Co. 
 Governor v. McEwen 
 Graven v. Sholl . . • 
 Gray v. Barton .... 
 Green v. Weaver . . . 
 Greene v. Linton . . . 
 Greenleaf v. Francis . . 
 Grider r. Apperson . . 
 Griggs v. Austin . . . 
 Guille v. Swan .... 
 
 760 
 
 497 
 763 
 622 
 448 
 307 
 140 
 274 
 424 
 392 
 209 
 400 
 233 
 572 
 GOO 
 367 
 
 36 
 479 
 622 
 621 
 348 
 164 
 431 
 
 36 
 531 
 438 
 233 
 545 
 554 
 599 
 761 
 
 46 
 479 
 532 
 348 
 
 45 
 164 
 392 
 272 
 664 
 418 
 554 
 392 
 554 
 350 
 , 763 
 190 
 349 
 210
 
 TABLE OF AMERICAN CASKS. 
 
 .Will 
 
 Haas v. Choussard 
 
 liagan v. Campbell 
 
 Hague v. Wheeler . 
 
 Haight v. Badgeley 
 
 Haldem'au v. Bruekhart . . 761. 
 
 Hall v. Carpen . . 
 
 Hallett c Gumston 
 
 r. Pevtoa . 
 
 v. Wylie . 
 
 Halsey i». McCormick 
 Ham o. Ham 
 Ha in by v. Wall . 
 Hamden v. N. H. R. Co 
 Hamilton v. Whitridge 
 Hancock v. Day . . 
 
 v. Yaden . . 
 
 Hand r. Baynes 
 
 v. Kennedy . 
 
 Hannon v. St. Louis Co. 
 Hanson v. McCue 
 Harden v. Campbell . 
 
 v. Cullins . . 
 
 Hare c. Van Deusen . 
 
 Hargrave v. Conroy . 
 
 Harland v. Lilienthal . 
 
 Harley v. Eleventh Ward Bauk 
 
 Harmony v. Bingham . . 348, 
 
 Harris v. Frink 
 
 v. Harris . 
 
 v. Rand 
 
 Harrison v. Close . 
 
 v. Missouri Pac. R. Co. 
 
 Hart v. Fitzgerald 
 
 v. Gregg . . 
 
 Harvey v. Gt. No. R. Co. . 54* 
 Harwick v. Patrick . 
 Haskell v. New Bedford 
 Haskett v. Flint . . 
 Haskms v. Royster . 
 Hatch v. Spofford . . 
 
 v. Vt. Cent. 11. Co 
 
 Hathaway v. Hagau 
 Hause v. Hause 
 Hawkins v. Ball's Adm'r 
 
 ■ v. HolFinan 
 
 v. Long . . . 431, 
 
 Hay v. Cohoes Co. ... 272, 
 
 Hayden v. Merrill .... 455, 
 
 Baynes v. Church . . 
 
 Hays v. Tabor . . . 
 
 Haywood v. Chcstney 
 
 Hazeltine v. Case . . 
 
 Health Dep't. v Purdon 
 
 Hearn v. Kiehl . . . 
 
 Heeg v. Licht . . . 
 
 Helena v. Thompson . 
 
 Henderson v.. Hammond 
 
 Hepburn's Case 
 
 Herbner v. Eagle Ins. Co. 
 
 Hern v. M'Cauffhan 
 
 554 
 
 47!) 
 7<>^ 
 728 
 763 
 705 
 42 1 
 130 
 :350 
 479 
 497 
 45 i 
 600 
 599 
 15 1 
 400 
 350 
 700 
 ('■•J 2 
 762 
 -105 
 1-97 
 559 
 349 
 801 
 446 
 350 
 438 
 438 
 233 
 391 
 350 
 164 
 497 
 546 
 497 
 621 
 705 
 728 
 545 
 605 
 418 
 455 
 348. 
 174 
 432 
 273 
 450 
 348 
 497 
 193 
 621 
 573 
 392 
 272 
 622 
 174 
 560 
 45 
 174 
 
 I lev wood v. Tillson .... 
 
 Higbi e v. Camden & Amboy R. Co 
 
 Hill v. Boston . 
 
 Billiard v. Noyes . . 
 
 lliliiker v. Loop . . 
 
 Hills v. Sommer 
 
 Hinds v. Barton . . 
 
 Hinc c. Houston . 
 
 Hinkle v. Railroad Co. 
 
 Hinkley v. House of Ref 
 
 Hodgdou v. Railroad Co 
 
 1 [offaT v. Dement .... 104, 
 
 Holhs v. Chapman 
 
 Holloway v. Holloway 
 
 llolvoke v. Loud .... 10 
 
 Hooper v. Henry . . 
 
 c. Jellison 
 
 Hopkins v. Richardson 
 
 Horlon v. Cook 
 
 Houck v. Wachter 
 
 Hoifgan i\ Milwaukee, &c. R. Co 
 
 llowk v. Miniiick . 
 
 Howland v. India Ins. C 
 
 v. Marine Ins. Co 
 
 o. Vincent . 
 
 Hub bell v. Gt. West. Ins. Co. 36 
 
 Huff v. McDonald . , 
 
 r. Wat kins . , 
 
 Hulett v. Swift . . , 
 
 Hulme v. Slireve . 
 
 Hummel v. Brown 
 
 Humphries v. Dawson . . 190. 
 
 Hutchings v. Miner , 
 
 Hutchinson v. Brock . 
 
 Hut son c Mayor . 
 
 Hyatt, v, Adams . , 
 
 Hyde v. Louisiana State Ins. Co. 
 
 Hydes v. Joyes 
 
 728 
 
 598 
 021 
 403 
 164 
 K)2 
 20S 
 173 
 403 
 201 
 347 
 431 
 349 
 157 
 173 
 497 
 191 
 438 
 173 
 599 
 761 
 506 
 70 
 30 
 703 
 ,45, 
 155 
 455 
 728 
 20S 
 554 
 191 
 545 
 706 
 190 
 829 
 566 
 36 
 •545 
 
 Ide v. Fassett • 351 
 
 Inhabitants of Deerfield v Arms . 
 
 ■ Milford v. Holbrook 
 
 Insurance Co. r. Fogarty 
 v. Gossler 
 
 Iron Co. v. Uhler 
 Irvine v. Irvine 
 Israel v. Israel . 
 Izard v. Bodine 
 
 455 
 
 479 
 187 
 
 40 
 
 46 
 
 763 
 
 497 
 
 456 
 
 455, 450, 457 
 
 Jackson v. Bush 
 
 v. Henry 
 
 v. Littell 
 
 Jacobs v. Allard 
 
 v. Bull 
 
 Jaffray v. Davis 
 Jeffries r. Aukeny 
 Jenkins i\ Collard 
 
 496 
 190 
 
 497 
 272 
 201 
 391 
 532 
 496
 
 XXIV 
 
 TABLE OF AMERICAN CASES. 
 
 Jenkins v. Fowler ....... 
 
 v. Waldron . . . 531, 
 
 Johannes v. Phenix Ins. Co. 
 Johnson v. Jordan .... 
 
 v. Kichardson . . . 
 
 v. Thirteen Bales of Goods 
 
 v. Toulmiu .... 
 
 v. Walker 
 
 Johnstown Cheese Manuf. Co. 
 
 Veghte 
 
 Jones v. Bullitt .... 391, 
 
 v. Judd 
 
 v. Nelson's Ex'x . . 
 
 v. New Haven . . . 
 
 v. Perkins .... 
 
 v. Pitcher 
 
 v. Ransom .... 
 
 v. Thomas .... 
 
 Joslin v. Car Co 
 
 Julian v. Boston, &c. R. Co. . 
 Jumel v. Marine Ins. Co. . , 
 
 763 
 533 
 706 
 621 
 161 
 191 
 448 
 350 
 
 762 
 
 392 
 349 
 191 
 622 
 392 
 173 
 405 
 706 
 706 
 497 
 20 
 
 Kean v. Connelly . 
 Kelley v Seward . 
 Kendall v. United States 
 Kennard v. Carter 
 Kennedy v. Bait., &c. Ins 
 Kent v. Reynolds . 
 
 v. Watson 
 
 Kimmel v. Bcnna 
 King v. Brown 
 
 v. Coit . . 
 
 Kinnaird v. Standard Oil 
 Kirkman v. Vanlier 
 Klumpke v Baker 
 Knight v. Russ 
 Knott v. Cunningham 
 Knowles v. Kennedy 
 Koek v. Bonitz 
 Kopper v. Dyer 
 Kraut v. Crawford 
 Kromer v. Heim . 
 
 Ladd v. Poster . . 
 Lady Pike, The . 
 Lal.r v. Met. El. R. Co. 
 Lakeman v. Pollard 
 Lamar v. Browne . 
 Langdon v. Roane 
 Lansing v. Smith . 
 — r. Toolan . 
 Billmyer 
 Curtis . 
 
 Co. 
 
 Co 
 
 Lafever v. 
 Lapliam v, 
 Lamed v. Wheeler 
 Lauer v. Bandow 
 Lawrence v. Fox . . 
 Leach v. Beatties . 
 Leavenworth, &c. R. Co 
 
 v. C 
 
 454, 456 
 497 
 828 
 183 
 155 
 392 
 497 
 497 
 43 S 
 191 
 762 
 418 
 497 
 802 
 188 
 496 
 431 
 215 
 479 
 400 
 
 215 
 209 
 665 
 350 
 788 
 445 
 599 
 622 
 418 
 273 
 531 
 183 
 70fi 
 45 !• 
 307 
 
 131 
 
 Leavitt v. Morrow 
 Le Barrpu v. Babcock 
 Lee v. Boardrnari . . 
 
 r. West . . . 
 
 Leopold v. Salkcy 
 Le Page v. McCrea . 
 Lewis v. Flint . . . 
 Lincoln v. Hapgood . 
 Lindsay v. Freeman . 
 Little v. Banks . . 
 
 v. Staabaeh . 
 
 Livezey v. Philadelphia 
 Locke v. White . . 
 Lockwood v. N. Y. & II 
 
 • v. Nye . . 
 
 v. Thome . 
 
 Lofton v. Vogles . 
 Long v. Penu. R. Co. 
 Looby v. West Troy . 
 Lord v. Wheeler . . 
 Losee v. Buchanan 
 Louisiana v. Jumel 
 Louisville, &c. R. Co. v. R 
 Lovingston v. County of St 
 Low v. Kuowlton . 
 
 v. Mumford . 
 
 Lowry r. Hall .... 
 Lund v. New Bedford 
 Lurtoii r. Gilliam . 
 Lybe's Appeal .... 
 Lyman v. Albee . . . 
 
 v. Boston, &c. Ry. 
 
 v. Brown . . . 
 
 19, 
 
 173, 
 
 It. Co. 
 
 '431, 
 
 233, 
 
 318. 
 273. 
 
 chardson 
 
 Clair 
 
 398 
 455 
 130 
 728 
 350 
 39S 
 209 
 531 
 497 
 706 
 554 
 208 
 497 
 479 
 545 
 432 
 566 
 234 
 402 
 349 
 275 
 S2S 
 307 
 479 
 598 
 18S 
 5 15 
 554 
 173 
 761 
 191 
 307 
 190 
 
 273, 
 
 Min. 
 
 705 
 00k 
 
 McAndrcws v. Collerd 
 M'Arthur v. Ladd . . 
 
 v. Sears 
 
 McBride v. Marine Ins. Co 
 McClelland's Ex'r v. West's Adm'r 
 McCombs v. Akron . . . 
 McConoclne v. Sun M. Ins. Co 
 McCord v. Oakland Quicksilver 
 
 • Co 
 
 McCrae v. Hollis .... 
 McCullougli v. Colby . . 
 McCusker v. McEvey . . 
 McDaniels v. Bank of Rutland 
 
 v. Lapham 
 
 McDonald v. City of Newark 
 McGehee v. Hill .... 
 McJilton (\ Love .... 
 McKean v. Reed .... 
 McKenzie v Culbreth . . 
 Macknet v. Macknet . . . 
 McLanahan v. Wyant . . 
 McLean County Coal Co. v. Long 
 McLellan ». Hauford 
 MeNamee v. Withers 
 McPherson v. Cunlilf 
 
 667 
 173 
 233 
 
 20 
 432 
 622 
 
 36 
 
 455 
 4)5 
 559 
 496 
 402 
 402 
 598 
 347 
 545 
 400 
 392 
 201 
 165 
 166 
 802 
 438 
 496
 
 TABLE OF AMERICAN CASES. 
 
 XXV 
 
 McPherson v. McPherson . 445 
 
 Macticr's Adm'rs v. Frith . . . 348 
 Mc Williams v. Nisley .... 496 
 
 Magruder v. Esmay 497 
 
 Mahan v. Brown 763 
 
 Mairs v. Manhattan, &c. Ass'n . 272 
 Manchester, &c. R. Co. v. Concord 
 
 R. Co. . 
 
 Marbury v. Madison 
 
 Marcarilier v. Chesapeake Ins. Co. 
 Marine Ins. Co v. Tucker . . . 
 
 Marsau v. French 
 
 Marsliall v. Delaware Ins. Co. 19. 
 
 v. Jones 
 
 Marston v. Bigelow 
 
 Martin v. Frantz . 
 
 Marvin v. Brooks 
 
 Maryland, &c. Ins. Co. v. Bathurst 
 
 Mason w. Eld red . 
 
 v. Hall . . 
 
 Mathews c. Kelsey 
 Maurice v. Worden 
 Maurer v. Miday . 
 
 Meares v. Town of Wilmington 
 Mechanics' Bank v. Huston 
 Meech v. Ensign . , 
 Melchoir v. McCarty 
 Mellen o. Goldsmith . 
 
 v. Whipple 
 
 Mellon v. Louisiana Ins. Co. . 
 Memphis & Ohio R. Co. v. Hicks 
 Merchants', &c. Co. v. Story . 
 Meredith v. Amdres . 
 Merrifield v. Lombard 
 
 v. Worcester 
 
 Merritt v. Claghorn . 
 
 v. Earle 
 
 v. Richardson 
 
 Williams . 
 
 . N. Y. Cent. R. Co. 
 R. Co. v. Burrows 
 
 Metcalf v 
 
 Michaels v. 
 
 Mich. Cent 
 
 Mickles v. Dillaye . . 
 
 Milhau i>. Sharp . . 
 
 Miller v. Beal . . . 
 
 v. Steam Nav. Co 
 
 Mil liken v. Brown . . 
 Mills v. City of Brooklyn 
 Mills Pub. Co. v. Larrabee 
 Missouri Pac. R. Co. v. Sha 
 Mitchell v. Bunch 
 
 v. Gt. Works, &c. Co 
 
 v. Hawley . 
 
 v. Minis 
 
 v. Wheaton 
 
 v. Woodson 
 
 Moale v. Hollins . 
 Mollie Mohler, The 
 Moncrief v. Ely 
 Monuiu v. Beroujon 
 
 173 
 
 ritt 
 
 402, 
 
 438 
 827 
 45 
 20 
 599 
 44, 
 130 
 164 
 398 
 391 
 418 
 131 
 1S2 
 706 
 600 
 788 
 174 
 622 
 392 
 705 
 432 
 392 
 705 
 140 
 600 
 215 
 457 
 621 
 621 
 20S 
 233 
 202 
 174 
 215 
 215 
 497 
 598 
 801 
 209 
 392 
 622 
 827 
 546 
 545 
 418 
 405 
 566 
 391 
 497 
 183 
 209 
 685 
 445 
 
 PAGE 
 
 Moore t\ Maple 559 
 
 v. Russell 173 
 
 Morgan v. Dibble 215 
 
 v. Dudley 531 
 
 v. Overman Co 706 
 
 Morning Light, The 209 
 
 Morris v. Piatt 215 
 
 Morris, &c. R. Co. v. State . . 307 
 
 Morrison v. Davis 234 
 
 Morton v. Bradley 566 
 
 Muldowney v. Morris, &c. R. Co. 457 
 
 Mullen v. Earle 559 
 
 Mulvy v. Norton 479 
 
 Municipality u. N. O. Cotton Press 479 
 
 Muuroe v- Stickney 554 
 
 Munsou v. New Eng. Ins. Co. . . 20 
 
 Murphy v. Lowell 621 
 
 v. Ramsey . . . 531, 532 
 
 Murray v. Hatch 36 
 
 Nasi) v. Primm ....... 566 
 
 v. Skinner 173 
 
 Nashville, &c. R. Co. v. David . 234 
 
 Neal v, Handley 391 
 
 Nebraska City v. Campbell . . . 621 
 
 Nebraska v. Iowa 479 
 
 Nelson v. Odiorne 350 
 
 Nelson's Heirs v. Clay's Heirs . . 455 
 
 Nesbit v. St. Patrick's Church . . 418 
 
 New Albany, &c. R. Co. v. Peterson 761 
 Newark Aqueduct Board v. City of 
 
 Passaic 572 
 
 New Brunswick, &c. Co. v. Tiers . 215 
 
 Newell v. Cowan 566 
 
 v. Newton. . . . 191,545 
 
 New Jersey, The 209 
 
 New Orleans, &c. R. Co. v. Hurst 174 
 
 Nicholls v. Scott 801 
 
 Nitro-Glycerine Case 208 
 
 Nixon v. Carco 497 
 
 Noice v. Brown 728 
 
 Norcross v. Thorns 598 
 
 North Bank v. Brown .... 545 
 
 Nourse v. Prime 445 
 
 Nowlan v. Griffin 566 
 
 Oakley v. Morion .... 
 O'Bauuon v. Paremour . . 
 Oberndorf v. Union Bank . 
 Ocean Ins. Co. v. Francis . 
 Ohio, &c. Co. v. Lackey . . 
 Olivera v. Union Ins. Co. . 
 Oil Co. v. Van Etten . . . 
 Oliver v. Worcester . . . 
 O'Neill v. City of New Orleans 
 O'Reilly v. N. Y., &c. R. Co. 
 Orient Ins. Co. v. Adams 
 On' v, Quimby 
 
 347 
 
 497 
 391 
 20 
 209 
 130 
 431 
 622 
 622 
 545 
 130 
 7ss
 
 XXVI 
 
 TABLE OF AMERICAN CASES. 
 
 Osage City v. Larkin 622 
 
 Ottawa Countv 0. Auditor-General 827 
 
 Packard 0. Taylor . . . . . . 215 
 
 Palmerton v. Huxford .... 402 
 
 Parker v. Griswold 555 
 
 • v. Huntington .... 78 7 
 
 v. Lowell 621 
 
 v. Macomber 350 
 
 Parkersburg v. Brown .... 418 
 
 Parrottw. Wells 209 
 
 Patterson v. D'Auteriue .... 531 
 
 Patton v. Freeman 566 
 
 Paxton v. Boyer 208 
 
 Payne v. Kansas City, &c. R. Co. 209 
 
 Pearce 0. The Thomas Newton . 233 
 
 Pearson v. French 193 
 
 v. Thomason . . . . . 391 
 
 Peck ?'. Carpenter 456 
 
 Peele v. Merchants' Ins. Co. . . 130 
 
 Peiree v. Ocean Ins. Co 45 
 
 Penn. Coal Co. v. Sanderson . . 275 
 
 Pennsylvania R. Co. v. Angell . . 667 
 Pennsylvania v. Wheeling, &c. 
 
 Bridge Co. . 572 
 
 Penrose v. Curren 191 
 
 People v. Booth 572 
 
 v. Dulancy S27 
 
 v. Gold Mining Co. 272, 572 
 
 v. Halsey 828 
 
 v. Hamson 183 
 
 v. Judges 546 
 
 v. Manning 350 
 
 v. Pease 533 
 
 v. Smith ...... 828 
 
 v. Tubbs 350 
 
 v. Vanderbilt 572 
 
 ». Young 6S2 
 
 Percival 0. Hickey 209 
 
 Perkins 0. Augusta Ins. & B. Co. 45 
 
 0. Lockwood .... 392 
 
 Peterson v. Haffner 210 
 
 Pettingill 0. Rideout 566 
 
 Phelps 0. Nowleu .... 761, 763 
 
 0. Pond 520 
 
 Philadelphia t'. Girard .... 520 
 
 Sec. R. Co. 0. Anderson 215 
 
 0. Hendrick- 
 
 s.m . . . 307 
 
 Phillips 0. Pennywit 165 
 
 Pico v. Columbet . . . . 455, 456 
 
 Pierce ?». Jones 392 
 
 v. Lacy 191 
 
 Pike 0. Megoun 531 
 
 Pittsburg 0. Grier 622 
 
 Pittsburgh, &c. R. Co. 0. Hazen . 233 
 Pixlev 0. Clark .... 272, 273 
 
 Plaisted v Boston, &c. Co. . . 233 
 
 Planters' Bank 0. Union Bank . 43S 
 
 Piatt 0. Chicago, &c. R. Co. 
 
 Plimpton 0. Bigelow . 
 Plumleigh v. Dawson 
 Plummer 0. Webb 
 Polack 0. Pioche . . 
 Pollard 0. Shaaffer . 
 Porter 0, Leache . 
 Potter 0. Douglass 
 Powell 0. Pac. R. Co. 
 Powers v. Spear . . 
 Pratt v. Short . . . 
 Preston r. Grant . 
 
 v. Hutchinson 
 
 Price v. Grantz . . 
 
 v. Hartshorn 
 
 Prince 0. Ocean Ins. Co. 
 Print up 0. Mitchell . 
 Prossen i\ Chapman . 
 Providence v. Clapp . 
 Pulliatn 0. Booth . . 
 Pumphrey 0. Mayor: &c. 
 
 Quimby v. Blackey 
 Quvcy 0. Baker 
 
 RadclilY 0. Mayor . 
 RadcliiPs Ex'rs 0. Mayor 
 Ragan 0. McCoy . 
 Rail 0. Potts . . 
 Railroad Co. 0. Church 
 
 v. Halloren 
 
 v. Reeves 
 
 Rand r. Wright . . 
 Randall 0. Johnson . 
 Pandit' <\ Lower . . 
 Ranies v. Walker . . 
 Ranch 0. Dech . . 
 Ravenswood 0. Flemings 
 Rawson 0. Clark . 
 Raynsf'ord v. Phelps . 
 Read 0. Fogg . . . 
 Reardon 0. City and County 
 
 Francisco 
 Reaves 0, Waterman 
 Reeside v. Walker 
 Rehill r. McTague 
 Reid v. Hibbard . . 
 Reinhart 0. Hines . . 
 Remington v. Palmer 
 Reinlian v. Wright 
 Respublica v. Sparhawk 
 Reynolds 0. Cook . . 
 
 — ■ 0. Wilmeth 
 
 Rhea 0. Newport, &c. R. 
 Rice 0. Manley . . 
 Rich 0. Eldredge . . 
 Richardson v. Maine Ins 
 Richmond ?•• Loiifj 
 
 . &c. R. Co. v 
 
 Rickard v. Stanton 
 
 Be 
 
 402, 
 
 598, 
 
 454, 
 
 598 
 546 
 554 
 728 
 233 
 350 
 174 
 403 
 432 
 173 
 438 
 403 
 188 
 599 
 209 
 70 
 418 
 190 
 621 
 431 
 82S 
 
 566 
 497 
 
 622 
 599 
 456 
 531 
 667 
 208 
 234 
 432 
 347 
 497 
 497 
 496 
 572 
 349 
 531 
 497 
 
 of 
 
 San 
 
 Co 
 
 Co 
 
 599 
 233 
 828 
 132 
 
 41 >5 
 431 
 $8 
 402 
 7ss 
 496 
 455 
 600 
 728 
 432 
 20 
 622 
 215 
 438
 
 TABLE OF AMERICAN CASKS. 
 
 XXV11 
 
 Rideout v. Kux . . 
 Ripka v. Sergeant . 
 Rising v. Patterson 
 Roath v. Driscoll . . , 
 Robbins v. Ayres . . 
 Robertson v. Smith . 
 
 o. Wright . 
 
 Robinson v. Chamberlain 
 
 v. Donthit . 
 
 v. Greene . 
 
 v. Smith 
 
 Roche v. Milwaukee Gas Co 
 Rogers v. Union Stone Co. 
 Rose v. Hall .... 
 Ross v. Milne .... 
 
 v. Overton 
 
 Ross m an t\ Townsend 
 Rowe v. Granite Bridge Cor 
 Rutty v. Person 
 Rumsey v. N. Y., &c. R. Co 
 Russell v. Church . . 
 
 v. L.ytle . . . 
 
 • — v. Rogers . 
 
 v. Skipwith . . 
 
 Rust v. Larue .... 
 Rutledge v. Moore . . 
 
 760, 
 
 Sabin v. Vt. Cent. R. Co. . . 
 
 Sage v. Laurain 
 
 St. Louis, &e. R. Co. v. Hopkins 
 Salmon v. Woolton . . . 
 Sample v. Broadwell . 
 Sandback v. Quigley . . . 
 Sanderson v. Perm. Coal Co. 
 Sandford v. Ruckman . . 
 Sargent v. Parsons . . 451, 455, 
 Savage v. Everman . . . 391, 
 
 ■ v. Pleasants .... 20, 
 
 Sawyer v. Davis . . . 
 Scanlan v. Wright . . 
 Schemerhorn v. Jenkins 
 Schermerhorn v. Vanderheyden 
 Schmidt v. United Ins. Co 
 School District v. Dauchv 
 
 v. Neil . 
 
 Schwartz i\ Saunders 
 Schweider ». Long 
 Scoffins v. Grandstaff 
 Scott v. Brown . . . 
 
 v. Guernsey . . . 
 
 Seaman w.'Whitney '. 
 Searles v. Manhattan Ry. Co. 
 Seeley v. Brush 
 Seguin i\ Debon . . . 
 Seifried v. Hays . . . 
 Sessions v. Johnson . . 
 Seton v. Delaware Ins. Co 
 Seward v. Huntington . 
 Seymour v. Minturn . . 
 
 182 
 
 171, 
 
 PAGE 
 
 764 
 
 554 
 392 
 763 
 700 
 173 
 432 
 829 
 49/ 
 202 
 161 
 209 
 705 
 39 1 
 705 
 350 
 705 
 572 
 441) 
 665 
 445 
 400 
 392 
 190 
 801 
 431 
 
 367 
 788 
 209 
 545 
 788 
 191 
 272 
 801 
 457 
 405 
 140 
 307 
 165 
 191 
 705 
 
 20 
 347 
 598 
 349 
 405 
 497 
 154 
 456 
 705 
 209 
 554 
 347 
 599 
 188 
 
 46 
 706 
 391 
 
 Shcehy v. Mandcville 
 Sheldon v. Kibbc . . 
 
 v. Sherman 
 
 Shepard v. Bank . . 
 Sherman 0. Fall River, 
 
 &c. 
 
 Sherwood v. Dist. of Colum 
 
 — v. Hall . . . 
 
 Shiels v. Stark .... 
 Shipley v. Fifty Associates 
 Shrewsbury c. Smith 
 Singleton v. Carroll . . 
 Slatten v. Des Moines R. C 
 Smiley r. Bell .... 
 Smith v. A vis worth . 
 
 v. Black . . . 
 
 v. Bowker . . 
 
 v. Brown . 
 
 v. City of Albany 
 
 v. Cook . . . 
 
 v. Davis . . . 
 
 0. Ue Russy . . 
 
 v Durell . . . 
 
 0. Glens Falls Ins. Co. 
 
 v. Lathrop . . 
 
 v. Lockwood . . 
 
 v. Thompson . . 
 
 v. Van Houteu . 
 
 — v. Western Ry. Co 
 v. Williams 
 
 PAUK 
 
 182 
 188 
 
 208, 273 
 43s! 
 165 
 622 
 728 
 456 
 292 
 273 
 350 
 
 599, 665 
 418 
 559 
 183 
 191 
 392 
 685 
 174 
 801 
 497 
 350 
 432 
 545 
 685 
 448 
 191 
 
 233, 234 
 497 
 554 
 622 
 233 
 36 
 
 Smiths v. MeConathy 
 
 Smoot v. Mayor . . , 
 
 Sinvrl v. Niolon . . . 
 
 Snow v. Union Mut. Mar. Ins. Co 
 
 Southard 0. Hill .... 166, 188 
 
 So. Car. R. Co. v. Moore . . . 598 
 
 Soiithcote v. Stanley . . 
 
 South Pac. R. Co. v. Dufour 
 
 South R. Bank v. Suffolk Bank 
 
 Spalding v. Rosa . . . 
 
 Sparrow v. Kingman . . 
 
 Spigener v. Cooner . . 
 
 Spragins v. Houghton 
 
 State v. Barker . . . 
 
 /'. Burke .... 
 
 v. Carpenter . . . 
 
 Rahwav . . . 
 
 v. Smith 
 
 v. Wo ram . . . 
 
 Steamboat Co. v. R. Co. 
 St sbbins v. Niles . . . 
 Steele c. McTyer's Adm'r 
 Stein v. Burden ... 
 Stenton v. Jerome . . . 
 Stetson v. Faxon . 
 Stevens v. Monges 
 
 v. Railroad Co. . 
 
 Stewart v. Rutland . . 
 
 — v. Southard 
 v. Stone . 
 
 Stiles v. Inman 
 
 431 
 
 621 
 761 
 763 
 350 
 497 
 479 
 531, 532 
 827 
 828 
 572 
 828 
 6S2 
 IT. 1 ; 
 598 
 132 
 233 
 55 ! 
 432 
 598 
 801 
 66 ! 
 600 
 532 
 348 
 174
 
 xxvm 
 
 TABLE OF AMERICAN CASES. 
 
 PAGE 
 
 Stockton v. Frey 402 
 
 Stockwcll v. Hunter 350 
 
 Stodghill o. Chicago, &c R. Co. . 600 
 
 Stone v. Cheshire R. Corp. . . . 367 
 
 v. Stone 438 
 
 Stoney v. M'Neill 173 
 
 Storrs v. City of Utica . . . . G22 
 
 Story v. N. Y. El. R. Co. . . . 665 
 
 Strang v. Holmes 391 
 
 Strome v. Wliitllesey 209 
 
 Struthers v. Dunkirk, &c. Ry. Co. 605 
 
 Stuart v. Sears 415 
 
 Superintendent v. Bennett . . . 347 
 
 Surtell v. Brailsford 191 
 
 Sutton v. Bonnett .... 209, 210 
 
 Suydam v. Barber 1S3 
 
 v. Jenkins 351 
 
 v. Marine Ins. Co. . . . 130 
 
 Swett v. Cutis 272, 702 
 
 Symonds v. Union Ins. Co. ... 20 
 
 Taber v. Cliina Ins. Co. ... 36, 
 Tassey v. Church .... 
 Taylor v. Fickas .... 
 
 v. Hall 
 
 Teasdale v. Charleston Ins. Co 
 
 Tefft o. Munson .... 
 Terry v. Sickles .... 
 
 Tharp v. Tharp 
 
 Thayer v. Boyle .... 
 Thomas v. Rockland Ins. Co. 
 
 v. Stickle .... 
 
 Thompson v. Bostick . 
 
 v. Mississippi, &c. 
 
 Ins 
 
 Co 
 Thurber v. Sprague 
 Thurmond v. Sanders 
 Thwing v. AVashingfon Ins. Co 
 Tillotson v. Kennedy 
 Tinsmau v. Belvidere, &c. R. Co 
 
 Titus v. Weeks 
 
 Todd v. Cochell .... 
 Tomlin v. Dubuque, &c. R. Co 
 Tompkins v. Dudley . . . 
 Town of Burlington v. Schwarzman 
 
 Waltham v. Kemper 
 
 Townes v. Birchett 
 Townsend v. Jeffries' Adm'r 
 Towsley v. Denison . . . 
 
 r. Healey .... 
 
 Trafnall v. Hill 
 
 Trafton v. United States . . 
 Treat v. Stanton .... 
 Trubee v. Alden .... 
 Trust & Loan Co. v. Covert 
 Turner v. Hitchcock . . . 
 Tuttle v. Catlin .... 
 Twitchell v. Shaw .... 
 
 45, 
 
 431 
 
 110 
 431 
 76 1 
 827 
 130, 
 154 
 497 
 432 
 432 
 566 
 45 
 497 
 456 
 
 20 
 405 
 431 
 
 36 
 497 
 667 
 202 
 273 
 664 
 347 
 572 
 622 
 432 
 193 
 432 
 402 
 418 
 183 
 706 
 545 
 497 
 1SS 
 705 
 391 
 
 Uhlman v. N. Y. Life Ins. Co. 
 Uline v. N. Y., &c. R. Co. 
 Union Bank v. Hodges . 
 
 v. Knapp 
 
 Union Pac. R. Co. v. Hall 
 United Soc. v. Underwood 
 United States v. Ames 
 
 v. Black . . 
 
 v. Pac. Railroad 
 
 v. Schurz . . 
 
 Van Alstync v. Dearborn 
 Van Atta v. McKinney . . 
 Van Buskirk v. Roberts . . 
 Vandenburgh v. Truax . 
 Van Duzer t». Howe . . . 
 Van Rensselaer v. Kearney . 
 Varick v. Bodine .... 
 Yarnev v. Conery .... 
 Verrier v. Guillou .... 
 Village of Delhi v. Youmans 
 Mankato v. Willard 
 
 Vincent v. Stinehour . 
 Volkenninc v. De Graaf . 
 
 Wadhams v. Swan . . 
 
 Wadley v. Jones . . . 
 Wadsworth v. Woodford 
 
 Waggoner v. Minter . . 
 
 Ware v. Dudley . . . 
 
 Walker v. Cronin . . . 
 
 v. Osgood . . . 
 
 v. Shepardson 
 
 41S 
 665 
 
 182 
 431 
 
 828 
 188 
 182 
 
 S28 
 788 
 82-^ 
 
 . 191 
 
 . 801 
 
 . 350 
 
 . 210 
 
 . 566 
 
 . 496 
 
 . 191 
 
 . 398 
 
 . 432 
 761, 762 
 
 . 496 
 
 . 208 
 
 . 431 
 
 Co 
 
 Wallace v. McConuell . . 
 Wallenstein v. Columbian Ins. 
 AValsh v. Durkin .... 
 Ward v. Jefferson .... 
 
 v. Johnson .... 
 
 Warner v. McMullin . . . 
 Warren v. Chambers . . . 
 
 v. Skinner .... 
 
 Washburn v. Gilman . . . 
 Watkins v Wassell . . . 
 Watson v. Van Meeter . . 
 Watt v. Conner .... 
 Wattson v. Thibou . . . 
 Weaver v. Devendorf . . . 
 Webb v. Browning . . . 
 
 v. Portland Manuf. Co. 
 
 Webber v. Barry .... 
 Weber v Couch .... 
 Weckerly v. Geyer . . . 
 Weed Sewing M. Co. v. Emerson 
 Weis v. Devlin .... 
 Welch v Durand . . . 
 
 v. Dutton .... 
 
 Welles r. Bailey . . . 
 
 497 
 559 
 164 
 445 
 431 
 728 
 351 
 598 
 546 
 36 
 546 
 622 
 183 
 415 
 479 
 402 
 215 
 497 
 554 
 418 
 559 
 533 
 801 
 5 5 5 
 728 
 391 
 531 
 497 
 348 
 210 
 497 
 479
 
 TABLE OF AMERICAN CASES. 
 
 XXIX 
 
 PAGE 
 
 Wells v. Calnan .... 343,349 
 
 Welsh i7. Village of Rutland . . 621 
 
 Wesson v. Washburn Iron Co. . 599 
 
 West t\ McConnell 545 
 
 v. West. Un. Tel. Co. . . . 706 
 
 Western M. Co. v. Pevtouia C. C. 
 
 Co 497 
 
 Weston v. Dane S27 
 
 Wetlierbee v. Potter 438 
 
 Whealley v. Baugh . . . 760-7(53 
 
 Wli at v. Rice 700 
 
 Wheeler v. Worcester .... 621 
 
 Wheelwright v. Depuyster . . . 164 
 
 Whipple v. Mauuf. Co 555 
 
 Whitaker v. Hawley 350 
 
 While v. Campbell 432 
 
 w. Fort. 566 
 
 v. Franklin Bank .... 438 
 
 t7. Hampton 432 
 
 ■ v. Kuntz 392 
 
 o. Missouri, &c. R. Co. . . 350 
 
 Whifehouse v. Androscoggin R. 
 
 Co 367 
 
 Whitney v. N. Y. Firemen Ins. Co. 155 
 
 v. Peay 43S 
 
 v. Stark 164 
 
 Wiesuer v. Zaun 497 
 
 Wilcox v. Wilcox 456 
 
 Wilkenson v. McDougal .... 35] 
 
 Williams v. Allen 174 
 
 v. Dickinson 566 
 
 v. Esling 554 
 
 y. Grant 233 
 
 ■ v. Gray 496 
 
 v. Mich. Cent. R. Co. . . 208 
 
 Williams v. Sutlon . . . 
 Wilmarlh v, Burt .... 
 Wilson v. Buell .... 
 
 v. City of New Bedford 
 
 v. McCormick . . 
 
 p. McEwan . . . 
 
 Riddle 
 
 Winn v. Rutland .... 
 Winslow v. Slate .... 
 Winton 17. Cornish 
 Wolf v. Am. Ex. Co. . . . 
 Wolfe v. Howes .... 
 AYolke v. Fleming .... 
 Womack v. McQuarry 
 Wood v. Lincoln, &c. Ins. Co. 
 Woodward i?. Washbura 
 Woolever v. Khapp . . . . 
 Worden v. Sharp .... 
 Wrighl v. Clark .... 
 
 Wylie v. Case 
 
 v. Elwood .... 
 
 Yeaton v. Roberts '. . 
 Yelverton v. Conant . 
 Yoho v. McGovern 
 Young v. Adams . . 
 
 ik City Council 
 
 v. Hill • . . 
 
 v. Jones . . 
 
 v. Union Ins. Co 
 
 272 
 
 36 
 454- 
 
 Zabriskie v. Woodruff . . 
 Zettel v. City of West Bend 
 
 PAGB 
 
 18S 
 788 
 ls:i 
 7M) 
 174 
 497 
 418 
 621 
 72^ 
 3: 
 
 2 i :, 
 S50 
 438 
 350 
 
 ;).-) 
 
 28 
 456 
 438 
 210 
 801 
 599 
 
 201 
 545 
 183 
 455 
 622 
 445 
 400 
 140 
 
 801 
 598
 
 RULING CASES. 
 
 ABANDONMENT 
 
 And Total Loss in Marine Insurance. 
 
 Section I. Cases where Abandonment may be made and Total Loss claimed. 
 Section II. Where Abandonment is necessary in order to claim as for a Total 
 
 Loss. 
 Section III. Total Loss without Abandonment. 
 
 Section IV. Criteria of Time in cases of Abandonment and Total Loss. 
 Section V. Effect in transferring Rights. 
 
 Section I. — Cases where Abandonment may be made and 
 Total Loss claimed. 
 
 No. 1. — GOSS v. WITHERS. 
 (k. b. 1758.) 
 
 RULE. 
 
 The capture of a ship by the enemy is a loss of the ship, 
 and entitles the assured, unless his right is divested by 
 recapture, to be paid for a total loss. 
 
 Ship and goods were insured, by separate policies, for a 
 voyage. The ship was taken, and having remained in the 
 hands of the enemy for eight days, was re-captured under 
 such circumstances that the voyage was entirely defeated. 
 The assured on both policies, having given prompt notice 
 of abandonment, were held entitled to recover as for a 
 total loss. 
 
 Goss v. Withers. 
 
 2 Burr 68.3. 
 
 This was a special case, from the sittings in London, upon two 
 actions, on two distinct policies of insurance : one upon a ship, 
 and the other upon the loading.
 
 ABANDONMENT. 
 
 No. 1. — Goss v. Withers. 
 
 The former was an insurance upon the David and Rebecca, at 
 and from Newfoundland, to her port of discharge in Portugal or 
 Spain, without the Streights, or England ; to commence from the 
 time of her beginning to load at Newfoundland, for either of the 
 above-named places ; and it was upon the body, tackle, apparel, 
 ordnance, &c, of the ship ; beginning the adventure at Newfound- 
 land; and to continue during her abode there, and until the said 
 ship, with all her ordnance, tackle, &c, should be arrived at her 
 port of discharge as aforesaid, and until she should have been 
 moored at anchor twenty-fours in safety. It was to be lawful for 
 the ship to touch at and stay in any port whatsoever, without pre- 
 judice to the insurance. The ship was, by agreement, to be valued 
 at the sum subscribed, without further account. And in case of 
 loss or misfortune, it was to be lawful for the assured, their ser- 
 vants, &c, to sue, labor, and travel, for, in, or about the defence, 
 safeguard, and recovery of the ship, or any part thereof, without 
 prejudice to the insurance; to the charges whereof the insurers 
 were to contribute, 2 )r0 fata. The insurance was to be at ten 
 guineas per cent ; and in case of loss to abate £2 per cent. And 
 in case of average-loss not exceeding £5 per cent to allow nothing 
 towards such loss. And if the vessel discharged without the 
 Streights, excepting the Bay of Biscay, two guineas per cent were 
 to be returned ; and if she sailed with convoy, and arrived, two 
 guineas more per cent were to be returned. The plaintiffs declared 
 upon a total loss by capture by the French. 
 
 The policy declared upon in the other action was an insurance 
 upon any kind of lawful goods and merchandises, loaden or to be 
 loaden on board the aforesaid ship; which, for £7 7s., insured £70. 
 And the declaration alleged that divers quantities of fish, and other 
 lawful merchandises to the value of the money insured were put 
 (in board, to be carried from Newfoundland to her port of destina- 
 tion, and so continued (except such as were thrown overboard, as 
 is after-mentioned) till the loss of the ship and goods. The dec- 
 laration then avers that a quarter of the said goods were necessarily 
 thrown overboard, in a storm, to preserve the ship and the rest of 
 the cargo ; after which jetson, the ship and the remainder of the 
 goods were taken by the French. 
 
 There was another count in this declaration for money had and 
 received to the use of the plaintiffs. 
 
 The case states that the ship departed from her proper port, and
 
 SECT. I. — WHERE COMPETENT. 
 
 No. 1. — Goss v. Withers. 
 
 was taken by the French on the 23d of December, 1756 ; and that 
 the master, mates, and all the sailors, except an apprentice and 
 landman, were taken out and carried to France. That the ship 
 remained in the hands of the enemy eight days, and was then 
 retaken by a British privateer, and brought in on the 18th of Jan- 
 uary to Milford Haven; and that immediate notice was given by 
 the assured to the assurers, with an offer to abandon the ship to 
 their care. It was also proved at the trial that before the taking 
 by the enemy a violent storm arose at sea, which first separated 
 the ship from her convoy, and afterwards disabled herself so far 
 as to render her incapable of proceeding on her destined voyage, 
 without going into port to refit. 
 
 It was also proved that part of the cargo was thrown overboard 
 in the storm, and the rest of it was spoiled whilst the ship lay at 
 Milford Haven, after the offer to abandon, and before the ship could 
 be refitted. And the assured proved their interest in the ship and 
 cargo to the value insured. 
 
 Several questions arising upon the trial of the first of the said 
 causes, it was agreed that the jury should bring in their verdict, in 
 both causes, for the plaintiffs, as for a total loss ; subject, however, 
 to the opinion of the court on the following questions, viz. : — 
 
 1st. "Whether this capture of the ship by the enemy was or was 
 not such a loss as that the insurers became liable thereby. 
 
 2dly. Whether under the several circumstances of this case the 
 assured had or had not a right to abandon the ship to the insurers 
 after she was carried into Milford Haven ? 
 
 This case was twice argued, viz., first, on Tuesday, 6th June, 
 1758, by Mr. Morton, pro quer\ and Mr. Serj. Davey, pro clef ; 
 and again, on Friday, 10th November, 1758, by Mr. Norton, pro 
 que?'', and Sir Richard Lloyd, pro def. 
 
 Mr. Morton and Mr. Norton, on behalf of the plaintiffs, argued 
 for the affirmative in both questions. 
 
 They previously distinguished between cases disputed between 
 insurers and insured, and those between owners and recaptors, and 
 observed that this is a mere contract between the parties. 
 
 First point. — This is such a total loss as renders the insurers 
 liable to answer for it. 
 
 They said they would consider (1st) what an insurance is, and 
 (2dly) what a capture by an enemy is. 
 
 1st, The definition of an insurance is in Bynkershoek's Ques- 
 tiones Publici Juris, lib. i. cap. 21.
 
 ABANDONMENT. 
 
 No. 1. — Goss v. Withers. 
 
 2dly. A capture is, when there is no just ground of hope of 
 recovering the ship ; then it becomes the property of the captor. 
 Grotius, L. 3, c. 6, pa. 814, De Jure Belli et Pacis. " Tunc enim 
 desperari incipit recuperatio, &c." 
 
 And the period of time of the detention is another rule ; viz., 
 being twenty-four hours in potestate liostium. Indeed, subsequent 
 writers do not fix it so precisely ; but they are then treating only 
 upon salvage. 1 Bynkershoek, indeed, differs in the premises, Lib. 
 1, c. 4, Qupestiones Juris Publici ; but both agree in the conclu- 
 sion ; for he also puts it upon the despair of the recovery of the 
 ship. And this hope, or despair, must be a reasonable and just 
 one ; not a whimsical and arbitrary fancy or a mere wish. 
 
 This vessel was eight days in possession of the enemy, near a 
 month out of the power of the owners (the insured), and almost all 
 the hands taken out. So that by the terms and intent of the insurance 
 (which must be taken favourably for the insured) this voyage must 
 be taken to have been totally defeated to the insurers ; the adven- 
 ture totally stopt, and consequently the condition broken as 
 between the insurers and the insured. 
 
 And this is different from cases of salvage, where the property is 
 not altered ; but the marine law only determines what shall be 
 paid by the owner for the salvage. 
 
 This is a total loss ; it was so long in possession of the enemy 
 that the sjjes recuperandi was gone. 
 
 Though the ship was not carried into port, nor within the ene- 
 my's fleet, yet it was eight days in possession of the enemy ; and it 
 might have been as many months. And the spes recuperandi 
 would be as absolutely gone as if it had been carried into the ene- 
 my's fleet, out of which it might possibly be immediately retaken. 
 
 Therefore the being carried infra prmsidia of the enemy cannot 
 be the true rule ; but the true and certain rule must, in reason, be 
 where the spes recuperandi is gone. Indeed, the being carried intra 
 prcesidia may, in many cases, be an evidence of this. 
 
 Now upon the state of the present case, all hope of retaking was 
 totally lost and gone. 
 
 However, the principle of this case is not new. For, by com- 
 mon law, the thing taken from the owner in war is gone, unless 
 
 1 Vide 39 G. II. c. 34, p. 572, § 24 (the paving a salvage in proportion to the time 
 Prize Act), which directs " that retaken they were in the possession of the enemy." 
 ships shall be restored to the owners, they
 
 SECT. I. WHERE COMPETED. 
 
 No. 1. — Goss v. Withers. 
 
 the owner makes fresh pursuit ; and the property of the thing 
 so taken in war belongs to the captor. And the common-law 
 rule is, that in a war the captor of a ship has a right to the ship 
 and goods taken, unless the owner makes fresh pursuit ante own- 
 sum solis. 7 E. IV. 14. Vavisour 1 said that it was adjudged in 
 the time of that same king, "q tot <j pi-ist tiel ■meason- des enemies 
 quel avoit prise devant dun Englishc, que il averoit ceo come chose 
 gaigrie en bedel, &c, ct nc/my le roij, nc V admiral, ne le partic a qui 
 le property fuit devant, &c. ; pur ceo q le partic nc vient freshment, 
 mesme le jour q il fuit prise de luy, et ante occasivm solis, et claime 
 ceo." And this determination has never been shaken by any com- 
 mon-law resolution ; it has rather been confirmed and recognized. 
 
 And the determinations of the admiralty courts will not affect this 
 case, for they have determined either upon particular acts of Parlia- 
 ment, or upon the principles of other laws than the common law. 
 
 But this court will follow the determination of the common law. 
 And. the three acts of Parliament made in the present reign 
 (which are all upon this head) are built upon the same principle. 
 The saving-clause in 29 G. II. c. 34; 3 supposes the right of the 
 owner to be extinguished and gone, and that the captor had a 
 right to the thing taken ; otherwise, the Parliament had no right 
 to impose upon the original owners such terms of payment for 
 salvage. The act itself even calls them the former owners ; and it 
 is the bounty of the act to restore to them any part at all. 
 
 No mischief can arise from this construction : many inconven- 
 iences will flow from a contrary one. And courts of law will put 
 liberal constructions upon policies of insurance. 
 
 This principle was recognized by Ld. Ch. J. Lee, in the case 
 reported in 2 Strange, 1250, Denn v. Dicker, where the being car- 
 ried into the enemy's port and detained eight days was esteemed a 
 total loss of the voyage, and the property of the owners gone. 
 
 This is a question only between the insurer and the insured ; 
 and the insurer had undertaken against all sorts of perils for a 
 premium received. And here the voyage was totally lost, and the 
 cargo entirely perished. So that there can be no doubt as to the 
 real justice of this case. 
 
 1 Vavisour was not tlieu a judge, nor Abr. of the case, Finch Tit. Barr. pi. 90, it 
 even a serjeant. is nieff. 
 
 2 This is so in the last edition of the 3 s. '24. 
 Year Books, but is a misprint, and in the
 
 ABANDONMENT. 
 
 No. 1. — Goss v. Withers. 
 
 Second point, — The insured had a right to abandon the ship to 
 the insurers after her coining into Milford Haven. For the prop- 
 erty insured was irrecoverably destroyed. And here was immediate 
 notice given to the insurers of the abandoning of it to them. 
 
 Molloy, Lib. 2, c. 7, p. 278, and Maline's Lex Mercatoria, 111, 
 lay down the rules of abandoning. Maline's Lex Mercatoria, 115, 
 puts it " where there is no probability of putting to sea with the 
 thing insured." 
 
 Now, here the ship was freighted with a perishable commodity 
 (fish from Newfoundland) bound to hot countries (Portugal or 
 Spain) ; was taken, and afterwards re-taken, and brought into Mil- 
 ford Hayen, without sufficient hands of her own, and requiring so 
 much refitment as was impossible to be finished before the cargo 
 would and must be spoiled ; and part of the cargo was thrown 
 overboard, too. To what purpose then should the insured be at the 
 expense of refitting the ship to carry a spoiled and useless cargo. 
 
 Little is to be found in our books about abandoning. The .rule 
 laid down was, " that the insured has a right to abandon to the 
 insurers where there are no hopes of saving the perishable cargo ; 
 provided there be no fraud." 
 
 This ship was in port, the hands all in France, in prison. Besides, 
 here was a total loss, for the costs of salvage exceeded the value of 
 the thing saved. Therefore they had a right to abandon. 
 
 Sir Richard Lloyd and Mr. Serjeant Davey, on behalf of the 
 defendant, argued upon the same two points, but made very differ- 
 ent deductions. 
 
 First. — The insurers could not be liable as for a total loss (though 
 they agreed it was an average loss). 
 
 The capture of the ship was not a total loss ; the property was 
 not divested out of the owners. A mere capture, without being 
 carried infra prcesidia, or some other such circumstance, will not 
 alter the property. The taking out the mariners and putting in 
 the enemy's crew, is not enough to do it. Nor is the detaining it 
 eight days, for it has been holden that nine days will not alter the 
 property. In Lucas's Rep. 77, Assievedo v. Cambridge, the court 
 held this to be very plain, 1 " that the property was not there 
 
 1 They did so. But there is no deter- said, " that Lucas's report of that ease (of 
 
 mi nation of the ease itself in Lucas; lie which he himself had a note) was a psetty 
 
 reports it to be adjourned for further good one."] 
 argument. [N. B. — Mr. Justice Foster
 
 SECT. I. WHERE COMPETENT. 
 
 No. 1. — Goss v. Withers. 
 
 altered by the taking." Yet in that case there was nine clays' pos- 
 session by the enemy. And Dr. Henchman, in arguing for the 
 defendant, said that the question would not have borne a dispute 
 in the Admiralty Court ; for that the law is clear " that not length 
 of time, but the bringing infra prcesidia, is that which divests the 
 property." And he even cited a case of four years' possession not 
 altering the property ; and also a great many other authorities, to 
 prove " that the property is not divested without bringing the ship 
 infra prcesidia" Bynkershoek's Qmestiones Juris Publici, lib. 1, 
 c. 4, is contrary to Grotius's opinion, and says, "that length of time 
 alone is not sufficient to divest the property." Therefore this was 
 only an average loss ; not a total loss, or a divesting of property ; 
 and if so, the insurer cannot be entitled to recover. 
 
 The statute of 29 G. II. c. 34, § 24, directs the ships taken and 
 retaken to be restored to the owners on paying salvage. 
 
 This was an insurance with benefit of salvage ; so that the voy- 
 age was not insured, but only the ship and cargo. 
 
 The distinction is between such insurances as this (with benefit 
 of salvage) and insurances interest or no interest. In the former 
 case no prevention of the voyage can make the insurers liable. 
 
 There are three cases on this head : — 
 
 Pond v. King, H. 21 G. II., B. E. Where the interruption and 
 loss of the voyage was holden to be the thing insured against by 
 that policy ; which was without benefit of salvage, and interest or 
 no interest, and free of average ; and this was holden not to be an 
 average loss, but a total loss, within the terms and extent of that 
 policy. 
 
 Be Paiba v. Ludlow, Tr. 5 G. I., C. B., reported in Comyns, 360. 
 An assumpsit upon a policy whereby the defendant insured the 
 plaintiff, interest or no interest, and merely a wager-policy ; and 
 the ship was taken by a pirate, detained nine days, and then 
 retaken. This was determined for the plaintiff, because had received 
 a damage by the interruption of the voyage. 
 
 Fitzgerald v. Pole, P. 23 G. II. Where the plaintiff's interest was 
 by the policy settled at £1,000 ; and there was benefit of salvage 
 The crew mutinied ; whereby the cruise was totally interrupted 
 and lost. It was holden not to be a total loss, though the voyage 
 was obstructed by a mutiny. 
 
 Here neither the obstruction of the voyage nor tin- loss of the 
 mariners makes it a total loss; and if not, the insurer is not 
 liable.
 
 ABANDONMENT. 
 
 No. 1. — Goss v. Withers. 
 
 Many things may be thrown out of the case as to the first point, 
 the loss of the ship, viz., the cargo being fish ; the tempest ; the 
 saving part of the cargo. 
 
 They denied the principle laid down by their opponents as the 
 rule of the common law to have been ever determined ; on the 
 contrary, there has been a vast variety of opinions about it. Nor 
 indeed can any determination be made on the principles of our 
 municipal laws ; for the question concerns foreigners as well as 
 natives ; and is a question of general law, not of any particular 
 and local law. 
 
 The acts of Parliament that have been mentioned are not built 
 upon the principle that has been assigned ( Vide p. 5, ante) ; but 
 upon right reason, justice, and equity. "Whether this was a total 
 loss or not " must be determined by the laws of war, and by the 
 law of nature, — that is, of right reason. 
 
 The captor has for a time only the possessory right, not the ab- 
 solute right. The right to take is not the personal right of the 
 taker, but the right of the subject of that nation of which he is a 
 subject. So the right of retaking is not personal to the retaker, 
 but national, — to any subject of the retaker's nation. At first 
 each is only possessory ; neither taking nor retaking give an abso- 
 lute property. 
 
 The fresh pursuit must depend upon circumstances; it cannot 
 be confined to any limited exact time (as ante occasum solis). 
 Burlamaqui's Principles of Natural Law, lib. 1, c. 6; lib. 2, c. 7. 
 A fresh pursuit, carried on as soon as may be, will prevent the 
 mere possessory property from becoming an absolute property. 
 Our ships of war and privateers are in a constant state of pursuit ; 
 they cruise in order to retake, as well as to take. 
 
 Indeed there must be a fixed limit of the time of this possessory 
 property becoming absolute ; and this limit is when the right owner 
 may be said to give up his claim, — his spes recuperandi. It is 
 agreed that carrying infra prcesidia merely will not be a sufficient 
 limit; neither can the mere effluxion of time. This fixed limit has 
 never been precisely settled by writers ; therefore the spes recuper- 
 andi is and must be the criterion. 
 
 The question indeed will not be so easily settled, " when this 
 spes recuperandi is gone and when it subsists." But in our seas, 
 where our ships are in a constant state of pursuit, this hope of 
 recovery can never be said to be gone so soon as within eight days,
 
 SECT. I. WHERE COMPETENT. 
 
 No. 1. — Goss v. Withers. 
 
 — especially when, in fact and reality, this ship was actually 
 retaken at the end of eight days. 
 
 The court or a jury are the proper judges of this probability or 
 reasonable hope of recovery. Till that is gone the absolute prop- 
 erty is not vested in the captor. 
 
 The acts of Parliament do not mean to consider the point of 
 property. 
 
 Second point: — The circumstances stated do not entitle the 
 insured to abandon the ship to the insurers. This right to aban- 
 don supposes a total loss. This was only an average loss. 
 
 They disputed the position, " that the insured are to be favored." 
 The words of the policy are calculated to prevent their abandoning. 
 This doctrine of abandoning is a very inconvenient one to insurers. 
 
 As to Molloy and Malines, — almost anything may be proved 
 by citations from them. 1 
 
 The underwriter can never be supposed to insure against these 
 accidental perils in distant ports, but only against the general 
 perils of the existence of the cargo ; the insurance is not upon the 
 beneficial sale of the goods, upon the sanity of them, but only 
 upon the safety of them. 
 
 There are several cases where the ship was totally lost, and there 
 was an end of all claim and right. 
 
 As to insurances upon a cruise, all those cases are cut up by the 
 roots by the case of Fitzgerald v. Pole, which "determined that the 
 object of insurance is the body of the ship, not the cruise." 
 
 Bynkershoek's opinion is, " that there neither is nor can be any 
 general rule laid down for a limit ; but every case must depend 
 upon its own circumstances." 
 
 [Lord Mansfield. He does say so. And he combats the opinion 
 <>f Grotius (supported by many other writers) " that twenty -four 
 hours' cpuiet possession is the fixed rule.] 
 
 There is a common-law case in March, 110, pi. 188, "that the 
 property is not altered unless the ship be brought infra prcesidia 
 of the enemy." 
 
 The counsel for the plaintiff in reply : — 
 
 As to the cases that have been cited, — 
 
 First. The only case which may seem against us is the case 
 
 1 Lord Mansfield spoke extremely well recommended especially as well worth 
 of Bynkershoeck's writings (who was later reading his book of Prizes (Questiones 
 than all the rest, except Cocceius); and Publici Juris).
 
 10 ABANDONMENT. 
 
 No 1. — Goss v. Withers. 
 
 abridged by Viner in vol. 16, pp. 405, 406, tit. Policy of Insurance, 
 letter A, pi. 13, Assievedo v. Cambridge, reported in Lucas 77 
 (called 10 Mod.), "that being nine days in possession of the 
 enemy (without being carried infra prcesidia) does not alter 
 the property." But there was no determination upon that case. 
 Besides, that was upon a policy interest or no interest ; and the 
 voyage was the thing there insured. 
 
 The three cases of Pond v. King, Be Paiba v. Ludlow, and Fitz- 
 gerald v. Pole are no proofs of their point. 
 
 Pond v. King was interest or no interest. And the court gave 
 no opinion about the property ; they founded their judgment on 
 the cruise being insured. 
 
 De Paiba v. Ludlow was an average loss. There was no de- 
 termination upon the property ; for there also the voyage was 
 interrupted. 
 
 Fitzgerald v. Pole was also an insurance of a four-months cruise. 
 So that too was upon the voyage. 1 
 
 The totality of capture depends upon the spes recuperandi, and 
 here was none. The average loss here stipulated for is where the 
 voyage is performed without interruption. 
 
 They do not dispute our principle "of the spes recuperandi being 
 the true criterion." But they say, " Our ships are in constant pur- 
 suit in seas frequented by our men-of-war and privateers." 
 
 Now it is hard to conceive a pursuit without an object, or even 
 a knowledge of any particular ship's being taken. " Fresh pursuit " 
 means the going in quest of that particular individual ship which 
 is taken. 
 
 This rule would carry it much too far, and proves too much ; for 
 if eight days be not sufficient, it might be carried to eight or ten 
 months, or to any indefinite time, so that there would be no limit 
 at all left. This is a question that our courts must determine 
 according to our laws. We only contend for the time of a reason- 
 able hope of recovery, not for a wanton or groundless hope. Now 
 no such reasonable hope can remain after the ship's continuing 
 eight days in possession of the enemy. 
 
 Grotius, in lib. 3, c. 6, p. 285, says: " Sed recentiori jure gen- 
 tium inter Europaeos populos introductum videmus, ut talia capta 
 
 i \ r> — This judgment was for the King; hut the House of Lords reversed 
 plaintiff in B. E., who supposed this to be the judgment, because they thought it dis- 
 the same point with the case of Pond v. tinguishable from Pond v. King.
 
 SHOT. I. — WHERE COMPETENT. 11 
 
 No. 1 . — Goss v. Withers. 
 
 censeantur, ubi per boras viginti quatuor in potestate hostium 
 fuerint." 
 
 Secondly. It has been urged " that tbe insured can in no case 
 abandon." On the contrary, all provincial laws allow the power 
 of abandoning in some cases. 1 
 
 This case falls within the reason of the cases that have been 
 alreadv cited ; and the inconveniences that have been suggested 
 are altogether imaginary. 
 
 Lord Mansfield observed, in general, that a large field of argu- 
 ment had been entered into, and that it would be necessary to 
 consider the law of nations, our own laws and acts of Parliament, 
 and also the law and custom of merchants (which make a part of 
 our laws). Cur. adiris. 
 
 On Thursday, 23d of November, 1758, his Lordship delivered the 
 resolution of the Court, after having first stated the case and ques- 
 tions very particularly. 
 
 Lord Mansfield. It is not necessary to confine what shall be 
 said to the two distinct questions that are stated. 
 
 The general question is, Whether the plaintiffs were, on the 18th 
 of January, 1757, entitled to recover against the insurers as upon 
 a total loss, under an offer " to abandon the ship and cargo to the 
 insurers, for them to make what advantage of salvage they could." 
 (For an offer " to abandon " was then made, and nothing has hap- 
 pened since that time to alter the case.) 
 
 There is one point which, we are all of opinion, is immaterial as 
 between the insurers and the insured; viz., "Whether by this cap- 
 ture the property was or was not transferred to the enemy by the 
 law of nations." That question can happen but in two cases ; 
 namely, (1st) Between the owner and a neutral person who has 
 bought the capture from the enemy ; (2d) Between the owner and 
 recaptor. 
 
 If the ship taken by an enemy escapes from the enemy or is 
 retaken, or if the owner redeems (ransoms) the capture, his prop- 
 erty is thereby revested ; which property in the ship taken was, by 
 the law of nations, obtained by the captor. 
 
 The general proposition of writers upon this subject is, that 
 quae ab hostibus capiuntur, statim capientium fiunt, — which is to 
 
 1 Lord Mansfield. It goes so far hack as the Rhodian law and the laws of 
 Olerou.
 
 12 " ABANDONMENT. 
 
 No. 1. — Gosa v. Withers. 
 
 be understood " when the battle is over." Indeed nothing can be 
 said to be taken till the battle is over ; and the battle is not over 
 till all immediate pursuit has ceased and all hope of recovery is 
 gone. This is the definition of a capture, referred to by our Prize- 
 Act, 29 G. II. c. 34, of a ship taken by the enemy. And accordingly 
 Voet, in his Commentary upon the Pandects, lib. 49, tit. 15, vol. 2, 
 1155, and many authors he refers to, maintain with great strength, 
 per solani occupationem dominium prcedce hostibus acquiri. 
 
 One argument used to prove it is: "That the instant the captor 
 has got possession, no friend, no fellow-soldier, or ally, can take it 
 from him ; because it would be a violation of his property." 
 
 But other writers and states have drawn other lines by arbitrary 
 rules, and partly from policy to prevent too easy dispositions to 
 neutrals, and partly from equity to extend the jus postliminii in 
 favour of the owner. No wonder there is so great incertainty and 
 variety of notions amongst them 1 about fixing a positive boundary 
 by the mere force of reason where the subject-matter is arbitrary, 
 and not the object of reason alone. 2 
 
 Some have said from the Roman law (which was introduced in 
 favour of the liberty and condition of a Roman citizen taken cap- 
 tive), " that the prize must be brought infra pncsidia." But " what 
 custody at sea should be equal to prcesidia at land," is a new fund 
 of dispute, and leaves the matter just where it was. 
 
 The writers whom Grotius follows, and many more who follow 
 him, and some 3 nations, have made twenty-four hours' quiet pos- 
 session by the enemy the criterion. But this, 4 Bynkershoek and 
 other writers whom he follows and several nations absolutely 
 deny. Some have said that the ship must be carried into the 
 enemy's port, condemned there, sail out again, and arrive in a 
 friend's port. All these circumstances are very arbitrary, and 
 therefore this is generally exploded. 
 
 I have taken the trouble to inform myself of the practice of the 
 Court of Admiralty in England before any act of Parliament com- 
 
 1 All the opinions agreed with respect should be the particular time sufficient to 
 
 to the capture of ships that the property vest the property. 
 
 did not vest till the ship taken was brought 2 Possession is sufficient against all 
 
 intra prcesidia, as it seems on the authority persons, except him who hath right; and 
 
 cited in 10 Mod. 79, 80. But if there were in this case no person hath a right, for the 
 
 others who held the length of time mate- original owner, being an enemy, is not to 
 
 rial, yet there was no third opinion ; but lie considered as having any right, 
 the variety of opinions only were either 3 Vide the Ordinances of Louis XIV. 
 
 what should be called presidium, or what 4 Quaest. Jur. Publ. L. 1, c. 4
 
 SECT. I. — WHERE COMPETENT. 13 
 
 No. 1. — Goss v. Withers. 
 
 manded restitution or fixed the rate of salvage, and I have talked 
 with Sir George Lee, who has examined the books of the Court 
 of Admiralty, and informs me that they held the property not 
 changed so as to bar the owner in favour of the vendee or recap- 
 tor till there had been a sentence, of condemnation ; and that in 
 the reign of King Charles II. Sir Richard Floyd (father of the late 
 Sir Nathaniel) gave a solemn judgment upon the point, and decreed 
 restitution of a ship retaken by a privateer after she had been four- 
 teen weeks in the enemy's possession, because she had not been 
 condemned. Another case upon the same principle against a ven- 
 dee is cited at the end of Assievedo v. Cambridge, in 1695 (Lucas, 
 79), after a long possession, two sales, and several voyages. 1 
 
 But whatever rule ought to be followed in favour of the owner 
 against a recaptor or vendee, it can no way affect the case of an 
 insurance between the insurer and insured. (Upon an action 
 against the hundred for a robbery a question might as well be 
 started, " Whether the property of the goods as against the owner 
 was changed by the sale.") 
 
 The ship is lost by the capture, though she be never condemned at 
 all, nor carried into any port or fleet of the enemy, and the insurer 
 must pay the value. If after condemnation the owner recovers or 
 retakes her, the insurer can be in no other condition than if she 
 had been recovered or retaken before condemnation. The reason 
 is plain from the nature of the contract. The insurer runs the risk 
 of the insured and undertakes to indemnify; he must therefore 
 bear the loss actually sustained, and can be liable to no more. 
 So that if after condemnation the owner recovers the ship in her 
 complete condition, but has paid salvage, or been at any expense 
 in getting her back, the insurer must bear the loss so actually 
 sustained. 
 
 1 In that case it is expressly stated ment in the like cases are very remark- 
 
 (p. 77) that before the ship was carried able; in pro?senti pertinere is part of the 
 
 intra prcesidw it was retaken by an Eng- sentence, so that the sentence does not 
 
 lish man-of-war , and it appears that the give a new right, but confirms an old one. 
 
 case was argued entirely on that ground Lad. Molin, 118. Bello res per vim usur- 
 
 for the defendant, and particularly in page pantur quando ad locum totum, &c. 
 79 (the page here referred to), as may Petrinus Bellus, part 3, no 11. Fieri 
 
 appear from the following extracts from potest, that property may be altered by 
 
 that page, viz. : "The law is clear that not possession of a shorter time, et forsan not 
 
 the length of time, but the bringing intra altered dntturnwre possessions 
 prcesidiu into a place of safety is that Consulat. del Mare, cap. 287, lays down 
 
 which divests the property ; " and for that the security of the place into which dedu- 
 
 the case of and Sands, in the late cuntur capta as that which causes the 
 
 war, was cited. The words of the judg- alteration of property.
 
 14 ABANDONMENT. 
 
 No. 1. — Goss v. Withers. 
 
 A capture by a pirate (and in Spain, Venice, and England, the 
 goods go to the captor of the pirate against the owner, as there can 
 be no condemnation to entitle the pirate), or a capture under a com- 
 mission where there is no war, do not change the property ; yet, 
 as between the insurer and insured, they are just upon the same 
 foot as captures by the enemy. 
 
 This point never would have been started in policies upon real 
 interest, because it never could have varied the case (and in this 
 cause the question could not have been material, if the parties had 
 not suffered the cargo to perish while they squabbled who should 
 take it). But wager-policies gave rise to it ; it was necessary to set 
 up a total loss as between third persons for the .purpose of their 
 wager, though in fact the ship was safe, and restored to the 
 owner. 
 
 In the case of Assievedo v. Cambridge, the man-of-war which 
 retook the ship brought her into the port of London, and restored 
 her to the owner upon reasonable redemption (that appears from 
 the special verdict, though not stated in Lucas). And then the 
 owner, not abandoning the ship, could only have come upon the 
 insurers for the redemption, and no question could have arisen 
 upon the change of property. But the policy being interest or no 
 interest, without benefit of salvage, the question arose upon the 
 terms and meaning of the wager. That case was not determined. 
 
 In the case of Spencer v. Franco, before Lord Hardwicke, at 
 Guildhall, 173"., the South Sea ship Prince Frederick had re- 
 turned safe to the port of London with her cargo :■ the wagerers 
 contended " she was totally lost at La Vera Cruz," from this notion 
 of a change of property ; but failed. 
 
 De Paiba v. Ludlow was also a wager-policy , and the property 
 could not be changed, because there was then no war, nor even a 
 declaration of war ; but the court held " that as the ship was once 
 taken in fact, the event had happened, though she was afterwards 
 recovered.'" So in the case of Pond v. King, which was also a 
 wager-policy. 
 
 But in the case of Pole v. Fitzgerald the majority of the judges 
 and the House of Lords (in 1754, by the name of Fitzgerald v. 
 Pole) held " that though the ship might be deemed for a time as 
 lost ; yet, as she was afterwards recovered, the event of a total loss 
 had not finally happened according to the construction of the 
 wager."
 
 SECT. I. — WHERE COMPETENT. 15 
 
 No. 1. — Goss v. Withers. 
 
 These are all the cases where this question has been debated. 
 But this is a policy upon real interest. 
 
 The single question therefore upon which this case turns is, 
 •' Whether the insured had, under all the circumstances, upon the 
 18th of January, 1757, an election to abandon." 
 
 The loss and disability was in its nature total, at the time it 
 happened. During eight days the plaintiff was certainly entitled 
 to be paid by the insurer as for a total loss; and in the case of a 
 recapture the insurer would have stood in his place. The subse- 
 quent recapture is, at best, a saving only of a small part ; half the 
 value must be paid for salvage. The disability to the voyage still 
 continued. The master and mariners were prisoners. The charter- 
 party was dissolved. The freight (except in proportion to the 
 goods saved) was lost. The ship was necessarily brought into an 
 English port. What could be saved might not be worth the 
 expense attending it : (which is proved by the plaintiff's offer to 
 abandon). 
 
 The subsequent title to restitution arising from the recapture, 
 at a great expense, of the ship disabled to pursue her voyage, can- 
 not take away a right vested in the insured at the time of the 
 capture. But because he cannot recover more than he has suffered, 
 he must abandon what may be saved. 
 
 The better opinion of the books : " Sufficit semel extitisse condi- 
 tionem, ad beneficium assecurati, de amissione navis ; etiam quod 
 postea sequeretur recuperatio ; nam per talem recuperationem 
 non poterit prsejudicari assecurato." I cannot find a single book, 
 ancient or modern, which does not say " that in case of the ship 
 being taken, the insured may demand as for a total loss, and aban- 
 don." And what proves the proposition most strongly is, that, by 
 the general law, he may abandon in the case merely of an arrest, or 
 an embargo, by a prince not an enemy. Positive regulations in 
 different countries have fixed a precise time before the insured 
 should be at liberty to abandon in that case. The fixing a precise 
 time proves the general principle. 
 
 Every argument holds stronger in the case of the other policy 
 with regard to the goods. The cargo was in its nature perishable, 
 destined from Newfoundland to Spain or Portugal, and the voyage 
 as absolutely defeated as if the ship had been wrecked, and a third 
 or fourth of the goods saved. 
 
 No capture by the enemy, though condemned, can be so total a
 
 16 ABANDONMENT. 
 
 No. 1. — Goss v. Withers. 
 
 loss as to leave no possibility of a recovery. If the owner himself 
 should retake at any time, he will be entitled; and by the act of 
 Parliament, if an English ship retakes at any time (before condem- 
 nation or after), the owner is entitled to restitution upon stated 
 salvage. This chance does not suspend the demand for a total loss 
 upon the insurer; but justice is done by putting him in the place 
 of the insured, in case of a recapture. 
 
 In questions upon policies, the nature of the contract, as an 
 indemnity and nothing else, is always liberally considered. There 
 might be circumstances under which a capture would be but a 
 small temporary hindrance to the voyage, perhaps none at all, — 
 as if a ship was taken, and in a day or two escaped entire and pur- 
 sued her voyage. There are circumstances under which it would 
 be deemed an average loss ; if a ship taken is immediately ran- 
 somed by the master and pursues her voyage, there the money paid 
 is an average loss. And in all cases the insured may choose " not 
 to abandon." 
 
 In the second part of the "Usage and Customs of the Sea" (a 
 French book translated into English), a treatise is inserted called 
 a " Guidon," where, 1 after mentioning the right to abandon upon a 
 capture, he adds, " or any other such disturbance as defeats the 
 voyage, or makes it not worth while, or worth the freight, to 
 pursue it." 
 
 I know that in late times the privilege of abandoning has been 
 restrained for fear of letting in frauds ; and the merchant cannot 
 elect to turn what, at the time when it happened, was in its nature 
 but an average loss, into a total one by abandoning. But there is 
 no danger of fraud in the present case. The loss was total at the 
 time it happened. It continued total as to the destruction of the 
 voyage. A recovery of anything could be had only upon paying 
 more than half the value (including the costs). What could be 
 saved of the goods might not be worth the freight for so much of 
 the voyage as they had gone when they were taken. The cargo 
 from its nature must have been sold where it was brought in. The 
 loss as to the ship could not be estimated, nor the salvage of half 
 be fixed by a better measure than a sale. In such a case there is 
 no color to say that the insured might not disentangle himself 
 from unprofitable trouble and further expense, and leave the 
 insurer to save what he could. It might as reasonably be argued 
 
 1 G .7, § l
 
 SECT. I. — WHERE COMPETENT. 17 
 
 No. 1. — Goss v. Withers. — Notes. 
 
 that if a ship sunk was weighed up again at a great expense, the 
 crew having perished, the insured could not abandon, nor the 
 insurer be liable, because the body of the ship was saved. 
 
 We are therefore of opinion that the loss was total by the cap- 
 ture ; and the right which the owner had after the voyage was 
 defeated, " to obtain restitution of the ship and cargo, paying great 
 salvage to the recaptor," might be abandoned to the insurers, after 
 she was brought into Milford Haven. 
 
 Let the postea be delivered to the plaintiff in both causes. 
 
 ENGLISH NOTES. 
 
 Insurance on ship "at and from Liverpool to the coast of Africa 
 during the stay and trade there, and from thence to ports of dis- 
 charge, &c.j in West Indies and America." The perils insured against 
 included barratry. While the captain is on shore in Africa, the crew 
 mutiny and take possession of the ship, with intent to carry her to 
 Caj^eene. But the boatswain, to whom they entrust the navigation, 
 sails her to Barbadoes, where she is boarded by a King's ship: the 
 ringleaders are seized and some executed. Government agent, having 
 taken charge of the ship, found it necessary to sell cargo and stores; 
 and on his advice reaching the owners of the ship, they abandon. 
 Subsequently the Government agent, after giving the owners the 
 opportunity of buying the ship, sells her. Decision, by Lord Eldox, 
 that the assured were entitled to abandon and recover as for a total loss. 
 Brown v. Smith, H. L. appeal from Scotland (1813), 1 Dow, 349. 
 
 When, upon intelligence of capture of ship, the assured have given 
 notice of abandonment, and the abandonment is accepted by the 
 underwriters, the assured are entitled to recover as on a total loss, 
 although before action is commenced intelligence has arrived of a 
 recapture having actually occurred before the abandonment. Acceptance 
 may be inferred from a statement by an authorized agent of the 
 underwriters, in regard to the abandonment, to the effect that he is 
 satisfied. Smith v. Robertson, H. L. on appeal from Scotland (1814), 
 2 Dow, 474. Upon this case it is to be observed that there were 
 some expressions of Lord Eldost which suggest a doubt as to the 
 principle of the decision of the King's Bench in England in Bainbridge 
 v. Neilson (No. 9, ])ost) ; namely, that the facts constituting a total loss 
 must exist at the time of the abandonment. The decision in Bain- 
 bridge v. Neilson, however, confirmed as it is by Naylor v. Taylor 
 (K. B. 1829), 9 B. & C. 718, and the authorities there cited, must 
 now be considered as having settled the principle so far as relates to 
 English law. 
 vol. i. — 2
 
 IS ABANDONMENT. 
 
 No. 1. — Goss v. Withers. — Notes. 
 
 Insurance on ship for a voyage. The ship, having sprung a leak, 
 was deserted by the crew bond fide for preservation of their lives. She 
 was found the following day, taken possession of by another crew, and 
 towed into a place of safety. Before news of the latter circumstance 
 reached the owners, they had abandoned. The salvage services and 
 repairs were such as to equal or exceed the value. Held, that the own- 
 ers, who had abandoned immediately on hearing of the ship being a 
 derelict, might recover as for a total loss. Holdworth v. Wise (K.B. 
 1828), 7 B. & C, 794; 6 L. J., K. B. 134. It is to be observed that 
 in the judgment delivered by Bayley, J., some reliance is placed on 
 the circumstance that the abandonment was made before news arrived 
 of the ship's safety. He says (p. 799) : "If at one period of time there 
 was a total loss and an abandonment before news of the vessel's safety 
 had been received, her subsequent return did not entitle the under- 
 writers to say that it was no longer a total loss." This is not the law. 
 It is now clear upon the authorities that if, at the time of the abandon- 
 ment, the circumstances constituting a total loss had been in fact dis- 
 placed, although at the time of the abandonment the news of safety 
 had not arrived, the assured would not be entitled (the abandonment 
 not having been accepted) to recover as on a total loss. Patterson 
 v. Ritchie ; Naylor v. Taylor, sti}>r. fit. But in Holdsworth v. Wise 
 the ship was at no point of time recoverable by the owners except at 
 a cost exceeding her value ; ami the decision on this ground is still 
 an authority. 
 
 Ship insured from Valparaiso to Liverpool was captured by pirates, 
 recaptured by a British war-vessel, and brought back to Valparaiso in 
 charge of a prize-master. On intelligence of these tacts reaching the 
 shipowner together, he gave notice of abandonment, which the under- 
 writers refused to accept. Under the charge of the prize-master the 
 ship sailed from Valparaiso for Liverpool ; and meeting with bad 
 weather put into an intermediate port, where she was unjustifiably 
 sold. Held, that the owners, never having since the capture had the 
 actual possession, or the means of obtaining it. were entitled to recover 
 as for a total loss. Lord CAMPBELL, C. J., said, " The cases referred to 
 I Holdsioorth v. Wise, 1828, 7 B. & C. 794 ; L. J.. K. B. 1.34 ; Parry 
 v. Aberdein, L829, 1'.. & C. 411; 7 L. J.. K. 15. 260 ; Mclver v. Hen- 
 derson, 1810, 4 M. & S. 576) establish the principle that, if once there 
 lias been a total loss by capture, that is construed to be a permanent loss, 
 unless something afterwards occurs by which the assured either has the 
 possession restored, or has the means of obtaining such restoration." 
 Dean v. Hornby (Q. B. 1854), 3 Ell. & Bl. 180. 190; 23 L. J., 
 Q. B. 129. 
 
 As to the inference of acceptance of abandonment, see also Provincial
 
 SECT. I. — WHERE COMPETENT. 19 
 
 No. 1. — Goss v. Withers. — Notes. 
 
 Jus. Co. of Canada v. Leduc, P. C. on appeal from Canada, 1874, 
 L. R. 6 P. C. A].]-. 224; 43 L. J., P. C. 4!) (cited under No 10, 
 
 post) . 
 
 Silk goods of the plaintiff's were insured from Japan to London 
 under a policy which included overland transit through France, and 
 covered the risk (inter alia) of " restraints and detentions of kings. &c." 
 The goods were on their transit through Paris at the time when all 
 traffic was stopped in consequence of the blockade (in 1870) by the 
 German armies. This state of things continued until after notice of 
 abandonment had been given, and 'the action commenced. Held, by 
 the judgment of the Court of Common Pleas, affirmed in the Exchequer 
 Chamber, that the plaintiffs were entitled to recover as on a total loss. 
 Bodonachi v. Elliot (1S73, 1874), L. R. 8 C. P. 049 ; 9 C. P. 518 ; 42 
 L. J., C. P. 247 ; 4:5 L. J., C. P. 518. 
 
 On an insurance effected by the charterer of a ship, where it was 
 -expressly stipulated that the underwriters should pay a total loss in 
 -case the ship should not he allowed by the Russian Government to 
 load a cargo at St. Petersburg on the chartered voyage, it was held 
 that this was a lawful and not a wagering policy, and that, the event 
 having happened, the assured was entitled to claim as on a total loss. 
 Puller v. Staniforth (1809), 11 East, 2,32. 10 R. R. 486. 
 
 AMERICAN NOTES. 
 
 Where a policy provided that no abandonment of the neutral property 
 should take place in case of capture or detention by the British, until condem- 
 nation and production of the court and sentence of condemnation, nor in 
 «ase of capture or detention by any other power, until production of a similar 
 document or satisfactory reasons for its non-production, it was held that the 
 right to abandon for capture was restrained until after condemnation, whether 
 by t lie British or another power. De Peau v. Russell, 1 Brevard (South 
 Carolina), 441 ; 2 Am. Dec. (!7t>. It was also held that there could be no 
 abandonment, if before giving notice thereof, the insured learned that the 
 vessel had been released, and had proceeded on her voyage and arrived in 
 safety at her destination. 
 
 But when the vessel was captured, and the insured notified the insurer 
 and abandoned her during her detention, and the insurer refused to accept, 
 this was held to fix the insurer's liability as for total loss although the vessel 
 was subsequently restored and arrived safely at her destination. The test 
 was the situation at the time of the abandonment. Lee v. Boardman, 3 Mass. 
 238; 3 Am. Dec. 132 ; Marshall v. Delaware Ins. Co.. i Cranch (U. S. Sup. Ct), 
 202. And in New York, in Church v. Bedient, 1 Caines Cases (Ct.of Errors), 21. 
 in 1804, it was held, overruling previous decisions, that a restoration previous 
 to the abandonment, although unknown to the insured, defeats the abandon- 
 ment. Citing the principal case. 
 
 Where the loss by the terms of the policy is payable at a eiven time
 
 20 ABANDONMENT. 
 
 Nos. 2, 3, 4. — Allen v. Sugrue. — Rule. 
 
 after notice, it subsists as for total loss, although during the period of credit 
 it ceased to be total. Munson v. New England Ins. Co., 4 Mass. 88. 
 
 The capture must be actual. Fear of capture and consequent discon- 
 tinuance of the voyage will not justify abandonment. Richardson v. Maine 
 Ins. Co., 6 Mass. 102 ; 4 Am. Dec. 92 (citing Hadkinson v. Robinson, 3 B. & P. 
 :J8S) ; Craig v. United States Ins. Co., 6 Johnson (N. Y.), 226 ; 5 Am. Dec. 222 ; 
 Brewer x. Union Ins. Co., 12 Mass. 169; 7 Am. Dec. 53; Savage v. Pleasants, 
 5 Binney, 403 (Penn.) ; 6 Am. Dec. 124. 
 
 The abandonment, having duly been made, is not prejudiced by subse- 
 quent efforts of the captain to effect a compromise with the captors. J nine I 
 v. Marine Ins. Co., 7 Johnson (1ST. Y.)* 412 ; 5 Am. Dec. 283. 
 
 The right of abandonment is not affected by the supercargo's neglect to 
 put in a claim to the vessel. By Walworth, Chancellor, Ocean. Ins. Co. v. 
 Francis, 2 Wendell (X. Y.), 64 ; 19 Am. Dec. 549. 
 
 The vessel may be abandoned if the difficulty of recovering her is great 
 and the probability small. Thompson v. Mississippi, 8fc. Ins. Co., 2 Louisiana, 
 228 ; 22 Am. Dec. 129, citing the principal case. 
 
 Where a vessel is prevented from entering any port mentioned in her 
 instructions, and compelled to terminate the voyage at a place to which she 
 was ordered by a vessel of war, she may be abandoned. Symonds v. Union 
 Ins. Co., 4 Dallas (U. S. Circ. Ct.), 417 : and so where she is prevented from 
 entering by an embargo, McBride v. Marine Ins. Co., 5 Johnson (X. Y.), 299; 
 or by blockade, Schmidt v. United Ins. Co., 1 Johnson (X. Y.), 249. 
 
 There is a constructive total loss of cargo where it is captured, seized, 
 or detained. Marine Ins. Co. v. Tucker, 3 Cranch (U. S. Sup. Ct.), 357 ; 
 Dorr v. New England M. Ins. Co., 4 Mass. 221 ; Clarlson v. Phoenix Ins. Co., 
 9 Johnson (X. Y.), 1 ; Dutilh v. Gatliff, 4 Dallas (Penn.), 446. 
 
 No. 2. — ALLEN v. SUGRUE. 
 
 (k b. 1828.) 
 
 No 3. — IRVING v. MANNING. 
 
 (h. l. 1848.) 
 
 No. 4. — FARNWORTH v. HYDE. 
 (ex. ch. from c. p. 1866.) 
 
 RULE. 
 
 Where insured ship is so much damaged by a peril in- 
 sured against as to be not worth repairing, which is a 
 question for the jury, it is a total loss ; and the assured 
 may abandon, and recover the value stated in the policy, 
 although it exceeds the estimated repairs.
 
 SECT. I. — WHERE COMPETENT. 21 
 
 No. 2. — Allen v. Sugrue. 
 
 A similar principle applies to a policy on goods, the 
 criterion being whether they can be forwarded to arrive 
 in a merchantable state, and so as to be worth the cost of 
 forwarding them (not including the original freight). 
 
 Allen v. Sugrue. 
 8 B. & C. 561. 
 
 Assumpsit against the secretary of the St. Patrick's Assurance 
 Company on a policy effected by the bankrupt on the ship Ben- 
 son, valued at £2000, for twelve months from the 3d of December, 
 1825, averring a total loss by perils of the sea. The defendants 
 paid money into court to cover an average loss, and pleaded the 
 general issue. At the trial before Bayley, J., at the last Summer 
 assizes for Newcastle-upon-Tyne, it was proved that the policy was 
 duly executed, and that the Benson was afterwards stranded at 
 the entrance of the Hull dock. That it would have cost about 
 .£1450, to repair her, and that when repaired she would not have 
 been worth that sum. For the defendant it was contended, that 
 the plaintiffs could not recover for a total loss ; as in that case they 
 would receive £2000, whereas the cost of repairing the damage 
 done to the ship would not be more than £1450, and that, as suffi- 
 cient was paid into court to recover a loss of £1450, the plaintiffs 
 must be nonsuited. The learned judge reserved the point, and 
 left it to the jury to say whether the ship was worth repairing, and 
 they found that she was not, and a verdict was entered for the 
 plaintiffs for a total loss. In Michaelmas term, 
 
 F. Pollock moved for a rule nisi to enter a nonsuit. The utmost 
 that the assured can claim is an indemnity. If, therefore, the un- 
 derwriters are prepared to pay the amount of repairs necessary, 
 or themselves to undertake the repairs, the assured have no right 
 to take the actual value for the purpose of converting mere damage 
 into a constructive total loss, and then to call upon the under- 
 writers to pay the agreed value in the policy. If the agreed value 
 is to bind the underwriters in ascertaining the amount of the loss if 
 total, it ought equally to bind the assured in estimating whether 
 the loss was total or not. [Lord Tenterdex, C .J. Can there be a 
 different rule in ascertaining whether a loss be total or not in an 
 <»pen policy and a valued policy ?] The rule, if carefully examined, 
 is really the same ; but a constructive total loss is in fact not a
 
 22 ABANDONMENT, 
 
 No. 2. — Allen v. Sugrue. 
 
 total loss. The ship in this case existed in specie, was capable of 
 being repaired, and might, by such repair, have been put into as 
 good or a better condition than she was in before the accident. To 
 call such a state of things a total loss, even though qualified as a 
 constructive total loss, would be an abuse of language, but that it 
 shortly expresses the real state of things, namely, that with refer- 
 ence to the actual value of the vessel it is not worth while to 
 repair. In an open policy, the actual value is the criterion accord- 
 ing to which the underwriter is to pay. In a valued policy, the 
 criterion ought also to be the same, namely, that according to 
 which the underwriter is to pay, that is the agreed value. The 
 effect of allowing the assured to claim as he has in this case is 
 unjust, as it gives him much more than an indemnity for a loss 
 which (by whatever name it be called) is a mere case of damage. 
 Where the loss is in fact total, the underwriter cannot complain 
 of being called on to pay the full agreed value in lieu of the ship 
 which he cannot restore; but where the loss is not in fact total, it 
 is sufficient to put the assured in as good a situation as he would 
 have been in had the loss not occurred. A constructive total loss, 
 as it is called, may arise in various ways, not merely by a ship not 
 being worth repairing, but by certain charges upon her exceeding 
 her actual value. Suppose a case of salvage, the vessel remaining 
 not only as an existing ship, but absolutely uninjured by the cir- 
 cumstances which gave rise to the salvage, could the assured say 
 this is a constructive total loss, — if we w T ere uninsured we should: 
 not pay the salvage, and therefore, we call on you for the total 
 loss ? Or, might not the underwriters say, we will pay you the 
 salvage, and restore you your vessel undamaged, and what more 
 can you require ? There is, besides, this mischief in allowing the 
 assured thus to estimate the loss on a valued policy : that as long 
 as there would be a surplus of the smallest amount after repairing 
 the vessel, the loss is not to be deemed total, but an average loss 
 only, and the assured can claim the repairs only ; but if the repairs 
 required go the least beyond that point, the loss is to be deemed 
 total, and the assured may demand the agreed value. A difference,- 
 therefore, of £~> in the damage, may make a difference of several 
 hundred pounds in the loss. In this case, if the repairs necessary 
 had been only <£1400, the underwriters would have been liable to 
 that only, and might have deducted one-third new for old. lint 
 being £1450 the vessel is not worth repairing, and the under-
 
 SECT. I. — WHERE COMPETENT. 23 
 
 No. 3. — Irving v. Manning. 
 
 writers are called on to pay .£2000. An increase, therefore, of the 
 damage by £50 makes a difference to the underwriters of near 
 .£1000. The fallacy seems to arise from calling this a constructive 
 total loss, which, though a convenient expression, really means a 
 state of things in which the loss is not total. 
 
 Lord Tenterden, C. J. I am of opinion that the question, whether 
 the loss sustained is a partial or total loss, is precisely the same 
 where the value of the ship has been mentioned in the policy, and 
 where that has been left open. If the value has not been men- 
 tioned, it must be ascertained by evidence ; if it has been mentioned, 
 then all further inquiry is unnecessary, as the parties have agreed 
 as to what shall in the event of loss be considered the value. If 
 underwriters find by experience that the practice of entering into 
 valued policies is injurious to them, they may very easily avoid it 
 for the future. Then, was this a total loss ? The jury have found 
 that the ship was so much damaged as not to be worth repairing, 
 or, in other words, that although the materials of the ship remained, 
 tha ship itself did not. That in my mind constitutes a total loss ; 
 and it would be strange if this were otherwise, for the ship ceased 
 to exist for any useful purposes as a ship. A total loss of the ship 
 ought, therefore, to be paid for, and that is the sum agreed upon as 
 the estimated value of the ship, minus the value of the materials 
 saved. 
 
 Bayley, J. I think that the question whether a loss is total or 
 not depends upon the facts of the case, and the nature and extent 
 of the damage done to the ship ; and not upon the nature of the 
 policy effected upon her. Whether that is valued or open cannot 
 alter the nature of the loss. The only difference between them is, 
 that in the one case the assured must prove the value of the thing 
 insured ; in the other he need not. Rule refused. 
 
 Irving v. Manning-. 
 (o c. b. 391.) 
 
 This was an action to recover the amount of a policy of insur- 
 ance on ship. The declaration averred a total loss by perils of 
 the sea. 
 
 The ship was valued in the policy at £17,500, and it appeared 
 by the special verdict that this was not more than the value to 
 the owner of the ship and stores, &c, at the time of effecting the
 
 24 ABANDONMENT. 
 
 No. 3. — Irving v. Manning. 
 
 policy. It further appeared that, after damage caused by the 
 perils of the sea, it would have cost £10,500 to repair the ship, and 
 that she would have been worth £9000 when repaired. 
 
 After argument before the House of Lords, the opinion of the 
 judges was requested upon the question whether in the judgment 
 upon the special verdict the damages ought to be taken on prop- 
 erty valued at £3000 (the proportion of the £17,500 subscribed 
 by the defendant) or at £1500 (the like proportion of the esti- 
 mated amount of the damage sustained). After deliberation, the 
 unanimous opinion of the judges (understood to have been drawn 
 up by Mr. Baron Parke) was delivered by — 
 
 Patteson, J. The question upon which your Lordships desired 
 to have the opinion of Her Majesty's judges, was ; " Whether, in 
 the judgment upon the special verdict in this case, the damages 
 ought to be taken on property valued at £3000, or at £1500.'' 
 
 I am desired by the judges who heard the argument at your 
 Lordships' bar, to give their answer to this question, and to state 
 their opinion, that the plaintiff below was entitled to recover, upon 
 the facts found by the special verdict, the sum of £3000. 
 
 Upon the record, it appears that the action was brought on a 
 policy for £3000 on a ship valued at £17,500. The other facts 
 found by the special verdict show that it was fairly valued at 
 that sum ; and, indeed, it would be assumed that it was so, unless 
 fraud were pleaded and proved : and then it is found that the 
 vessel, during the voyage, was so damaged as to be incompetent to 
 proceed without repairs ; that the necessary expenditure, in order 
 to repair her and make her seaworthy, would have amounted to 
 £10,500, and that the ship would have been then worth £9000 only, 
 which was her marketable value then and at the time of the 
 policy ; that a prudent owner, uninsured, would not have repaired 
 the vessel ; and that she was duly abandoned to the underwriters. 
 
 If this had not been the case of a valued policy, it is clear, that, 
 on the facts found, there was a total loss ; for, a vessel is totally 
 lost, within the meaning of a policy, when it becomes of no use or 
 value, as a ship, to the owner, and is as much so as if the vessel 
 had gone to the bottom of the sea, or had been broken to pieces, 
 and the whole or great part of the fragments had reached the shore 
 as wreck ; and the course has been, in all cases in modern times, to 
 consider the loss as total, where a prudent owner, uninsured, 
 would not have repaired. In an open policy, therefore, the as-
 
 SECT. I. — WHERE COMPETENT. 25 
 
 No. 3. — Irving v. Manning. 
 
 sured would have been entitled to recover for a total loss, the 
 amount to be ascertained by evidence. 
 
 What difference, then, arises from the circumstance that the 
 policy is a valued policy ? 
 
 By the terms of it, " the ship, &c, for so much as concerns the 
 assured, by agreement between the assured and assurers, are, and 
 shall be, rated and valued at £17,500;" and the question turns 
 upon the meaning of these words. Do they, as contended for by 
 the plaintiff in error, amount to an agreement, that, for all pur- 
 poses connected with the voyage, — at least for the purpose of 
 ascertaining whether there is a total loss or not, — the ship shall 
 be taken to be of that value, so that, when a question arises 
 whether it would be worth while to repair, it must be assumed 
 that the vessel would be worth that sum when repaired ? or do 
 they mean only, that, for the purpose of ascertaining the amount 
 of compensation to be paid to the assured, when the loss has hap- 
 pened, the value shall be taken to be the sum fixed, in order to 
 avoid disputes as to the quantum of the assured's interest ? 
 
 We are all of opinion that the latter is the true meaning ; and 
 that this is consistent with the language of the policy, and with 
 every case that has been decided upon valued policies. 
 
 In the case of Letvis v. Mucker, 2 Burr. 1167, on a valued policy 
 on goods, the amount to which the underwriter was held liable 
 for a partial loss, was ascertained by computing such a proportion 
 of the value in the policy as the price for which the damaged 
 goods actually sold, bore to the price for which sound goods would 
 have sold at the port of delivery ; so that, in estimating the 
 extent of the loss, that is, in determining whether it was a loss to 
 the extent of one-half, one-third, or to any other extent, the value 
 in the policy was wholly disregarded, and nothing was considered 
 but the state of the goods as ascertained by their selling prices. 
 If sound goods would have brought double the price of the dam- 
 aged, the loss was one-half, or fifty per cent, whatever the value 
 in the policy might be. But, the extent and nature of the loss 
 being ascertained by this comparison, the underwriter was held 
 liable to pay the proportion, so ascertained, of the value in the 
 policy ; and this mode of treating partial losses on goods is always 
 adhered to. 
 
 Now, the question whether a loss is total or partial, is a ques- 
 tion of the same nature as the question what is the extent of a
 
 26 ABANDONMENT. 
 
 No. 3. — Irving v. Manning. 
 
 partial loss ; and there is the same reason in both cases, for 
 excluding the consideration of the value in the policy from the 
 inquiry as to the extent of the loss, and for treating that value as 
 binding, on the question of how much the subject so totally or 
 partially lost was worth ; so that the mode of determining the 
 question whether the loss was total or not, which lias been adopted 
 in this case, agrees, in so far as it excludes the consideration of 
 the value in the policy, with that in which the inquiry into the 
 extent of a partial loss on goods is always conducted. Such has 
 been the construction put upon valued policies, in the cases which 
 are questioned in this writ of error, — Allen v. Sugrue, Young v. 
 Turing, and Eggington v. Lawson (in 1832), and Heme v. Hay (in 
 1M42), cited by Sir F. Thesiger. These cases have now been consid- 
 ered for many years as having settled the law : they have been the 
 basis on which contracts without number have been framed; and 
 they ought not to be departed from on slight grounds. The principle 
 laid down in these latter cases, is this, — that the question of loss, 
 whether total or not, is to be determined just as if there was no 
 policy at all ; and the established mode of putting the question, 
 when it is alleged that there lias been, what is perhaps improp- 
 erly called, a constructive total loss of a ship, is, to consider 
 the policy altogether out of the question, and to inquire what ;i 
 prudent uninsured owner would have done in the state in which 
 the vessel was placed by the perils insured against. If he would 
 not have repaired the vessel, it is deemed to be lost. 
 
 When this test has been applied, and the nature of the loss has 
 been thus determined, the quantum of compensation is then to be 
 fixed. 
 
 In an open policy, the compensation must then be ascertained by 
 evidence. In a valued policy, the agreed total value is conclusive: 
 each party lias conclusively admitted that this fixed sum shall be 
 that which the assured is entitled to receive, in case of a total loss. 
 
 It is argued that this course of proceeding infringes on the gen- 
 erally received rule, that an insurance is a mere contract of indem- 
 nity ; for thus the assured may obtain more than a compensation 
 for his loss : and it is so. 
 
 A policy of assurance is not a perfect contract of indemnity. It 
 must be taken with this qualification, that the parties may agree 
 beforehand in estimating the value of the subject assured, by way 
 of liquidated damages, as, indeed, they may in any other contract 
 to indemnify.
 
 SECT. I. — W II EKE COMPETENT. 
 
 No. 4. — Farnworth. v. Hyde. 
 
 This opinion was unanimously adopted by the House including 
 the learned Lords Cottenham and Campbell; the latter of whom 
 concluded as follows : — 
 
 There was nothing illegal in this contract: we have only to put 
 a construction upon it; and, if it be a just contract, and there is 
 neither any rule of common law, nor any statute, to prevent that 
 contract from being carried into effect, we are bound to give effect 
 to it, and to pronounce in favour of the plaintiff below. 
 
 I repeat, that I rejoice that this question, which has so long- 
 agitated Westminster Hall, is now forever set at rest, and satis- 
 factorily decided. 
 
 The judgment of the Exchequer Chamber, which affirmed the 
 judgment of the Common Pleas, was therefore affirmed with costs. 
 
 Farnworth v. Hyde. 
 L. R. 2 C. P. 204. (s. c. :;<! L. J.. ('.P. 33.) 
 
 This was an appeal to the Exchequer Chamber from a judgment 
 of the Common Pleas, and was argued upon a case stated for the 
 opinion of the Court. The facts of the case are for the purposes 
 of the decision sufficiently stated in the judgment of the court 
 (Pollock, C. B., Ciianxell, B., Blackburn and Mellor, JJ., Pico it, 
 B., and Shee, J.), which was delivered by 
 
 Chamxell, B. This was an action upon a marine policy of insur- 
 ance on goods from Quebec to Liverpool. The declaration claimed 
 a total loss. The defendant paid into court as for a partial loss of 
 23 per cent, and the plaintiffs claimed damages ultra. 
 
 From the statement in the case it appears that the vessel with 
 the insured cargo of deal on board was wrecked in the autumn in 
 the river St. Lawrence, that she lay there all the winter, and in the 
 spring was sold by auction, when the hull was bought fur £'4."iO 
 and the cargo for £7o0 by the same purchaser. 
 
 The purchaser succeeded, without much difficulty or expense, in 
 getting them oft' together and bringing them safely together t<> 
 Quebec, where the cargo was sold by him for more than double the 
 price given for it. The purchase of the hull, however, taken by 
 itself, was a losing speculation. There was evidence that the cargo 
 ■could not have been saved iu this manner unless the hull had
 
 28 ABANDONMENT. 
 
 No. 4. — Farnworth v. Hyde. 
 
 been purchased also ; and that there were some unexpected acci- 
 dents of weather and tide which facilitated the getting off of the 
 ship and saving of the cargo by the purchaser : and it was con- 
 tended on behalf of the plaintiffs that the owners of the goods were 
 not bound to purchase the hull, and that the jury should look at 
 the state of the matters as the hull and cargo lay when they were 
 sold ; and that the sale was justifiable, if, as matters then stood, it 
 would not have been practicable to save the cargo, and send it on 
 to its destination, without purchasing the hull. 
 
 In order to support this view of the case, they gave evidence 
 that the value of the cargo, if it had been sent on and had arrived 
 in Liverpool, would have been £4300, which, deducting the bill of 
 lading freight of £1556, would leave a net value of £2744. They 
 also gave in evidence a calculation that, in order to send it on from 
 the place where it lay in peril in the wrecked vessel, it would be 
 necessary to land it, then raft it to a vessel brought down for the 
 purpose, and re-load it as weather permitted ; and they made out 
 an estimate of these expenses, as follows : — 
 
 £ 
 
 The cost of landing it 350 
 
 To raft it to another vessel and reload it . . 700 
 Increased freight in addition to the original 
 
 freight at £1550, freights having risen 
 
 between the date of the original shipment 
 
 and of the opening of the navigation of the 
 
 river, when another A-essel conld have been 
 
 chartered 296 
 
 Additional freight that woidd have been charged 
 
 for lying off to take the cargo from where it 
 
 was stored instead of loading it at Quebec 700 
 
 .<?. 
 
 d. 
 
 
 
 
 
 o 
 
 
 
 £2046 
 
 And evidence was given, that, besides all these, there would 
 probably have been a loss by depreciation, which was variously 
 estimated by the witnesses, — the highest estimate being 12 per 
 cent on the Liverpool value, or £515, which if added to the £2046 
 would bring up the expenditure to £2561. 
 
 The plaintiffs also gave evidence that, in the ordinary state of 
 the weather, there would be risk of loss of some portion of the 
 cargo during the operations of landing, rafting, and reshipping it,
 
 SKi'T. I. — WHERE COMPETENT. 29 
 
 No. 4. — Farnworth v. Hyde. 
 
 and that, if the weather was unfavourable, that risk would be 
 greater. 
 
 No notice of abandonment was given. 
 
 On this state of the evidence, the judge asked the jury two ques- 
 tions, — first, whether the sale of the ship was justifiable, which 
 the jury answered in the affirmative, and on which finding no 
 question is now raised; — secondly (see paragraph 42 of the case), 
 whether it was right to sell the cargo; directing them, "that 
 whether it was right to sell the cargo or not, would depend on 
 whether the cargo could have been practically carried to its desti- 
 nation, and that he meant the word ' practically ' to be understood 
 in its mercantile sense ; and that, whether the cargo could be prac- 
 tically carried to its destination would depend, under all the cir- 
 cumstances, on whether the cost of bringing the cargo, added to 
 the amount of depreciation, would have left any appreciable margin 
 of profit." The jury answered this question in the affirmative, and 
 the verdict was entered for a total loss, giving leave to the defend- 
 ant, as is stated in paragraph 43, " to move to enter a verdict for 
 the defendant, or a nonsuit, on the ground that there was no evi- 
 dence of a total loss, and no evidence of a partial loss exceeding 
 the sum paid into court ; or to reduce the damages to the sum 
 actually due as and for a partial loss : and it was at the same time 
 agreed, that, if the court should be of opinion that the loss was 
 not total, the amount of the partial or average loss should, if 
 necessary, be corrected by the court, or by an arbitrator to be 
 agreed upon." 
 
 A rule was obtained accordingly, which was after argument dis- 
 charged by the majority of the Court of Common Pleas, my Brother 
 Byles dissenting ; from which decision this is an appeal. 
 
 The first question, therefore, to be determined, is, whether there 
 was evidence on which the jury might reasonably find that the 
 cargo could not be practically carried on to its destination. 
 
 It is to be observed, that, assuming the jury to have believed 
 that the expenses would have been the maximum amount of which 
 there was any evidence, namely, £2561. yet, on the plaintiffs' own 
 figures, there would have been a very considerable margin of profit. 
 The plaintiffs' counsel assumed that this margin of profit was the 
 difference between the Liverpool value of the cargo, after deducting 
 the original freight, and the expenses of forwarding it, added to the 
 estimated depreciation, — that is, on their own figures, £183 ; and
 
 30 ABANDONMENT. 
 
 No. 4. — Farnworth v. Hyde. 
 
 they argued that the jury might reasonably estimate the probable 
 loss of cargo during the operations of landing, rafting, and reship- 
 ping, at an amount which would more than absorb this margin. 
 
 By some oversight not explained to us, the defendant's counsel 
 never called the attention of the Court of Common Pleas, nor of 
 the Court of Exchequer Chamber, to the cardinal postulate of the 
 plaintiffs' counsel, that the original bill of lading freight, Xl556 r 
 was to be deducted. The case was argued in the court below on 
 the assumption that the only question was, whether there was 
 evidence to justify the jury in finding that the probable loss might 
 have been so high as to absorb the ,£183; and the judges, not 
 having their attention called to the matters which the counsel took 
 for granted, considered it in that way only. The majority of the 
 court (taking it for granted that this was the proper question) 
 thought that there was evidence on which the jury might find for 
 the plaintiffs to that extent. My Brother Byles thought there was 
 not. In this court, the argument had proceeded a great way, in 
 the sittings after Easter Term, before it occurred to a member of 
 the court of error as then constituted, 1 that we were not consider- 
 ing the right question ; for, that, unless the Court of Common Pleas- 
 in Rosettov. Gurney, 11 C. B. 176 (E. C. L. P. vol. 73), 20 L. J. C. 
 P. 257, had laid down a wrong rule, the question was, whether 
 there was evidence that would justify the jury in finding a loss 
 which would account for the difference between the estimated 
 depreciation and the cost of forwarding, and the Liverpool value,. 
 without deducting the original bill of lading freight of £1556, and 
 consequently that the plaintiffs had to show that there was evi- 
 dence to justify their finding a probable loss of cargo to the extent 
 of more than XI 739. 
 
 Mr. Mellish had the opportunity of preparing himself to meet 
 this view of the case ; and in the sittings after Trinity Term he 
 was heard at length upon this point before the Lord Chief Baron, 
 my Brothers Blackburn, Mellor, Pigott, Shee, and myself. And 
 we are all of opinion that, where goods are in consequence of the 
 perils insured against lying at a place different from the place of 
 their destination, damaged., but in such a state that they can at 
 some cost be put into a condition to be carried to their destination, 
 the jury are to determine whether it is practically possible to carry 
 them on ; that is, according to the well-known exposition in Moss v.. 
 
 i Blackburn, J.
 
 
 SECT. I. — WHERE COMPETENT. 31 
 
 No. 4. — Farnworth v. Hyde. 
 
 Smith, 9 C. B. 94 (E. C. L. E. vol. 67), 19 L. J. C. P. 225, whether 
 to do so will cost more than they are worth ; and that, in deter- 
 mining this, the jury should take into account all the extra expenses 
 consequent on the perils of the sea, such as drying, landing, ware 
 housing, and reshipping the goods; but that they ought nut to take 
 into account the fact that if they are carried on in the original 
 bottom, or by the original shipowner in a substituted bottom, they 
 will have to pay the freight originally contracted to be paid ; that 
 being a charge to which the goods are liable when delivered, 
 whether the perils of the sea affect them or not. And we also 
 agree that Rosetto v. Gurney correctly decides that, where the 
 original bottom is disabled by the perils of the seas, so that the 
 shipowner is not bound to carry the goods on, and he does not 
 choose to do so, the jury are not to take into account the whole of 
 the cost of transit from the place of distress to the place of destina- 
 tion, which must be incurred by the goods-owner if he carries 
 them on, but only the excess of that cost above that which would 
 have been incurred if no peril had intervened. 
 
 To hold otherwise would be to enable the assured owner of 
 goods to bring into account the whole of the freight whenever the 
 cost of obtaining a substituted bottom exceeded the original freight 
 however small the excess may be : for, in such a case, the ship- 
 owner would never carry on the goods for the purpose of earning 
 his original freight, though he might perhaps do so as agent of the 
 goods-owner; whilst no part of the freight could ever be charged 
 when the cost fell short of the original freight, in which case the 
 shipowner would forward them. This would be a very unsatis- 
 factory state of the law ; and we are of opinion that the case of 
 Rosetto v. Gurney, which prevents that result, was correctly de- 
 cided. Then applying this to the facts in the present case, it 
 becomes obvious that, whilst it is doubtful whether there was evi- 
 dence justifying the verdict, if the jury had to deal with a margin 
 of a little more than 5 per cent of the value of the goods, there is 
 clearly none justifying it when they had to deal with a margin of 
 about 40 per cent. 
 
 Mr. Mellish, indeed, said that there are cases in which a thing 
 in extreme and imminent danger of immediate destruction may be 
 justifiably sold, although in the event it turns out that it survives 
 the peril, to the great benefit of the purchaser. But there is not 
 in this case any evidence of such a state of imminent and iinme-
 
 ABANDONMENT. 
 
 Nos. 2, 3, 4. — Allen v. Sugrue, &/C. — Notes. 
 
 cliate peril as could justify the verdict for a total loss upon this 
 ground. 
 
 We think, therefore, that the rule to set aside the verdict for a 
 total loss must be made absolute. 
 
 This renders it unnecessary to consider the question principally 
 argued in the court below, as to the necessity of a notice of aban- 
 donment. On that point we leave the authority of the decision of 
 the court below untouched, neither confirmed nor weakened by 
 anything that has taken place in this court. 
 
 On the remaining question, whether the partial loss does or does 
 not exceed the amount paid into court, we are absolutely without 
 materials for forming a judgment. The only course which seems 
 practicable is that on which the parties seem to have agreed at 
 nisi prius, namely, that an arbitrator should find the figures, and 
 raise and state for the Court of Common Pleas any question of 
 principle involved, arising on his findings. Rule accordingly. 
 
 ENGLISH NOTES. 
 
 It lias been thought convenient to collect and place together the 
 cases relating to the competency of abandonment whether of ship or 
 cargo. The latter part of the head-note belongs exclusively to Farn- 
 worth v. Hyde (No. 4). 
 
 Insurance on ship, cargo, and freight from Tortola to London. The 
 ship was driven back to Tortola unfit for the voyage; and it was found 
 impossible to repair her for the voyage, or to get another ship to take 
 the cargo. The ship and cargo were accordingly sold. The assured 
 abandoned and claimed as for a total loss. It was admitted that the loss 
 of freight was total: and it was held that there was also a total loss 
 of the ship and of the cargo. Lord Mansfield said the general princi- 
 ple was that if the voyage, in consecpience of a peril within the policy, 
 is lost, or is not worth pursuing, that is a total loss. Here the vessel, 
 which was a large Dutch ship with sugar from Tortola to London, was 
 driven back and became totally unfit for the voyage. There was no 
 ship sufficiently large, nor were there ships enough to bring the cargo 
 to London. Under these circumstances the court were of opinion that 
 the voyage was lost. Manning v. Neicnham (1702), 3 Dougl. 130; s. c. 
 2 Camp. 625 in notis. 
 
 An insured ship captured by the enemy was ransomed and brought 
 home by the captain, who refused to deliver her up to the owners 
 except on payment of the ransom. Held, that the owners, being 
 entitled to the possession as against the illegal claim of the captain,
 
 SECT. I. — WHERE COMPETENT. 33 
 
 Nos. 2, 3, 4. — Allen v. Sugrue, &,c. — Notes. 
 
 could not claim as for a total loss. Parsons v. Scott (Ex. 1810), 2 
 Taunt. 363. 
 
 The plaintiff claimed as for a total loss of a cargo of corn insured 
 for a voyage. The ship had put into a port damaged and unfit to 
 pursue the voyage, and the assured had given notice of abandonment. 
 Lord Ellenbokough, on the case of Manning v. Newnham being cited, 
 said, " I accede to that; " and he intimated in effect, that if another ves- 
 sel could not have been procured, he would have held that there was a 
 total loss. But, the contrary appearing to be the case, the plaintiff 
 was nonsuited. Wilson v. Royal Exchange Assurance Co. (N. P. 1811), 
 2 Camp. 622. 
 
 Policy on goods (copper and iron) at and from London to Quebec 
 warranted free of particular average. The ship, damaged in a gale, 
 put into Kinsale in Ireland for repairs, and was there detained so as 
 to be unable to complete the voyage that season. It was stated that 
 another ship could not be procured to reach Quebec before the close of 
 the season for navigating the St. Lawrence. The cargo was sold at 
 Kinsale as a damaged cargo. In an action by the assured claiming as 
 on a total loss, it was held that, as there was neither a destruction 
 (actual or imminent) of the cargo nor permanent incapacity of the 
 ship to perform the voyage, there was no good cause of abandonment 
 so as to amount to a total loss. Lord Ellenbokough, who delivered the 
 judgment of the court, said: "There is not any case nor principle 
 which authorizes an abandonment, xinless where the loss has been 
 actually a total loss, or in the highest degree probable, at the time of 
 the abandonment." Anderson v. Wallace, (K. B. 1813), 2 M. & S. 240. 
 
 Insurance on a cargo of pork and flour separately valued at and from 
 Waterford to St. John's, Newfoundland, by the ship A., warranted free 
 from average on flour. The ship was so damaged in a storm that she 
 was driven back to Cork, and, after survey, was pronounced incapable of 
 repair and was broken up. The flour was warehoused. No question 
 was raised as to the pork. Held, as to the flour, that there was no 
 total loss. For, though the ship was lost and the season was lost, 
 there was nothing to prevent the flour being sent to its destination in 
 a merchantable condition. Hunt v. Royal Exchange Assurance Co. 
 (K. B. 1816), 5 M. & S. 47. 
 
 Ship and cargo of timber insured against {inter alia) barratry of 
 the master and crew (the timber valued at £12 per load) were carried 
 off by a barratrous act. The insured abandoned. Ultimately a large 
 part of the timber was sent (though not by the act of the insured) to 
 its destination. The insured had a verdict for a total loss by barratry, 
 and under a threat of execution obtained payment accordingly. The 
 question being then argued whether the underwriters should not be 
 
 VOL. I. — 3
 
 34 ABANDONMENT. 
 
 Nos. 2, 3, 4. — Allen v. Sugrue, &,c. — Notes. 
 
 allowed the value under the^policy of that part of the timber which hud 
 arrived (subject to the charges for bringing it home), it was held that 
 there was a total loss of the whole cargo from the time when the barra- 
 trous act was committed. Dixon v. Held (K. B. 1822), 5 B. & Aid. 507. 
 Abbott, C. J., who delivered the opinion of the court, distinguished 
 the case from Hunt v. Royal Exchange Co. and others cited, on the 
 ground that the cargo was by the barratrous act taken out of the pos- 
 session of the insured, and that the sending home of the timber was 
 not the act of the insured or of any person authorized by him. — Sed 
 if nacre, whether there is any reason in this distinction. The case docs 
 not in this respect appear to differ in principle from a case where a 
 derelict ship is brought in by salvors so as to be worth more than the 
 salvage and charges. 
 
 The principle of the judgment in Allen v. Sugrue (K. B. 1828), 
 which was ultimately confirmed by the House of Lords in Irving v. 
 Manning (1848), was in the mean time upheld by the Exchequer 
 Chamber, on appeal from the Common Pleas, in Young v. Turing 
 (1841), 2 Man. & Gr. 593. 
 
 Shi}) valued at £12,000, insured from Valparaiso to England; the 
 freight, valued at £4000, was insured by a separate policy. The 
 ship sailed with a full cargo, but was compelled by stress of weather 
 to put back to Valparaiso; where she was found (upon survey) so dam- 
 aged that to repair her would cost a sum exceeding the A'alue of the 
 freight, though less than the value of the ship when repaired. Upon 
 this the master sold her. Held, that there was not a total loss either 
 of ship or freight. Moss v. Smith (C. P. 1850), 9 C. B. 94; 19 L. J. 
 C. P. 225. 
 
 " As a general rule, where the whole or any part of a cargo is prac- 
 tically capable of being sent in a marketable state to its port of desti- 
 nation, the master cannot sell, nor can the assured recover as for a 
 total loss." Per Curiam, Rosetto v. Gurney (C. P. 1851), 11 C. B. 
 170, 186; 20 L. J. C. P. 257. 
 
 Cargo of wheat (valued) insured from Odessa to Liverpool. The 
 vessel put back, sea-damaged, to Odessa, where she was refitted by 
 money raised on bottomry. She again sailed, was wrecked, and 
 brought by salvors into Cork; where, the vessel being found not worth 
 repairing, and the cargo considerably damaged, both were sold. The 
 assured on cargo having claimed as for a total loss, — Held, that, in 
 ascertaining whether it is practicable to send the whole or any part of 
 the cargo to its port of destination in a marketable state, the jury were 
 bound to take into consideration the cost of unshipping the cargo, the 
 cost of warehousing it, the cost of transshipping it into a new bottom, 
 and the cost of the difference of transit if it could only be effected at a
 
 SECT. I. — WHERE COMPETENT. 
 
 Nos. 2, 3, 4. — Allen v. Sugrue, &C. — Notes. 
 
 higher than the original rate of freight, adding the proportion of the 
 salvage corresponding to the value of the cargo saved, but not the debt 
 and costs paid to the holders of the bottomry bond; and that the loss 
 would be total or partial as the aggregate of these exceeded or fell 
 short of the value of the cargo when delivered at the port of discharge. 
 Rosetto v. Gurney (nt supra), 11 (J. B. 176. —It is to be observed 
 that it is here treated as settled law that the amount of the original 
 freight is not to be deducted in the calculation. This is consistent 
 with the decision of Lord Mansfield in Baillie v. Mondigliani, Mar- 
 shal'i, 3d ed. p. 736, where Lord Mansfield said that " the under- 
 writers on cargo have nothing to do with the freight." The actual 
 question in Baillie v. Mondigliani was whether the insurers were 
 liable to the charge of pro rata freight paid, on transshipment, to the 
 owners of the original ship. But, notwithstanding a nisi prius case 
 of Boyfield v. Broirn, reported in 2 Str. 1065, it appears well settled in 
 English law, that the original freight if earned is not to be taken into 
 account as diminishing the value of the goods, upon the question 
 whether they can be practically carried in a marketable state to 
 their destination. Although it appears from the report to Boyfield v. 
 Brown that subsequently to that determination the London under- 
 writers introduced the memorandum "corn, &c, warranted free from 
 average unless general or the ship be stranded," that case must now 
 be deemed to be overruled by the determination in numerous cases. 
 See Arnold, 5th ed. p. 730. 
 
 Where the cost of raising a sunken ship would be contributed out of 
 general average by ship and cargo, the contribution by cargo must be 
 taken account of in calculating, as between owner and underwriters on 
 ship, the cost of repair, in order to determine whether there is a con- 
 structive total loss of the ship. Kemp v. HaUiday (Ex. Ch. from 
 Q. B. 1866), L. R., 1 Q. B. 520 ; 35 L. J. Q. B. 156. 
 
 Insurance for a voyage from Moulmein to Madras on a cargo of teak 
 and other timber of great specific gravity: also on disbursements. 
 The ship grounded in the tidal river going out of port, and became a 
 wreck; and notice of abandonment was given on the policies. The 
 captain made no effort to save the cargo: but a large part was ulti- 
 mately saved. Held, that the cargo was never in such imminent danger 
 as to justify the abandonment; but that there was a total loss on the 
 " disbursements," — that is to say, advances made b}' the charterer to 
 the captain to be paid out of the freight to be earned on the arrival of 
 the vessel at Madras. Ourrie v. Bombay Native Insurance Co. (1869), 
 L. R., 3 P. C. 72 : 39 L. J. P. C. 1.
 
 36 ABANDONMENT. 
 
 Nos. 2, 3, 4. — Allen v. Sugrue, &,c. — Notes. 
 
 AMERICAN NOTES. 
 
 The American rule is that a vessel damaged more than half her value may 
 be abandoned as for total loss. Abbott v. Broome, 1 Caines (New York), 
 202; 2 Am. Dec. 187 ; Hyde v. Louisiana Stale Ins. Co., 2 Martin, n. s. 410; 
 14 Am. Dec. 196; Taberx. China Ins. Co., 131 Mass. 248 ; Deblois v. Ocean 
 Ins. Co., 16 Pickering (Mass.), 303 ; 28 Am. Dec. 245; Cohen v. Charleston F. 
 §' M. Ins. Co., Dudley Law Rep. (So. Car.), 31 Am. Dec. 549 ; Wood v. 
 Lincoln §■<:., Ins. Co., 6 Mass. 479 ; 4 Am. Dec. 163 ; Bradlie v. Maryland Ins. 
 Co., 12 Peters (U. S. Sup. Ct.), 378. So mere stranding does not justify 
 abandonment of the ship. Bosley v. Chesapeake Lis. Co., 3 Gill & Johnson 
 (Maryland), 450 ; 22 Am. Dec. 337. See Copelin v. Phoznix Lis. Co., 46 
 Missouri, 211; 2 Am. Rep. 504; Howland v. Marine Ins. Co., 2 Cranch Circ. 
 Ct. (U. S.) 474. Nor of the cargo. Hubbell v. Gi. West. Ins. Co., 74 New 
 York, 246 ; Thwing v. Washington Ins. Co., 10 Gray, 457. 
 
 An instructive case of constructive total loss is Snow v. Union Mat. Mar. 
 Ins. Co., 119 Mass. 592; 20 Am. Rep. 349; where it appeared that the 
 insured vessel, being jammed fast in the ice of the Arctic Ocean, with no 
 open water in sight, aud drifting northward with the current, her officers and 
 crew finding it impossible to extricate her left her and took to the boats, and 
 succeeded after three days in reaching the whaling fleet fifty miles south. 
 Ten days afterward, by a change of wind and current, the ice loosened, and 
 the vessel was brought out by the master and crew of another vessel and held 
 by them for salvage ; but the master of the insured vessel, whose crew had 
 become scattered and some of whom had started homeward, was unable to 
 obtain a sufficient crew or regain possession of the vessel so as to pursue the 
 voyage for which she was employed and for which she was insured, and she 
 was brought by the salvors to San Francisco, and before her arrival there was 
 abandoned by the owners to the underwriters. Held, a constructive total loss 
 and a valid abandonment. 
 
 In New Brunswick, it is held that where the expense of repair would 
 exceed the value of the vessel when repaired, there is a constructive total loss. 
 Gerow v. Providence Washington Ins. Co., 28 New Br. 435. 
 
 Where the goods saved do not amount to half the value of the goods 
 insured, there may be an abandonment as for total loss. Gardiner v. Smith, 
 1 Johnson's Cases (New York), 141. The notice must make this claim dis- 
 tinctly. McConochie v. Sun M. Ins. Co., 26 New York, 477. 
 
 So where most of the cargo was taken by pirates, and the vessel was so 
 weakened by bad weather that the expense would exceed the benefit of the 
 voyage. Gilfert v. Hallett, 2 Johnson's Cases (New York), 296. So where 
 the insurers refused to accept abandonment, but subsequently recovei'ed some 
 of the cargo. Wallerstein v. Columbian Ins. Co., 44 New York, 204; 4 Am. 
 Rep. 664. 
 
 But if the policy insures against "actual total loss only," there is not a 
 total loss within the meaning of the policy if the vessel can be repaired and 
 put afloat at any expense. Murray v. Hatch, 6 Mass. 465, followed in Carr v. 
 Security Ins. Co., 109 New York, 504.
 
 SECT. II. — WHERE NECESSARY. 37 
 
 No. 5. — Fleming v. Smith. 
 
 Section II. — Where Abandonment is necessary in order to 
 claim Total Loss. 
 
 No. 5. — FLEMING v. SMITH. 
 
 (H. L., ON APPEAL FROM SCOTLAND, 1846.) 
 RULE. 
 
 Notice of abandonment is necessary in order to convert 
 a constructive into an absolute total loss. 
 
 Where the thing insured exists in specie, and is safe in 
 fche possession of .the assured at the termination of the risk, 
 there is no actual total loss. 
 
 A ship insured on a valued time policy, being damaged 
 by perils insured against, is repaired by the captain by 
 means of money borrowed on bottomry. The circum- 
 stances are duly communicated to the owners, who do not 
 give notice of abandonment for some months, nor until 
 some days after the ship has arrived at home, and the 
 owners have taken possession. Ultimately, the ship was 
 sold by the bottomry creditor for much less than the 
 amount of the bond. Held, that there was not a total 
 loss ; and that the abandonment, so long after notice of 
 the facts, was nugatory. Further (per Lord Campbell), 
 that the taking possession of the ship with full knowledge 
 of the facts was an election to treat the loss as partial. 
 
 Fleming v. Smith. 
 
 1 H. L. C. 513. 
 
 This was an appeal from the Court of Session in Scotland. The 
 appellants claimed as on a total loss under a time policy on ship 
 for twelve months, from August, 1841, valued at £6,000. The 
 respondents, underwriters, insisted that they were only liable for a 
 partial loss. 
 
 The ship, in the month of May, 1842, encountered tempestuous 
 weather and was driven into the Mauritius. After survey the 
 captain wrote to the owners stating the facts, and discussing the
 
 38 ABANDONMENT. 
 
 No. 5. — Fleming v. Smith. 
 
 question of abandonment. He subsequently wrote advising that 
 the ship should be repaired, and proposing to raise money on 
 bottomry. Further correspondence apprised them of the amount 
 which would be required ; and on the 3d of December, with full 
 knowledge of the facts, as appears from the letters quoted in the 
 judgment of the Lord Chancellor, they write to the captain, giving 
 him full discretion to act as he thought best. The ship arrived in 
 London on the 27th of March, 1843, and on the 30th of that month 
 they gave the underwriters formal notice of abandonment. 
 
 After argument, the learned lords present gave their opinions as 
 follows : — 
 
 The Lord Chancellor (Lord Cottenham). — It appears to me 
 that in this case there are special grounds shown upon the corres- 
 pondence which are sufficient to dispose of the questions, without 
 entering into any discussion as to many of the points which have 
 been raised at the bar, particularly as to that question which has 
 arisen with respect to the formal notice of abandonment, about 
 which there is a confusion existing, arising, as I believe, more from 
 the misuse of terms than from any real difference in the cases. 
 But at all events, in this case it is admitted on all hands, whether 
 the parties were bound to give a formal notice. of abandonment or 
 not, that when the facts came to their knowledge in this country, 
 they were sufficiently informed of what had taken place to enable 
 them, if they thought proper, to take upon themselves the chance 
 of the benefit of retaining the ownership of the property, instead of 
 taking the sum which was secured to them by the policy effected 
 with the underwriters upon the vessel ; and if they acted upon 
 that opportunity of election, they surely cannot afterwards turn 
 round and go against the underwriters as for a total loss. If there 
 was any necessity for a formal abandonment, and with a full 
 knowledge of the facts they did not make that formal abandon- 
 ment, but took the property instead, they could not afterwards 
 take the benefit of the policy, as if there had been a formal aban- 
 donment. If, on the other hand, there was no necessity for a 
 formal abandonment, still, if they chose to lie by and allow things 
 to go mi as they did, they could not afterwards, upon a change of 
 circumstances, or in consequence of a better calculation, turn 
 round and say to the underwriters, "Now we will give you up this 
 property, because we find w T e cannot turn it to the advantage which 
 we expected." The question really turns upon what the information
 
 SECT. II. — WHERE NECESSARY. 39 
 
 No. 5. — Fleming v. Smith. 
 
 was which was sent to them, as to the occurrences that had taken 
 place abroad, and what their conduct was upon that information 
 coming to them. Now the first communication they had may per- 
 haps not have been sufficient to enable them to come to any con- 
 clusion ; they knew that misfortune had occurred to the vessel, 
 and they knew that expenses had been incurred in respect of re- 
 pairing the vessel; but they did not know to what extent. But 
 there is a letter which they received afterwards, which seems to 
 me to decide the question. That letter is written by Hunter, 
 Arbuthnot and Company, at the Mauritius, and it is dated the 
 16th of July, 1842, and was received in this country on the 13th 
 November. In that letter it is stated that " Captain Elder is 
 naturally anxious to follow his instructions, and proceed, when the 
 ship is repaired, to Bombay ; for this purpose he has advertised 
 for the loan of about $20,000, to be secured by a bottomry bond on 
 the ship, which would proceed to Bombay in the prosecution of 
 the voyage. No offers, however, were made on these terms, but 
 parties are ready to advance the money required, provided the ship 
 proceeds to England direct from this. Captain Elder will there- 
 fore be obliged to deviate from his instructions, and we have 
 offered him a cargo of sugar at the first season for England, at the 
 current rate of freight, which we think better for all parties than 
 to go to Bombay at the miserably low rate of freight ruling in 
 India." That letter therefore shows that the parties were under 
 the necessity of borrowing upon the ship a sum equal to $20,000. 
 That letter they received on the 13th of November; and by a let- 
 ter of their own, dated the 3d of December, 1842, they acknowl- 
 edge the receipt of the various letters containing the information 
 as to what extent the expenses at the Mauritius would be carried. 
 Knowing, therefore, the extent to which the expenses were likely 
 to be carried, they write acknowledging' the receipt of these letters, 
 and then they express themselves in these terms: "We observe 
 the general measures adopted for the representatives of the ship 
 William Nicol, which we hope may turn out to have been the best 
 in the unfortunate circumstances in which she was placed ; but in 
 the absence of any past experience on our part of the usages of 
 your port in such cases, we were rather startled at the apparent 
 necessity of a bottomry bond being had recourse to ; but this may 
 be a misapprehension on our part which the communication of 
 particulars hereafter may clear up."
 
 40 ABANDONMENT. 
 
 No. 5. — Fleming v. Smith. 
 
 There is no doubt that they were in possession of all the infor- 
 mation necessary to enable them to decide as to the course they 
 would take. In point of fact, the answer to that particular letter 
 shows that they were in possession of the information, stating that 
 $20,000 had been borrowed on a bottomry bond for the expense of 
 the repairs, and were well aware that the continuance of the voy- 
 age, for any purposes of profit, must be a doubtful speculation. 
 
 When we consider that these parties on the 13th of November 
 had possession of this information, and we find them answering in 
 the terms I have already noticed ; and afterwards, on the 7th of 
 March, writing to Messrs. K. and J. Anderson, London, in the 
 terms I am about to read, there can be no doubt that they pos- 
 sessed all the knowledge necessary for them to determine whether 
 they would or would not abandon the vessel. They write thus: 
 " From the advices last received by us from the agents of the ship 
 William Nicol, at Mauritius, it was expected that she would be 
 ready to leave that place with a cargo of sugar for London about 
 the 20th December ; and as she may, therefore, be looked for 
 shortly, we enclose a few lines for Captain Elder, requesting him 
 to follow your directions as to the dock of his discharge, to which 
 please attend, after fixing with Mr. J. D. Nicol what dock it will 
 be most advisable to send him to for that purpose." 
 
 Whether the fact of a total loss, as it is called, or such damage 
 as would exceed the value of the ship to repair, was incurred, 
 would, or would not, make the captain the agent of the under- 
 writers, or the agent for all the parties, is a matter which I do not 
 think it necessary at present to advert to, because it is quite clear, 
 even if it was so, that it was quite competent for the owners to 
 continue the employment of the captain. If they thought proper 
 to say, " We do not treat this as a total loss ; we do not treat you 
 as the general agent in this matter, but we treat you as the person 
 having our authority over this property ; " and if the facts had 
 sufficiently come to their knowledge of what he was doing, and 
 notwithstanding that, they think proper to take the property under 
 their own direction, and to recognize his acts, can they afterwards, 
 when a considerable time has elapsed, and the vessel has made a 
 different voyage, and obtained different freight from what they 
 expected, turn round and say, — "We no longer consider this prop- 
 erty as ours, but we will go against the underwriters as for a total 
 loss " ? It appears to me to be not only contrary to the common
 
 SECT. II. — WHERE NECESSARY. 41 
 
 No. 5. — Fleming v. Smith. 
 
 principles of justice, but also contrary to all the authorities which 
 have been referred to, that they should do so. Nothing has been 
 cited at the bar which can alter that view of the case, because 
 when it is said that they had not the necessary information to 
 enable them to come to the conclusion of whether they would treat 
 it as a total loss or not, and when it is said that they were not 
 aware of what species of vessel it would become in consequence of 
 the repairs to be done, so as to enable them to elect, still, if they 
 thought proper to employ the captain as their agent in causing the 
 repairs to be done, whether he acted judiciously or not, it is for 
 them to suffer the loss, and any want of judgment in their agent 
 they must take the consequence of, and it is not to be visited upon 
 the underwriters. Upon these grounds, my Lords, it appears to 
 me that the judgment of the court below must be affirmed. 
 
 Lord Brougham fully concurred, and thought that the judgment 
 should be affirmed with costs. 
 
 Lord Campbell. — T think that the judgment of the court below 
 should be affirmed on both the grounds on which that court pro- 
 ceeded, namely, " in respect that the pursuers were bound and 
 failed to abandon in due time," and also that " they treated the loss 
 as partial." 
 
 A constructive total loss is a good ground for abandoning, but in 
 deciding on the circumstances which constitute a constructive total 
 loss, which is as good a term as a contingent total loss, the reasons 
 which govern the conduct of prudent uninsured owners must be 
 considered. If a prudent person, uninsured, would not have re- 
 paired the vessel, but would have sold it to be broken up, that 
 amounts to a total loss. Then the question arises, what the assured 
 is bound to do under such circumstances, in order to entitle him- 
 self to claim as for a total loss. The ship was not submerged or 
 destroyed ; it remained in the form of a ship, capable of being 
 repaired, and it was for the captain to determine whether it should 
 be repaired or not. Whether it should be repaired or not depended 
 on the price of labour, the cost of materials, the rate at which money 
 could be borrowed, and on the probable profits to be obtained from 
 the employment of the ship after such repairs should have been 
 executed. Under these circumstances the question arises, whether, 
 when the owners of a ship so insured receive intelligence that the 
 ship is capable of being repaired, and that it is lying in port, they 
 can claim as for a total loss, without giving notice of abandon-
 
 42 ABANDONMENT. 
 
 No. 5. — Fleming v. Smith. 
 
 inent ? My opinion is that they cannot do so. According to all 
 the old authorities, a constructive total loss can only entitle the 
 owners to recover as for an actual total loss, by a notice of aban- 
 donment ; for though, in the judgment of the assured, it may be bet- 
 ter not to repair the vessel, the underwriters may, with different 
 means, give directions to repair, or may direct, and are entitled t<> 
 direct, how the wreck is to be disposed of. It would be an ex- 
 treme hardship for them to be called on to pay as for a total loss, 
 without having the opportunity of making the most of the ship in 
 its disabled state. The law, therefore, requires that notice shall 
 be given, in order to convert a constructive into an absolute total 
 loss. 
 
 Then we come to the cases of Cambridge v. Andcrdon (1 Car. & 
 P. 213) and Boux v. Salvador (3 Biug. N. C. 266). The Court of 
 King's Bench held, in Cambridge v. Anderdon, without overturning 
 the old authorities, that, in the peculiar circumstances of that case, 
 a notice of abandonment was not necessary. But why ? Because, 
 coming down the St. Lawrence, the ship met with a serious misfor- 
 tune, and the captain, after having taken the best advice, thinking 
 it not worth repairing, sold it at once, and conveyed a good title to 
 the purchaser. The owners received intelligence of that sale at the 
 same moment that they learned the injury which had happened to 
 the vessel. In such circumstances there was nothing to abandon. 
 The ship was gone ; the underwriters could not have taken posses- 
 sion of it, for it was lawfully transferred to the purchasers. 
 
 Then comes the case of lloux v. Salvador, in which Lord Chief 
 Justice Tindal held that notice of abandonment was necessary. 
 There the hides were so injured that they ceased to exist as hides 
 before reaching the port of destination ; so that though the sub- 
 stance of something remained, the substance of what had been 
 insured was destroyed. But here the ship existed, was repaired, 
 and brought home a cargo to England. When the assured heard, 
 in November, the facts of the case, it was imperative on them, if 
 they meant to turn a partial into a total loss, to give notice of 
 abandonment, so that the underwriters should have the opportunity 
 of dealing as they pleased with the property. 
 
 Was there any notice of abandonment? There was ; but not till 
 the 30th March, 1843. The ship had returned on the 27th of 
 March, and, at that time, the assured were fully aware of all the 
 facts of the case.
 
 SECT. II. — WHERE NECESSARY. 43 
 
 No. 5. — Fleming v. Smith. — Notes. 
 
 Under all these circumstances, I think that the first ground alone 
 would have been .sutticient for the judgment. 
 
 As to the second ground, that here the assured had elected, I 
 think that equally conclusive against them. Not only had they 
 not given notice to abandon, but they had taken steps by which 
 they chose to appear as treating this property as still belonging to 
 them. They did that which amounted to an intimation of their 
 intention of coming upon the underwriters for a partial loss, and 
 taking all the advantage which might arise from the employment 
 of the ship. 
 
 It. is not necessary to give any opinion as to the general power of 
 the master under such circumstances as exist in this case ; but I 
 must hear a great deal of argument before I determine that where he 
 acts bond fide for the advantage of the owners, he has not authority, 
 by so doing, to bind them. In this case he thought he was doing 
 the best for the interests of those who employed him ; he thought 
 he was doing the best for all parties concerned ; but he was still 
 the agent of the owners, and it would be dangerous to say that his 
 authority, as their agent, might be questioned and contradicted by 
 afterwards showing that in fact what he did would not be for their 
 interests. 
 
 In this case his authority was adopted in this country ; for in 
 the month of November, 1842, the owners knew that he was repair- 
 ing the ship, and on their account, and was to freight it from the 
 Mauritius home, and that they were to have the profits arising 
 from such freight. Are they to be allowed, after this, to revoke his 
 authority ? No ; they have acquiesced in all that he has done as 
 conformable to his authority, or if he did not already possess that 
 authority, they created it by their adoption of his acts. They 
 treated this loss as a partial loss till the 30th of March, 1843, and 
 after that they cannot be allowed, for the first time, to adopt another 
 line of conduct, and to treat it as a total loss. 
 
 The judgment of the Court of Sessions in favour of the respon- 
 dents (defenders) was therefore affirmed with costs. 
 
 ENGLISH NOTES. 
 
 The principle of the ruling case is involved in the older English cases 
 of Tunnov. Edwards (K. B. 1810), 12 East, 488, and Martin v. Crockett 
 (K. B. 1811), 14 East, 465. The latter of these cases, where Lord 
 Ellenborouoh, at the trial, directed a nonsuit, and presided in the
 
 44 ABANDONMENT. 
 
 No. 5. — Fleming v. Smith. — Notes. 
 
 court in banc which confirmed the direction, must he read subject to 
 the observation that Lord Ellenborough held too strict views as to 
 the formality of a notice of abandonment. The same observation 
 applies to his ruling in Parmeter v. Todhunter (N. P. 1808), 1 Camp. 
 541. See the judgment of the Privy Council in Currie v. Bombay, &c. 
 Co. (the same case as that cited on p. 35, ante) 1869, L. P., 3 P. C. 
 72, 78 ; 39 L. J. P. C. 1. 
 
 The second paragraph of the rule is illustrated by the case of Par- 
 sons v. Scott (1810), 2 Taunt. 363, cited p. 33, ante. There was in 
 that case a notice of abandonment, and it was held that, the owners 
 being legally entitled to the possession notwithstanding an illegal 
 claim, there was neither actual nor constructive total loss. 
 
 Insurance on freight on voyage from Pernambuco to London. On 
 leaving Pernambuco in June, 1839, the ship struck on a rock and put 
 back. The master repaired by money borrowed on bottomry. The 
 repairs proved very expensive; and on 30th December the owners 
 (plaintiffs), on hearing the extent of the expense, gave notice of aban- 
 donment both of ship and freight. The ship arrived, and the freight 
 was duly paid to the holder of the bottomry bond. Held, that this was in 
 law a payment to the shipowner, so that there was no actual total loss; 
 and that the owner was bound by the election of the master to repair, 
 and could not therefore recover as for a constructive total loss. Benson 
 v. Chapman (H. L. 1849), 2 H. L. Cas. 696 (reversing s. c. in Court 
 of Common Pleas, 6 Man. & Gra. 792). 
 
 See, also, as a case in which the ship was sold by agents of the owners 
 without giving due notice of abandonment, Kaltenback v. Mackenzie 
 (C. A. 1878), 3 C. P. D. 467; 48 L. J. C. P. 9 (cited under Nos. 8 
 & 9, jjost). 
 
 Where there has been no abandonment, and a portion of the property 
 is ultimately restored, the loss ceases to be a total loss; and all that is 
 restored is restored for the benefit of the assured, not of the under- 
 writers. So where a consignment of goods insured in a valued policy 
 had been seized at the port of destination, sold there at a profit, and 
 part of the proceeds restored; those proceeds were treated as represent- 
 ing an aliquot part of the goods, and the assured, not having abandoned, 
 was held entitled to recover from the underwriters an aliquot part of the 
 valuation as representing the remainder (Goldsmid v. Gillies, C. P. 1813, 
 4 Taunt. 803, applying the principle of Tunno v. Edwards, supra). 
 
 AMERICAN NOTES. 
 
 If the ship at the time of the offer to abandon, is in possession of the 
 master, in good condition and at full liberty to proceed, the loss of the cargo 
 will not authorize abandonment of the ship. Marshall v. Delaware Ins. Co..
 
 SECT. II. — WHERE NECESSARY. 45 
 
 No. 5. — Fleming v. Smith. — Notes. 
 
 •1 Cranch (U. S. Sup. Ct.), 202; nor will the loss of the voyage. Alexander 
 v. Baltimore Ins. Co , 4 Cranch (U. S. Sup. Ct.), 370. 
 
 " Damage of a vessel to more than half her value, as a ground of aban- 
 donment and constructive total loss, seems now to be settled as the rule of 
 American law, conformably to that of some of the maritime States of Europe, 
 contrary to the English rule, which requires proof of damage to such an extent 
 that the repairs of the vessel in the place where it is would be equal in 
 amount to the value of the vessel when repaired." Heebner v. Eagle Ins. Co., 
 10 Gray (Mass.), 131 ; 69 Am. Dec. 308, by Shaw, Ch. J., citing Marcardier 
 v. Chesapeake Ins. Co., 8 Cranch (U. S. Sup. Ct.), 39. The notice in this 
 case was of "having received information of the condemnation of the ship at 
 Humboldt, California," and this was held to justify a claim of total loss. 
 
 A vessel being stranded on rocks about five miles from her return port, 
 an offer to abandon was made but refused. The vessel having been put 
 afloat and repaired by the insurers and by them brought to the home port, 
 within fifteen days, held, that the owners could not claim a total loss. Wood 
 v. Lincoln, «.yc. Ins. Co., 6 Mass. 479; 4 Am. Dec. 163. 
 
 Notice of abandonment stated that the vessel was found " irreparable 
 on survey." It appearing that she was so injured that the cost of repair, 
 after deducting one-third new for old, would exceed half her value, it was 
 held a total loss, the word " irreparable " meaning that the damage was so 
 large as to absolve the insured from the duty of repair. Perkins v. Augusta 
 Ins. Sf B. Co., 10 Gray (Mass.), 312 ; 71 Am. Dec. 654. 
 
 The American cases agree that notice of abandonment is essential to 
 convert constructive into actual total loss. Teasdale v. Charleston Ins. Co., 3 
 Brevard (So. Car.), 190; 3 Am. Dec. 705; Gomila v. Hibernia Ins. Co., 40 
 Louisiana Ann. 553; Bosley v. Chesapeake Ins. Co., 3 Gill & Johnson 
 (Maryland), 450; 22 Am. Dec. 337; Thomas v. Rockland Ins. Co., 45 Maine, 
 116; Taberv. China Mul. Ins. Co., 131 Mass. 239; Hubbell v. 67. West. Ins. 
 Co , 74 New York, 246; Am. Ins. Co. v. Francia, 9 Penn. St. 390; Cossman 
 v. West, 6 Russ. & G. (Nova Sc), 461. 
 
 A recent case is Carr v. Security Ins. Co., 109 New. York, 504. The insur- 
 ance was against " actual total loss only." The insurers refused an offer 
 of abandonment, but took possession under a " rescue clause," and had the 
 vessel got off and delivered at a port named. Held, that the insurers were 
 liable as for " actual total loss." The court observed : " There can be, we 
 suppose, no doubt that there may be an actual total loss of a vessel within 
 the true meaning of that phrase in a policy of insurance, although the vessel 
 remains in sppcie, or in other words, there may be an actual total loss accord- 
 ing to the law of marine insurance, although the vessel is in existence as such 
 when the loss is claimed." And the court cite the case of capture as an 
 example. 
 
 The doctrine of Lord Ellenborough, as laid down in Parmeter v. Todhuntcr, 
 1 Campb. 541, and referred to in the leading English note under the rule now 
 under consideration, is cited with apparent approval by Shaw, Ch. J., in 
 Peirce v. Ocean Ins Co., 18 Pickering (Mass.), 83 ; 29 Am. Dec. 567. See 
 infra.
 
 46 ABANDONMENT. 
 
 No. 6 — Roux v. Salvador. 
 
 "A partial loss of an entire cargo, by sea damage, if amounting to more 
 than half, may under circumstances be converted into a technical total loss ; 
 but not if a distinct part of the cargo be destroyed, and the voyage be not 
 thereby broken up or rendered unworthy of being prosecuted." Se/on v. 
 Delaware Ins. Co., 2 Washington (Circ. Gt. U. S.), 175. See also, as supporting 
 the principal case, Globe Ins. Co. v. Sherlock, 25 Ohio St. 5Q. 
 
 The rule of the principal case is supported inferentially by Insurance Co. 
 v. Fogartrj, 19 Wallace (U. S. Sup. Ct.), 640 ; Insurance Co. v. Gossler, 96 
 V. S. 645. 
 
 Section III. — Total Loss ivithout Abandonment. 
 
 No 6. — ROUX v. SALVADOR. 
 "(ex. ch. from c. p. 1836.) 
 
 RULE. 
 
 Where by a peril insured against the owner is disabled 
 from recovering in specie the thing insured at the termina- 
 tion of the risk, there is a total loss, without the necessity 
 of notice of abandonment. 
 
 Insurance on hides per ship A., from {inter alia) Valpa- 
 raiso to any port in France, &c. Hides shipped under 
 this policy from Valparaiso to Bordeaux were damaged 
 by perils of the sea and landed at Rio Janeiro, .where it 
 was ascertained that they could not, by reason of the 
 damage, be sent to Bordeaux in a merchantable condi- 
 tion. They were accordingly sold at Rio for one fourth 
 of their value. Held, that there was an actual, and not 
 merely constructive, total loss of the hides ; and that the 
 assured might recover accordingly without having given 
 notice of abandonment. 
 
 Roux v. Salvador. 
 
 3 Bing. N. C. 266 (7 L. J. Exch. 328). 
 
 Assumpsit on a policy of assurance, subscribed by the defendant 
 
 for £200. Plea, non-assumpsit. 
 
 By a special verdict it was found, in substance, that 
 
 The policy on which the action was brought was effected on 
 
 goods per the General La Fayette, and other ship or ships, at and
 
 SECT. III. — WHERE UNNECESSARY. 47 
 
 No. 6. — Roux v. Salvador. 
 
 from, among other ports or places in the Pacific Ocean, Valparaiso, 
 to any port or ports in France and the United Kingdom of Great 
 Britain, with leave to touch and trade at any place in America or 
 any where else ; to effect all transshipments ; and including the 
 risk of craft to and from the vessel or vessels. The usual perils 
 were insured against ; and the policy, which was for £700, had the 
 following memorandum subscribed : " N. B. Corn, fish, salt, fruit, 
 flour, and seed are warranted free from average, unless general, or 
 the ship be stranded. Sugar, tobacco, hemp, flax, hides, and skins are 
 warranted free from average under 5 per cent. ; and all other goods ; 
 also the ship and freight are warranted free from average under 3 
 per cent., unless general, or the ship be stranded." The policy was 
 declared to be on goods, specie, or bullion, as interest might appear : 
 to pay average on each species of goods by following landing num- 
 bers of the value of £100 each, as if separately insured. Cocoa and 
 hides, free of particular average, unless the ship were stranded : 
 in case of average on the hides, the assurers were to pay the ex- 
 pense of washing and drying in full. 
 
 Under this policy the plaintiff, on the 6th of May, 1831, caused 
 to be shipped on board the ship Eoxalane, at Valparaiso, for Bor- 
 deaux, in France, 1000 salted hides, of the value of £1117, his 
 property, which hides were intended to be insured by the said 
 policy, and were duly declared thereupon, and a bill of lading duly 
 signed by the captain in the ordinary form. 
 
 On the 13th of May, 1831, the said ship being seaworthy, witli 
 the said 1000 hides, and other hides on board thereof, set sail from 
 Valparaiso aforesaid, on her said voyage towards Bordeaux. On 
 the 5th of June, 1831, in the course of her said voyage, the said 
 ship, with the said goods on board thereof, encountered bad weather 
 and sprung a leak, and it thereby became necessary, for the safety 
 of the ship and cargo, that the said ship should put into a port for 
 repair, and the said ship did accordingly put into Eio de Janeiro, 
 in Brazil, being the nearest port, for repair. On the 7th of July, 
 1831, the whole of her cargo was there landed; and it was then 
 found, that the said hides were damaged by the said perils and 
 dangers of the seas, as follows ; that is to say, that they had been 
 washed or wetted by the sea-water which had entered into the 
 vessel through the said leak, and also by the effect of the damp- 
 ness produced in the hold by the leak, and in consequence thereof 
 a partial fermentation ensued, the progress of which could not be
 
 48 ABANDONMENT. 
 
 No. 6. — Roux v. Salvador. 
 
 stopped by any means practicable in Kio de Janeiro ; and, in con- 
 sequence of the progressive putrefaction of the said 1000 hides, it 
 was impossible to carry them, or any part thereof, in a salable 
 state, to the termination of the voyage for which they were insured : 
 if it had been attempted to take them to Bordeaux, they would, by 
 reason of such progressive putrefaction as aforesaid, have altogether 
 lost the character of hides before they arrived there. On the 
 27th of August, 1831, at Kio de Janeiro, the said 1000 hides in the 
 said policy mentioned, according to the ordinances of the French 
 consul-general there, were sold, by public auction, for the gross 
 sum of £273 : the same were bought by the purchasers for the 
 purpose of being tanned, and were tanned accordingly. The ship 
 Roxalane being repaired, and the leak stopped which was in her 
 bottom, she, on the 3d of October, 1831, sailed from Eio de Janeiro 
 without the said hides in the said policy mentioned, but with such 
 part of her cargo reloaded on board as had not been sold ; and, in 
 the course of her voyage from Rio de Janeiro to Bordeaux, was 
 stranded at the entrance of the river Garonne, on the 29th of 
 December, 1831. The earliest intelligence of the damage, and of 
 the sale of the said 1000 hides, was received at the same time by 
 Messrs. Deveaux and Company, the agents for the said plaintiff, 
 by a letter from Bordeaux. 
 
 The Court of Common Pleas, after two arguments, having given 
 judgment for the defendant (see 1 New Cases, 526), the cause was 
 removed by error into the Exchequer Chamber, where it was argued 
 in Easter vacation, 1836, by Maule for the plaintiff, and the Attor- 
 ney-General for the defendant. 
 
 Maule for the plaintiff. 
 
 First, there has been such a stranding of the ship as to entitle 
 the plaintiff to claim and recover an average loss. The condi- 
 tion in the policy must be taken strictly, and the insurer having 
 consented to abide by it without qualification, it is immaterial 
 whether the stranding was connected with the loss or not. Thus in 
 Burnett v. Kensington, 7 T. R. 210, upon a similar condition, the 
 ship having been stranded in the course of the voyage, the under- 
 writers were held liable for an average loss arising from the perils 
 of the seas, though no part of the loss arose from the act of strand- 
 ing; and so strictly has such a condition been construed, that a 
 loss occasioned by the stranding of a lighter in conveying goods 
 from the ship has been held not to be a stranding of the ship
 
 SECT. III. — WHERE UNNECESSARY. 49 
 
 No. 6. — Koux v. Salvador. 
 
 within the meaning of the condition : Hoffman v. Marshall, 2 New 
 Cases, 383. 
 
 Secondly, there was a total loss of such a nature as, whether 
 actually or only constructively total, to render unnecessary a notice 
 of abandonment. 
 
 Such notice was unnecessary, because, notwithstanding a por- 
 tion of the goods remained in an altered shape, upon the sale cf 
 them the adventure was at an end. 
 
 The court below, in deciding that notice of abandonment was 
 necessary, relied mainly on Mitchell v. Edie, 1 T. E. 608, Allwood v. 
 Henckell, Park Ins. 280, and Hodgson v. Blackiston, Park Ins. 281, n. 
 In the first two of these cases the sale was not rendered necessary 
 by perils insured against ; and in neither of them was the state of 
 circumstances before the sale such as to make the prosecution of 
 the adventure impossible, and to amount to a total loss, indepen- 
 dently of the assured choosing to treat it as such ; consequently, if 
 there had been no sale, a notice of abandonment would clearly 
 have been necessary. In the third of those cases it is not stated 
 what was the nature of the loss ; the report only states that notice 
 of abandonment was held necessary, though the ship and cargo had 
 been sold and converted into money, when the notice of the loss 
 was received. It, therefore, only amounts to an authority that the 
 sale of the ship and cargo does not of itself render unnecessary a 
 notice of abandonment; a proposition which is not denied by the 
 plaintiff in this cause. The three cases are all of them consistent 
 with the proposition contended for by the plaintiff, that where a 
 loss is of itself total, independently of the election of the assured., 
 that is, where the subject of the insurance is placed by the peril 
 insured against in a situation which renders the prosecution of 
 the adventure impossible, notice of abandonment is not necessary. 
 The cases referred to only establish the proposition, not incon- 
 sistent with the preceding, that where the perils insured against 
 have reduced the subject of insurance to such a state as not to 
 render the adventure impossible, but to give the assured a right 
 by notice of abandonment to throw it upon the underwriters, and 
 when the loss, therefore, is only total at the election of the assured, 
 and a notice of abandonment is necessary to show that he elects so 
 to treat it, a sale will not excuse the want of such a notice. Those 
 cases, therefore, are not authorities for the doctrine in support of 
 which they are cited by the Court of Common Pleas ; and the case 
 
 VOL. i. — 4
 
 50 ABANDONMENT. 
 
 No. 6. — Eoux v. Salvador. 
 
 of Cambridge v Anderton, 2 B. & C. 691 ; 1 Car. & P. 215 (in which 
 Hodgson v. Blackiston was cited), is directly in point in favour of the 
 plaintiff. There, the ship having got on rocks, and experienced per- 
 sons giving it as their opinion, that the expense of getting off and 
 repairing her would exceed her value when repaired, the captain 
 sold her ; and it was held that the assured might recover for a total 
 loss without abandonment, notwithstanding the purchaser after- 
 wards got her off and dispatched her on a voyage to England. The 
 court below, however, relied on principle as well as on authorities, 
 and the reasoning of the court amounts to this, that an abandonment 
 is necessary, because it would be convenient for the underwriter to 
 have early notice of the intention of the assured to call upon him 
 in order that he may the better prepare his defence, or exercise the 
 rights belonging to him as underwriter, with respect to the subject 
 insured. This would apply to make a notice of abandonment 
 necessary in all cases whatever of total loss, and an early notice of 
 claim in all cases of partial loss ; and, indeed, to require a prompt 
 notice in all cases, whether arising out of contracts of insurance or 
 not, where the defendant might be prejudiced by delay; an object 
 which the legislature must be taken to have provided for by the 
 Statute of Limitations. The necessity of notice of abandonment, 
 however, does not rest on this principle, but arises out of the elec- 
 tion which the assured has in certain cases to treat the loss as an 
 average loss, and to carry on the adventure, or to throw the risk on 
 the underwriters by notice of abandonment ; and where the perils 
 insured against have rendered such an election impossible, no notice 
 of abandonment is necessary. In Read v. Borikam, 3 B. & B. 147, 
 a notice of abandonment having been given, which the court held 
 sufficient, the plaintiff was not called upon to contend it was un- 
 necessary : and in Parry v. Aberdein, 9 B. & C. 411, the plaintiffs, 
 having heard of the destruction of the ship before they heard of 
 the subsequent occurrences, were bound to abandon if they meant 
 to claim for a total loss. On the other hand, in Doyle v. Dallas, 
 1 Moo. & Rob. 48, the want of notice of abandonment appears to 
 have been thought immaterial : in Robertson v. Clarke, 1 Bingh. 445, 
 where the ship was sold and a total loss recovered, there does not 
 appear to have been any notice of abandonment ; in Mullett v. Shed- 
 den, l:'» East, 304, it is admitted that abandonment is not necessary 
 where goods are sold by the Court of Admiralty ; and in Cologan 
 v. London Assurance Company, 5 M. & S. 447, Abbott, J. says,
 
 SECT. III. — WHEKE UNNECESSARY. 51 
 
 No. 6. — Roux v. Salvador. 
 
 " Abandon ment excludes any presumption which might have arisen 
 from the silence of the assured, that they meant to adhere to the 
 adventure." Here it is impossible to suppose the assured could 
 mean to adhere to the adventure, when he knew the result was 
 .ascertained by a sale of which he had received the proceeds. 
 
 Sir J. Campbell, Attorney -General, contra. 1st, There was no 
 stranding for which the underwriter is liable. The stranding in- 
 tended by the parties must be a stranding in the course of the 
 adventure. A stranding before or after the adventure is wholly 
 unconnected with it, and not within the meaning of the policy. 
 Some limitation must be put on the time with respect to which 
 the underwriters' liability is to attach ; and as the liability in re- 
 spect of the goods commences with their being put on board, so it 
 ceases on their being safely landed. 
 
 2dly, This was not a total loss ; for though the hides w T ere dam- 
 aged, they still existed as hides ; were sold as such ; and if tanned, 
 might have been carried to Bordeaux. There would not have 
 l>een a total loss, therefore, even if the goods had not been ex- 
 cepted by the memorandum ; but being so excepted, a fortiori, 
 they could not be deemed totally lost so long as any of them re- 
 mained in specie at the termination of the risk, when they were 
 landed at Rio de Janeiro. The assured cannot, by a premature sale, 
 throw on the underwriter a liability as for a total loss. In Dyson 
 v. Rowcrbft, 3 B. & P. 474, on which the Court of Common Pleas 
 relied, there was an actual total loss by the article being thrown 
 overboard; and Manning v. Nunham, 3 Dougl. 130; Park Ins., 
 260 ; 2 Campb. 624, n., where the possibility of a salvage was held 
 not to exonerate the underwriter, is much shaken by Glennie v. 
 London Assurance Company, 2 M. & S. 371, where the underwriter 
 was discharged, because the goods, although sold for less than their 
 freight, might have been transmitted to their destination. In /////// 
 v. Eoyal Exchange Assurance Company, 5 M. & S. 47, it was held 
 that a loss of voyage for the season by perils of the sea was not a 
 ground of abandonment upon a policy of goods, with a clause of 
 -warranty free from average, &c, where the cargo was in safety, 
 and not of such a perishable nature as to make the loss of voyage 
 -a loss of the commodity, although the ship were rendered incapable 
 of proceeding on the voyage. In Thompson v. Royal Exchange 
 Assurance Company, 16 East, 214, where the ship was wrecked, 
 i)ut the goods were brought on shore, though in a very damaged
 
 52 ABANDONMENT. 
 
 No. 6. — Roux v. Salvador. 
 
 state, so that they became unprofitable to the insured, it was held 
 that the underwriters on the goods, who were freed by the policy 
 from particular average, could not be made liable, as for a total loss, 
 by a notice of abandonment. And Lord Ellenborough said, "All the 
 goods were got on shore and saved, though in a damaged state. 
 If this can be converted into a total loss, by notice of abandonment, 
 the clause excepting underwriters from particular average may 
 as well be struck out of the policy. We can only look to the time 
 when the loss happened, and the goods were landed ; and then it 
 was not a total loss, however unprofitable they might afterwards 
 be." And that decision is confirmed by M' Andrews v. Vaughan, 
 Park Ins. 185. In Anderson v. Wallis, 2 M. & S. 240, copper and 
 iron was insured from London to Quebec, warranted free from 
 particular average ; the ship was driven into Kinsale, and being 
 detained for repairs so that she could not proceed to Quebec that 
 season, the iron, which was greatly damaged, and the copper were 
 sold : but notwithstanding the ship had lost her voyage, the loss of 
 the goods was held not to be total. So here, though the destined 
 market for the hides was lost, the hides remaining in specie, the 
 loss was not total. 
 
 Lastly, in order to enable the assured to recover, an abandon- 
 ment was necessary ; and the cases relied upon in argument and 
 by the court below, to which may be added, Anderson v. Royal 
 Exchange Company, 7 East, 38, are not outweighed by Cambridge 
 v. Andcrton and Mullett v. Shedden, the only conflicting deci- 
 sions which bear upon the point. The authority of Cambridge v. 
 Andcrton is weakened by the language of Bayley, J., in Gardener 
 v. Salvador, 1 Moo. & Rob. 116. But in Cambridge v. Anderton, as 
 well as in Mullett v. Shedden, abandonment was not necessary, be- 
 cause the loss was indisputably total. If, according to Mitchell v. 
 Edie, Allwood v. Henckell, and Hodgson, v. Blackiston, a sale does 
 not end the adventure so as to exonerate the assured from giving 
 notice of abandonment, neither will the receipt of the money, nor 
 the intelligence of the sale coming at the same time as the intelli- 
 gence of the loss : that does not carry the matter further than the 
 sale. Here, the money produced by the sale of the hides became 
 vested in the assured : he had a right to keep it, and, if he thought 
 fit, to treat the loss as partial : and whenever the assured may 
 treat a loss as partial, an abandonment is necessary to make it a 
 total loss.
 
 SECT. III. — WHERE UNNECESSARY. 53 
 
 No. 6. — Roux v. Salvador. 
 
 Maule was heard in reply, and with respect to Hunt v. Royal 
 Exchange Assurance Company, Thompson v. Royal Exchange Assur- 
 ance Company, and Anderson v. Wallis, observed, that the goods 
 were not of such a nature or damaged in such a way as to render 
 it impossible, as in the present case, to forward them to their 
 original destination. Cur. adv. vult. 
 
 Lord Abinger, C. B. This was a writ of error upon a judgment 
 of the Court of Common Pleas, in an action on a pulicy of insurance 
 upon goods by the Roxalane at and from any ports or places in 
 South America, to a port in France or the United Kingdom, with 
 various liberties, not material to be mentioned. By a written 
 memorandum at the foot of the policy, the insurance was declared 
 to be on hides shipped at Valparaiso free of average, unless the 
 ship should be stranded ; and, in case of average loss, the under- 
 writers were to pay the expense of washing and drying in full. 
 The declaration contains the usual averments, and states that the 
 hides were shipped at Valparaiso ; that the vessel set sail with 
 them on board for Bordeaux, a port in France ; and that in the 
 course of the voyage, the hides became lost by the perils of the sea, 
 and never arrived at Bordeaux. 
 
 The plea is the general issue. 
 
 It appears by the record that the cause was tried, and a special 
 verdict found, which, after stating the facts necessary to support 
 those parts of the declaration upon which no question arises, sets 
 forth the loss, in substance, as follows : " That the hides of the 
 value of £1000 having been shipped in the vessel, she set sail on 
 her voyage ; in the progress of which she encountered perils of the 
 sea, and sprung a leak, in consequence of which she was compelled 
 to put into Rio Janeiro, being the nearest port ; that her cargo was 
 taken out and landed, when it was found, as the fact was, that the 
 hides were damaged by the perils of the sea ; that by reason of their 
 being wetted by the water issuing through the leak, and of the 
 consequent dampness of the hold, they were undergoing a process 
 of fermentation, which could not be checked ; and that in conse- 
 quence of their progressive putrefaction it was impossible to carry 
 them, or any part of them, in a salable state, to the termination 
 of the voyage ; and that if it had been attempted to take them to 
 Bordeaux they would in consequence of the putrefaction have lost 
 the character of hides before their arrival." The special verdict
 
 54 ABANDONMENT. 
 
 No. 6. — Roux v. Salvador. 
 
 further states that the hides were in consequence sold at Rio 
 Janeiro by order of the French consul there, for the sum of £270 ; 
 that they were purchased to be tanned, and were afterwards tanned ; 
 that the ship, being repaired, set sail for Bordeaux, and was stranded 
 upon entering the Garonne ; and that the earliest intelligence of 
 the damage and sale were received at the same time in a letter 
 from Bordeaux. 
 
 The judgment is entered for the defendant : to set aside which 
 judgment this writ of error is brought. The stranding of the 
 vessel upon entering the river Garonne in her passage to Bor- 
 deaux, is introduced into the special verdict, with a view to meet 
 the supposed case of a partial loss : and it has been contended, 
 that the fact of stranding being a condition to let in the claim for 
 a partial loss, it is not material whether the stranding takes place 
 whilst the goods insured are on board, or after they have been 
 landed. We are not prepared to adopt that conclusion : but the 
 view we take of this case renders it unnecessary to enter into any 
 discussion of the argument, or to pronounce any opinion upon it. 
 It appears from the report of the judgment of the Court of Com- 
 mon Pleas u] ton this case, that the learned judges were of opinion 
 that there was a constructive total loss, in case it had been fol- 
 lowed by an abandonment to the underwriters; and that their 
 judgment for the defendant was grounded upon the want of such 
 abandonment. 
 
 It has been urged before us in support <>f the judgment, first, 
 that there was no total loss ; secondly, that if there were any cir- 
 cumstances which might have amounted to more than an average 
 <»r partial loss, they were not such as without an abandonment 
 could have been converted into a total loss. Upon the first point 
 if has been contended, that even if these goods had not been ex- 
 cepted from average loss by the memorandum, unless upon the 
 condition of stranding, there would not in this case have been a 
 total loss, and that, a fortiori, being goods so expressly excepted 
 from average loss by the memorandum, they could not become 
 totally lost so long as any part of them remained in specie at the 
 termination of the risk ; that the risk terminated when the goods 
 were taken out at Rio de Janeiro, when they were so far from be- 
 ing destroyed by the perils of the sea, that they were actually sold 
 as hides, and were capable of being tanned. 
 
 It appears to us that there is no ground whatever for this
 
 SECT. III. — WHERE UNNECESSARY. 
 
 No. 6- — Roux v. Salvador. 
 
 assumed distinction between goods that are subject to a partial loss 
 unconditionally, and goods excepted by the memorandum from such 
 a loss. The interest which the assured may have in certain cases 
 bo convert a partial loss into a total loss, may be a fair argument to 
 a jury upon a doubtful question of fact as to the nature of the loss 
 or the motive for an abandonment ; and, in the same view, that 
 interest has been adverted to occasionally by Judges, where the 
 conclusions to be drawn from facts upon a special case, or upon a 
 motion for a new trial, were open to discussion. But there is 
 neither authority nor principle for the distinction in point of law ; 
 whether a loss be total or partial in its nature, must depend upon 
 general principles. The memorandum does not vary the rules 
 upon which a loss shall be partial or total ; it does no more than 
 preclude the indemnity for an ascertained partial loss, except on 
 certain conditions. It has no application whatever to a total loss, 
 or to the principle on which a total loss is to be ascertained. 
 
 Dismissing this distinction then, the argumeut rests upon the 
 position, that if, at the termination of the risk, the goods remain in 
 specie, however damaged, there is not a total loss. Now this posi- 
 tion may be just, if by the " termination of the risk," is meant the 
 arrival of the goods at their place of destination according to the 
 terms of the policy. But there is a fallacy in applying those words 
 to the termination of the adventure before that period by a peril of 
 the sea. The object of the policy is to obtain an indemnity for any 
 loss that the assured may sustain by the goods being prevented by 
 the perils of the sea from arriving in safety at the port of their 
 destination. If, by reason of the perils insured against, the goods 
 do not so arrive, the risk may in one sense be said to have termin- 
 ated at the moment when the goods are finally separated from the 
 vessel : whether, upon such an event, the loss is total or partial, 
 no doubt, depends upon circumstances. But the existence of the 
 goods, or any part of them, in specie, is neither a conclusive, nor, 
 in many cases, a material circumstance to that question. If the 
 goods are of an imperishable nature, if the assured become pos- 
 sessed or can have the control of them, if they have still an oppor- 
 tunity of sending them to their destination, the mere retardation 
 of their arrival at their original port may be of no prejudice to 
 them beyond the expense of re-shipment in another vessel. In 
 such a case, the loss can be but a partial loss, and must be so 
 deemed, even though, the assured should, for some real or sup-
 
 56 ABANDONMENT. 
 
 No. 6. — Roux v. Salvador. 
 
 posed advantage to themselves, elect to sell the goods where they 
 have been landed, instead of taking measures to transmit them to 
 their original destination. But if the goods, once damaged by the 
 perils of the sea. and necessarily landed before the termination of 
 the voyage, are, by reason of that damage, in such a state, though 
 the species be not utterly destroyed, that they cannot with safety 
 be re-shipped into the same or any other vessel ; if it be certain 
 that, before the termination of the original voyage, the species 
 itself would disappear, and the goods assume a new form, losing all 
 their original character ; if, though imperishable, they are in the 
 hands of strangers not under the control of the assured; if by any 
 circumstance over which he has no control they can never, or 
 within no assignable period, be brought to their original destina- 
 tion ; in any of these cases, the circumstance of their existing in 
 specie at that forced termination of the risk, is of no importance. 
 The loss is, in its nature, total to him who has no means of recov- 
 ering his goods, whether his inability arises from their annihilation 
 or from any other insuperable obstacle. Accordingly, in the case 
 of Hunt v. The Royal Exchange Assurance Company, 5 M. & S. 47, 
 which was cited by the Attorney-General in support of his argu- 
 ment, the judgment of Lord Ellenborough contains a very impor- 
 tant passage, which distinguishes it from the present case. He 
 says : "If, indeed, the cargo had been of a perishable nature, this 
 would not have been a case of retardation only, but of destruction 
 of the thing assured ;" and further, he says, "I cannot necessarily 
 infer that the flour would be changed in quality and condition by 
 the delay from November to April, so as to incur any material 
 damage operating a destruction of the thing insured." In the case 
 of Anderson v. Wallis, 2 M. & S. 240, which was also relied upon, 
 the goods consisted of copper, which was wholly uninjured, and of 
 iron, which was partially damaged; the assured by their own agent 
 had possession of them ; the ship was capable of repair, and might 
 have prosecuted the voyage, and did, in four weeks after the acci- 
 dent, sail upon another voyage : the only pretence for a total loss 
 was the retardation of the voyage ; upon which ground, combined 
 with the other circumstances, the court held the loss not to be 
 total. But it is clear from the judgment of the court, that if, by 
 reason of the perils of the sea, the goods could never have been 
 sent to their destination, the loss would have been held to be total. 
 In like manner it will be found in the other cases cited upon this
 
 SECT. III. — WHERE UNNECESSARY. 57 
 
 No. 6. — Roux v. Salvador. 
 
 part of the argument, that there has always existed one or more 
 other circumstances in combination with that of the goods existing 
 in specie, to induce the judgment that the loss was not total : as in 
 Glennie v. The Royal Exchange, 2 M. & S. 371, the rice had arrived 
 at its port of destination, and though damaged, was delivered to 
 the consignees, and in a salable state as rice. In Thompson v. 
 The Royal Exchange, 1G East, 214, the tobacco and sugar, though 
 damaged by the perils of the sea, were in the hands of the owner 
 at Heligoland ; and as stated by Lord Ellenborough. in his judg- 
 ment, might for any thing that appeared have been forwarded to 
 their port of destination. In Anderson v. The Royal Exchange 
 .Assurance Company, 7 East, 38, the wheat was partly saved, 
 was in the hands of the shipper at Waterford, was kiln-dried, and 
 might have been forwarded as the rest of the cargo was, after the 
 same operation, to its port of destination : but the owner, after 
 dealing with it for some time as his own, abandoned it too late, 
 even if he ever had a right to abandon it at all. In the case 
 before us the jury have found that the hides were so far damaged 
 by a peril of the sea, that they never could have arrived in the 
 form of hides. By the process of fermentation and putrefaction, 
 which had commenced, a total destruction of them before their 
 arrival at the port of destination, became as inevitable as if they 
 had been cast into the sea or consumed by fire. Their destruction 
 not being consummated at the time they were taken out of the 
 vessel, they became in that state a salvage for the benefit of the 
 party who was to sustain the loss, and were accordingly sold ; and 
 the facts of the loss and the sale were made known at the same 
 time to the assured. Neither he nor the underwriters could at 
 that time exercise any control over them, or by any interference 
 alter the consequences. It appears to us, therefore, that this was 
 not the case of what has been called a constructive loss, but of an 
 absolute total loss of the goods : they could never arrive ; and, at 
 the same moment when the intelligence of the loss arrived, all 
 speculation was at an end. It has indeed been strenuously con- 
 tended before us, that the sale of the hides whilst they remained 
 in specie, rendered abandonment necessary to make the loss 
 total ; that the money produced at the sale became vested in 
 the assured ; that he had an undoubted right to keep it if he 
 thought proper, and to treat the loss as partial ; and that, wherever 
 it is in his power to treat the loss as partial, an abandonment
 
 58 ABANDONMENT. 
 
 No. 6. — Koux v. Salvador. 
 
 is necessary to make it a total loss. The assured certainly has 
 always an option to claim or not; but his abstaining from his 
 right does not alter the nature of it : and if it be true that the 
 proceeds of the sale vested in him, they would equally have 
 done so, if, instead of being sold in specie, the hides had actually 
 changed their form, and been sold as glue, or manure, or ashes. 
 The argument, therefore, in effect resolves itself into this question, 
 whether, when a total loss has taken place before the termination 
 of the risk insured, with a salvage of some portion of the subject 
 insured, which has been converted into money, the insured is bound 
 t<> abandon before he can recover for a total loss. If any doubl 
 should exist upon this point, it is important that it should be well 
 considered and determined. 
 
 The history of our own law furnishes few, if any, illustrations of 
 the subject of abandonment before the time of Lord Mansfield. 
 That great Judge was obliged to resort to the aid of foreign codes, 
 and to the opinions of foreign jurists, for the rules and principles 
 which he laid down in the leading cases of Goss v. Withers, 2 Burr. 
 683, and Hamilton v. Mendez, 1 W. Black. 276. But even those 
 principles are, comparatively speaking, of modern date. The mosl 
 ancient codes of the law maritime when it was eonsidered as parr 
 <>f the law of nations, contain no chapter upon assurances, neither 
 do the earliest municipal codes, nor the earliest treatises upon 
 assurances make any mention of abandonment. When a policy of 
 assurance was considered in the nature of a wager without refer- 
 ence to any actual interest possessed by the assured, it was needless 
 to treat of abandonment. The code of Florence, which bears date 
 1523, contains no allusion to that topic. The decisions of the rota 
 of (renoa, at the time when that state was most eminent for its 
 naval power and commercial enterprise, have been preserved by 
 Straccha. Amongst them are found many cases of insurance upon 
 sea risks : not one of them turns upon any question of abandon- 
 ment, or contains any allusion to that subject. The same author 
 has written a very elaborate treatise upon assurances, but is equally 
 silent on the subject of abandonment. He has also preserved in 
 that treatise the form of a policy, bearing date at Ancona, October 
 20, 1567, which he says was at that time in general use amongst 
 the states of Italy. From the terms of that policy it is difficult to 
 infer any right or duty of abandonment. It contains this clause: 
 " Ft si delle mercantie ass ■ mrate intervenisse o fosse intervenuto 

 
 SECT. III. - — WHERE UNNECESSARY. 59 
 
 No. 6. — Roux v. Salvador. 
 
 alcun disastro li assecuratorij debbono dare et pagare quelli danari 
 assecurati al detto assecurato fra mesi due dal di ehe in Ancona ne 
 
 fosse vera nueva, Et si pretendessero per ragione alcuna dire in 
 contrario non possono esser uditi da corte, guidice, o magistrato 
 alcimo, si prima non averanno pagati effectualmente danari con- 
 tanti." So that not only two months after the credible news of 
 any disaster was the underwriter bound to pay a total loss, but if 
 he meant to contest the claim, he was within that time to purchase 
 tin' right of litigation by first paying the sum insured. It was, 
 however, to be restored to him in the event of his success. There 
 is also a clause in the policy, by which if there was no account of 
 the ship for twelve months, the underwriter was bound to pay at 
 the end of that time, subject to restitution if the ship should after- 
 wards arrive : a provision wholly inconsistent with any notion of 
 abandonment. The same law probably prevailed at that period 
 throughout the states of Italy. But when assurances came to lie 
 •considered as contracts of indemnity, and not as mere wagers, it 
 became necessary to make some rules for the conduct of the parties, 
 where the loss was partial, as well as to secure to the assured, when 
 it was total, the full measure of his indemnity, and no more.' The 
 obligation of abandonment was the necessary consequence of con- 
 fining the object of the contract to a strict indemnity. Accordingly 
 we find in the chapter of assurances in the civil statutes of Genoa 
 in 1610, the disaster upon which the underwriter is bound to pay 
 is limited and defined to be the incapacity of the ship to proceed 
 within a month after she has been disabled, or the detention of 
 her by force, and the compulsory dereliction of her voyage, whereby 
 she is forced to land the goods insured. In those cases the assured 
 may either abandon the goods and demand the full insurance, or 
 make up the amount of the loss, and demand it from the under- 
 writers, who, if it amount to 50 per cent... shall have their option, 
 either to pay that sum and leave the goods to the assured, or to 
 pay the whole and take the goods. By the same law wager policies 
 -are prohibited and declared void. 
 
 Here, it is obvious, that the object of the law was to limit the 
 claim of the assured to a strict indemnity. The same principle 
 will be found in the various codes of the other maritime states of 
 Europe in which abandonment is mentioned; though it must be 
 admitted that the rules they have respectively adopted are very 
 different. In some, abandonment is merely permissive, and limited
 
 60 ABANDONMENT. 
 
 No. 6. — Roux v. Salvador. 
 
 to very few cases. In others, as in the codes of Rotterdam and 
 Amsterdam, abandonment was imperative even in the case of an 
 absolute total loss. Such seems to have been the law of France 
 as established by the ordinances of Louis XIV. in 1681. From the 
 words of that code, indeed, it might be thought that they were only 
 intended to prohibit it in all but the specified cases, and not to en- 
 force it as a preliminary condition for recovering an absolute total 
 loss: "ne pourra le ddlaissement etre fait qu'en cas de prise, nau- 
 frage, bris, echouement, arrest de Prince, ou perte entiere des effets 
 assurez; et tous autres dommages ne seront reputez qu' avarie." 
 Emerigon in his Treatise Des Assurances, c. 17, s. 1, remarks, that 
 abandonment presents to the mind the idea of a thing existing in 
 whole or in part, or at least the idea of a doubtful existence, for it 
 appears absurd to renounce to the assurers a thing of which the abso- 
 lute loss is already established. Nevertheless, he says, "According 
 to our maritime laws, one may abandon to the underwriters a thing 
 entirely lost, and, however singular it may appear, the law requires 
 the form of an abandonment in the process of an action de delaisse- 
 ment, though it be stated that the goods have absolutely ceased to 
 exist." This apparent inconsistency in the law of France is now 
 removed by the code Napoleon. Under the title dn Delaissement 
 in the Code de Commerce, there are seven cases enumerated, in 
 which abandonment is permitted, amongst which the "perte entilre 
 des effets assures " is not to be found. There is, indeed, a power 
 given to abandon in case the loss or damage of the goods insured 
 amounts to three-fourths ; but the necessity of making an aban- 
 donment in case of the entire loss, seems to be guarded against 
 expressly by the Article 372, which provides, " that the abandon- 
 ment shall extend to nothing but those effects which are the object 
 of the assurance and of the risk." 
 
 But whatever lights might have been heretofore derived from 
 foreign codes and jurists, the practice of insurance in England has 
 been so extensive, and the questions arising upon every branch of 
 it have been so thoroughly considered and settled, that we need 
 not now look beyond the authorities of the English law to illus- 
 trate the principle on which the doctrine of abandonment rests, 
 and the consequences which result from it. It is, indeed, satisfac- 
 tory to know, that however the laws of foreign states upon this 
 subject may vary from each other, or from our own, they are all 
 directed to the common object of making the contract of insurance
 
 SECT. III. — WHERE UNNECESSARY- 61 
 
 No. 6. — Roux v. Salvador. 
 
 a contract of indemnity, and nothing more. Upon that principle 
 is founded the whole doctrine of abandonment in our law. The 
 underwriter engages, that the object of the assurance shall arrive in 
 .safety at its destined termination. If, in the progress of the voyage, 
 it becomes totally destroyed or annihilated, or if it be placed, by 
 reason of the perils against which he insures, in such a position, 
 that it is wholly out of the power of the assured or of the under- 
 writer to procure its arrival, he is bound by the very letter of his 
 contract to pay the sum insured. But there are intermediate cases, 
 — there may be a capture, which, though prima facie a total loss, 
 may be followed by a recapture, which would revest the property 
 in the assured. There may be a forcible detention which may 
 speedily terminate, or may last so long as to end in the impossibil- 
 ity of bringing the ship or the goods to their destination. There 
 may be some other peril which renders the ship unnavigable, with- 
 out any reasonable hope of repair, or by which the goods are partly 
 lost, or so damaged that they are not worth the expense of bringing 
 them, or what remains of them, to their destination. In all these 
 or any similar cases, if a prudent man not insured would decline 
 any further expense in prosecuting an adventure, the termination 
 of which will probably never be successfully accomplished, a party 
 insured may, for his own benefit, as well as that of the underwriter, 
 treat the case as one of a total loss, and demand the full sum in- 
 sured. But if he elects to do this, as the thing insured, or a portion 
 of it still exists, and is vested in him, the very principle of the 
 indemnity requires that he should make a cession of all his right 
 to the recovery of it, and that too, within a reasonable time after 
 he receives the intelligence of the accident, that the underwriter 
 may be entitled to all the benefit of what may still be of any value ; 
 and that he may, if he pleases, take measures, at his own cost, for 
 realizing or increasing that value. In all these cases not only the 
 thing assured or part of it is supposed to exist in specie, but there 
 is a possibility, however remote, of its arriving at its destination. 
 or at least of its value being in some way affected by the measures 
 that may be adopted for the recovery or preservation of it. If the 
 assured prefers the chance of any advantage that may result to 
 him beyond the value insured, he is at liberty to do so ; but then 
 he must also abide the risk of the arrival of the thing insured in 
 such a state as to entitle him to no more than a partial loss. If, 
 in the event, the loss should become absolute, the underwriter is
 
 62 ABANDONMENT. 
 
 No. 6. — Roux v. Salvador. 
 
 not the less liable upon his contract, because the insured has used 
 his own exertions to preserve the thing assured, or has postponed 
 his claim till that event of a total loss has become certain which 
 was uncertain before. In the language of Lord Ellenborough, in 
 the case of Mellish v. Andrews, 15 East, 13, "It is an established 
 and familiar rule of insurance, that when the thing insured sub- 
 sists in specie, and there is a chance of its recovery, there must be 
 an abandonment. A party is not in any case obliged to abandon , 
 neither will the want of an abandonment oust him of his claim for 
 that which is in fact an average or total loss, as the case may be.'' 
 Again, in Mullett v. Shedden, 13 East, 304, the same learned Judge 
 says : " If, instead of the saltpetre having been taken out of the 
 ship and sold, and the property divested, and the subject-matter 
 lost to the owner, it had remained on board the ship, and been 
 restored at last to the owner, I should have thought there was 
 much in the argument, that, in order to make it a total loss, there 
 should have been notice of abandonment, and that such notice 
 should have been given sooner : but here the property itself was 
 totally lost to the owner, and the necessity of any abandonment 
 was altogether done away." In that case, the sentence under which 
 the sale was made had been reversed, and the proceeds directed t<» 
 be paid to the owner. So that there was a substitution of money 
 for a portion at least of the matter insured. Both these cases are 
 direct authorities that no abandonment is necessary where there is 
 a total loss of the subject-matter insured. To which may be added 
 '.he cases of Green v. The Royal Exchange Assurance Company, 
 6 Taunt. 68, Idle v. The Royal Exchange Assurance Company, 
 8 Taunt. 755, Robertson v. Clarke, 1 Bingh. 445, Cambridge v. 
 Anderton, 2 B. & C. 697: this last is in all points similar to the 
 present, and is an express decision that, when the subject-matter in- 
 sured has, by a peril of the sea, lost its form and species, — where a 
 ship, for example, has become a wreck or a mere congeries of planks., 
 and has been bond fide sold in that state for a sum of money, — 
 the assured may recover a total loss without any abandonment. In 
 fact, when such a sale takes place, and in the opinion of the jury is 
 justified by necessity and a due regard to the interest of all parties, 
 it is made for the benefit of the party who is to sustain the loss ;. 
 and if there be an insurance, the net amount of the sale, after 
 deducting the charges, becomes money had and received to the use 
 of the underwriter, upon the payment by him of the total loss..
 
 8KCT. III. — WHERE UNNECESSARY. 63 
 
 No. 6. — Roux v. Salvador. 
 
 It may be proper to mention, however, that the assured may pic- 
 elude himself from recovering a total loss, if, by any view to his 
 own interest, he voluntarily does, or permits to be done, any act 
 whereby the interests of the underwriter may be prejudiced in the 
 recovery of that money. Suppose, for example, that the money 
 received upon the sale should be greater than or equal to the sum 
 insured, if the assured allows it to remain in the hands of his agent, 
 or of the party making the sale, and treats it as his own, he must 
 take upon himself the consecpience of any subsequent loss that may 
 arise of that money, and cannot throw upon the underwriter a peril 
 of that nature. This is the true principle of the case of Mitchell v. 
 Eclie, 1 T. E. 608, which was cited as an authority for the decision 
 of the Court of Common Pleas. There the insurance was upon 
 sugar from Jamaica to London. The ship had been captured by a 
 privateer, deprived of some of her crew and a portion of her stores, 
 then released, and carried by the remainder of the crew into Charles- 
 ton, where she arrived on the 18th of February, 1782. The report 
 does not state when the intelligence of this event arrived in London, 
 but it is probable that it must have reached the assured before the 
 month of June following. One of the owners of the ship was resi- 
 dent at Charleston; he took possession of her, and, instead of 
 dispatching her on the original voyage, he sold the cargo of sugar 
 in the month of June, and sent the ship on another voyage. He 
 had been connected with the assured in former adventures. He 
 retained the money in his hands, and came to England in June, 1783. 
 The assured pressed him for payment of the money, but took no 
 step to recover it ; he became insolvent the following year : no claim 
 was made upon the underwriters till after this event ; and then, 
 after the expiration of three years from the alleged loss of the 
 goods, notice of abandonment was given, and the action brought ; 
 upon which the defendant paid into court a sum sufficient to 
 cover a general average, and pleaded the general issue. The court 
 gave judgment against the plaintiff; stating that he had abandoned 
 too late. And it cannot be disputed, that if he ever had any colour 
 for claiming a total loss, it must have been upon an abandonment 
 before he heard of the sale, as he afterwards gave credit to his agent 
 for the money, and elected to treat it as his own, till the event of 
 an insolvency, which prevented the underwriter from recovering it. 
 But in fact there never was a total loss by a peril of the sea. The 
 sugars were safe at Charleston, and the sale by tin 1 owner of the
 
 64 ABANDONMENT. 
 
 No. 6. — Roux v. Salvador. — Notes. 
 
 ship was not a loss by a peril insured against. The secret of the 
 conduct oi the assured may be discovered by a reference to the dates 
 and the circumstances of the time. During the war with America, 
 and especially towards the close of it, the intercourse between that 
 country and the West India Islands was much interrupted, and the 
 price of colonial produce was higher in Charleston than in London. 
 It was therefore probably his interest to give up his claim upon the 
 underwriters, and adopt the sale. If therefore the sale of the goods 
 could have been treated as a loss, the conduct of the assured had 
 either deprived him of the right to claim it, or made him liable, if 
 he had the right, to account to the underwriters for the amount of 
 the sale. If indeed the court must be supposed to have treated the 
 sale at Charleston as a loss, for which the underwriter was at any 
 time responsible, the case may be an authority for establishing the 
 principle, that even when a total loss has occurred, by a sale of 
 the goods, the assured may, by his own conduct in electing to take 
 the proceeds instead of making his claim upon the underwriter, if he 
 thereby alters the position of the facts so as to affect the interest of 
 the underwriter, forfeit his claim to recover a total loss. But the 
 case is in no view an authority for the judgment of the Court of 
 Common Pleas, which for these reasons we think ought to be re- 
 versed ; and a verdict entered for the plaintiff for £27 15s. Gel, 
 and 40s. costs. Judgment for Plaintiff. 
 
 ENGLISH NOTES. 
 
 Ship with outfit and stores was insured on a valued policy for a 
 voyage, and until moored twenty-four hours in safety. The ship, by 
 reason of a peril insured against, sank as she was being brought into 
 port. The cargo, consisting of slaves, was saved and sold. Held, that 
 the assured were entitled to recover as for a total loss, and according 
 t<> the value stated in the policy. It was held that (in the absence of 
 fraud) no account could be taken, or abatement made, on a suggestion 
 that the stores which entered into the original value had been expended 
 in the course of the voyage. Shawe v. Felton (K. B. 1801), 6 R. 11. 
 394; 3 East, 109. A notice of abandonment had been given, but it 
 does not appear that this was essential, the decision having been given 
 on the ground that the ship never arrived in port as a ship. 
 
 Where goods were assured under a valued policy, the ship captured, 
 and by a sentence of the French Admiralty Court, the cargo was adjudged 
 good prize, the captors paying freight and restoring the ship, and the 
 goods were consequently sold by the consignees for the benefit of the
 
 SECT. III. — WHERE UNNECESSARY. 65 
 
 No. 6. — Roux v. Salvador. — Notes. 
 
 captors; Lord Eleexborough held the assured entitled to recover as 
 for a total loss, and said that without evidence of fraud he would not 
 disturb the valuation. Marshall v. Parkes (K. B. at N. P. 1809), 2 
 Camp. (59; 11 B, B, 665. 
 
 Perishable cargo insured free from average unless general or the ship 
 should be stranded, was damaged by sea in a storm ; and by the same cause 
 the vessel was driven into port where the authorities prohibited the land- 
 ing of the cargo, and it was necessarily thrown overboard. Held, a total 
 loss. Dyson v. Rowcroft (C. P. 1803), 3 Bos. & Pul. 474; 7 E. E. 809. 
 
 Cargo, the subject of an insurance, is seized, condemned and sold, by 
 order of a competent court. On appeal the sentence of condemnation is 
 reversed, and the value ordered to be restored. The insured is entitled, 
 without having given notice of abandonment, to recover as for a total 
 loss. "The property itself was wholly lost to the owner, and therefore 
 the necessity of any abandonment was altogether done away." Mullett 
 v. Shecldon (K. B. 1811), 13 East, 304; 12 E. E. 347. 
 
 Insurance of goods. The ship's papers were taken away, by order of 
 the Swedish Government, on the 7th of December. Notice of abandon- 
 ment was given on the 17th of January following. Subsequently the 
 goods were seized, and never restored. Held that, although the delay 
 in giving notice was fatal to a claim for constructive total loss, this did 
 not preclude a claim for actual total loss by reason of the actual seizure 
 of the goods. Lord Ellexborough said: "Abandonment is only 
 necessary to make a constructive total loss." Mellish v. Andrews 
 (K. B. 1812), 15 East, 13, 16; 13 E. E, 351. 
 
 Insurance on goods at and from London to Demerara. The ship was 
 captured near the latter place by an American privateer, emptied of her 
 stores, and the crew (except the captain and a boy) taken out. She was 
 soon afterwards re-taken and carried into St. Thomas, where ship and 
 stores were sold by order of the Admiralty Court there, made on petition 
 of the captain. Lord Ellexborough held that the captain had no right 
 to sell the cargo, unless all other expedients for raising money to pay 
 the salvage failed. It does not appear that he had exhausted all other 
 expedients, or that by waiting a reasonable time he could not have got 
 a crew, or that the goods might not have been forwarded to their desti- 
 nation by other vessels. There was a verdict for the defendants, and the 
 King's Bench refused a rule to show cause against it. Underwood, v. 
 Robertson (K. B. 1815), 4 Gamp. 138. 
 
 "Capture operates as a total loss, unless it be redeemed by subsequent 
 events." Per Abbott, J., Color/an v. London Ass. Co. (K. B. 1816), 
 5 M. & S. 447, 456. In the actual case, the voyage had been entirely 
 defeated; and notice of abandonment had been given, though the court 
 thought it unnecessary. 
 vol. i. — 5
 
 66 ABANDONMENT. 
 
 No. 6. — Roux v. Salvador. — Notes. 
 
 The proposition that no abandonment is necessary where the subject- 
 matter insured has been actually lost to the owner by the perils insured 
 against, is involved in Idle v. Royal Exchange Ass. Co. (Ex. 181*);, 8 
 Taunt. 755; and Mount v. Harrison (C. P. 1827), 4Bing, 388; which art- 
 referred to more at length in the notes to the next ruling case (No. 7). 
 
 A ship got upon rocks in the River St. Lawrence in foggy and 
 tempestuous weather. Surveyors reported that the expense of getting 
 her off — if she could be got off — and repairing her, would far exceed 
 her value when repaired. The captain and agents for the ship then 
 sold her. The purchaser did succeed in getting her off the rock, and 
 she was afterwards repaired and sent on a voyage. In an action by 
 assured on ship, who had given no notice of abandonment, the plaintiff 
 had a verdict for a total loss. The court refused a rule for a new trial. 
 Abbott, C. J., said: " Whether the ship was repairable or not was left 
 a question for the jury, and I think they disposed of it correctly. If 
 the subject-matter of insurance remained a ship, it was not a total loss; 
 but if it were reduced to a mere congeries of planks, the vessel was a 
 mere wreck; the name which you may think fit to apply to it cannot 
 alter the nature of the thing." Cambridge v. Anderton (K. B. 1824). 
 2 B. & C. 691, 692. In other words, it might be put thus : "If the thing 
 was properly considered to be a mere wreck, and was properly sold 
 accordingly, the circumstance that the purchaser made a ship of it 
 makes no difference." 
 
 Claim for total loss under policy on ship. The ship had put into 
 Mauritius in a damaged state; and, after survey, had been sold by the 
 master as not worth repairing. Tintial, C. J., in his address to the jury, 
 said: "The only question in this case is whether, under the circum- 
 stances, there has or has not been a total loss of the vessel in con- 
 sequence of the sale, and that will depend upon whether the sale 
 was necessary for the benefit of the parties concerned. ... In the 
 present case it appears that the vessel was in a place where the repairs 
 could be done, and where money could be obtained, although at an ex- 
 orbitant expense. Still the question is whether the expenditure was so 
 great that no prudent man, in the exercise of a sound and vigorous 
 judgment, would hesitate as to the propriety of selling. If you think 
 that if the owner had been on the spot uninsured, he would, on the 
 exercise of a sound discretion, have repaired the vessel ; or that, if an 
 agent of the underwriters had been there, he exercising such discretion 
 would have repaired, then this captain ought certainly to have done so. 
 But, if they would not have done so, then 1 think this captain was not 
 compellable to repair, and the sale in such case will have taken place 
 under a justifiable necessity." There was a verdict for the defendant, 
 and a motion was made for a new trial. The court were of opinion that 

 
 SECT. III. — WHERE UNNECESSARY. 67 
 
 No. 6. — Roux v. Salvador. — Notes. 
 
 the case had been properly left to the jury; but granted a rule nisi for 
 a new trial on payment of eosls, on the ground that the verdict was 
 against evidence. Somes v. Sugrue (1830), 4 (Air. & P. 276. 
 
 Under a time policy on ship, the loss of the voyage will not make ;i 
 constructive total loss of the ship. The sale by the master of a ship 
 while in a wrecked condition does not affect the underwriters, unless it 
 was necessary in the sense that it was done in the exercise of a sound 
 judgment for the benefit of all parties. Doyle v. Dallas (1ST. P. 1831), 
 1 .Mood. & Rob. 48. 
 
 The following is an important case upon the construction of the ordi- 
 nary memorandum, •' free from average unless general or the ship be 
 stranded " : — 
 
 Under a policy containing the memorandum as to (later alia) ''seed," 
 linseed packed in bags was shipped from Calcutta to London. The ship 
 encountered a gale, and on arrival at the Cape of Good Hope, the state 
 of the cargo was ascertained as follows: 505 bags had been thrown out 
 to lighten the ship; 1023 bags were so damaged that no part of them 
 could have been delivered in a merchantable state in England, and of 
 the linseed in these bags a great part was thrown away as worthless 
 and the rest sold for a few shillings; the remaining 1160 bags were 
 carried on to London and delivered sound. The question was as to the 
 1023 bags. The insured claimed to be paid for these as totally lost ; 
 but the insurer (defendant), under the condition of the memorandum, 
 refused to pay anything for them. The court, reversing the decision 
 of the Queen's Pencil (who considered themselves bound by Davy v. 
 Mitfovd, 15 East, 559), gave judgment for the defendant. They 
 summed up the principle of the judgment as follows: "Where memo- 
 randum goods of the same species are shipped, whether in bulk or in 
 packages, not expressed by distinct valuation or otherwise in the policy 
 to be separately insured, and there is no general average, and no strand- 
 ing, the ordinary memorandum exempts the underwriters from liability 
 for a total loss or destruction of part only, though consisting of one or 
 more entire packages, and though such package or packages be entirely 
 destroyed or otherwise lost by the specified perils. " Ralll v. Janson — 
 Janson v. Ralll (Ex. Ch. from Q. E. 1856), 6 Ellis & El. 422, 25 L. J. 
 Q. P. 300. — In the case of Davy v. Mitford, above referred to, rlax 
 packed in mats was insured f. p. a. The ship was wrecked. The as- 
 sured did not abandon, and got possession of part of the cargo in specie, 
 though it turned out to be very much damaged. The assured claimed 
 to recover as for a total loss. Lord Ellenborough said that there being 
 no abandonment the plaintiff could not claim unless there was an actual 
 total loss, and therefore could not recover in respect of the portion of 
 cargo which came to his hands. Put he held that lie was entitled to
 
 G8 ABANDONMENT. 
 
 No. 6. — Roux v. Salvador. — Notes. 
 
 claim as on a total loss in respect of the flax which was actually lost. 
 The principle of the latter branch of the decision has since been treated 
 as not maintainable, and it is expressly overruled by the judgment of 
 the Exchequer Chamber in the above case of Ralli v. Janson. 
 
 Goods were insured on board ship from Liverpool to Matamoras 
 against perils including "restraints and detainments of kings, &c." 
 The ship was seized by a cruiser of the U. S. Government on suspicion 
 of containing contraband of war. A suit being instituted by the captors 
 in the Prize Court at New Orleans, judgment was given against the 
 captors. The captors appealed, and subsequently, on hearing of the ap- 
 peal, the assured gave notice of abandonment. The ship and goods 
 were, by order of the court, detained pending the appeal, and ulti- 
 mately, \>y order of the same court, sold. The owners of the goods might 
 have prevented the sale by a deposit of, or giving bail for, the value; 
 but the circumstances were such that a prudent uninsured owner would 
 not have done so. Held, in the Queen's Bench, that although the notice 
 of abandonment was too tardy, the sale was a consequence of the seizure, 
 and a total loss for which the assured were entitled to recover without 
 notice of abandonment. Stringer v. English, &c. Insurance Co. (1869), 
 L. R., 4 Q. B. 676, 38 L. J. Q. B. 321. This decision was affirmed in 
 the Exchequer Chamber (1870), L. R,, 5 Q. B. 599, 39 L. J. Q. B. 214. 
 Although that court did not expressly decide that the assured were so 
 entitled to recover without notice of abandonment, it may be inferred 
 that they would, if necessary, have held the notice to be immaterial. 
 
 The master of a vessel has no power to sell so as to affect the in- 
 surers except under circumstances of stringent necessity. So in a case 
 where the vessel had grounded on a shoal, and the court, upon the evi- 
 dence, came to the conclusion that she was uninjured and not in immi- 
 nent peril, and that she might by greater exertions on the part of the 
 captain and crew have been brought into safety, — as she ultimately was 
 brought off without much difficulty by the purchaser from the master, — 
 it was held that the assured were not entitled to recover as on a total 
 loss. Cobequid v. Mar. Ins. Co. Barteaux (1875), L. R., 6 P. C. 319. 
 
 There are a number of cases, not involving the question of a claim for 
 total loss on a policy, where the circumstances under which the master 
 of a ship is justified in selling the cargo have been considered. The 
 principle is that as against the owner of the goods, the master, in order 
 to justify the act of selling them, must establish (1) a necessity for the 
 sale; (2) inability to communicate with the owner and obtain his direc- 
 tions. The leading case is Australasian Steam Nav. Co. v. Morse 
 (P. C. on appeal from X. S. Wales, 1872), L. R., 4 P. C. App. 222. 
 Other cases are Van Omeron v. Do wick (Lord Ellenborough at N. P. 
 1809), 2 Camp. 42; Campbell v. Thompson (1816), 1 Stark. 399; Free-
 
 SECT. III. — WHERE UNNECESSARY. 69 
 
 No. 6. Roux v. Salvador. — Notes. 
 
 man v. E. I. Co. (K. B. 1822) 5 B. & Aid. 617; Tronson v. Dent (P. C. 
 on appeal from Hong Kong, 1853), 8 Moore P. C. 419; Acatos v. Hums 
 (C. A. 1878), 3 Ex. 1). 282, 17 L. J. Ex. 566; Atlantic Mutual Ins. 
 Co. v. i/^A (C. A. 1880), 16 Cli. D. 471. The leading authority in 
 affirmance of the master's power under such conditions is The Grati- 
 tudine (Adm. 1801), 3 C. Rob. 196. That was a question of hypothe- 
 cating the cargo, hut it impliedly covers the case of a sale, and imports 
 the motive of prosecuting the voyage where that is possible, as entering 
 into the question of necessity. 
 
 Upon a constructive total loss happening to an insured ship, where 
 notice of abandonment is given by the owners to the original insurers, 
 there is no necessity for the latter to give notice to the insurers upon a 
 policy of reinsurance. Uzielli v. Boston Marine Ins. Co. (C. A. 1884), 
 15 Q. B. D. 11, 54 L. J. Q. B. 142. 
 
 The decision in Stringer v. English, &c. Assurance Co. was followed 
 in 1885 by Mathew J., in Lenj v. Merchants' Marine Ins. Co., 52 
 L. T. 263. 
 
 A ship insured against (inter alia) barratry of the master and crew, 
 is by their barratrous act left derelict; and subsequently brought in by 
 salvors and sold, under decree of a competent court, for less than the 
 actual cost of salvage services. Such a sale constitutes an actual, and 
 not merely constructive, total loss; and the claim as for a total loss is 
 good although no notice has been given of abandonment. Cossman v. 
 West (P. C. 1887), 13 App. Cas. 160, 57 L. J. P. C. 17. 
 
 AMERICAN NOTES. 
 
 Without an abandonment, there can be no recovery for a mere construc- 
 tive total loss arising from an injury to more than half the value of the vessel. 
 Peirce v. Ocean Ins. Co., 18 Pickering (Mass.), 83; 29 Am. Dec. 567. Here 
 Shaw, Ch. J., observed : "A question has been made, whether a claim for a 
 total loss does not necessarily imply an abandonment. It is difficult to 
 answer a question thus nakedly presented. Upon principle it would seem 
 that a mere claim for a total loss does not necessarily imply an abandonment. 
 becau.se in some cases a total loss may be recovered without abandonment. 
 Idle v. Royal Exch. Ass. Co., 8 Taunt. 755. But commonly a claim for a 
 total loss will lie accompanied by a statement of facts and circumstances. 
 by the reasons and grounds of claim upon which the assured proceeds, and 
 such statement of the grounds of claim may perhaps carry as plain an impli- 
 cation of actual abandonment as could be done by express words; though 
 it was stated by Lord Ellenborough that an implied parol abandonment 
 is too uncertain, and cannot be supported. Parmeter v. Todhunler, 1 Campb. 
 541." 
 
 But where a sale is necessarily made on account of injury, abandonment 
 is not necessary to enable the insured to recover for total loss. Prince v.
 
 70 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. — Rule. 
 
 Ocean Ins. Co., 40 Me. 481; 63 Am. Dec. 676; Howland v. India Ins. Co., 
 131 A lass. 254. 
 
 " When a steamboat, injured at or near a home port by a peril insured 
 against, remains in specie, the assured cannot, without abandoning the vessel 
 to the underwriter, claim indemnity as for a total loss, although the cost of 
 repairing the vessel may exceed its value when repaired." Globe Ins. Co. v. 
 Sherlock, 25 Ohio St. 50. The principal case was cited by counsel on 
 both sides. 
 
 No. 7. — RANKIN v. POTTER. 
 
 (h. l. 1873.) 
 
 POTTER v. RANKIN. 
 (In courts below, 1868, 1870.) 
 
 RULE. 
 
 No abandonment is necessary where there is nothing 
 which, on abandonment, can pass to be of value to the 
 underwriters. 
 
 By a charter-party entered into respecting a ship on her 
 outward voyage to New Zealand, the ship, after dischar- 
 ging in New Zealand, was to sail to Calcutta, and " being 
 there tight, staunch, a*nd strong, and everyway fitted for the 
 voyage," the charterer was to put on board a specified cargo 
 for England at a stipulated freight. The owners shortly 
 afterwards effected a polic} 7 on homeward chartered freight 
 valued at £ . The ship was damaged by perils of the 
 sea on her voyage to New Zealand, and was patched up as 
 well as could be done in a New Zealand port for her voy- 
 age to Calcutta. The ship was overhauled at Calcutta, and 
 it was found that the expense of repairs would exceed the 
 value of the ship when repaired jrfus the difference between 
 the chartered and the current freight to England. The 
 owners then gave notice of abandonment to the insurers of 
 the ship. It was admitted that the damage to the ship 
 was such as to amount to a constructive total loss if the 
 notice had been given in time ; but in an action against 
 the underwriters on the ship it had been decided that the 
 notice was not given in time : —
 
 SECT. III. — WHERE UNNECESSARY. 71 
 
 No. 7. — Rankin v. Potter. 
 
 Held, that, as regards the underwriters on freight, it was 
 immaterial whether the notice of abandonment to the under- 
 writers on ship had been properly given or not; and that, 
 as a prudent uninsured owner would not have incurred the 
 cost of repairing the ship, the earning of the chartered 
 freight bad become impracticable, and that there was a total 
 loss as regards the policy on freight. 
 
 Held, further, that, although the owners had tendered 
 the ship in her unrepaired condition to the agents for char- 
 terer, and they had declined to load a cargo, on the ground 
 that the charterer had become bankrupt, the loss of freight 
 was a loss occasioned by the perils of the sea. 
 
 Rankin v. Potter. 
 
 L. R., 6 II. L. 83-108 (s. c. 42 L. J. C. P. 27). 
 
 Potter v. Rankin. 
 
 L. K., 3 C. P. 562-574 ; 5 C. P. 341-379 (s. c. 39 L. J. C. P. 147). 
 
 This was an action by a mortgagee in possession of the ship Sir 
 William Eyre against an underwriter on chartered freight to re- 
 cover as for a total loss. 
 
 The cause was tried before Bovill, C. J., at the sittings in London 
 after Michaelmas Term, 1867, when a verdict was entered for the 
 defendant with leave to move to enter it for the plaintiff. 
 
 A rule having. been obtained accordingly and argued, the court 
 unanimously discharged the rule, and so decided in favor of the de- 
 fendants. The judgment — -that of Bovill, C. J., Willes, J., Keating, J., 
 and Montague Smith, J. — was delivered by Willes, J., and is 
 reported in the Law Beports (L. B., 3 C. B. 563-574). The principle 
 on which the judgment proceeds may be gathered from the follow- 
 ing statement towards the conclusion : " To avoid inconsistency 
 and anomaly, either the doctrine of constructive total loss by dam- 
 age to ship making repair improvident must be extended to freight. 
 with all its conditions, including that of abandonment, when the 
 earning of freight remains within the control of the assured, by 
 reason of the ship being neither actually lost, sold, or abandoned, 
 or it ought to be held that there is no total loss of freight by dam- 
 age to ship in a case like the present, where the ship remains in
 
 72 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 specie under the control of the assured, neither sold nor abandoned ; 
 or, in other words, as already indicated, that the true character of 
 the insurance in question was against total loss of freight by total 
 loss of ship, actual or constructive." 
 
 An appeal was brought in the Exchequer Chamber, and was 
 argued and considered upon a statement of the facts in a case 
 which is set forth in the report in L. R, 5 C. P. 341. The case, 
 omitting the documents set out in the appendix which contain the 
 details of matters briefly stated in the case, was as follows : — 
 
 1. The action was brought to recover £100 upon a policy of 
 insurance effected by the plaintiffs in the sum of £4000 on "home- 
 ward chartered freight " by the ship Sir William Eyre. 
 
 2. The declaration contained a count on the policy for a total 
 loss, and the common money counts. To the first count the defend- 
 ant pleaded denial of the insurance, of the plaintiffs' interest, of 
 the loss by perils insured against, of the loss of freight through the 
 alleged total loss of the ship, and that the ship without sufficient 
 cause did not proceed on her voyage, but deviated therefrom; and 
 to the money counts, never indebted. Issue thereon. 
 
 3. The cause was tried before Bovill, C. J., at the London sittings 
 after Michaelmas Term, 1866, when the following facts were given 
 in evidence or admitted on both sides : — 
 
 4. The plaintiffs are shipowners at Glasgow, and constitute the 
 firm of Potter, Wilson & Co. ; the defendant is an underwriter at 
 Liverpool. 
 
 5. On the 7th of December, 1862, the Sir William Eyre (of which 
 ship the plaintiffs were mortgagees in possession) left Greenock 
 under the command of Captain Blakey on a voyage to Southland, 
 and thence to Dunedin, in Otago, New Zealand, having a general 
 cargo and a large number of government emigrants on board. 
 
 6. On the 9th of February, 1863, whilst the vessel was on her 
 outward voyage, the plaintiffs entered into a charter-party with one 
 De Mattos, according to which the Sir William Eyre, having dis- 
 charged her cargo and passengers at New Zealand, was to proceed 
 to Calcutta, and there load a homeward cargo for Liverpool or 
 London. 
 
 7. A few days afterwards the plaintiffs caused the policy now 
 sued upon to be effected, in order to cover for the voyage out the 
 chartered freight to be earned under the above charter-party. The 
 defendants underwrote the policy for £100. It described the voy-
 
 SECT. III. — WHERE UNNECESSARY. 73 
 
 No. 7. — Rankin v. Potter. 
 
 age insured thus: "At and from Clyde to Southland, while there, 
 and thence to Otago (N. Z.), and for thirty days in port there after 
 arrival," and it described the interest insured to be "homeward 
 chartered freight, valued at ." 
 
 8. On the 23d of April, 1863, the Sir William Eyre arrived at 
 Bluff Harbour, Southland. While there, she drifted and took the 
 ground; and the master, rinding great difficulty in getting her off, 
 sent on the emigrants and their luggage to Dunedin at the ship's 
 expense. 
 
 9. On the 22d of May the ship floated, and on the 27th a survey 
 was held upon her. 
 
 10. The ship remained aground, with the exception of brief inter- 
 vals, until shortly before the 29th of May. On that day a violent 
 gale arose, and again caused the Sir William Eyre to take the 
 ground. She struck fore and aft, and remained firmly fixed until 
 the 4th of June, when she was again afloat. Before, however, she 
 could be brought up in the channel, she grounded again, and was 
 not finally got off till the 1st of July, when she left for Dunedin. 
 
 1 I. It was admitted that what occurred whilst the ship was at 
 Bluff Harbour was correctly described in the master's protest, a copy 
 of which was appended to the case. 
 
 12. On the 4th of July, 1863, the Sir William Eyre arrived at 
 Port Chalmers, which is the port of Dunedin. While there, further 
 surveys were made of the ship. The aforesaid surveys and protest 
 were duly sent home to the assured and received by them. 
 
 13. There was no dry-dock or patent slip in New Zealand, and 
 consequently the extent of the damage which the ship had sus- 
 tained could not be more fully ascertained than appears from these 
 surveys. 
 
 14. The Sir William Eyre remained at Port Chalmers until the 
 14th of April, 1864, being prevented solely from want of funds from 
 making the necessary preparations to proceed to Calcutta. The 
 master had not sufficient funds to defray the ship's charges and 
 disbursements and the liabilities which he had incurred in New 
 Zealand ; and, not being able to raise such funds in New Zealand, 
 nor Messrs. Dalgetty, to whom the ship was consigned at Otago, 
 being willing to advance to him the money he required for the pur- 
 poses aforesaid, he was obliged to wait until he obtained a sufficient 
 remittance from the plaintiffs. 
 
 15. Messrs. Dalgetty corresponded regularly with the plaintiffs;
 
 74 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 and the letters which passed between them, and those which passed 
 between the master and the plaintiffs, were set out in the appen- 
 dix to the case. The freight which was payable at New Zealand 
 amounted to about £1300, and was received there by the master. 
 This sum would have been sufficient for the purposes of the ship, 
 if siie had, without having met with any disaster, prosecuted her 
 voyage to Calcutta, and if none of the circumstances mentioned in 
 the correspondence between Messrs. Dalgetty and the plaintiff had 
 occurred. 
 
 16. While the Sir William Eyre remained at Port Chalmers, and 
 after she had discharged her cargo, the captain, in order that the 
 vessel should not be wholly unproductive, permitted her to be stored 
 with coals to the extent of 1200 tons, and received as rent for such 
 coals £778 3s. 5d. 
 
 17. In February, 1864, the captain received the necessary funds 
 from the plaintiffs, and he immediately proceeded to discharge his 
 liabilities and have the temporary repairs which had been recom- 
 mended by the surveyors completed, so as to enable the ship to 
 proceed in ballast to Calcutta. 
 
 18. Port Sydney is a port where the ship could have been thor- 
 oughly repaired, and is about eight or nine days' sail from Port 
 Chalmers; and the voyage from the latter place to Calcutta is much 
 longer, and attended with greater risk, than the voyage from Port 
 Chalmers to Sydney. The master did not know that there was a 
 dry-dock at Sydney, and that the ship could be repaired there; nor 
 did he make any inquiries as to the nearest port where his ship 
 could be repaired, because he considered her capable of proceeding 
 in ballast to Calcutta, whither she was bound by her charter, and 
 where he knew that the repairs could be done. 
 
 19. There are a great quantity of worms in Port Chalmers, and 
 a ship lying there is likely to get wormed if some of her metal has 
 come off. 
 
 20. On the 14th of April, 1864, as soon as the temporary repairs 
 had been executed, the Sir William Eyre left Port Chalmers for 
 Calcutta, where she arrived on the 7th of June. 
 
 21. As soon as the Sir William Eyre arrived at Calcutta, the 
 master went to the agents of De Mattos at that port, and applied 
 to them to carry out the charter-party. A copy of the charter-party 
 had been forwarded to them by De Mattos many months previously; 
 but, as they had been informed in December, 1863, that he had (as
 
 SECT. III. — WHERE UNNECESSARY. 75 
 
 No. 7. — Rankin v. Potter. 
 
 the fact was) failed and stopped payment in that month, they had 
 made no preparations for providing a cargo for the vessel, and, on 
 the master applying to them, they absolutely refused to have any- 
 thing to do with the ship or with providing a cargo. The master 
 thereupon placed the Sir William Eyre in the hands of Messrs. 
 Mackinnon & Mackenzie, the plaintiffs' correspondents at Calcutta. 
 
 22. After her arrival at Calcutta, the Sir William Eyre was put 
 into dry-dock, and surveyed several times. Copies of the surveys 
 and estimates made, and of the letters which passed between the 
 plaintiffs and Messrs. Mackinnon & Mackenzie were set out in the 
 appendix. 1 The surveys and estimates were duly forwarded to and 
 received by the plaintiffs ; and, upon the receipt, in the month of 
 August, 1864, of the survey dated the 8th of June, the plaintiffs 
 at once gave notice of abandonment to the defendant, and also 
 notice of abandonment to the underwriters on ship ; but neither 
 of these notices of abandonment were accepted by the respective 
 underwriters. 
 
 23. The Sir William Eyre, after she had been put at Calcutta 
 into dry-dock, was moored in the Hooghly, and whilst she was there 
 lying a violent cyclone, on the 5th of October, 1864, drove her from 
 her moorings, and she was stranded and became a total w T reck. 
 
 24. It was admitted that the cost of repairing the vessel at Cal- 
 cutta so as to make her seaworthy for carrying a cargo to England 
 would have exceeded the value of the ship when repaired, plus the 
 difference between the chartered freight and the current freight, 
 which would amount to about £450. 
 
 25. The Sir William Eyre, which, at the time of her departure 
 from Greenock in December, 1862, was worth about £8000, was, in 
 her unrepaired state at Calcutta in September, 1864, worth about 
 £3000 ; and, even if she had met with no damage whatever, she 
 would have been off her letter in January, 1865, and would .not 
 have been worth more than £4500. A ship like the Sir William 
 Eyre deteriorates at the rate of 12 per cent, per annum. 
 
 26. A list of the insurances effected upon the ship and freight 
 was contained in the appendix. 
 
 27. At the trial no rpaestion was left to the jury; a verdict was 
 
 1 These showed an extent of damage to freight would have materially exceeded her 
 
 the ship from the stranding at Bluff liar- value when repaired, plus the homeward 
 
 hour so great that the cost of repairing her freight, 
 so as to enable her to earn the chartered
 
 76 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 taken for the defendant, subject to leave to move to enter it for the 
 plaintiffs, the court being by consent in place of the jury, and hav- 
 ing power to decide both law and fact. Accordingly, in Hilary 
 Term, 1867, the plaintiffs obtained a rule nisi to enter a verdict for 
 them, with interest, on the ground that the underwriters were liable 
 for the loss of the chartered freight. This rule was in Trinity Term, 
 1868, discharged. 
 
 28. The Court of Common Pleas, in a case of Potter v. Campbell, 
 which was an action against the underwriters on ship, had decided, 
 after the trial of this case, and before the argument of the rule, that 
 the notice of abandonment was too late. A copy of the judgment 
 in that case was set out in the appendix. 1 
 
 The Judges of the Exchequer Chambers, by a majority (Cockburn, 
 C. J., Lush, J., Kelly, C. B., and Channell, B., against Cleasby, B.), 
 reversed the judgment of the Court of Common Pleas and ordered 
 the verdict to be entered for the plaintiff. 
 
 The defendants having appealed to the House of Lords, and the 
 case having been argued by Benjamin and Cohen for the appellant, 
 and by Sir G. Honeyman, Q. C, and Butt, Q. C, for the respondents, 
 the following questions were put to the judges : — 
 
 1st. Was there a loss by the perils insured against during the 
 term of the policy ? 
 
 2d. Was notice of abandonment either of ship or freight, or of 
 both, necessary to enable the plaintiffs to recover for a total loss on 
 the policy on freight ? 
 
 3d. If notice of abandonment was necessary, was the notice given 
 in time ? 
 
 4th. If notice of abandonment of the ship was necessary in order 
 to make a constructive total loss of the ship and such notice was 
 not given in time, does the want of due notice as to the ship affect 
 the right of the plaintiffs upon the policy on freight ? 
 
 5th. Was there any such conduct on the part of the assured 
 after the time of the alleged constructive loss of the ship as dis- 
 charged the underwriters from their liability upon the policy on 
 freight ? 
 
 6th. Ought the judgment to be for the appellants or the re- 
 spondents ? 
 
 The consulted judges who sent answers to these questions were 
 Brett, J., Mellor, J., Blackburn, J., Bramwell, B., and Martin, B., 
 
 1 See 16 W. H. 399.
 
 SECT. III. — WHERE UNNECESSARY. 77 
 
 No. 7. — Rankin v. Potter. 
 
 and all of them except Mr. Baron Martin, answered all the ques- 
 tions substantially in favour of the plaintiffs. It will be sufficient 
 here to set forth the opinion of 
 
 Mr. Justice Blackburn. My Lords, your Lordships have in 
 this case proposed six questions to the Judges, all of which I an- 
 swer in favour of the plaintiffs in the cause, who are the respond- 
 ents in your Lordships' House. With your Lordships' permission 
 I will first state generally my reasons for deciding in favour of the 
 plaintiffs on the merits. [The learned Judge here gave a summary 
 of the charter-party and policy.] 
 
 It is to be observed on this charter-party that it is a condition 
 precedent to the earning of the freight that the Sir William Eyre 
 should be, in due time, at Calcutta, and there seaworthy for the 
 voyage from Calcutta to Liverpool or London. The plaintiffs could 
 not substitute any other vessel for it, and that being so, the plaintiffs 
 might be prevented from earning that freight by any disaster 
 which befell this particular ship on its voyage out to New Zealand, 
 or during its stay there, or on the voyage thence to Calcutta, or 
 during its stay there, if the effect of that disaster was to render it 
 impracticable to tender the ship at Calcutta in due time, and in a 
 seaworthy condition for the voyage home round the Cape of Good 
 Hope; but that they had a vested expectation of earning this freight, 
 if no such disaster happened. They had therefore in respect of this 
 freight an insurable interest during the whole of the outward 
 voyage. This is not, as I understand, disputed ; but if authority 
 is required for it, I would refer your Lordships to Barber v. Fleming, 
 Law Bep., 5 Q. B. 59, and Foley v. United Marine Insurance Com- 
 pany, Law Bep., 5 C. P. 155. Being so situated they entered into 
 the policy. In my opinion, the whole merits in this case depend 
 upon the accurate understanding of the contract contained in this 
 policy. 
 
 I must first observe on a matter which is perhaps not strictly 
 before your Lordships. It is stated that this insurance was for 
 £4000 on freight valued at £5000, and throughout the argument, 
 and in the judgments below, the policy was treated as a valued 
 policy, and consequently no question was discussed as to the 
 amount to be recovered, nor whether the insolvency of De Mattos, 
 and the consequent diminution in value of the freight insured, 
 affected that amount. In the policy itself, however, the space 
 which, if this was the case, ought to have been filled up with
 
 78 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 £5000, is left blank, and the policy is in form an open one. It is 
 possible that the policy is miscopied, but I think it more probable 
 that it was drawn up in this form by mistake, and that the under- 
 writers, either from a sense of honour or from knowing that the 
 contract could be reformed in equity, have been content to act on 
 the contract as it ought to have been drawn up. I presume your 
 Lordships would not like to put any obstacle in the way of such a 
 fair proceeding. 1 shall therefore make no farther remark on the 
 amount to be recovered. 
 
 The insurance is " lost or not lost at and from Clyde to Southland, 
 while there, and thence to Otago, New Zealand, and for thirty days 
 in port there," upon the Sir William Eyre. And the subject-matter 
 is £4000 on homeward chartered freight. I think that the mean- 
 ing of this contract is that the underwriters are to indemnify the 
 assured if by any of the perils insured against the Sir William Eyre 
 is, during the voyage from the Clyde to New Zealand, or during 
 thirty days after arrival there, so damaged that, in consequence 
 thereof, the homeward chartered freight cannot be earned. 
 
 In the judgment in the Common Pleas in this case, Law Kep., 
 3 C. P. 567, it is said, " The policy under consideration thus 
 differs from an ordinary insurance upon freight. First, in that 
 it could not be affected by loss of cargo, because the freight 
 insured was not for cargo in existence or appropriated during 
 the risk ; next, that it was not subject to general average either 
 of ship or cargo, because the freight was not to be earned during 
 tin' voyage insured, and, as a consequence, that the underwriter 
 was not in any case to contribute to repairs of the ship, not 
 even in respect of general average. And lastly, that as the 
 freight rested in contract for the future employment of the ship 
 only, it would not pass by bare abandonment to the underwriters 
 upon ship, but would simply come to nothing upon such aban- 
 donment if justifiable, because the abandonment would be in 
 effect an election by the owner to treat the charter as at an end 
 by reason of the usual exception of sea perils in the charter- 
 party, and he would not be bound to incur in favour of the 
 underwriters on ship any new responsibility not connected with 
 the voyage on which the ship was insured." So far I completely 
 agree, and instead of repeating this in other words I adopt this 
 language as my own, but in what follows in that judgment I do 
 not agree.
 
 SECT. III. — WHERE UNNECESSARY. 70 
 
 No. 7- — Rankin v. Potter. 
 
 I think that if there was damage to the ship, such that though 
 it was physically possible to repair the ship, the expense would be 
 so great that, according to the rule laid down in Moss v. Smith, 
 ( .i ('. B. 104; 19 L. J. (C. P.) 225, it was unreasonable so to do; 
 the owner might, as between him and the charterer, elect not to 
 repair the ship, but to treat the charter as at an end by reason 
 of the exception of the sea perils, and if, under such circumstances, 
 the owner did not in fact repair, the freight was totally lost by 
 the perils insured against, and not, as stated in the judgment 
 in the Common Pleas, by the owner's default, for the owner was 
 not bound to repair the ship. There would be no loss from 
 the perils insured against, if the owner did in fact repair the 
 ship, which, though not bound to do so, he had a right to do if 
 he pleased. 
 
 If, indeed, there had been a partial loss or damage, such that 
 the owner could reasonably repair the ship, he was bound to do 
 so ; and if in such a case he declined to do so, I should agree with 
 the judgment in the Common Pleas, in saying that he would lose 
 the freight by his own choice or default, and not by any peril 
 insured against. But I think that where the damage is so great 
 that the owner is not bound to repair the ship, if he declines to do 
 so he would lose his freight, not by his own default, but by the 
 perils insured against. This seems an elementary proposition, but 
 as much of what I consider the error in the judgment of the 
 Common Pleas arises from not bearing it in mind, I will proceed 
 to state some authorities for it. 
 
 The principle is thus expressed in the judgment of the Queen's 
 Pench in Stringer v. English, &c. Insurance Company, Law Eep., 
 4 Q. B. 691 : " The assured, if he, by any means such as he could 
 reasonably be expected to use, could have prevented the loss " 
 (which was in that case by a sale in the Prize Court), " was bound 
 to use them, and if the sale was directly occasioned by his default, 
 though remotely by the perils insured against " (in that case, a 
 seizure), "he cannot recover against the underwriters. But the 
 assured are not bound to use unreasonable exertions in order to 
 preserve the thing insured ; and if the giving of a bond or deposit 
 of money " (in the present case the repairing of the ship) " would 
 have exposed them to expense or risk of expense beyond the value 
 of the object, or, as the same idea is often expressed, if the steps 
 necessary to prevent the sale " (loss) " were such as a prudent
 
 80 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 uninsured owner would not have adopted, we think they were not 
 in default, and the sale was then a total loss occasioned by the 
 seizure." 
 
 I do not cite this as conclusive, for it is for your Lordships to 
 determine whether it is correct or not, but as expressing what I 
 think the true principle. So far as regards the case of a ship, it is 
 very concisely and I think accurately expressed by the words of 
 my brother Lush, as already quoted from his judgment in the 
 Court below. Law Rep., 5 C. P. 376. 
 
 I must here observe that, in my opinion (which in this respect 
 differs from that expressed in the judgment of the Court of Com- 
 mon Pleas below J, there might well be a state of things in which 
 the assured could recover on this policy for a total loss of the 
 freight, though the assured could not, either with or without 
 notice of abandonment, recover against the underwriters on ship 
 for a total loss. The questions between the assured and the two 
 sets of underwriters are not the same. The question between tin- 
 assured and the underwriters on the ship is whether the damage 
 sustained may be so far repaired as to keep it a ship, though not 
 perhaps so good a ship as it was befoie, without expending on it 
 more than it would be worth. The question between the assured 
 and the underwriter on the chartered freight is, whether the 
 damage can be so far repaired that the ship can be at Calcutta, 
 seaworthy for a voyage round the Cape of Good Hope, without ex- 
 pending on it more than it would be worth. I should have added 
 a farther term, that the repairs could be done so promptly that 
 the ship might arrive at Calcutta within a reasonable time, as 
 between the shipowner and De Mattes, were it not for the case 
 of Hurst v. Ushorne, 18 C. B. 144 ; 25 L. J. (C. P.) 209, which 
 seems to me an authority against this position. And though I 
 should not hesitate to advise your Lordships to reconsider that 
 case if necessary, I think it is not necessary so to do in the 
 present case. 
 
 My position therefore is, that if the ship had been so damaged 
 that it could be brought to Calcutta, and there made seaworthy for 
 a voyage round the Cape, but not without expending, say £10,000, 
 and would then, all things considered, be worth only £9000, but 
 that it could by an expenditure of £4000 be made a ship quite fit 
 for short voyages, though not for such a voyage as that round the 
 Cape, and would then be worth, say £51)00, there would be a total
 
 SECT. III. — WHERE UNNECESSARY. 81 
 
 No. 7. — Rankin v. Potter. 
 
 loss of the freight, though no total loss of the ship. No notice of 
 abandonment whatever given to the underwriters on ship could 
 have converted that which on those figures was only a partial loss 
 into a total one. This was decided by the Exchequer Chamber in 
 Kemp v. Halliday, 6 B. & S. 763, a case which was not cited at 
 your Lordships' bar, but to which I venture to refer your Lord- 
 ships, as the passages contained in pages 749 to 754 of the report 
 will show your Lordships that the opinions I now express are not 
 formed for the first time. 
 
 I now proceed to consider the answer to your Lordships' first 
 question. That, in my opinion, depends upon a question of fact, 
 which 1 think is answered by the very important addition to the 
 case made during the argument in the Exchequer Chamber, and 
 now contained in the case : " It is admitted that the sea damage 
 which the ship sustained at New Zealand during the time covered 
 by the policy would have justified an abandonment and claim for 
 a constructive total loss." This can only mean that the damage 
 to the ship was so great, that the ship could not be repaired 
 without spending more than its worth, and consequently that 
 the shipowner might justifiably elect not to repair. 
 
 I think that, under such circumstances, the shipowner had a 
 •right as against his underwriters on ship to come upon them for a 
 total loss. But if he does so, then, on general principles of equity 
 not at all peculiar to marine insurance, he who recovers on a 
 contract of indemnity must and does, by taking satisfaction from 
 the person indemnifying him, cede all his right in respect of that 
 for which he obtains indemnity. It was held, in Mason v. Saiiis- 
 buri/, 3 Doug. Ed. by Rose (8vo.), 61 ; Marshall on Ins. 794, that 
 the Hand-in-Hand Insurance Company, having paid the plaintiff 
 for a loss under a fire policy, was entitled to recover in an action 
 in his name against the hundred. This cession or abandonment is 
 a very different thing from a notice of abandonment, though the 
 ambiguous word, " abandonment," often leads to confounding the 
 two. There is no notice of abandonment in cases of fire insurance, 
 but the salvage is transferred on the principle of equity, expressed 
 by Lord Hardwicke in Randal v. Cochran, 1 Ves. 98, that "the person 
 who originally sustains the loss was the owner, but, after satisfac- 
 tion made to him, the insurer." In Godsall v. Boldero, 9 East, 72, 
 the same principle was acted upon in a case of life insurance. That 
 case was overruled in Balby v. The India and London Life Assu- 
 vol. i. — 6
 
 82 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 ranee Company, 15 C. B. 365; 24 L. J. (C. P.) 2, because the prin- 
 ciple was misapplied to a life insurance, which is not a contract of 
 indemnity; but the principle itself has never (that I know of) been 
 questioned. 
 
 When, therefore, the party indemnified has a right to indemnity, 
 and has elected to enforce his claim, the chance of any benefit 
 from an improvement in the value of what is in existence, and 
 the risk of any loss from its deterioration, are transferred from 
 the party indemnified to those who indemnify ; and, therefore, if the 
 state of things is such that steps may be taken to improve the 
 value of what remains, or to preserve it from farther deterioration, 
 such steps, from the moment of the election, concern the party 
 indemnifying, who therefore ought to be informed promptly of the 
 election to come upon him, in order that he may, if he pleases, 
 take steps for his own protection. And on general principles of 
 law (still not confined to marine insurance), an election, once 
 determined, is determined for ever, and such a determination is 
 made by any act that shows it to be made. And, therefore, any- 
 thing that indicates that the party indemnified has determined to 
 take to himself the chance of benefit from an increased value in 
 the part saved, and only claim for the partial loss, will determine 
 his election so to do. I may refer for an exposition of this general, 
 principle to the judgment of the Exchequer Chamber in Clouglt v. 
 London and North Western Railway, Law Rep., 7 Ex. 34-35. 
 
 In cases of marine insurance, the regular mercantile mode of 
 letting the underwriters know that the assured mean to come upon 
 them for a complete indemnity, is by giving notice of abandon- 
 ment, which is a very different thing from the abandonment or 
 cession itself. This notice when given is conclusive, that the 
 assured, if still in a situation to determine his election, has deter- 
 mined to come upon the underwriters for a total loss, the conse- 
 quence of which is that everything is ceded (to avoid the use of 
 the ambiguous word " abandoned ") to the underwriters. Chief 
 Justice Abbott, in Gologan v. London Assurance, 5 M. & S. 450, 
 says, " I do not consider an abandonment as having the effect of 
 converting a partial into a -total loss. . . . The abandonment, 
 however, excludes any presumption which might have arisen from 
 the silence of the assured that they still meant to adhere to the 
 adventure as their own." 
 
 If before giving this notice the assured have already indicated
 
 SECT. III. — WHERE UNNECESSARY. 83 
 
 No. 7. — Rankin v. Potter. 
 
 by their acts, or if the circumstances are such that they indicate 
 by their silence, that they have elected to adhere to the adventure 
 as their own, the notice of abandonment obviously comes too late. 
 A very good example of such a case is afforded by Mitchell v. Edie, 
 1 T. R. 608, as explained in Boux v. Salvador, 3 Bing. X. C. 266. 
 There a ship laden with sugar, and bound for London, was captured 
 and finally taken into Charleston, where the sugar was sold and 
 the proceeds lodged in the hands of a person resident in Charles- 
 ton. From the state of political affairs at that time, sugar was 
 <le.ir at Charleston, and, as Lord Abinger conjectured, the sugar 
 had come to a very good market, and the assured was satisfied, and 
 took to the proceeds. A year afterwards, the person in whose 
 hands the money was, became insolvent, and after that it was, with 
 obvious justice, held that it was too late to come upon the under- 
 writers for a total loss. Thus explained, the case is a good example 
 of the principle stated in Stringer v. England, &e. Insurance Com- 
 pany, Law Eep., 4 Q. B. 688, where it is said : " As is well pointed 
 out in 2 Phillips, Insurance, § 1669, where the cargo still subsists 
 in specie, and may be recovered, the question depending on aban- 
 donment is, which party should be at the risk of the market and 
 the solvency of agents, neither of which, independently of the 
 direct effect of the perils insured against, concerns the insured. To 
 allow the assured to change his election whilst the circumstances 
 remain the same would enable the assured to treat the property as 
 his, so long as there was a prospect of profit from the rise in the 
 market, and as the property of the insurers, so soon as there was a 
 certainty of loss, which would be inequitable : qui commodum sentit 
 sentire debet et one*." 
 
 I should apologize to your Lordships for dwelling so long on 
 what seems to me the principle on which abandonment, and the 
 necessity of notice of abandonment, when required, depend, had 
 it not been argued at your Lordships' bar, on the authority of 
 Knight v. Faith, 15 Q. B. 649, that there is a technical rule of in- 
 surance law by which notice of abandonment must be given if the 
 thing exists in specie at all, though the state of things is such that 
 the underwriters could do nothing in consequence of the notice. I 
 think it more convenient to postpone my remarks on that case till 
 I answer your Lordships' last question. In the meanwhile I pro- 
 ceed to say that I should be very sorry to throw any doubt on the 
 principle expressed by Lord Abinger in the following passage in his
 
 84 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 judgment in Roux v. Salvador, 3 Bing. N. C. 286, where, after stating 
 the state of circumstances which give the insured a right to treat 
 the case as one of total loss, he proceeds, " But if he elects to do 
 this, as the thing insured, or a portion of it, still exists and is vested 
 in him, the very principle of indemnity, that he should make a ces- 
 sion of all his right to the recovery of it, and that, too, within a 
 reasonable time after he receives intelligence of the accident, that 
 the underwriter maybe entitled to all the benefit of what may still 
 be of any value, and that he may, if he pleases, take measures, at 
 his own cost, for realising or increasing that value." 
 
 But I think this is from the nature of things confined to cases 
 where there are some steps which the underwriters could take, if 
 they had notice. When they can do so, T think that the neglect 
 to give a notice of abandonment may determine the owner's elec- 
 tion. This is a matter that is now of much greater practical 
 importance than it was when Lord Abinger delivered that judg- 
 ment. For then the assured could not learn that his ship had got 
 into difficulties at a distant place till long after the disaster, and 
 the underwriters could only send out orders which would arrive 
 later still. Under such circumstances a notice of abandonment was 
 often a very idle ceremony, and in my opinion unnecessary, if the 
 facts did amount to a total loss, inoperative if they did not. Now, 
 when by means of the electric telegraph the underwriters' orders 
 might promptly reach the spot where the ship was in peril, a 
 notice of abandonment may be of great practical importance. 
 What would be a reasonable time, and whether the neglect to give 
 notice of abandonment does determine the election, must, I think, 
 depend in each case on the circumstances, and principally on what 
 steps the underwriters might take if they had notice. If there 
 was nothing they could do, no notice I think is required. This I 
 apprehend is the principle of Cambridge v. Auderton, 2 B. &C. 691 ; 
 Roux v. Salvador, 3 Bing. N. C. 266, and Farnworth v. Hyde, 18 
 C. B. (n. s.) 835 ; 36 L. J. (C. P.) 33 ; Law Rep., 2 C. P. 204. For, 
 as has often been observed, a sale by the master is not one of the 
 underwriters' perils, and is only material as showing that there is 
 no longer anything which can be done to save the thing sold for 
 whom it may concern. It conclusively determines that neither 
 assurers nor assured can do anything, and consequently that a 
 notice of abandonment would be but an idle form on which nothing 
 could be done, and which therefore is unnecessary.
 
 SECT. III. — WHERE UNNECESSARY. 85 
 
 No. 7. — Rankin v. Potter. 
 
 If these which I have submitted to your Lordships are the true 
 principles on which the law depends, it seems to me to be obvious 
 that in this case there was a total loss of the freight in consequence 
 of the damage by sea perils being so great that the shipowner was 
 not bound to repair the ship. No doubt the shipowner might have 
 repaired it if he pleased, and if, as in Benson v. Chapman, 2 H. L. C. 
 696, he had elected to repair it, and had done so, though at a ruin- 
 ous expense, the freight would not have been lost But the ship 
 in this case never was repaired so as to make it capable of earning 
 the freight, and the insured was under no obligation to make the 
 repairs at a ruinous cost. 
 
 This brings me to the second question. I cannot see, how the 
 contract between the plaintiff and the defendant, by which the 
 latter undertakes to indemnify the former against the loss of 
 the freight, can be in any way affected by the fact that the plain- 
 tiff* had made a contract with other persons by which they undertook 
 to indemnify him against loss on the ship. If the - facts are not 
 such as to amount to a loss of freight from the perils insured 
 against, no transaction between the plaintiff and third persons 
 could make them amount to such a loss. If they were such as to 
 amount to a loss of the freight it can make no difference to the 
 now defendant whether the plaintiff can or cannot recover for the 
 damage to his ship from other persons. It is true that a transac- 
 tion with third persons may, as evidence, prove that the plaintiff 
 had elected not to repair the ship, as the sale of the wreck in Cam- 
 bridge v. Anderton, 2 B. & C. 691, and in Farmvorth v. Hyde, 18 
 C. B. (n. s.) 835 ; 36 L. J. (C. P.) 33 ; Law Eep. 2 C. P. 204, did. 
 And so, if the plaintiff in the present case had given notice of 
 abandonment at once to the underwriters on ship, and recovered 
 from them as for a total loss, it would have afforded conclusive 
 evidence that he had elected not to repair the ship. As it was, he 
 delayed so long that I think the fair conclusion of fact is, that, as 
 between him and the underwriters on ship, he had elected to take 
 his chance of doing a better thing by keeping it as a ship to himself, 
 and coming on the underwriters for a partial loss only. 
 
 I do not go into the facts, as the question whether the owner 
 could have recovered as for a total loss on the policy on ship or not 
 is only collaterally raised in this case, but in my opinion they com- 
 pletely bring the case within the principle stated by Lord Chancellor 
 Oottenham in Fleming v. Smith, 1 H. L. C. 513, where he says,
 
 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 " They were sufficiently informed of what had taken place to enable 
 them, if they thought proper, to take upon themselves the chance 
 of the benefit of retaining the ownership of the property, instead of 
 taking the sum which was secured to them by the policy effected 
 with the underwriters on the vessel ; and if they acted upon that 
 opportunity of election they surely cannot afterwards turn round 
 and go against the underwriters as for a total loss." I should there- 
 fore, as at present advised, have concurred with the Court of Com- 
 mon Pleas in the decision in Potter v. Campbell, 16 W. E. 399 ; 
 Printed papers in the case, 165. But I think that this in noways 
 affects the question between the plaintiffs and the underwriters 
 on freight. I agree with what has been said by my brother 
 Brett; the plaintiffs not having come upon the underwriters for 
 ship leaves the case just as if the ship had never been insured 
 at all. 
 
 This brings me to consider whether it was necessary for the 
 plaintiffs to give notice of abandonment to the underwriters on 
 freight. It was argued at your Lordships' bar that, by the law of 
 marine insurance, a notice of abandonment was as imperatively 
 necessary as a notice of dishonour is by the law merchant on bills 
 of exchange. On this I shall submit some observations at the end 
 of this opinion, but at present I will assume that the true prin- 
 ciple is that notice of abandonment is only requisite when, from the 
 state of facts, it may make a difference to the underwriters, if 
 the assured delays making his election, whether he will adhere to 
 the property, taking his chance of profit or loss from so doing, or 
 come upon the underwriters for a total loss. If that be the prin- 
 ciple, it seems to me to follow from it that, inasmuch as there was 
 nothing which the underwriters on freight could have done to alter 
 their position in consequence of a notice of abandonment, and that 
 it would have been an idle ceremony, no notice could ever be re- 
 quired, and, not being required at all, could not be too late These 
 are the reasons for which I answer to your Lordships' second ques- 
 tion by saying, that in my opinion no notice of abandonment either 
 of ship or freight was necessary to enable the plaintiffs to recover 
 for a total loss on the policy on freight. 
 
 To the third question, that in my opinion no notice at all being 
 required, it never could be out of time. 
 
 To the fourth question, that though 1 think that under the cir- 
 cumstances of this case the plaintiffs have precluded themselves
 
 SECT. III. — WHERE UNNECESSARY. 87 
 
 No. 7. — Rankin v. Potter. 
 
 from recovering for a total loss of the ship, that in no way affects 
 the rights of the plaintiffs upon the policy on freight. 
 
 I now come to your Lordships' fifth question. From what I 
 have already written your Lordships will perceive that in my 
 opinion the decision of the case really should depend on the answer 
 to this question. I have already indicated that 1 think that the 
 assured so conducted themselves as to discharge the underwriters 
 on ship from the liability for a total loss, for the assured took to 
 themselves the chance of benefit from retaining the ship as their 
 own, and so made their election as to the ship. But as to the 
 freight, I can see nothing which could have been done by the 
 underwriters if the idle ceremony of a notice had been gone 
 through. It was indeed suggested that the underwriters on freight 
 miff lit have made some arrangements with the underwriters on 
 ship, by which they were to repair the ship, send her on, and in 
 the name of the owners tender her to De Mattos. But in all cases, 
 and especially in cases of insurance, we look to what is practically 
 possible, and not to remote theoretical imaginations. If it could be 
 shown that the delay in this case, which was certainly considerable, 
 had in any way altered the position of the underwriters, if there 
 was anything which they could have done if the claim had been 
 made on them at the time when the disaster happened at New Zea- 
 land, or in the interval, which they cannot now do, or if any pre- 
 judice had been sustained by them in consequence of the delay, the 
 case would be different. I should then have to consider whether 
 the prejudice sustained was sufficient to give rise to a preclusion. 
 Hut as the facts are, there is nothing of the sort. I therefore 
 answer your Lordships' fifth question by saying that in my opinion 
 there was no such conduct as to discharge the underwriters from 
 their liability upon the policy on freight. 
 
 The answers to those five questions would answer the sixth and 
 last, were it not that I have reserved to this time the discussion of 
 the proposition argued at your Lordships' bar, that there is a tech- 
 nical necessity for a notice of abandonment in a case of marine 
 insurance, whether any use can be made of it or not, and whether 
 the failure to give it w T orks any prejudice or not. It was said it 
 was required by the law merchant as to insurance, just as notice of 
 dishonour is required by the law merchant on a bill of exchange. 
 
 Such is the law in some foreign countries, but I will submit to 
 your Lordships my reasons for thinking that it is not and never
 
 88 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 was the law of England. Enierigon, in the first section of the 
 17th chapter of his celebrated Treatise on Insurance, vol. ii., 
 ed. by Boulay Paty, 1837, ch. xvii., § 1, p. 207, states that by 
 the general law merchant, or as he calls it " le droit des nations," 
 there was no need for any notice of abandonment, the contract 
 being one of indemnity only. I do not pretend to have made any 
 research myself as to what was the ancient law merchant, but from 
 Emerigon's high character for learning and research I assume that 
 he is correct. He then proceeds to say that the law merchant did 
 not prohibit persons from making a stipulation that under certain 
 stipulated circumstances the subject-matter of the assurance might 
 be abandoned to the underwriters, who then should pay the whole 
 sum assured, without having any option merely to indemnify the 
 assured. And he observes that doubtless the usual clauses to that 
 effect gave rise to established rules on the subject. He then cites 
 (p. 208) from Casaregis' three rules, which Emerigon seems to con- 
 sider as truly stating the law merchant on the subject. They are as 
 follows: 1. That abandonment is a formality which is sufficiently 
 complied with by the simple fact that the assured demands from 
 the assurers payment of the whole sum insured. 2. That the 
 assured may, without having recourse to abandonment, recover the 
 salvage, and claim payment from the assurers of an average loss 
 only. 3. That in case of total loss abandonment is an idle form, 
 " le delaissement est uneformalite inutile." The editor of Emerigon 
 observes in a note that the first and third of those rules are not the 
 law of France at this day. And Emerigon points out that all this 
 was in France (and, in consequence, in those countries which have 
 adopted the French law) altered by the positive enactments con- 
 tained in the celebrated Ordonnance de la Marine of 1681, by the 
 46th article, of which it was enacted that " No abandoment shall be 
 made except in case of capture, shipwreck, ' bris,' ' breaking up,' 
 stranding, arrest of princes, or total loss of the things assured, and 
 that all other losses shall be deemed average losses only." On 
 this Enierigon treats at great length in the following sections of 
 the 17th chapter. 
 
 There seems to have been at first much controversy and dispute 
 as to the true effect of the enactment, but it seems to have been 
 finally settled in France that the assured could never recover for a 
 total loss without abandonment, even though the thing assured was 
 totally destroyed. " Such," says Emerigon, vol. ii., ch. xvii, § 6,
 
 SECT. III. — WHERE UNNECESSARY. 89 
 
 No. 7. — Rankin v. Potter. 
 
 p. 232, " is the enactment of our ordonnance, to which we must 
 submit." And it was farther established that when any of the 
 events specified in the 46th article had happened, the assured 
 might by giving notice of abandonment recover for a total loss, 
 though the thing insured was quite safe and uninjured. This 
 Emerigon justifies, or at least accounts for, by saying that the 
 ordonnance created a presumption, which was juris et de jure, 
 that where any of the first five cases had happened the thing 
 was lost. This was carried so far that where a ship was stranded 
 and got off without injury either to itself or cargo, the owners 
 of the cargo were permitted to give notice of abandonment and 
 recover as for a total loss. This highly artificial conclusion was 
 corrected by a supplemental ordonnance of 1779, but till then it 
 remained the French law. Emerigon, vol. ii., § 2, p. 212. 
 
 Now, the enactments of the French law, contained in the Ordi- 
 nance of the Marine, can have no force in England, except in so 
 far as they have been adopted into our law. As far as regards the 
 law that by giving notice of abandonment the assured can recover 
 for a total loss, because by a presumption juris et de jure the prop- 
 erty is to be taken as lost in law, though it is safe in fact, it cer- 
 tainly is not the law of England, and never was. In Hamilton v. 
 Mendes, 2 Burr. 1198, Lord Mansfield strongly laid down the doc- 
 trine that a policy of marine insurance is a contract of indemnity, 
 and that " if the thing in truth was safe, no artificial reasoning 
 shall be allowed to set up a total loss." 
 
 No one would for a moment now venture to contend that a notice 
 of abandonment could in England entitle an assured to recover as 
 for a total loss on a policy on goods if the ship was captured, though 
 set free, or wrecked but the cargo saved uninjured, or in a case of 
 simple stranding. So far the law of the Ordonnance is clearly not 
 adopted in England. Even in the case where the loss is at the 
 time of the notice of abandonment total, though capable of being 
 reduced by a change of circumstances to a partial loss, the assured 
 (unless in the very uncommon case of the notice being accepted) 
 cannot recover as for a total loss if that change of circumstances 
 does occur before the trial. Dean v. Hornby, 3 El. & Bl. 180. Nor 
 can it be for a moment contended that a notice of abandonment is 
 essential to the assured's right to recover for a total loss where the 
 loss is in fact total. 
 
 But though in no one of these cases has the French enactment
 
 90 ABANDONMENT. 
 
 No. 7. - Sankin v. Potter. 
 
 been adopted in the English law, it is argued that it has been so 
 adopted as in the case of what is called a constructive total loss, to 
 render a notice of abandonment a necessary technical preliminary 
 to an action for the total loss,. though it is not required for any use- 
 ful purpose, though no prejudice has been sustained for want of it, 
 though the loss at the time of the trial still continues total, and 
 though, according to Casaregis, as cited and approved of by Emerigon, 
 the law merchant looked on the notice, of abandonment in case of 
 total loss as being " une formalite inutile." 
 
 It is unnecessary to refer to any English decisions prior to the 
 great case of Boux v. Salvador, 1 Eing. N. C. 526, reversed in error, 
 3 Bing. N. C. 266. All the authorities bearing on the point were, I 
 believe, cited and considered in the elaborate judgments delivered 
 in that case; and the decision of the Court of Exchequer Chamber 
 was that no notice of abandonment was necessary, because, as is 
 .stated by Lord Abinger, 3 Bing. K C. 281, "Neither the assured 
 nor the underwriters could at the time when the intelligence arrived 
 exercise any control over the goods, or by any interference alter 
 the consequences." 
 
 It may be, however, convenient to refer your Lordships to the 
 portion of Mr. Phillips' Treatise on Insurance in which he treats on 
 this subject. I know of no text writer who treats the law of insur- 
 ance with more learning, and certainly of none who treats it with 
 as much sound sense and appreciation of the bearing of the doc- 
 trines laid down on practical business. It is, however, to be borne 
 in mind that he writes in America, and that, as he clearly states 
 (3rd ed., vol. ii., § 1536, p. 271), " It is a general rule in the United 
 States, that if the ship or goods insured are damaged to more than 
 half of the value by any peril insured against, or more than half the 
 freight is lost, the assured may abandon and recover for a total loss." 
 He adds, "This rule of abandonment on account of loss of over fifty 
 per cent, of the value of the subject makes the most material differ- 
 ence between the American and English jurisprudence, relative to 
 total loss and abandonment, and is to be kept in mind in examining 
 the decisions of the tribunals of the two countries. This rule, and 
 that rule in the United States, whereby the validity of the aban- 
 donment is tested by the circumstances existing at the time of 
 making it, instead of the time of bringing the suit, as in England, 
 give a wider range to constructive total loss and abandonment in 
 the United States."
 
 SECT. III. — WHERE UNNECESSARY. 9] 
 
 No. 7. — Rankin v. Potter. 
 
 Bearing this distinction in mind, any one who wishes to under- 
 stand this subject will derive great assistance from perusing the 
 whole of Mr. Phillips' 17th chapter on total loss and abandon- 
 ment. I will only refer your Lordships to § 1491, where he says, 
 "An abandonment being a transfer, it can be requisite only where 
 there is some assignable transferable subject on which it can oper- 
 ate." "When nothing remains to be assigned or transferred, an 
 abandonment is useless and unnecessary." And to $ 1494, where 
 he observes, "But the better rule in such case is that if the insured 
 neglects to abandon, he shall recover only according to the state of 
 things at the trial ; since, as we shall see, under a declaration for a 
 total loss he may recover for a partial loss, and the underwriter 
 ■ought to have the advantage of whatever may occur to make the 
 loss partial so long as the assured delays to elect a total loss. If 
 he has judgment for a total loss, this is equivalent to an abandon- 
 ment, and gives the underwriter a right to salvage." And to § 1497, 
 where he- says, "The distinction mentioned above as to recovering 
 a total loss without abandonment is to be observed, viz., that the 
 assured is charged with the proceeds in the adjustment of the loss 
 as in a salvage loss, though the same may not have actually come 
 to his hands. This circumstance being borne in mind will reconcile 
 most of the decisions on this subject, which otherwise would appear 
 to be directly contradictory, according to the language commonly 
 used by the courts, which must, however, be construed in reference 
 to one or the other description of case under consideration." Your 
 Lordships will appreciate the shrewdness of the latter part of this 
 remark if you examine the various dicta cited in Roux v. Salvador, 
 ?, Bing. N. C. 266, and Knight v. Faith, 15 Q. B. 649. 
 
 To return to the English authorities, the decision of the Court of 
 Exchequer Chamber in Roux v. Salvador, supra, was, as far as I 
 can learn, received with general approbation at the time. There was, 
 however, one exception. Lord Campbell never could be brought 
 to think it right. In the case of Fleming v. Smith, 1 II. L. C. 513, 
 the counsel for the appellants (the Attorney-General Jervis, and Sir 
 F. Thesiger, argued, as I think, logically, from the decision in Roux 
 v. Salvador, supra, that notice of abandonment could not be in nnv 
 case required except where there was something which could be 
 done by the underwriters in consequence; and then the failure to 
 give notice of abandonment might be material as determining the 
 •election which the assured had, whether to treat the loss as total
 
 92 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 or not. This, as I have already stated to your Lordships, is what 
 I consider to be the law. Lord Campbell was of a different opinion, 
 and in his opinion says, " The law therefore requires that notice 
 shall be given in order to convert a constructive into a total loss ; " 
 but though that was his opinion, it was not the judgment of the 
 House of Lords. Lord Cottenham, Chancellor (and Lord Brougham 
 concurred in his opinion), carefully puts the decision exclusively on 
 the ground that the assured had in fact elected to treat the loss as 
 a partial loss only. This studied silence on his part may prevent 
 us from saying that he differed from Lord Campbell, but he certainly 
 did not express any concurrence with him. 
 
 After this in the Queen's Bench, when Lord Campbell was Chief 
 Justice, there arose the case of Knight v. Faith, 15 Q. B. 649. The 
 manner in which that judgment came to be delivered was very 
 peculiar. There was a very brief case stated for the opinion of the 
 Court of Queen's Bench. On the statements in it the court came 
 to the conclusion, as stated in the judgment, that " slight repairs 
 might have been sufficient again to fit the ship for navigation," and 
 the court said, ibid. 657, that though the ship was sold, " we are of 
 opinion that as against the insurers the sale is not shown to be law- 
 ful." On such facts the assured could never have recovered for a 
 total loss, even if he had delivered all possible notices of abandon- 
 ment from the first to last. Yet the court forced the counsel to 
 amend the case by inserting a statement that no notice of abandon- 
 ment was given, and pronounced an elaborate judgment on a point 
 which it was wholly unnecessary to notice, except for the purpose 
 of recording dissent from the decision of the Exchequer Chamber 
 in Roux v. Salvador, 3 Bing. N. C. 266. It should, in candour, 
 however, be added that the other judges of the court joined Lord 
 Campbell in this. Still I think that the fact that a judgment was 
 not necessary for the decision of the case before the court always 
 diminishes its authority. And I think that, on perusing the judg- 
 ment in Knight v. Faith, 15 Q. B. 649, it will be found that no 
 argument is produced which had not been used in Roux v. Salvador. 
 supra, and that no new authority is produced except Lord Campbell's 
 own opinions in Fleming v. Smith, I H. L. C. 513, and a passage 
 from the judgment of Lord Chancellor Cottenham in Stewart v. 
 The Greenock Marine Assurance, 2 H. L. C. 159. 
 
 The question in that latter case was, what passed to the under- 
 writers on ship, who were liable for a total loss of ship. They
 
 SECT. III. — WHERE UNNECESSARY. 93 
 
 No. 7. — Rankin v. Potter. 
 
 raised the very question alluded to in the § 1497 of Phillips already 
 cited. The ship having been fatally injured just before it entered 
 the docks, but kept together as a ship so that it entered the ducks, 
 delivered the cargo, and so earned freight, and the underwriters on 
 ship said they were entitled as salvage to the freight thus earned 
 aftei the disaster. This House decided that they were entitled In 
 tin's benefit, on the precise principle long before laid down in Randal 
 v. Cochran, 1 Ves. 98, and the other cases I referred to in the begin- 
 ning of this opinion, that the plaintiff's, "claiming as upon a total 
 loss, must give up to the underwriters all the remains of the prop- 
 erty recovered, together with all the benefit and advantage belong- 
 ing or incident to it." But I cannot see how, or in what way, the 
 assertion of the doctrine that recovering for a total loss operates as 
 a cession of everything, can be said to amount to the assertion of 
 that other doctrine that the handing in of a notice of abandonment 
 is a condition precedent to the right to claim for a total loss. And 
 as it seems to me every dictum cited in Knight v. Faith, 15 
 Q. B. 649, is capable of being reconciled with the judgment of the 
 Exchequer Chamber in Roux v. Salvador, 3 Bing. N. C. 266, if it is 
 only borne in mind that the abandonment or cession consequent on 
 recovering for a total loss is one thing; the notice of abandonment, 
 supposed to be a condition precedent to claiming for a total loss, is 
 another. I have dwelt on this point at perhaps unnecessary length, 
 for all that it is necessary to decide in this case is that where there 
 is nothing to abandon no notice is requisite. 
 
 I have therefore to conclude by saying, in answer to your Lord- 
 ships' last question, that in my opinion judgment ought to be for 
 the plaintiffs in the cause, the respondents in your Lordships' 
 House. 
 
 1873. May 5. On the final consideration by the House the 
 judgment of the Court of Exchequer Chamber (in favour of the 
 plaintiff's) was affirmed and the appeal dismissed with costs. 
 
 Lord Chelmsford. My Lords, this is a case of some novelty, 
 and from the difference of opinion which has existed upon it 
 amongst the Judges must be regarded as not entirely free from 
 difficulty. 
 
 The action is upon a policy of insurance upon freight, to be earned 
 by a ship called the Sir William Eyre, of which the plaintiffs were 
 owners as mortgagees under a charter-party entered into with one 
 De Mattos on the 9th of February, 1863, by which it was agreed
 
 94 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 that the ship should proceed to New Zealand with a cargo for the 
 owners' benefit, and having arrived and discharged the same, and 
 being made tight, staunch, and strong, and every way titted for the 
 voyage, should proceed to Calcutta, and there being tight, staunch, 
 and strong, and every way fitted for the voyage, should load from 
 the factors of the freighter a full and complete cargo, and convey 
 it, for certain stipulated freight, to Liverpool or London. 
 
 The policy of insurance is " lost or not lost at and from Clyde to 
 Southland, while there, and thence to Otago, New Zealand, and for 
 thirty days in port there after arrival." The subject of the insur- 
 ance is " £4000 on homeward chartered freight." 
 
 The Sir William Eyre arrived at Bluff Harbour, Southland, on 
 the 23d of April, 1863. While there she drifted and took the 
 ground, and remained aground, floating at intervals, till the 29th of 
 May. On that day a violent gale arose, and again the ship took 
 the ground, and remained fixed till the 4th of June. After that 
 she grounded again, and was not finally got off till the 1st of July, 
 when she left for Dunedin ; and she arrived at Port Chalmers, 
 which is the port of Dunedin, on the 4th of July. Surveys were 
 held on her at Bluff Harbour, and also at Port Chalmers ; but in 
 neither of these places could the extent of the damage sustained 
 by her grounding be ascertained, as it was necessary for that pur- 
 pose that she should be taken into a dry dock, or put on a patent 
 slip, neither of which existed in New Zealand, nor was to be found 
 anywhere nearer than Port Sydney. 
 
 While the Sir William Eyre remained at Port Chalmers the 
 captain permitted her to be stored with coals, for which he re- 
 ceived a rent. 
 
 In February, 1864, the captain received funds, by means of which 
 he had certain repairs done which had been recommended by the 
 surveyors, to enable the ship to proceed in ballast to Calcutta. On 
 the 14th of April, 1864, these repairs having been completed, the 
 Sir William Eyre left Port Chalmers, and she arrived at Calcutta 
 on the 7th of June, 1864. 
 
 Upon her arrival the master applied to the agents of De Mattos 
 to carry out the charter-party. They, however, had received infor- 
 mation that De Mattos had failed and stopped payment in Decem- 
 ber, 1863, and they refused to have anything to do with the ship, 
 or with providing a cargo. 
 
 The Sir William Eyre was then put into dry dock and surveyed,
 
 SECT. III. — WHERE UNNECESSARY. 95 
 
 No. 7. — Rankin v. Potter. 
 
 and it was discovered that the damage she had sustained in New 
 Zealand was much greater than had been supposed, and that the 
 cost of repairing her would exceed her value after being repaired. 
 Whereupon, in the month of August, 1864, the plaintiffs gave notice 
 <>f abandonment to the defendant, the underwriter on freight, and 
 a similar notice was given by them to the underwriters on ship ; 
 but neither of the notices was accepted by the underwriters. 
 
 Upon the argument of the case in the Court of Common Pleas 
 it was held that the plaintiffs were not entitled to recover, on the 
 ground that there was no absolute loss of the ship, and conse- 
 quently no total loss of the freight ; and that the notice of aban- 
 donment which was necessary to convert a partial into a total loss 
 was not sufficient. Upon appeal to the Court of Exchequer 
 Chamber, the judgment of the Court of Common Pleas was re- 
 versed, on the ground that the loss of the freight was not a partial 
 loss, but one that was total and absolute. 
 
 Two of the Judges in the Exchequer Chamber expressed an 
 opinion that supposing it to be doubtful whether, if no notice of 
 abandonment of either ship or freight had been given, the under- 
 writers on freight would have been liable, yet as notice of aban- 
 donment was in fact given to the underwriters on the ship, and 
 was clearly in their opinion given in sufficient time, the ship be- 
 longed to the underwriters, and it therefore became impossible for 
 the owners to earn the chartered freight, of which there was conse- 
 quently an actual and not merely a constructive total loss. 
 
 Upon this appeal from the judgment of the Exchequer Chamber 
 the questions raised were — 
 
 1st. Whether there was an actual total loss of the chartered 
 freight by perils insured against during the term of the policy ? 
 
 2d. Whether notice of abandonment either of ship or freight, 
 or both, was necessary to enable the plaintiffs to recover for a total 
 loss on the policy on freight ? 
 
 3d. If notice of abandonment was necessary, whether the notice 
 was given in time ? 
 
 4th. Whether the conduct of the plaintiffs, the owners of the 
 ship, after the time of the injury sustained by her at New Zealand, 
 was such as to discharge the underwriters from their liability upon 
 the policy on freight ? 
 
 First, upon the question as to the loss of the freight, it is neces- 
 sarv to bear in mind the exact nature of the insurance. The freight
 
 9G ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 insured is chartered freight upon a cargo to be loaded on board the 
 Sir William Eyre, at Calcutta, and to be conveyed to Liverpool or 
 London. The voyage insured is a voyage " at and from Clyde to 
 Southland, while there, and thence to Otago, New Zealand, and 
 for thirty days in port there, after arrival." In other words, it is 
 an insurance that the assured shall not be prevented earning the 
 freight under the charter-party by any perils of the sea which might 
 happen on the voyage from Clyde to Otago, and for thirty- days 
 afterwards. As this outward voyage is entirely distinct from that 
 on which the freight was to be earned, and as no right to such 
 freight could possibly accrue until the arrival of the Sir William 
 Eyre at Calcutta, the loss of freight could only happen by such 
 damage to the ship by the perils of the sea during the time covered 
 by the policy as would prevent the assured from earning the char- 
 tered freight on the voyage from Calcutta to England. 
 
 It is admitted that the sea damage which the ship sustained at 
 New Zealand, during the time covered by the policy, was such as 
 would have justified an abandonment, and a claim for a construc- 
 tive total loss. The owners might, if they pleased, have repaired 
 the ship, and she might have been sent to Calcutta in a fit state 
 for a voyage from thence to England. But they merely effected 
 temporary repairs sufficient to enable the ship to reach Calcutta ; 
 and on her arrival there a survey disclosed the extensive nature of 
 the injuries which she had sustained in New Zealand, and the 
 consequent impossibility of her performing the homeward voyage 
 without such an amount of repairs as would have cost more than 
 what her value would have been when repaired. Upon this fact 
 being ascertained, notice of abandonment was given to the under- 
 writers, which, if sufficient, would have entitled the shipowners to 
 recover for a total loss. 
 
 Upon these facts and circumstances the first question arises, 
 Was there a total loss of the freight during the period covered by 
 the policy ? 
 
 In determining this question, I think it right to leave out of 
 consideration the fact of the insolvency of De Mattos before the 
 arrival of the ship at Calcutta, because, although one of the learned 
 Judges whose assistance your Lordships had upon the hearing of 
 the appeal, delivered an opinion that " the freight was not lost by 
 perils of the sea, but that the proximate and direct cause of its 
 loss was the non-existence of cargo," it appears to me that this is
 
 SECT. III. — WHERE UNNECESSARY. 97 
 
 No. 7. — Rankin v. Potter. 
 
 not a correct view of the case. Between the underwriters and the 
 assured on freight the question is, whether the ship had sustained 
 such damage in New Zealand as to prevent her arriving at Cal- 
 cutta in such a state of seaworthiness as would enable her to be 
 tendered to the charterer in the terms of the charter-party, as being 
 " tight, staunch, and strong, and every way fitted for the voyage " 
 to England. Upon this question it is obviously immaterial whether 
 a cargo would have been provided at Calcutta or not. The loss for 
 which the underwriters are liable (if at all) cannot depend upon 
 such a contingency ; and if it could, it must be observed that their 
 liability attached long before the insolvency of De Mattos, which 
 happened in December, 1863, months after the ship had sustained 
 the sea damage for which the claim upon the underwriters is 
 made. 
 
 In the arguments the counsel for the appellant complicated the 
 question by introducing the consideration of the conduct of the 
 plaintiffs with reference to the policy on the ship, as bearing upon 
 their rights under the policy on freight. It appears to me that 
 this cannot properly be done in this case, where the injury to the 
 ship was practically not reparable. The contracts are entirely 
 independent of each other, and between different parties. The 
 rights and liabilities under the policy on freight ought to be deter- 
 mined without reference to what may have been done, or omitted 
 to be done, by the assured on a policy on the ship upon which his 
 rights under that policy may depend. 
 
 A plain and clear view upon the facts and circumstances of the 
 case can only be obtained by removing the policy on the ship out 
 of the way, and looking at the case as if there were no other policy 
 in existence but that on freight. Under this policy, it seems to 
 me that the only question is whether, by the perils of the sea, the 
 ship was so damaged at New Zealand, during the term of the policy, 
 as to be rendered incapable, unless sufficiently repaired, of per- 
 forming the voyage from Calcutta to England, for which she was 
 chartered. Upon that subject it appears, from the admission to 
 which I have already adverted, that the sea damage was such as 
 would have justified an abandonment and claim for a constructive 
 total loss. By this I understand that the amount of damage was 
 such that a prudent uninsured owner would not have incurred the 
 expense of repairing the ship. And this appears clearly from 
 a farther admission stated in the report of this case in the Court 
 VOL. i. — 7
 
 98 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 of Common Pleas, Law Kep., 5 C. P. 351, viz., that the cost of re- 
 pairing the vessel at Calcutta, so as to make her seaworthy for 
 carrying a cargo to England, would have exceeded the value of the 
 ship when repaired, plus the difference between the chartered freight 
 and the current freight, which would amount to about £450. No 
 prudent man would, in such a state of things, incur the expense of 
 repairing the ship ; and the shipowners electing not to repair were 
 entitled to consider the charter at an end, and the chartered freight 
 as totally lost by a peril of the sea. 
 
 Secondly : The next question to be considered is, whether the 
 assured can recover against the underwriters without a notice of 
 abandonment. The counsel for the appellants argued that by the 
 law of marine insurance a notice of abandonment is in every case 
 required, just as by the law merchant notice of dishonour is upon 
 bills of exchange. The rule as to abandonment seems to be that 
 which was referred to by Mr. Justice Blackburn, as contained 
 in Mr. Phillips' book on Insurance, § 1491, where he says : 
 " An abandonment being a transfer, it can be requisite only where 
 there is some assignable transferable subject on which it can 
 operate. When nothing remains to be assigned or transferred an 
 abandonment is useless and unnecessary." It must be observed 
 that " abandonment " and "notice of abandonment " are two dis- 
 tinct and separate things, though they are frequently confounded 
 together in expression. 
 
 Where a notice of abandonment is given it is conclusive proof 
 that the assured intends to claim from the underwriters for a 
 total loss ; and then the assured must (as Lord Cottenham said 
 in Stewart v. Greenock Marine Insurance Company, 2 H. L. C. 
 183), " give up to the underwriters all the remains of the property 
 recovered, together with all the benefit and advantage belonging 
 or incident to it; or rather" (he adds) "such property vests in 
 the underwriters." 
 
 But although an abandonment or cession must be the necessary 
 result of every claim for a total loss, it does not follow that notice 
 of this abandonment must always be given to the underwriters 
 before a total loss can be claimed. 
 
 It was argued at the bar, on the authority of the case of Knight 
 v. Faith, 15 Q. B. 649, that in every case where the subject-matter 
 insured exists in specie, though in a damaged state, a notice of aban- 
 donment is necessary to entitle the assured to make a claim as if it
 
 SECT. III. — WHERE UNNECESSARY. 99 
 
 No. 7. — Rankin v. Potter. 
 
 had been actually destroyed. This was the opinion expressed by 
 Lord Campbell in delivering the judgment of the court in that 
 case. The necessity for a notice of abandonment was not con- 
 sidered upon the first argument, but the court desired to hear the 
 case farther argued on the question whether, under the circum- 
 stances of the case, the plaintiffs could claim for a total loss with- 
 out giving notice of abandonment. It seems to have been quite 
 unnecessary for the determination of the case to introduce this ques- 
 tion, because the circumstances were such that the assured could 
 not have been entitled to recover for a total loss if he had given 
 the most timely and sufficient notice of abandonment. Lord Camp- 
 bell had before, in the case of Fleming v. Smith, 1 H. L. C. 535, 
 stated the rule as to notice of abandonment in the same unqualified 
 terms, saying : " According to all the old authorities, a constructive 
 total loss can only entitle the owners to recover as for an actual 
 total loss, by a notice of abandonment." 
 
 It had been previously decided by the Exchequer Chamber,' in 
 the case of Boux v. Salvador, 3 Bing. jST. C. 266, that notice of 
 abandonment was unnecessary where it could be of no use to the 
 underwriters, who, in that case, if they had received notice of the 
 loss, could have exercised no control over the goods insured, nor by 
 any interference have altered the consequences. The case was an 
 action upon a policy of insurance upon hides from Valparaiso to 
 Bordeaux. On the voyage the hides were found to be in a state of 
 putridity, occasioned by a leak in the ship, and they were sold for a 
 fourth of their value at Rio Janeiro. The assured received the news 
 of the damage to the hides and of their sale at the same time. The 
 Court of Common Pleas, 1 Bing. N. C. 526, gave judgment for the 
 defendant, the underwriter, on the ground that the assured could 
 not recover as for a total loss without a notice of abandonment. But 
 this judgment was reversed in the Court of Exchequer Chamber ; 
 and Lord Abinger, in a very elaborate and carefully considered 
 judgment, laid down the principle as to notice of abandonment 
 when an assured claims for a total loss and part of the subject 
 insured remains in specie, that notice is only necessary to be given 
 where upon receiving it the underwriters could do something in 
 the exercise of their rights over the salvage. In that case, the 
 assured receiving the news of the damage to the hides and of 
 the sale of them at the same time, a notice of abandonment to the 
 underwriters would have been idle and useless.
 
 100 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 In Farnworth v. Hyde, 18 C. B. (n. s.) 835, under similar cir- 
 cumstances of the loss of the ship insured and of her sale having 
 reached the assured at the same time, it was held that the 
 underwriters were liable for a total loss without notice of aban- 
 donment. This seems to place the rule as to notice of aban- 
 donment on a reasonable foundation. No prejudice can possibly 
 arise to the underwriters from withholding a notice where it is 
 wholly out of their power to take any steps to improve or alter 
 their position. 
 
 Upon this ground, therefore, I am of opinion that there was no 
 necessity for the assured in this case to give notice of abandon- 
 ment of the chartered freight to the underwriters. Mr. Justice 
 Willes, in delivering judgment in the Court of Common Pleas, 
 apparently adopting the rule as laid down in Knight v. Faith, 15 
 Q. B. 649, said : " The general rule of insurance law applies, that 
 where the thing exists in specie (and here the thing insured, viz., 
 the chance of earning the freight, did survive the risk) and can be 
 restored, though at an improvident expense, in order to make a total 
 loss there must be an abandonment." But I am at a loss to under- 
 stand what chance of earning the freight can be said to have 
 existed after the ship Sir William Eyre, mentioned in the charter- 
 party, had sustained such sea damage as to render her incapable of 
 performing the voyage by which the freight was to be earned, and 
 had become at the election of the owners a total loss. The under- 
 writers could not have substituted any other ship, and tendered 
 her to the charterer in performance of the charter-party on the 
 owner's part. 
 
 It was suggested in argument that the underwriters on freight, 
 if they had had timely notice of abandonment, might have arranged 
 with the underwriters on ship to repair the ship at their joint 
 expense, and have sent her on to Calcutta, and tendered her to 
 De Mattos in fulfilment of the owner's contract. But this is the 
 suggestion of a mere possibility, and contains in it nothing prac- 
 tical, nor can it reasonably be taken into account in judging of 
 the rights and liabilities of the parties. I have no difficulty in 
 coming to the conclusion that there was no necessity for any notice 
 of abandonment of the chartered freight to the underwriters on 
 freight. 
 
 Thirdly : This being my opinion, it seems to me wholly unneces- 
 sary to consider whether the notice of abandonment which was
 
 SECT. III. — WHERE UNNECESSARY. 101 
 
 No. 7. — Rankin v. Potter. 
 
 given was given in time. The rule is, where notice of abandon- 
 ment is necessary it must be given in a reasonable time after 
 information of the damage which has occurred to the subject of 
 insurance. Whether sufficient notice was given depends upon, the 
 facts of each particular case, and the decision upon one case can be 
 no authority or guide upon any other. I must therefore decline to 
 express any opinion with which of the learned Judges I should be 
 disposed to agree upon this question. 
 
 Fourthly : There only remains to consider the question whether 
 the conduct of the owners of the ship after the damage she sustained 
 was such as to discharge the underwriters on freight. Upon this 
 I have already incidentally made some observations. It is unne- 
 cessary to examine in detail the various acts by which it was con- 
 tended that the owners had elected to retain the ship, and to come 
 upon the underwriters merely for a partial loss. I think that they 
 had precluded themselves by dealing as they did with the ship, 
 and also by delaying so long their claim for a total loss. But I do 
 not see how the conduct of the shipowners, however it may affect 
 their rights under one contract, can have any influence on their 
 rights and the liabilities of another party under a separate and 
 independent contract. If the sea damage which the ship sustained 
 in New Zealand was such as to reduce her to a state which rendered 
 her utterly incapable of performing the voyage to England without 
 an expense which no prudent uninsured owner would incur, then 
 the freight was totally lost from that moment, and how the owners 
 chose to deal with the disabled ship afterwards was wholly imma- 
 terial. If the damage to the ship had been such that it might 
 have been repaired at a reasonable expense and put into a con- 
 dition to earn the freight, and the shipowners had declined to take 
 this course, they would have lost the freight not by the perils of 
 the sea but by their election. But the damage being such as to 
 render the repair of the ship practically impossible, the question 
 between the assured and the underwriters on freight must be 
 regarded as if there were no policy on the ship ; and then it 
 becomes the simple consideration whether the freight was not 
 totally lost by the perils of the sea, by what must be regarded, in 
 relation to it, as the total destruction of the ship by which it was 
 to be earned. 
 
 I think that the judgment of the Court of Exchequer Chamber 
 ought to be affirmed.
 
 102 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 Lord Colonsay. My Lords, this case appears to be attended 
 with a great deal of nicety. It is novel, too, in its circumstances.- 
 Indeed, the policy here is peculiar, and the consequence has been 
 that there has been a great deal of difference of opinion among the 
 Judges, and a great expenditure of ability and of ingenuity in dis- 
 cussing the question. It appears to me that a good deal of that has 
 been expended in consequence of mixing up together things which 
 are substantially separate. I think there are two questions, or 
 rather, perhaps, only one, viz., whether the freight was lost by 
 reason of the perils of the sea insured against ; and I think that 
 that question must be considered altogether separate from the ques- 
 tion of an insurance by other parties upon the ship. Now, notwith- 
 standing that one of the learned Judges, of whose assistance we 
 have had the benefit, and for whose opinion I entertain the highest 
 respect, has expressed the opinion that the loss was not caused by 
 the perils insured against, but by the inability of De Mattos to 
 furnish a cargo, I am compelled to differ from him. It appears to 
 me that, upon the admission contained in Article 24 of the case, 
 we are to hold that the. condition of things within the period to 
 which the insurance applied was such that the vessel was in a 
 condition in which an abandonment might have been made as for 
 what is called a constructive loss ; that is to say, that she was not 
 in a condition to be worth repairing. If that be so, I think that 
 the liability then attached, and that the risk having been incurred, 
 and the peril having been sustained, and the vessel having been 
 rendered incapable of earning the freight by reason of that damage 
 done at sea or in port within the period insured against, that ter- 
 minated the question. No doubt it was not then ascertained what 
 the damage was, but it was afterwards ascertained that that damage 
 was sustained within that period, and that must be treated as an 
 admission in the case. 
 
 Now, I do not see how the matter of De Mattos having failed in 
 the month of December, and having been unable to supply a cargo, 
 iir having declined to supply a cargo, is a matter which can be said 
 to be the cause of the loss of the freight. Something is said about 
 proximate and remote causes, and these are matters which are very 
 apt to lead us into philosophical mazes ; but I think it is very clear 
 that before De Mattos failed, the ability to earn the freight was 
 gone by reason of the perils insured against having happened, and 
 that appears to me to be sufficient. De Mattos was under no obli-
 
 SECT. III. — WHERE UNNECESSARY. 103 
 
 No. 1. — Rankin v. Potter. 
 
 gation, it is said, to furnish a cargo, because of the delay of the 
 owners of the vessel to tender the vessel. I think I>c Mattos was 
 under no obligation to furnish a cargo, unless there was presented 
 to him a vessel fit and sufficient to carry that cargo to Britain, and 
 that was the failure that occurred. There was no vessel fit and 
 sufficient to carry the cargo to Britain presented to De Mattos, 
 and that was a state of matters that occurred before the vessel 
 arrived at Calcutta. 
 
 The only other question is the question as to the notice of 
 abandonment. I think that throughout this matter we must con- 
 sider this case as if there had been no insurance upon the ship. If 
 thme had been no insurance upon the ship, what would have been 
 the object of the notice of abandonment, or what was to be gained 
 by such a notice being given ? I do not see, after what has occurred, 
 what the underwriters on the freight could have done. The vessel 
 was not fit to be repaired. They could not have compelled the 
 owners to repair her when she was not worth it, What was to 
 be gained, then, by the notice of abandonment being given? It 
 is true there was a puzzle raised by some of the Judges as to 
 who would have been the party entitled to the freight, and, there- 
 fore, the party who would have been entitled to the insurance upon 
 the freight, if the vessel had been timeously abandoned, and had 
 been repaired, and freight had been earned. But, my Lords, I do 
 not think that there is really any puzzle in the case at all. At all 
 events, it is clear that if the freight had been earned, there would 
 have been no loss of the freight, and a different condition of mat- 
 ters would have arisen. The question as to the right to demand 
 the insurance if the vessel had been lost is a different question 
 altogether. The only party who had a right to demand the in- 
 surance is the party who effected it; and if there had been no 
 insurance upon the vessel, that right would equally have existed 
 with regard to the freight. I therefore think there is really no 
 substantial ground for this question as to the notice of abandon- 
 ment ; and until there is more decided authority adduced upon 
 the subject, I am not prepared to receive the doctrine that notice 
 of abandonment in a matter of this kind stands upon the same 
 mercantile footing as notice of dishonour of bills of exchange 
 The reason of the thing, in my apprehension, is against that doc- 
 trine. I think that the reason of the thing tells us that where 
 there is nothing substantially to abandon to the party to whom the
 
 104 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 notice of abandonment is given, and he could gain nothing by it, 
 then it is not necessary to give that notice. Therefore I think 
 that all that puzzle which has arisen from the circumstance of 
 there being an insurance upon the vessel is quite out of the 
 question when you come to consider purely the liability of the 
 underwriters upon the freight. In this case it appears that there 
 was no timeous notice of abandonment, or no notice of abandon- 
 ment at all, according to a judgment elsewhere ; and therefore in 
 that view also the question would not arise. But I think the real 
 question is, whether the right to freight was lost by the perils of 
 the sea during the period embraced in the policy of insurance. I 
 think it was, and I think the liability attached, and I see nothing 
 afterwards to relieve the parties from that liability. 
 
 Lord Hatherley. My Lords, in this case, which is slightly 
 complicated in its details, we are extremely obliged to the learned 
 Judges who have assisted us by giving us their opinions, and we 
 are also indebted to the learned counsel at the bar for so thoroughly 
 sifting it that, like many other cases which appear complicated 
 and difficult on the first blush and opening of the matter, those 
 difficulties are cleared away and the whole matter reduced to very 
 simple principles when there has been a thorough discussion of 
 the subject. 
 
 My Lords, the case is really now brought simply to this. The 
 owner of a ship under a certain charter-party arranges that his 
 vessel, being about to proceed to New Zealand, shall, after her 
 voyage thither, and after a certain delay there, proceed to Cal- 
 cutta and take on board a cargo from one De Mattos, he having, in 
 the first instance, entered into that undertaking with him. When 
 she arrives at Calcutta she is to be tendered to De Mattos for the 
 purpose of receiving the cargo to be so provided, and she must 
 then be in a condition sufficiently staunch, tight, and strong for the 
 purpose of her voyage from Calcutta to England, or rather Great 
 Britain, in order to earn the freight that will then be due from De 
 Mattos in respect of her so having conveyed his goods. This 
 being the entire course of the vessel's proceeding, the owner is 
 minded to insure himself against the perils of the sea, in two. 
 respects, first, as regards the vessel, and secondly, as regards the 
 freight to be earned between Calcutta and England. I mention 
 this because there can be no reasonable doubt (indeed the learned 
 .1 udges said they hardly thought it right to consider the question
 
 SECT. III. — WHERE UNNECESSARY. 105 
 
 No. 7. — Rankin v. Potter. 
 
 as it was not raised) that, however peculiar the form of this policy 
 may be (and it is of a somewhat unusual form), there is nothing to 
 prevent any person, during the whole course of the voyage, insuring 
 against the perils of the sea during any part of that voyage, whether 
 the perils of the sea may occur during that part of the voyage as 
 to which the ship is insured, or whether the chance of loss against 
 which insurance is effected may he the chance of her being so dam- 
 aged in the anterior part of the voyage as not to be able to fulfil the 
 subsequent part of her voyage (in respect of which part of the voyage 
 itself she is not insured), and in consequence of being unable to fulfil 
 the subsequent part of the voyage she cannot earn the freight which 
 is insured. 
 
 I think one of the learned Judges, who has given a very valuable 
 and able judgment in this case, though 1 do not agree with him, 
 Mr. Baron Martin, seems to have thrown out some slight doubt as 
 to whether or not the mode of effecting this policy was one that 
 could be sustained. But he dwelt but lightly upon that point, 
 and I need say no more upon it, because no authority was cited for 
 saving that the insurance which was effected was in any way con- 
 trary to the law of insurance. The insurance effected was simply 
 this : the vessel was to proceed to New Zealand. During the whole 
 period of her voyage thither, and of her stay there for thirty days, 
 she is not, says the policy, to be injured or damaged by perils of 
 the sea to such an extent as to prevent her being staunch, tight, 
 and strong enough on her arrival at Calcutta to take the expected 
 cargo to England. That is the undertaking which is given by the 
 policy, and that is the risk which is insured against. It is clear 
 and plain, from the admissions in this case and the evidence that 
 has been given, that she was injured during the period insured 
 against, that is to say, she was injured just about the time of her 
 arrival at New Zealand, and while she was in the neighbourhood of 
 Bluff Harbour. She was injured to such an extent that, although 
 at Bluff Harbour it could not be ascertained what the extent of the 
 injury was, and although at Dunedin a certain amount of repair was 
 effected which enabled the vessel to proceed to Calcutta, she was not 
 staunch, tight, and strong enough for the voyage to England when 
 she arrived at Calcutta, and her being in that condition was wholly 
 due to the injuries she had sustained during the insured period. 
 
 It is farther admitted in the case that the injury was of such a 
 character that no prudent owner would have repaired her for the
 
 106 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 benefit of the contract which had been entered into as to freight, 
 because, in order to make those repairs, it would have been neces- 
 sary to expend more than the whole value of the ship ; in other 
 words, when it was ascertained what the extent of the injury was, 
 it was found that she was in such a condition that, had the owners 
 been minded to abandon her at the time when the injuries were 
 sustained to those who had taken the policy on the ship (and who 
 must be distinguished from those who had taken the policy on the 
 freight which is now before us), they would have been justified in 
 so doing. As between the owners and those who insured the ship 
 itself there might arise a question, and indeed there did arise a ques- 
 tion, which was determined, I think, in the action against Camp- 
 bell, as to whether or not they had given timely notice of the 
 abandonment of the vessel to those who had insured her, or 
 whether by their conduct in delaying her voyage to Calcutta for a 
 very considerable time, by their employing the ship in the mean 
 time to a certain extent as a storehouse for coals, and by taking- 
 other steps which occasioned great and possibly unnecessary delay 
 in New Zealand before giving notice of abandonment, they had put 
 themselves in such a position, as respected those who had insured 
 the vessel, as to have lost their right of abandonment. But that 
 matter appears to me, I confess, as it seems to have done to your 
 Lordships who have preceded me, to be wholly immaterial as 
 regards the question before us in respect of the insurance on the 
 freight. When the vessel came to Calcutta it appears that there was 
 (and this was somewhat relied upon), in the first instance, an actual 
 tender of the vessel to De Mattos, but it was found that De Mattos 
 had become insolvent, and those who represented him, the assignees 
 of De Mattos, declined to furnish any cargo. All this took place 
 before there had been a thorough examination of the amount of 
 the injury in Calcutta. When a thorough examination took place 
 afterwards the result was what I have described, that no prudent 
 owner would have thought of putting her into a condition to 
 continue her voyage' to Great Britain. 
 
 That being so, it appears that every element of the contract 
 with the underwriters upon the freight is brought out in a clear 
 and distinct light, showing that the liability of the underwriters on 
 the freight had actually accrued, unless indeed the question that 
 has been raised with respect to the notice of abandonment as 
 applying to the insurance of the freight should prevail with your
 
 SECT. III. — WHERE UNNECESSARY. 111? 
 
 No. 7. — Rankin v. Potter. 
 
 Lordships. The ship had undoubtedly been insured during the 
 period when the injury was sustained. The ship undoubtedly, in 
 consequence of that injury, was unable to perform the voyage, and 
 could not therefore be tendered in the condition in which she 
 ought to have been tendered to De Mattos, and therefore the 
 freight was lost in consequence of that injury. I will postpone 
 for the moment the consideration of the question of De Mattos" 
 insolvency. 
 
 Putting the question aside as to how far De Mattos' insolvency 
 may be regarded as the proximate cause of the loss of freight 
 rather than the damage sustained by the ship in the anterior part 
 of the voyage, there -comes the question, Was it or was it not 
 necessary to give a notice of abandonment in this case, and if 
 necessary, was it given in time ? 
 
 As regards the necessity for giving notice of abandonment, I 
 think that is the point that was most vigorously pressed upon us 
 by the counsel for the appellant, who relied upon some dicta of 
 Lord Campbell upon the subject, and contended strongly that it 
 was" necessary in all cases whatsoever of a claim upon under- 
 writers as for a total loss upon a policy, for the owners to give 
 notice to the underwriters of abandonment of the thing insured, 
 whatever might be the circumstances or the position of the insurers 
 or the insured, and whether in truth any advantage could possibly 
 be made of that notice of abandonment or not. It was put upon 
 this ground, that it was rather for the underwriters to say in their 
 judgment what advantage they might be able to derive from that 
 notice of abandonment so given in regard to their position on their 
 policy. I apprehend, my Lords, that certainly no authority has 
 been cited to show that this notice of abandonment is to be con- 
 sidered necessary in a case where no such advantage could possibly 
 accrue to the underwriters. If the vessel be not really wholly 
 lost, if it be only a constructive total loss, as it is termed (though 
 that is perhaps not a very happy phrase), occasioned by the im- 
 possibility of effecting repairs, the cost of which will not exceed 
 the whole value of the ship when repaired, then there being 
 something in esse to be handed over to the underwriters, it is 
 necessary that they should be informed of this in order that they 
 may have an opportunity of making the best use they can of 
 what remains, — of that which the owners give up, in electing to 
 make that a total loss which is not in fact a total loss, — there
 
 108 ABANDONMENT. 
 
 No. 7. — Rankin v. Potter. 
 
 being something in the nature of salvage, or fragments, or wreck, or 
 something of that kind, which may be of value to the under- 
 writers, although not of any to the owners. But in this case there 
 is nothing suggested, and nothing can be suggested (except one 
 single point which I will notice in a moment), as to any advantage 
 that could have been derived by the underwriters from any such 
 notice of a constructive total loss being given to them on the part 
 of those who had insured. 
 
 The only exception is, that it is suggested that they might have 
 said, " True it is, we insured that this freight should be earned, 
 and certainly that earning depended upon the arrival of the ship 
 at Calcutta in a condition to earn it. She did not arrive at 
 Calcutta in a condition to earn it, — it would have been folly to 
 expend money in repairing the ship, which would have exceeded 
 the value of the ship when repaired ; but if you had told us that 
 you were about to claim as for a total loss in respect of this freight, 
 we should have been in this position : we should have found that 
 you had insured the vessel ; the underwriters on the vessel would 
 have been in an equally disadvantageous plight with ourseives, 
 having a heavy demand upon them in respect of their insurance, 
 and we two together might have been minded to make such an 
 arrangement each with the other that, regard being had to what we 
 each should have to pay upon our insurances, it might have been 
 worth our while to put the vessel into a state to earn the freight." 
 Those who had insured the freight could not tender any other 
 vessel. That question does not arise in the peculiar insurance we 
 have before us, because it was an insurance of freight to be earned 
 by the Sir William Eyre and by no other vessel. De Mattos of 
 course might have refused any other vessel than that ; it could 
 not be earned therefore by tendering any other vessel. It is sup- 
 posed that if the underwriters on the freight had had timely 
 notice, they might have made such an arrangement with the under- 
 writers on the hull or the vessel herself as would have saved a total 
 loss accruing. 
 
 I apprehend, my Lords, that that is much too remote a con- 
 tingency to render it necessary for the insured to give the insurers 
 notice of abandonment upon the principle which I have before 
 referred to, viz., of their being able to save something out of 
 the wreck. It is not necessary to illustrate that, but it might be 
 shown in a variety of ways how such a doctrine as that would carry
 
 SECT. III. WHERE UNNECESSARY. 109 
 
 No. 7. — Rankin v. Potter. 
 
 the necessity of notice to the remotest extent in respect of bargains 
 which might be made by persons who might or might not be 
 interested at the moment in the ship, such as persons who .might 
 purchase the damaged vessel, or the wreck, or the like. Numerous 
 arrangements might be made of that kind, which would create, I 
 apprehend, far too remote an interest to be considered upon a 
 question as to the law requiring notice of abandonment to lie 
 given. The whole principle of the notice of abandonment is, that 
 you are to place the underwriters in such a position that they shall 
 have all the advantages which you now possess in respect of the 
 vessel, supposing that they can make those advantages available 
 for the purpose of effectuating a salvage of some portion of that 
 which has been lost in consequence of the perils which they have 
 insured you against. 
 
 Now, my Lords, with regard to the observations made by Mr. 
 Baron Martin, that the loss really was not a loss by perils of the 
 sea, but was due to the insolvency of De Mattos, I think there is a 
 clear fallacy in that view in two points, the first of which has been 
 noticed by my noble and learned friend who first stated his views 
 upon this appeal ; it is, that the loss had accrued before the insol- 
 vency of De Mattos occurred. The loss accrued when the accident 
 happened in which the damage occurred at Bluff Harbour, and 
 that was some time before the insolvency of De Mattos took place. 
 But I do not think it necessary to rest it upon that. I apprehend 
 that it is not a thing which would absolve the underwriters from 
 the liability for the loss which undoubtedly accrued on account of 
 the ship not being fit for the voyage. There is nothing to absolve 
 them from the liability to pay the insurance in the circumstance 
 of the insolvency of De Mattos, who in the chapter of accidents 
 might have become solvent, and even wealthy again, before the 
 necessity arose for the vessel completing her voyage. But the 
 point that has to be looked at is this : Were the owners in a posi- 
 tion to enforce their rights against De Mattos, whatever they may 
 have been ; were they in a position, by tendering the vessel to him, 
 either to insist upon his paying the freight then and there, or to 
 insist upon such rights as might accrue to them by action in respect 
 of his non-performance of the contract ; or were they disabled from 
 occupying that position by the consequences resulting from the 
 perils of the sea which arose at Bluff Harbour, preventing them 
 from fulfilling their part of the contract with De Mattos by ten-
 
 110 ABANDONMENT. 
 
 No. 7. — Kankin v. Potter. — Notes. 
 
 dering to him a ship, staunch, tight, and strong, for carrying his 
 goods to Britain ? If that be the case, of course it is clearly and 
 distinctly within the terms of the policy ; and that being so, it 
 seems to me clear that the underwriters must be liable unless this 
 one point, which was strongly insisted upon, of want of timely 
 notice of abandonment, precludes their liability. I think your 
 Lordships are all agreed that no such notice was necessary, and 
 therefore it is unnecessary to consider the question as to the time 
 at which such notice was given. 
 
 Therefore, my Lords, upon all the points, I think that the appel- 
 lants have failed, and consequently the appeal should be dismissed 
 with costs. 
 
 Judgment of tlic Court of Exchequer Chamber affirmed; 
 and appeal dismissed with costs. 
 
 ENGLISH NOTES. 
 
 Insurance on freight under charter-party under which the freight was 
 to be paid at Madeira, on delivery of certain goods there, by Madeira 
 wine to be carried by the ship to Jamaica free of freight. The ship 
 arrived at Madeira, where she delivered the goods; but was wrecked 
 before the wine in payment of the freight could be shipped on board. 
 Held, a total loss of the freight. Atty v. Lindo (C. P. 1805), 1 Bos. 
 & P. K R, 236. 
 
 Policy on freight (without mention of charter-party) at and from Riga 
 to any port in the United Kingdom. The ship had sailed under a 
 charter-party, under which she was to bring home a cargo of hernp from 
 Riga. The ship was detained at Riga by order of the Russian Govern- 
 ment so long that she could not sail on account of the frost. She never 
 loaded under the charter-party, but in the spring entered into a new 
 contract under which she earned freight on the voyage home, but the 
 expenses of the delay had exceeded the freight. Held, that the freight 
 so earned was the insured freight, and that there was no total loss. 
 Everth v. Smith (K. P. 1814), 2 M. & 8. 278. 
 
 Insurance on freight for a voyage becomes, when the ship is laden, 
 an insurance of the freight for the particular cargo shipped. If, in 
 consequence of a peril insured against, it becomes impossible to bring 
 home that cargo, there is a total loss of the freight, and abandonment 
 is unnecessary, as there is nothing to abandon. If the ship earns freight 
 by bringing home another cargo, that is salvage on freight. Green v. 
 Royal Ex. Ass. Co. (K. P. 1815), Taunt. 08. 
 
 Insurance of freight valued. The ship having sprung a leak was run
 
 SECT. III. — WHERE UNNECESSARY. Ill 
 
 No. 7. — Rankin v. Potter. — Notes. 
 
 ashore, taking the ground on a reef of rocks. While there in a state of 
 imminent peril, she was sold by the captain (as master) under the ad- 
 vice of a surveyor and agent for the owners. The jury found that the 
 master had acted throughout fairly and bond fide for the benefit of all 
 concerned. Held (on a case agreed to he turned into a special verdict), 
 that the assured might recover as for a total loss although no notice had 
 been given of abandonment, and although the purchaser got the ship off 
 and ultimately brought her into port. Idle v. Royal Ex. Ass. Co. (Ex. 
 1819), 8 Taunt. 755. — It appears from a note to Read v. Bonham, '•> 
 Brod. & Bing. 151, that on the case coming on for argument in K. B. 
 in error, the court expressed the opinion that the necessity did not ap- 
 pear from the special verdict, and a centre de novo was awarded for the 
 purpose of trying whether it existed. Bayley, J., said that the question 
 whether the circumstances amounted to an abandonment might also be 
 left open. The case is however cited in Roux v. Salvador (p. 62, 
 supra) in a passage again quoted in Cossman v. West, 13 App. Cas. 
 17G, as an authority for the projDosition that no abandonment is neces- 
 sary where there is a total loss of the subject-matter insured. 
 
 A case similar to Idle v. Royal Exchange Ass. Co. came into the 
 Common Pleas in 1827. The court, including Park, J., approved the 
 decision of the former case by the Court of Exchequer, and gave a simi- 
 lar judgment. They also put the case on the ground that, the insurance 
 being on freight, there was nothing to abandon. Mount v. Harrison 
 (C. P. 1827), 4 Bing. 388. 
 
 Shipowner and charterer may agree by charter-party that a portion 
 <»f the stipulated freight shall be prepaid: in which case the remainder 
 of the freight may be insured, and if the freight ultimately earned 
 does not exceed what has been prepaid, so that no balance becomes pay- 
 able on the performance of the voyage, the shipowner may recover as 
 on a total loss. Allison v. Bristol Marine Ins. Co. (1876), 1 App. 
 Cas. 209. 
 
 In a policy on chartered freight, where the ship on the way to take up 
 the cargo has grounded, and is delayed so long that the charterers justi- 
 fiably throw up the charter and send the cargo by another ship, this is 
 a total loss of the chartered freight by perils of the sea. Jackson 
 v. Union Marine Ins. Co. (1873, 1879),' L. R., 8 C. P. 592; 42 L. J. 
 C. P. 284 ; 10 C. P. 125 ; 44 L. J. C. P. 27. 
 
 AMERICAN NOTES. 
 
 Where a vessel is so injured by a sea peril as not to be reparable, except 
 at an expense exceeding its value when repaired, there is an actual total loss, 
 and no abandonment is necessary. Bullard v. Roger William* Ins. Co., 1 
 Curtis Circ. Ct. (U. S.) 148.
 
 112 ABANDONMENT. 
 
 No. 8. — Hamilton v. Mendez. — Kule. 
 
 Abandonment is unnecessary where it cannot possibly be of benefit to 
 the underwriter. Fosdick v. Norwich Ins. Co., 3 Day (Conn.), 108 ; Walker 
 v. Protection Ins. Co., 29 Maine, 317. And where something still exists 
 capable of abandonment. Burt v. Brewers', fyc. Ins. Co., 16 N. Y. Sup. 
 Ct. 383. 
 
 Section IV. — Criterion of Time in cases of Abandonment 
 
 and Total Loss. 
 
 No. 8. — HAMILTON v. MENDEZ. 
 
 (K. B. 1761.) 
 
 No. 9. — BAINBRIDGE v. NEILSON. 
 
 (k. b. 1808.) 
 
 RULE. 
 
 Abandonment is not effectual to entitle the assured to 
 recover as for a total loss, unless the facts constituting 
 a total loss exist at the time of the abandonment. 
 
 Semble, that they must exist also at the time of action 
 brought. 
 
 Hamilton v. Mendez. 
 
 2 Burr. 1198. 
 
 Monday, 8th June, 1761. This was a special case reserved at 
 ( ruildhall, at the sittings there before Lord Mansfield after Michael- 
 mas Term, 1760, in an action brought against the defendant as one 
 of the insurers, upon a policy of insurance from Virginia or Mary- 
 land to London, of a ship called the Selby and of goods and mer- 
 chandise therein, until she shall have moored at anchor twenty-four 
 hours in good safety. 
 
 The case stated for the opinion of the court was as follows : — 
 
 That the ship Selby, mentioned in the policy, being valued at 
 £1200, and the plaintiff having interest therein, caused the policy 
 in question to be made ; and the same was accordingly made, in 
 the name of John Mackintosh, on behalf and for the use and benefit 
 of the plaintiff, and which was subscribed by the defendant, as 
 stated, for the sum of £100. 
 
 That the ship, being of the burthen of two hundred tons, was 
 on the 28th of March, 1760, in good safety at Virginia ; where
 
 SECT. IV. — CRITERION OF TIME. 113 
 
 No. 8. — Hamilton v. Mendez. 
 
 she took on board 192 hogsheads of tobacco, to be delivered at 
 London. 
 
 That on the said 28th day of March, she departed and set sail 
 from Virginia for London ; and on the 6th day of May following, 
 as she was sailing and proceeding in her said voyage, was taken by 
 a French privateer called the Aurora, of Bayonne, Captain Jean Piena 
 Lesea commander ; who, with his company were subjects of the 
 French king, then being at war with our lord King George the 
 Second. 
 
 That at the time of the capture, the Selby had nine men on 
 board ; and the captain of the said privateer took out six, besides 
 the captain, Dorsdill ; leaving only the mate and one man on 
 board. 
 
 That the French put a prize-master and several men on board 
 the said ship Selby, to carry her to France. 
 
 That as the French were carrying the said ship Selby towards 
 France, on the 23d day of the said May-, she was retaken off 
 Bayonne, by the Southampton, an English man-of-war commanded 
 by Captain Antrobus ; who sent her into Plymouth, where she 
 arrived the 6th day of June following. 
 
 That the plaintiff living at Hull, as soon as he was informed 
 what had befallen his said ship the Selby, wrote a letter on the 
 23d day of June, to his agent John Mackintosh living in London, 
 to acquaint the defendant, " that the plaintiff did from thenceforth 
 abandon to him his interest in the said ship, as to the said one 
 hundred pounds by the defendant insured." 
 
 That the said John Mackintosh, on the 26th day of the said June, 
 acquainted the defendant with an offer to abandon the ship: to 
 which the defendant said " he did not think himself bound to take 
 to the ship; but was ready to pay the salvage and all other losses 
 and charges that the plaintiff sustained by the capture." 
 
 That upon the 19th day of August, the said ship Selby was 
 brought into the port of London, by the order of the owners of the 
 cargo and the re-captors. 
 
 That the said ship Selby sustained no damage from the capture. 
 
 That the whole cargo of the said ship Selby was delivered to the 
 freighters, at the port of London ; who paid the freight to Benjamin 
 Vaughan, without prejudice. 
 
 The question therefore submitted to the opinion of the court in 
 fiis case, is, "Whether the plaintiff, on the said 26th day of 
 vol. i. — 8
 
 114 ABANDONMENT. 
 
 No 8. — Hamilton v. Mendez. 
 
 June, had a right to abandon, and hath a right to recover as for a 
 total loss." If lie is entitled to recover for a total loss ; then the 
 jury find a verdict for the plaintiff; damages £98, costs 40s. But if 
 the court shall be of opinion, that he had no right to abandon on 
 the said 26th day of June, o*r he ousdit onlv to recover an average 
 loss, then the jury find a verdict for the plaintiff; damages £10, 
 costs 40s. 
 
 The case having been argued by Mr. Morton for the plaintiff, 
 and Mr. Aston for the defendant, and the court having taken time 
 to consider, — 
 
 Lord Mansfikld now delivered the resolution of the court ; 
 having first stated the case, as settled at nisi prius. 
 
 The plaintiff has averred in his declaration, as the basis of his 
 demand for a total loss, " that by the capture the ship became wholly 
 lost to him." 
 
 The general question is, whether the plaintiff, who at the time of 
 his action brought, at the time of his offer to abandon, and at the 
 time he was first apprised of any accident having happened, had 
 only, in truth, sustained an average-loss, ought to recover for a 
 total one. 
 
 In support of the affirmative, the counsel for the plaintiff insisted 
 upon the four following points : — 
 
 1st. That by this capture, the property was changed, and there- 
 fore the loss total for ever. 
 
 I'd. If the property was not changed, yet the capture was a 
 total loss. 
 
 3d. That when the ship was brought into Plymouth, particularly 
 on the 26th of June, the recovery was not such as, in truth, changed 
 the totality of the loss into an average. 
 
 4th. Supposing it did, yet, the loss having once been total, a 
 right vested in the insured to recover the whole upon abandoning, 
 which right could never afterwards be devested or taken from him 
 by any subsequent event. 
 
 As to the first point, — If the change of property was at all mate- 
 rial as between the insurer and insured, it would not be applicable 
 to the present case ; because, by the marine law received and prac- 
 tised in England, there is no change of property, in case of a capture 
 before condemnation : and now, by the act of Parliament, in case of 
 a re-capture, the jus postliminii continues forever. 
 
 I know many writers argue, between the insurer and insured,
 
 SECT. IV. — CRITERION 01- TIME. IK") 
 
 No. 8. — Hamilton v. Mendoz. 
 
 from the distinction " whether the property was or was not changed 
 
 by the capture, so as to transfer a complete right from the enemy 
 to a recaptor or neutral vendee, against the former owner." But arbi- 
 trary notions concerning the change of property by a capture, as 
 between the former owner and a recaptor or vendee, ought never to 
 be the rule of decision, as between the insurer and insured upon a 
 •contract of indemnity, contrary to the real truth of the fact. And 
 therefore I agree with the counsel for the plaintiff, upon their se- 
 cond point, " that by this capture, while it continued, the ship was 
 totally lost," though it be admitted " that the property, in case of a 
 recapture, never was changed, but returned to the former owner." 
 
 The third point depends, as every question of this kind must, 
 upon the particular circumstances. It does not necessarily follow, 
 that, because there is a recapture, therefore the loss ceases to be 
 total. If the voyage is absolutely lost, or not worth pursuing ; if 
 the salvage is very high ; if further expense is necessary ; if the in- 
 surer will not engage, in all events, to bear that expense, though 
 it should exceed the value or fail of success : under these and many 
 other like circumstances, the insured may disentangle himself and 
 abandon, notwithstanding there has been a recapture. 
 
 The Guidon, among other descriptions of a total loss where the 
 insured may abandon, instances, "if the damage exceeds half the 
 value of the thing ; or if the voyage be lost, or so disturbed, that 
 the pursuit of it is not worth the freight." But in the present case, 
 the voyage was so far from being lost, that it had only met with a 
 short temporary obstruction ; the ship and cargo were both entirely 
 safe ; the expense incurred did not amount to near half the value ; 
 and upon the 26th of June, when the ship was at Plymouth, and 
 the offer made to abandon, the insurer undertook to pay all charges 
 and expenses the plaintiff should be put to by the capture. 
 
 The only argument to show that the loss had not then ceased to 
 be total, was built upon a mistaken supposition, " that the recaptor 
 had a right to demand a sale, and to put a stop to any further prose- 
 cution of the voyage." But that is not so. The property returned 
 •to the plaintiff, pledged to the recaptors for one-eighth of the value, 
 as salvage for retaking and bringing the ship into an English port. 
 Upon paying this, the owner was entitled to restitution ; the recapt< >r 
 had no right to sell the ship. If they differed about the value, the 
 Uourt of Admiralty would have ordered a commission of appraise- 
 ment. In this case, it was the interest of the owner of the ship,
 
 116 ABANDONMENT. 
 
 No. 8. — Hamilton v. Mendez. 
 
 the owners of the cargo, and the recaptor, that she should forth- 
 with proceed upon her voyage from Plymouth to London. But. 
 had the recaptor opposed it or affected delay, the Court of Admi- 
 ralty would have made an order for bringing her immediately to 
 London, her port of delivery, upon reasonable terms. 
 
 Therefore it is most clear, that upon the 26th of June the ship 
 had sustained no other loss by reason of the capture than a short 
 temporary obstruction, and a charge which the defendant had offered 
 to pay and satisfy. 
 
 This brings the whole to the fourth and last point. 
 
 The plaintiff's demand is for an indemnity. His action, then, 
 must be founded upon the nature of his damnification, as it really 
 is, at the time the action is brought. It is repugnant, upon a con- 
 tract of indemnity, to recover as for a total loss, when the final event 
 has decided that the damnification, in truth, is an average, or perhaps 
 no loss at all. 
 
 Whatever undoes the damnification, in whole or in part, must 
 operate upon the indemnity in the same degree. It is a contradic- 
 tion in terms, to bring an action for indemnity, when, upon the 
 whole event, no damage has been sustained. This reasoning is so 
 much founded in sense and the nature of the thing, that the com- 
 mon law of England adopts it (though inclined to strictness). 
 The tenant is obliged to indemnify his landlord from waste ; but if 
 the tenant do, or suffer waste to be done, in houses, yet, if he repair 
 before any action brought, there lies no action of waste against him ; 
 but he cannot plead " non fecit vastum ; " but the special matter. 
 The special matter shows, that the injury being repaired before the 
 action brought, the plaintiff had no cause of action ; and whatever 
 takes away the cause takes away the action. 
 
 Suppose a surety sued to judgment, and afterwards, before an 
 action brought, the principal pays the debt and costs, and procures 
 satisfaction to be acknowledged upon record ; the surety can have 
 no action for indemnity, because he is indemnified before any action 
 brought. If the demand or cause of action does not subsist at the 
 time the action is brought, the having existed at any former time 
 can be of no avail. 
 
 But, in the present case, the notion of a "vested right in the 
 plaintiff to sue as for a total loss before the recapture " is fictitious 
 only, and not founded in truth. For the insured is not obliged to 
 abandon, in any case ; he has an election. No right can vest as for
 
 SECT. IV. — CRITERION OF TIME. 117 
 
 No. 8. — Hamilton v. Mendez. 
 
 a total loss, till he has made that election. He cannot elect before 
 advice is received of the loss : and if that advice shows the peril to 
 be over, and the thing in safety, he cannot elect at all ; because he 
 has no right to abandon when the thing is safe. 
 
 Writers upon the marine law are apt to embarrass general princi- 
 ples with the positive regulations of their own country : but they 
 seem all to agree, " that if the thing is recovered before the money 
 paid, the insured can only be entitled according to the final event." 
 
 Roccius, who collects the opinions of all the authors before his 
 time, and draws conclusions or maxims (solutions of questions) from 
 them, which he calls notabilia, in the place cited at the bar (Fo. 
 204, Not. 50), puts this question : " Assecurator, qui jam solvit 
 sestimationem mercium deperditarum, si postea dictae merces appa- 
 reant, et recuperate sint, an possit cogere dominum ad accipieudas 
 illas, et ad reddendam sibi aestimationem, quam dedit?" The an- 
 swer is : " Distingue. Aut merces, vel aliqua pars ipsarum appareant, 
 et restitui possint, ante solutionem lestimationis; et tunc tenetur 
 dominus mercium illas recipere, et pro ilia parte mercium appa- 
 rentium liberabitur assecurator: nam qui tenetur ad certain quan- 
 titatem respectu certre speciei, dando illam, liberatur, ut ibi probatnr. 
 Et etiam (another reason, perhaps a better), quia contractus assecu- 
 rationis est conditionalis ; scilicet, si merces deperdantur : non autem 
 dicuntur deperditee, si postea reperiantur. Verum si merces non 
 appareant in ilia pristina bonitate, aliter fit aestimatio ; non in totum, 
 sed prout hinc valent," Aut vero post solutam aestimationem ab 
 assecuratore, "compareant merces : et hinc est in electione mercium 
 assecurati, vel recipere merces, vel retinere pretium." 
 
 In the case of Spencer v. Franco, though upon a wager policy, the 
 loss was held not to be total, after the return of the ship Prince 
 Frederick in safety; though she had been seized and long kept by 
 the King of Spain, in a time of actual war. 
 
 In the case of Pole v. Fitzgerald, though upon a wager policy, the 
 majority of the Judges and the House of Lords held there was n<> 
 total loss, the ship having been restored before the end of the four 
 months. 
 
 The present attempt is the first that ever was made to charge the 
 insurer as for a total loss, upon an interest-policy, after the thing 
 was recovered. And it is said, the judgment in the case of Goss v. 
 Withers gave rise to it. 
 
 It is admitted, that ease was no way similar. Before that action
 
 118 ABANDONMENT. 
 
 No. 8. — Hamilton v. Mendez. 
 
 was brought, the whole ship and cargo were literally lost ; at the 
 time of the offer to abandon, a fourth of the cargo had been thrown 
 overboard ; the voyage was entirely lost ; the remainder of the cargo* 
 was fish perishing, and of no value at Milford Haven, where the 
 ship was brought in ; the ship so shattered, as to want great and 
 expensive repairs ; the salvage was one half, and the insurer did 
 not engage to be at any expense ; it did not appear that it was 
 worth while to try to save anything ; and the recaptor (though 
 entitled to one half, as well as the owner of the ship and cargo), 
 left the whole to perish, rather than be at any further trouble or 
 expense. 
 
 But it is said, " though the case was entirely different, some part 
 of the reasoning warranted the proposition now inferred by the 
 plaintiff from it." 
 
 The great principle relied upon was, " that as between insurer 
 and insured, the contract being an indemnity, the truth of the fact 
 ought to be regarded ; and, therefore, there might be a total loss by 
 a capture, which could not operate a change of property ; and a re- 
 capture should not relate by fiction (like the Roman jus postliminii) 
 as if the capture had never happened, unless the loss was in truth 
 recovered." 
 
 This reasoning proved, e eonverso, that if the thing in truth was 
 safe, no artificial reasoning shall be allowed to set up a total loss. 
 
 The words quoted at the bar were certainly used, " that there is 
 no book, ancient or modern, which does not say that in case of the 
 ship being taken, the insured may demand as for a total loss, and 
 abandon." But the proposition was applied to the subject-matter ; 
 and is certainly true, provided the capture, or the total loss occa- 
 sioned thereby, continue to the time of abandoning and bringing 
 the action. 
 
 The case then before the court did not make it necessary to 
 specify all the restrictions. But I will read to you, verbatim, from 
 my notes of the judgment then delivered, what was said, to prevent 
 any inference being drawn, beyond the case then determined. I 
 said, " In questions upon policies, the nature of the contract, as an 
 indemnity and nothing else, is always liberally considered. There 
 may be circumstances under which a capture would be but a small 
 temporary hindrance to the voyage, perhaps none at all : as if a ship 
 was taken, and in a few days escaped entirely, and pursued her 
 voyage. There are circumstances, under which it would be deemed
 
 SECT. IV. — CRITERION OF TIME. 110 
 
 No. 8. — Hamilton v. Mendez. 
 
 an average loss : as if a ship should be taken and afterwards ran- 
 somed." And in another part, I said, " I know in later times the 
 privilege of abandoning has been restrained. But there is no danger 
 in the present case ; the loss was total at the time it happened ; it 
 continued total, as to the destruction of the voyage; a moiety must 
 be paid for salvage, besides other great costs and expenses; what 
 could be saved of the goods might not be worth the freight for so 
 much of the voyage as they had gone when they were taken ; the 
 cargo, from its perishable nature, must have been sold or thrown 
 away where it was brought in ; the ship, in so shattered a condition 
 as might make it only worth the materials to be sold." — And more 
 to the same effect. 
 
 From this way of reasoning, it did by no means follow that if the 
 ship and cargo had, by the recapture, been brought safe to the port 
 of delivery, without having sustained any damage at all, that the 
 insured might abandon. 
 
 But, without dwelling longer upon principles or authorities, the 
 consequences of the present question are decisive. It is impossible 
 that any man should desire to abandon in a case circumstanced 
 like the present, but for one of two reasons, viz. : Either because 
 he has overvalued; or because the market has fallen below the 
 original price. The only reasons which can make it the interest of 
 the party to desire, are conclusively against allowing it. 
 
 It is unjust to turn the fall of the market upon the insurer; who 
 has no concern in it, and who could never gain by the rise. And 
 an overvaluation is contrary to the general policy of the marine 
 law ; contrary to the spirit of the act of 19 Geo. 2 ; a temptation to 
 fraud; and a source of great abuse: therefore no man should be 
 allowed to avail himself of having overvalued. 
 
 If the valuation be true, the plaintiff is indemnified by being paid 
 the charge he has been put to by the capture. If he has overvalued, 
 he will be a gainer if he is permitted to abandon ; and he can only 
 desire it, because he has overvalued. This was avowed upon the 
 first argument; and that very reason is conclusive against its being 
 allowed. 
 
 The insurer, by the marine law, ought never to pay less, upon a 
 eontract of indemnity, than the value of the loss : and the insured 
 ought never to gain more. Therefore if there was occasion to resort 
 to that argument, the consequence of the determination would alone 
 be sufficient upon the present occasion.
 
 120 ABANDONMENT. 
 
 No. 8. — Hamilton v. Mendez. 
 
 But, upon principles, this action could not be maintained as for 
 a total loss, if the question was to be judged by the strictest rules 
 of common law; much less can it be supported for a total loss, as 
 the question ought to be decided, by the large principles of the 
 marine law, according to the substantial intent of the contract and 
 the real truth of the fact. 
 
 The daily negotiations and property of merchants ought not to 
 depend upon subtleties and niceties ; but upon rules, easily learned 
 and easily retained, because they are the dictates of common sense, 
 drawn from the truth of the case. 
 
 If the question is to depend upon the fact, every man can judge 
 of the nature of the loss, before the money is paid : but if it is to 
 depend upon speculative refinements, from the law of nations or the 
 Eoman jus postliminii concerning the change or revesting of prop- 
 erty ; no wonder merchants are in the dark, when doctors have 
 differed upon the subject from the beginning, and are not yet 
 agreed. 
 
 To obviate too large an inference being drawn from this deter- 
 mination ; I desire it may be understood, that the point here deter- 
 mined is, " that the plaintiff, upon a policy, can only recover an 
 indemnity according to the nature of his case at the time of the 
 action brought, or (at most) at the time of his offer to abandon." 
 
 We give no opinion how it would be, in case the ship or goods 
 be restored in safety between the offer to abandon and the action 
 brought; or between the commencement of the action and the ver- 
 dict. And particularly I desire that no inference may be drawn, 
 " that in case the ship or goods should be restored after the money 
 paid as for a total loss, the insurer could compel the insured to re- 
 fund the money and take the ship or goods : " that case is totally 
 different from the present, and depends throughout upon different 
 reasons and principles. 
 
 Here, the event had fixed the loss to be an average only,' before 
 the action brought ; before the offer to abandon ; and before the 
 plaintiff had notice of any accident ; consequently before he could 
 make an election. 
 
 Therefore, under these circumstances, we are of opinion " that he 
 cannot recover for a total, but for an average loss only :" the quan- 
 tity of which is estimated and ascertained by the jury. 
 
 The judgment must he entered up as for the average-loss stated 
 ■in the ease.
 
 SECT. IV. — CRITERION OF TIME. 121 
 
 No. 9. — Bainbridge v. Neilson. 
 
 Bainbridge v. Neilson. 
 
 10 East, 329. 
 
 This was an action upon a policy of assurance upon the ship 
 Mary, valued at £6000, at and from Liverpool to any port or ports 
 in Jamaica, during her stay there, and from thence to her port of 
 discharge in Great Britain, &c. ; and also upon another policy of 
 insurance upon the freight of the same ship from Jamaica to her 
 port of discharge in Great Britain, valued at £4000. At the trial 
 at Guildhall a verdict was found for the plaintiffs for £139 5s. 4c?., 
 subject to the opinion of this court on the following case. 
 
 The defendant subscribed both the policies for £200 each. The 
 plaintiffs at the time of effecting the insurance, and also at the 
 time of the capture after mentioned, were interested in the ship 
 and freight. The ship sailed in due time from Jamaica with a 
 cargo and freight bound to Liverpool, and on the 21st of September, 
 1807, was captured on her voyage home by an enemy, and on the 
 25th was recaptured. On the 30th of September the plaintiffs 
 received intelligence at Liverpool of the capture, but not of the 
 recapture, and on the day following communicated the same to 
 the underwriters, and gave notice of abandonment. On the 2d of 
 October the intelligence of the capture was confirmed ; and on the 
 6th of October, being five days after the notice of abandonment, 
 the plaintiffs received the first intelligence of the recapture of the 
 vessel, and that she then lay at Lough Swilley in Ireland, in safety, 
 in the possession of the recaptors. This intelligence was imme- 
 diately communicated to the underwriters, with notice that the 
 plaintiffs nevertheless persevered in their abandonment, but offered 
 to do their best for the benefit of those who should be ultimately 
 concerned and interested in the vessel without prejudice Under 
 such offer, and by agreement with the underwriters, without preju- 
 dice to either party, the plaintiffs compromised with the recaptors, 
 and the vessel has been restored, and has arrived at Liverpool, 
 being her port of discharge, according to the terms of the policy, 
 where she now is in safety. And the owners have also, without 
 prejudice, received the freight of the goods on board her, and the 
 proportion of salvage and expenses on such goods. The plaintiffs 
 obtained possession of the vessel at Lough Swilley under the said 
 agreement after notice of abandonment, but before the action was 
 brought, and the vessel did not arrive at Liverpool until after the
 
 122 ABANDONMENT. 
 
 No. 9. — Bainbridge v. Neilson. 
 
 commencement of the action. The ship was never taken into an 
 enemy's port, nor did she sustain any damage whilst in possession 
 of the enemy. The amount of the salvage damages and charges 
 upon the ship is £15 4s. Sd., and upon the freight £13 lis. 5d. 
 per cent, on the sum insured. The defendant paid to the plaintiffs 
 before the commencement of this action £57 12s. 2d., being the 
 amount of his proportion of an average loss upon the two policies, 
 which sum the plaintiffs accepted, without prejudice to their claim 
 to recover a total loss under their abandonment. The question for 
 the opinion of the court was, whether the plaintiffs were entitled 
 to recover for a total loss? If they were, then the verdict was to 
 stand ; if not, the verdict was to be entered for the defendant. 
 
 The case was argued by Scarlett for the plaintiffs, and by Holroyd 
 for the defendants. The following cases were cited in the argu- 
 ment : Goss v. Withers (1758), 2 Burr. 683; Hamilton v. Mendez 
 (1761), 2 Burr. 1198; M'Carthy v. Abel (1804), 5 East, 388; 7 
 K. R. 711. 
 
 The court delivered judgment as follows : — 
 
 I. on! Ellenborough, C. J. This is a case which, though new in 
 specie, is by no means new in principle. And though Lord Mans- 
 field said, in Hamilton v. Mendez, that he would not give an 
 opinion how the case would be if the ship were restored in safety 
 1 iet ween the offer to abandon and the action brought, yet there can 
 be no doubt from the whole of his reasoning on that case what his 
 decision would have been under these circumstances. The facts 
 here are that the ship was captured on the 21st of September, and 
 recaptured on the 25th; after which, the plaintiff, having received 
 intelligence on the 30th of the capture, but not of the recapture. 
 gave notice of abandonment on the 31st, which he. persevered in 
 after the 6th of October, when news of the recapture arrived, and 
 that the ship was safe in a port of Ireland, but which notice the 
 underwriters did not accept. And now it appears that instead of 
 a total loss, there lias been a small partial loss of £13 and a frac- 
 tion, for salvage and charges on the policy on freight, and £15 and 
 a fraction on the ship policy, and that no damage whatever was 
 sustained by the ship while in the possession of the enemy. And 
 the question is, whether that which in the result turns out to be 
 only a partial loss to a trifling extent shall, because of the notice 
 of abandonment given when a total loss appeared to exist, be now 
 recovered as a total loss \ To give effect to such an attempt would
 
 SECT. IV. — CRITERION OF TIME. 123 
 
 No. 9. — Bainbridge v. Neilson. 
 
 grievously enlarge the responsibility of underwriters; it would be 
 to make them answerable, not for the actual loss sustained by the 
 assured whom they have undertaken to indemnify against the 
 risks stated in the policy, but for a supposed total loss which had 
 in fact ceased to exist. It has been said in argument, that the 
 •offer to abandon having been rightly made at the time, a right of 
 action vested in the assured, which could not be defeated by the 
 subsequent events. But that proposition is not only not true in 
 the whole, but it is not true in its parts. The effect of an offer 
 to abandon is truly this, that if the offer appear to have been prop- 
 erly made upon certain supposed facts, which turn out to be true, 
 the assured has put himself in a condition to insist upon his aban- 
 donment; but it is not enough that it was properly made, upon 
 facts which were supposed to exist at the time, if it turn out that 
 no such facts existed, or that other circumstances had occurred 
 which did not justify such abandonment. It may be said to be 
 properly made upon notice received, and bond fide credited, by an 
 assured, of his ship having been wrecked, whether such intelligence 
 were true or not, and though the letter conveying it turned' out to 
 be a forgery ; and yet clearly no 'right of action would vest in him 
 founded upon an abandonment made upon false intelligence, and 
 without anything in fact to warrant the giving of such notice. 
 What is an abandonment more than this, that the assured having 
 had notice of circumstances, which, if true, entitle him to treat tht 
 adventure as a total loss, he, in contemplation of those circum- 
 stances, casts a desperate risk on the underwriter, who is to save 
 himself as well as he can. But does not all this presume the 
 existence of those facts on which the right accrues to him to call 
 upon the underwriter for an indemnity; and if they be all imagi- 
 nary, or founded in misconception, or if at the time it had ceased 
 to be a total loss, and there be no damage to the assured, or at 
 least if the only damnification arise out of the very act (the recap- 
 ture) which saves the thing insured from sustaining a total loss, 
 the whole foundation of the abandonment fails. It is then said 
 that if the right of abandonment once vested and be exercised in 
 time, it cannot be devested by subsequent intelligence of other 
 circumstances or different events. But the case of McCarthy v. 
 Abel shows the contrary ; for there, though the notice of aban- 
 donment were well made at the time, it was not only devested by 
 subsequent circumstances, but by circumstances which happened
 
 124 ABANDONMENT. 
 
 No. 9. — Bainbridge v. Neilson. 
 
 after the notice of abandonment had been given. Next it is con- 
 tended that by the recaptors taking the ship into a port in Ireland 
 the right of abandonment was revived, or a new right created ; for 
 I do not exactly understand whether this be insisted on as an 
 entire and distinct cause of abandonment, or as connected with the 
 antecedent capture and recapture. Now if it grew out of the 
 recapture, let us hear what Lord Mansfield said upon that subject 
 in Hamilton v. Mendcz. It does not, he says, cease to be a total 
 loss because of the recapture, " if the voyage is absolutely lost, or 
 not worth pursuing " [here the voyage was not lost, and was 
 worth pursuing, and was pursued with effect] ; " if the salvage is 
 very high " [here it is very trifling] ; " if further expense is neces- 
 sary ; if the insurer will not engage in all events to bear that 
 expense," &c. But here the further expenses were little or nothing 
 beyond the salvage, and all the loss has been actually paid into 
 the plaintiff's hands. If after the recapture the ship had been 
 carried into a port abroad, and a sale had become inevitable, 
 because nobody would secure to the recaptors their 'one-eighth, 
 it might have been deemed to be a total loss ; but that is not 
 the present case. What was said by Lord Mansfield, however, is 
 sufficient to show that in the case of a capture and recapture, 
 it does not necessarily follow that the assured is entitled to 
 abandon as for a total loss, but it depends upon circumstances, 
 and none of the circumstances enumerated by him exist in the 
 present case. I cannot, however, consider, as. at present advised, 
 that the right of abandonment relates only to the actual state of 
 things at the time of the offer to abandon made. If it were 
 necessary to the decision of this case, I should wish to have that 
 point well considered. I am not disposed to enlarge the grounds 
 of abandonment against underwriters, a privilege which everybody 
 knows has been much abused. In almost every case of a valued 
 policy it is the interest of the assured to abandon, and therefore it 
 behoves the court to watch every such case, and in no instance to 
 enlarge that which in the nature of the thing is only a partial into 
 a total loss. It might as well have been said in M'Carthy v. Abel, 
 that having been once a total loss, it must continue so ; but the 
 court held otherwise ; and that case is not distinguishable in 
 this respect from the present, except that eventually there was 
 no loss there of the subject-matter of the insurance, and here 
 there is only a partial loss; but I can see no difference whether
 
 SECT. IV. — CRITERION OF TIME. 125 
 
 No. 9. Bainbridge v. Neilson. 
 
 that which for a time was a total loss ceased altogether by subse- 
 quent events to be any loss at all, or whether it be reduced by 
 subsequent events to so small a loss as there is in the present 
 case. We must look, as we lately said in God/all v. Boldero, 9 
 East, 81, to the real nature of the contract in a policy of insur- 
 ance, which is nothing more than a contract of indemnity; and 
 therefore, though there was a total loss there, as it might be called, 
 with respect to the subject-matter of the risk insured, yet that 
 having afterwards intervened between the supposed damnification 
 of the plaintiffs by the death of Mr. Pitt, and the action brought 
 which adeemed the loss, it was held that they could not recover. 
 So here, as that which was supposed to be a total loss at the time 
 of the notice of abandonment first given had ceased, and as only a 
 small loss has been incurred in the salvage, that is the real 
 amount of the damnification which the plaintiff is entitled to 
 receive under this contract of indemnity, and that has already 
 been paid by the underwriters. 
 
 Grose, J. This is a case upon which it is said that Lord Mans- 
 field, in Hamilton v. Mendez, professed to give no opinion; but it 
 is very clear what his opinion would have been upon the principles 
 laid down by him in the same case, and if there be no express 
 decision on the point we must resort to principle in deciding it. 
 And one of the best principles upon this subject is that no arti- 
 ficial reasoning shall turn that into a total loss which in fact is 
 only a partial loss. A policy of insurance is only a promise by 
 the underwriter to indemnify the assured against loss by certain 
 risks ; and if so, how can the plaintiff claim a total loss, when in 
 fact the vessel insured has performed her voyage, and he has only 
 sustained an actual loss of £15 4s. Sd. per cent, on the ship, and 
 £13 lis. M. per cent, on the freight insured. The case states that 
 which is very material, that the plaintiff had possession of the ship 
 again after the recapture, and before the action brought ; that she 
 sustained no damage from the capture while she continued in the 
 possession of the enemy ; and that she has been restored and has 
 arrived at her port of discharge ; and that the freight has been 
 received by the owners. What pretence, then, is there for saying 
 that this is a total loss, where no damage has been done to the 
 ship, and only a trifling expense incurred for the salvage and 
 charges of the recapture ? We must look here to the time of the 
 action brought to see whether there has been a- total loss of the
 
 126 ABANDONMENT. 
 
 No. 9. — Bainbridge v. Neilson. 
 
 subject-matter to the plaintiff, as lie alleges ; and it is clear that at 
 that time there was not a total but only a small partial loss. 
 
 Le Blanc, J. I agree in opinion that there must be judgment for 
 the defendant upon this case, which though new in circumstances 
 is not so new in principle. The main stress of the plaintiff's argu- 
 ment has been, that at the time of the notice of abandonment he 
 had a right to abandon. But there is the fallacy of it. It does 
 not follow that he had a right to abandon because he had a right 
 to give notice of abandonment upon the faith of the intelligence 
 first received. At the time of the capture he had a right to give 
 such notice ; but at the time when the notice was actually given 
 the ship had been recaptured and was carried into Lough Swilley in 
 Ireland, a port of the United Kingdom, in the course of her voyage 
 home ; and there is no evidence of any damage sustained either by 
 plunder of or by mischief done to the ship, cargo, or crew, which 
 could make it a total loss. It is impossible then to say that the 
 want of knowledge by the assured of the true state of things shall 
 vary the fact, and make that a total loss which is only a partial 
 loss. None of the decided cases of total loss come up to the 
 present, and not even the cases put by Lord Mansfield in Hamilton 
 v. Mendez. The plaintiff knew of some of the circumstances, but 
 did not know them all. The mere circumstances of capture and 
 recapture will not make it a total loss. It may often happen that 
 intelligence is received which will justify the giving notice of an 
 abandonment ; but if circumstances so turn out, that there is no 
 total loss, it does not follow that the assured would be entitled to 
 insist on his notice. In M'Carthyv. Abel the assured was justified 
 in giving notice of abandonment, but circumstances happened 
 afterwards which showed that there was no loss of the subject- 
 matter. So here, circumstances have turned out to show that only 
 a partial and not a total loss has been sustained, though the notice 
 of abandonment were properly given at the time upon the intelli- 
 gence then received. This case falls in very much with an expres- 
 sion used by the Chief Justice in delivering the judgment of the 
 Court of Common Pleas in a late case of Thellusson v. Sheddcit, 2 
 New Rep. 230, where he says, " it is true that a capture simply 
 proved establishes a total loss ; but when the plaintiff in the same 
 breath proves a recapture, there is an end of the capture and total 
 loss, and the plaintiff is entitled to a partial loss only." So here, 
 though a capture were proved, yet it also appearing that there was
 
 SECT. IV. — CRITERION OF TIME. 127 
 
 No. 9. — Bainbridge v. Neilson. 
 
 a recapture ; unless it be also shown that, notwithstanding the 
 recapture, it still continued a total loss, it is only a partial loss. 
 
 Bayley. J. The case has been so fully discussed that I can add 
 nothing to make it more clear. A policy of insurance is only a 
 cuii tract of indemnity, and anything which tends to show that an 
 assured can recover beyond his indemnity is against the very prin- 
 ciple of the contract ; and here it would plainly lead to fraud if 
 the plaintiff, who has in fact only sustained a partial loss to a small 
 extent, could recover beyond what would indemnify that loss. 
 But it is said, that upon receiving intelligence he had a right t<» 
 abandon immediately. I agree that it was prudent in him to give 
 such notice at the time, and if things had stood in the same situa- 
 tion he would have been entitled to abandon ; but I consider that 
 notice as including this implied condition, that things continued to 
 exist as the plaintiff supposed they did exist at the time when he 
 gave the notice ; and if anything happened afterwards to make 
 that a partial which at one time was a total loss, the ignorance of 
 that fact by the assured would not make it a total loss. The case 
 of M'Carthy v. Abel shows that subsequent facts will vary the 
 right of the party to abandon as for a total loss, when ultimately 
 no loss is incurred within the policy. Suppose a capture, and the 
 captors afterwards give up the ship, and she pursues her voyage as 
 before, and the assured, receiving intelligence of the capture, but 
 not of the release, give notice to abandon ; yet if the voyage be 
 afterwards performed, would that entitle the assured to make it a 
 total loss, when he had sustained no actual loss at all, though the 
 voyage might have been a little delayed ? Yet that would show 
 that circumstances happening after a total loss once existing ma\ 
 take away the right to abandon. Then if the fact be that at the 
 time of the notice to abandon given, it was not a total but only a 
 partial loss, the giving such notice could not entitle him to aban- 
 don as for a total loss. By deciding that in all these cases the 
 right of the party to abandon shall depend upon the actual circum- 
 stances of the case, and not upon those which are merely supposed 
 to exist at the time, no injustice will be done, and it will make the 
 policy that which it ought to be, and really is, a contract of 
 indemnity. 
 
 Postea to the Defendant.
 
 128 ABANDONMENT. 
 
 Nos. 8, 9. — Hamilton v. Mendez, &,c. — Notes. 
 
 ENGLISH NOTES. 
 
 Insurance on ship from Jamaica cruising for four months, commen- 
 cing 14th June, 1744, free from average. The ship was a privateer 
 Jul}- commissioned. After cruising for two months the crew mutinied, 
 hrougbt the ship safe into port at Jamaica, and there deserted her. 
 Held, that the assured could not recover. The insurance was on the 
 ship, and not on the voyage. And if it were an insurance on the profits 
 of the cruise, non constat that the assured, who was the owner of the 
 ship, had any interest. Pole v. Fitzgerald, in error (1752), Willes, 
 641; Fitzgerald v. Pole (H. L. 1754), 5 Bro. P. C. 439. 
 
 An insurance upon ship A. from X. to Y. is an insurance upon the 
 ship for the voyage. If either the ship or the voyage is lost, that is a 
 total loss. But after the ship has performed the voyage, although so 
 damaged as not to he worth repairing, the owners are not entitled to 
 abandon. Cazalet v. St. Barbe (K. B. 1786), 1 T. B. 187; 1 B. B. 178. 
 
 Where the insured ship has been captured and then purchased in the 
 foreign prize court by the captain on account of the owners, no abandon- 
 ment having been made while the ship was in the possession of the 
 enemy, the assured cannot recover as for a total loss. McMasters v. 
 Shoolbred (K P. coram Lord Ken vox, 1794), 1 Esp. 237; 5 R. B. 735. 
 
 In this connection should again be noted the statement by Lord 
 Ellenborough in Anderson v. Wallace (K. B. 1813), 2 M. & S. 240, 
 cited on p. 33, ante. 
 
 Insurance on goods on board ship A. from Liverpool to Quebec. Cap- 
 ture reported 13th October to owner, who immediately offered to aban- 
 don and demanded payment as on a total loss. The underwriters refused 
 to accept the abandonment or to pay. On 27th October, ship and cargo 
 were recaptured. Part of the cargo was sold to pay the salvage, and 
 the rest arrived at Quebec in following May, having lost the chance of 
 arrival before the closing of the navigation of the St. Lawrence. Meld, 
 by Lord Ellenborough, C. J., Le Blanc, J. and Bayley, J., that 
 the plaintiff could only recover for a partial loss. Lord Ellenborough 
 took notice of the doubts as to Bainbridge v. Neilson said to have been 
 expressed by Lord Eldon in the House of Lords (in Smith v. Bobert- 
 son, p. 17. a nte), and stated that he was unable to see any reason for 
 receding from that judgment. Bayley, J. said: "Lord Mansfield, in 
 Hamilton v. Mendez, expressed his opinion that it would be repugnant 
 upon a contract of indemnity to recover as for a total loss where at the 
 time of action brought it turns out that the loss is only partial, and so 
 it appears to me in this case, the plaintiff can only recover in respect 
 of that which constituted a loss at the commencement of the action." 
 Patterson v. Ritchie (K. B. 1815), 4 M. & S. 393.
 
 SECT. IV. — CRITERION OF TIME. 129 
 
 Nos. 8, 9. — Hamilton v Mendez, &c. — Notes. 
 
 A ship is seized in a foreign port by officers of government there, sold 
 by an illegal sentence of a court assuming authority there, and repur- 
 chased with money obtained on bottomry bond by the captain, who 
 brings the ship home. Held, that the ship having been restored so that 
 the owners have the right and power to take possession of her, they 
 cannot recover on a policy as for a total loss. Wilson v. Forster (Ex. 
 1815), 6 Taunt. 25. 
 
 Insurance on ship for a voyage from Rio de Janeiro to Liverpool. 
 The ship was captured by ah American privateer. The crew was put 
 on board a Portuguese vessel bound for Liverpool, and on arrival 
 there 23d April, gave notice of the capture. The owners promptly 
 abandoned. Subsequently the ship was recaptured, and information of 
 this reached the owners on 15th June. On the 24th June the ship and 
 cargo arrived in the port of Liverpool. The action was commenced on 
 the 10th November. Held (by Lord Ellenborough, C. J., Bayley, 
 J., Abbott, J., and Holroyd, J.), that the assured could recover on a 
 partial loss only. Lord Ellexborough founded his judgment on the 
 doctrine laid down by Lord Mansfield in Hamilton v. Mendez, and 
 tbe decision of Bainbridge v. Neilson. He observed that the judgment 
 in the latter case was based on the principle established in Godsall v. 
 Boldero, 9 East, 372, that the assured could only demand an indem- 
 nity. Brotherston v. Barber (K. B. 1816), 5 M. & S. 418. 
 
 A ship damaged in a storm is deserted by the crew under the neces- 
 sity of saving their lives. The deserted ship is brought into port by 
 salvors, and sold under decree of the Admiralty Court at Rhode Island 
 in America. The assured, who were at New York, took no means — 
 as they might have done — to prevent the sale; and there remained a 
 considerable balance in court after payment of the salvage and costs. 
 Held, that the desertion did not of itself constitute a total loss, and 
 that the plaintiff, not having taken steps to prevent the sale nor having 
 shown the necessity of it, had no right to abandon. Thornely v. Hebson 
 (K. B. 1819), 2 B. & Aid. 51-3. 
 
 Assured on goods, after hearing of the capture of the ship, and after a 
 recapture had taken place, but before hearing of the recapture, gave notice 
 of abandonment. Ultimately the goods were brought to the port of 
 destination, and there warehoused by the master. Held, that the assured 
 could not recover as on a total loss. Opinion expressed that, by English 
 law, oirthe authorities of Bainbridge v. Neilson, Patterson v. Ritchie, 
 and Brotherston v. Barber, and notwithstanding the doubts of a high 
 authority (Lord Eldon), in Smith, v. Robertson (p. 17, ante), the rule 
 is established that abandonment is to be viewed with regard to the ulti- 
 mate state of facts as appearing before the action is brought. Naylor v. 
 Taylor (K. B. 1829), 9 B. & C. 718. See also, as an instance of a case 
 
 VOL. I. —
 
 130 ABANDONMENT. 
 
 Nos. 8, 9. — Hamilton v. Mendez, &t,c. — Notes. 
 
 where the state of facts existed at the time of abandonment and at the 
 time of action brought, and where the assured recovered as on a total 
 loss, — although the goods probably arrived safe in the end, — the case 
 of Bodonachi v. Elliot, cited under No. 1, p. 19, ante. 
 
 Where the assured receives full and trustworthy information that the 
 subject-matter is in imminent danger of becoming a total loss, he is 
 bound, in order to enable him t<> recover for a constructive total loss, 
 immediately to give notice of abandonment to the underwriters ; and 
 his omission to do so will not be excused because afterwards the subject 
 matter of the insurance is justifiably sold. So held, in a case of policy 
 on ship bound from Saigon to Hong Kong, where the ship had struck 
 on a rock, was brought back to Saigon, reported on as a constructive 
 total loss, and sold by order of the insurers. Kaltenbach v. Mackenzie 
 (C. A. 1878), 3 C. P. D. 467 ; 48 L. J. C. P. 9. 
 
 AMERICAN NOTES. 
 
 The assured cannot abandon upon a mere apprehension of total loss, and 
 afterward sustain the abandonment by facts subsequently coming to Ins 
 knowledge. Abandonment can only be made for a total loss, and the insured 
 must be advised of such a loss before he can elect to abandon.. Bosh// 
 v. Chesapeake Ins. Co., 3 Gill & Johnson (Maryland), 450; 22 Am. Dec. 3-">7. 
 citing Suydam v. Marine Ins. Co., 1 Johnson (New York), 181; 3 Am. Dec. 
 307. To same effect, Teasdale v. Charleston Ins. Co., 2 Brevard (So. Car.), 
 190; 3 Am. Dec. 705. 
 
 A constructive total loss must continue to the time of abandonment. 
 Olwerav. Union Ins. Co., 3 Wheaton (U. S. Sup. Ct,), 183; Fullon Ins. Co. 
 v. Goodman, 32 Alabama, 108 ; Cincinnati Ins. Co. v. Bakewell, 4 B. Monroe 
 (Kentucky), 511 ; Lee v. Boardmau, 3 Mass. 2:58: Hallelt v. Peyton, 1 Caines' 
 Cases (X. Y.), 28; Dutilh v. Gatllff, 1 Dallas (Penn.). 440. 
 
 The right to abandon as for total loss depends on the state of facts 
 actually existing at the time of the offer to abandon, and not on the state of 
 the information received. Marshall v. Delaware Ins. Co., 4 Cranch (U. S. 
 Sup. Ct.). 202; Dickey v. American Ins. Co., 3 Wendell (X. Y. Ct. of Errors), 
 05S. 
 
 The right to abandon is dependent on the probabilities at the time the 
 right is exercised, and is not affected by the subsequent rescue of the vessel 
 or the diminution of the supposed loss. Orient Ins. Co. v. Adams, 123 
 l'. S. 67. 
 
 Story, J., says, in Peele v. Merchants' Ins. Co., 3 Mason (U. S. Circ. Ct.), 37, 
 that "the right of abandonment is to be decided by the actual facts at the 
 time of the abandonment, and not merely by the information of the assured," 
 and " no prior or subsequent events will give it any greater efficacy," and 
 continues : " The rule in the English courts is, as we all know, very different. 
 There it has been held that if an abandonment be rightfully made, it is not 
 absolute, but may be controlled by subsequent events ; so that if the loss has 
 ceased to be total at any time before action brought, the abandonment becomes
 
 SECT. IV. — CRITERION OF TIME. 131 
 
 Nos. 8, 9. — Hamilton v. Mendez, &-c. — Notes. 
 
 inoperative." Citing Bainbridge v. Neilson. " The eases in which this doctrine 
 has been asserted do not, in my humble judgment, present any solid reasons 
 to support it." 
 
 Of Hamilton v. Mendez, Ch. J. Tilghman. in Dutilli v. Gatliff, 5 Dallas 
 (Penn. Sup. Ct.), 449, said: "There is no doubt of the soundness of the 
 principle : I mean that a policy is a contract of indemnity. The only ques- 
 tion is, at what period the rights of the parties are to be tested by this 
 principle ; whether at the time of abandonment or of the commencement of 
 the action. I have considered attentively the case of Hamilton v. Mendez. 
 It must be obvious to every one that the decision in that case was perfectly 
 right. It was simply this: that a man shall not be permitted to abandon, 
 and recover for a total loss, when he knew, at the time of his offer to abandon. 
 that his property, which had been lost, had been restored, and the voyage very 
 little injured. But in reading the opinion of Lord Mansfield, we find a want 
 of accuracy with which that great man was seldom chargeable. Sometimes 
 it appears as if he thought the period for fixing the rights of the insurers and 
 insured was the commencement of the suit ; sometimes, the time of abandon- 
 ment ; and sometimes he even seems to extend his ideas so far as the time of 
 the verdict. But finally he explicitly declares that he decides nothing but the 
 point before him. He seems to have felt a little sore at the improper applica- 
 tion of some general expressions used by him in the case of Goss v. Withers. 
 Anxious to cut off all pretence for doing the same in Hamilton v. Mendez, he 
 has taken too much pains to avoid the possibility of misrepresentation. 
 Hence his argument, considered in the detail, is not altogether clear and 
 consistent. Upon the whole of this case of Hamilton v. Mendez, I consider it 
 most safe to confine its authority to the point actually decided, which was 
 very different from that we are now considering." And the court held the 
 rights fixed as of the time of abandonment. 
 
 In Maryland, frc. Ins. Co. v. Bathurst, 5 Gill & Johnson (Maryland), l':>0, is 
 quoted that part of Lord Mansfield's opinion in Goss v. Withers, 2 Burr. 694, 
 " which declares that ' the insurer runs the risk of the insured, and under- 
 takes to bear the loss actually sustained, and can be liable to no more. So 
 that if after condemnation the owner recover the ship in her complete con- 
 dition, but has paid salvage or been at any expense in getting her back, tin- 
 insurer must bear the loss so actually sustained,' " and of this the court say : 
 " This may be sound doctrine in England, where it is held that the right to 
 recover for a total loss is not made absolute by the state of facts on which the 
 abandonment is founded continuing to exist at the date of the abandonment, 
 but is dependent on subsequent events. Tn this country a different rule 
 prevails. The right to recover of the assurer, for a total loss, is complete it' 
 the loss which is its basis continue at the time of the abandonment, .and of 
 this consummate right or privilege the assured cannot without default 
 be deprived but by their consent, express or implied." " We are aware that 
 this question has been apparently otherwise decided in some of the United 
 States, and especially in New York."
 
 132 ABANDONMENT. 
 
 No. 10. — Mitchell v. Edie. — Rule. 
 
 No. 10. —MITCHELL v. EDIE. 
 
 (k. b. 1787.) 
 
 RULE. 
 
 When the assured receives intelligence of such a loss as 
 entitles him to abandon, he must make his election, and 
 (if he elects to abandon) give notice to the underwriters 
 within a reasonable time : otherwise he w r aives his right to 
 abandon and can recover only as for an average loss. 
 
 Mitchell v. Edie. 
 
 1 T. II. 608; 1 R. R. .318. 
 
 This was an action on a policy of insurance on goods on board 
 the ship Lady Mansfield " from Jamaica to London." The de- 
 fendant paid into court a sum of money on account of an average 
 loss. At the trial before Buller, J., at the last Sittings at Guildhall, 
 the cause was ultimately referred to one of the jury to consider 
 what was due to the plaintiffs, who found that nothing was due ; 
 and thereupon a verdict was entered for the defendant. And now, 
 upon a motion for a new trial, the following facts were reported ; 
 the ship was captured in the course of her voyage by an American 
 privateer, and a few days afterwards the captor, having stripped 
 her of her stores, and part of her rigging, and having taken out some 
 of the hands, set her at liberty. There was a clause in the policy 
 to exempt the underwriters from average losses under £3 per cent. 
 And the part of her cargo taken out did not amount to that sum. 
 In consequence of this loss of part of the crew, it became impos- 
 sible for the ship to pursue her voyage, and she was obliged to bear 
 away to Charles Town, where she arrived on the 18th of February. 
 1782. She was there put into the hands of one Cruden, who was 
 a part-owner in the ship, and had likewise been engaged with one 
 of the plaintiffs in former transactions. Cruden, in June, 1782, 
 sold the cargo, and received the whole profits of the sale, but 
 remitted home no part of them. In his books he had given the 
 underwriters credit for the amount. At the time of the sale he 
 was in bad circumstances, and afterwards became insolvent. In 
 June, 1783, Cruden came to England, and several applications were
 
 SECT. IV. — CRITERION OF TIME. 133 
 
 No. 10. — Mitchell v. Edie. 
 
 made to him on the part of the plaintiffs by Abel, who had con- 
 cerns with the plaintiffs as well as with Cruden, and who .said at 
 the trial, that the plaintiffs had looked to Cruden for payment for 
 two or three years ; during all which time no notice of abandon- 
 ment had been given by the plaintiffs to the underwriters. 
 
 The learned Judge then stated, that the first question which 
 had been made was, whether the plaintiffs were entitled to recover 
 as for a total loss. And as to this he was of opinion, that as there 
 had been a capture which for a time had occasioned a total loss, 
 the owners had the option to abandon or not as they pleased ; but 
 if they chose to abandon, they ought to have done it immediately 
 upon receiving intelligence of the loss ; and that as they had not 
 done so, but had looked to Cruden as their agent for payment, he 
 was of opinion that they had waived their right to abandon, and 
 could only recover as for an average loss. 
 
 Erskine, Mingay, and Baldwin showed cause against the rule. 
 They allowed the right which the owners had to abandon in con- 
 sequence of the capture, but argued that if they chose to abandon 
 they ought to have done it in the first instance, as soon as they 
 had received intelligence of the loss, and should immediately after- 
 wards have signified their intention to the underwriters. Here 
 they had given no such notice of their intention, nor had informed 
 the underwriters that the goods were placed in the hands of 
 Cruden. On the contrary, the plaintiffs themselves had constantly 
 looked to him as their agent. They had made repeated applica- 
 tions to him for payment ; and had given him credit for the space 
 of three years. 
 
 Bearcroft, Cowper, and Adam, on the other side contended, that 
 they were entitled to a total loss ; but if not to a total loss, yet to 
 a greater average loss than had been paid into court. As to the 
 first, This is a new question of insurance law which has never yet 
 been decided. The rule of law, as it is to be collected from all the 
 cases, seems to be, that, while everything is done ho nd fide for the 
 benefit of all the parties concerned, the assured are not obliged to 
 abandon. Here the ship was condemned in consequence of a peril 
 within the policy. It then became necessary to put the goods 
 into the hands of some person; therefore it was not a voluntary 
 act of the owners; and it was by mere accident that they got 
 into the hands of Cruden; who, as far as relates to this transac- 
 tion, w r as totally unconnected with the plaintiffs. Everything was
 
 134 . 
 
 ABANDONMENT. 
 
 No. 10. — Mitchell v. Edie. 
 
 done in this instance for the preservation of the cargo, which the 
 nature of the case would admit of. Had it not been for the 
 capture, which was a peril insured against, the goods would never 
 have got into the hands of Cruden. At one time it is clear that 
 the plaintiffs had a right to abandon. But then it is said, that 
 from the great length of time which they suffered to elapse with- 
 out giving notice to the underwriters, and from the correspondence 
 which they held with Cruden, they had waived that right, and 
 had adopted him as their agent. It never yet has been decided 
 that the assured, having once a right to abandon, waive that right 
 merely from the length of time before they give notice, where the 
 best is done for the benefit of all concerned. So far from the 
 plaintiffs considering Cruden as their agent, they have pursued him 
 adversely the whole time. Whatever time is consumed in making 
 the best of an average loss is ultimately for the benefit of the 
 underwriters. The case of Plantamour and Staples, 1 applies 
 
 1 Plantamour and Others v. Staples, M. 
 U-2 Geo. III. B. R. 
 
 This was an action on a policy of in- 
 surance on the ship Duras, at and from 
 Marseilles to Madeira, the Cape, and the 
 isles id' France, and Bourbon, and to all 
 parts and places where and whatsoever 
 in the East Indies and Persia, or else- 
 where beyond the Cape of Good Hope, 
 from port to port, ami from place to place, 
 ami (hiring her stay and trade to all ports 
 and places, until her safe arrival back at 
 her last port of discharge in France, upon 
 any kind of goods, also upon the body, 
 &c, of the ship. 
 
 There was also a count for money laid 
 out and expended. 
 
 Without going into the cause, a verdict 
 was taken for the plaintiffs for £60 13s. 
 '.)(/., subject to the opinion of the court 
 upon the following case, which had been 
 previously stated and agreed to by the 
 parties. 
 
 The plaintiffs are merchants at Geneva, 
 and on their own account and risk, by 
 means of their agents at Marseilles, were 
 interested in bullion and goods and mer- 
 chandise shipped there on board the ship 
 I luras, consigned to the plaintiffs' corre- 
 spondents at Pondicherry, with directions 
 to barter or sell the same on their account, 
 and to make the returns on the same to 
 Europe in other goods, the produce or 
 manufacture of India. 
 
 The plaintiffs were also interested in 
 the said ship Duras 'I he ship Duras 
 sailed from France on the voyage insured 
 in June, 177G: and in the outward bound 
 voyage was by bad weather totally lost 
 at the isles of Fiance in April, 1777. 'The 
 goods on board sustained damage, but 
 great part of the bullion, and a consider- 
 able part of the goods, were saved, and, 
 without any authority from the under 
 writers, sent forward in another ship to 
 the plaintiffs' correspondents at Pondi- 
 cherry, who received and disposed of the 
 same, and under the plaintiffs' orders in- 
 vested the produce in other goods, the 
 produce or manufactory of India, and 
 shipped the same on the plaintiffs' ac- 
 count on board a ship called the Pere de 
 Famille, bound to France. 
 
 The Pere de Famille sailed from Pon- 
 dicherry for France in August, 1778 ; and 
 in the course of her voyage home, was 
 condemned at the isles of France, as un- 
 fit to proceed to Europe ; whereupon the 
 plaintiffs' goods were put on board an- 
 other ship, called the Louisa Elizabeth, 
 bound for France; which ship, with the 
 plaintiffs' goods so on board, sailed for 
 France, and was afterwards taken by an 
 English privateer, and has since, with all 
 her cargo, been condemned 
 
 On the 2<Hh August, 1778, several of the 
 underwriters on the policy signed a memo- 
 randum thereon, whereby they agree to
 
 SECT. IV. CRITERION OF TIME. 
 
 135 
 
 No. 10. — Mitchell v. Edie. 
 
 very strongly to the present; and shows that where the assured 
 do the best they can for the benefit of the insurance, if neverthe- 
 less the goods are ultimately lost, the underwriter is liable to pay 
 after any length of time has elapsed between the accident, which 
 was the original cause of the loss, and the time when the demand 
 was made on the insurer. There is besides in every policy a clause 
 which enables the assured, in case of any loss or misfortune, to 
 sue, labour, and travail, for the recovery of the goods, without 
 prejudice to the insurance. This clause ought to be construed 
 liberally and largely, as it is introduced for the benefit of the 
 underwriters, who can in general be upon the spot when such 
 losses happen. This clause necessarily allows the assured as much 
 time as they think proper to dispose of the cargo in the best 
 manner they can, before they exercise their right to abandon. But 
 if in so doing they willingly do any act inconsistent with the 
 benefit of all parties, they immediately lose that right. It would 
 be highly dangerous to establish that in each case the question of 
 what circumstances amounted to a waiver of the right of abandon- 
 ing should be left to the jury. That right still continues in law, 
 
 run the ri.sk on the goods saved as afore- 
 said in any other ship or ships, until 
 their safe arrival in France; hut which 
 agreement the defendant and several 
 others of their underwriters refuse to 
 sign, or give their consent to. 
 
 The defendant hath paid the whole of 
 the average loss, occasioned by the loss 
 of the ship Diiras, and by the damage of 
 the plaintiffs' goods then on board. 
 
 By the capture of the ship Louisa 
 Elizabeth and of the goods, the plaintiffs 
 sustained a loss of £12 2s. 9</. per cent, 
 on the sum subscribed on the said policy, 
 which has been paid by all the under- 
 writers who signed the memorandum of 
 the 29th August, 1778. 
 
 The question for the opinion of the 
 court is, Whether the defendant is liable 
 to pay the said loss of £12 2s. {)d. per 
 cent, which the plaintiffs have so sustained 
 by the capture and condemnation of the 
 ship Louisa Elizabeth, and her cargo: or 
 if not, whether the plaintiffs are entitled 
 to any, and what, return of premium l 
 
 After argument by Piggot for the plain- 
 tiffs, and Ilowartb for the defendant, 
 
 Lord Mansfield. There is not a particle 
 
 of doubt. The only question is, whether 
 the shipping to Europe was necessary to 
 the salvage. It is admitted that the de- 
 fendant is liable upon the voyage to Pon- 
 dicherry, though the goods were conveyed 
 in another ship : therefore that circum- 
 stance makes no difference. The sale of 
 the cargo is also admitted to have been 
 necessary. Then how were the proceeds 
 to be remitted to Europe ? What was the 
 best way of getting home the money for 
 the benefit of the insured and the in- 
 surers ? Beyond all doubt the best way 
 was to invest it in other goods. There- 
 fore, that being done which was the best 
 that could be done, the underwriters air- 
 liable. 
 
 WlLLES & ASHHURST, Justices, Utic ol 
 the same opinion. 
 
 Buller, J. There is no case which ex- 
 pressly decides that the captain may 
 invest the produce of the goods saved. 
 Hut in Mills and Fletcher, Dougl. 219, it 
 was decided that the captain has a general 
 power, and is bound in duty to do the 
 best for all concerned. 
 
 Postea to the Plaintiffs.
 
 136 ABANDONMENT. 
 
 No. 10. - Mitchell v. Edie. 
 
 till the assured themselves have done some act that is inconsistent 
 with the interest of all concerned. Reasonable time is always a 
 question of law. 
 
 There was a further question, not material to the purpose of the 
 present report, as to the question on the assumption that the loss 
 was to be treated as an average loss. The judgments so far as 
 relates to tha primary question were as follows : — 
 
 Ashhurst, J. I apprehend that the general rule is, that where 
 any part of the property insured has been saved, the assured can- 
 not recover as for a total loss, unless he make his election to 
 abandon, and give reasonable notice to the underwriter of his 
 intention. But it is contended that the assured never waive their 
 right to abandon, while they are managing in the best manner 
 they can for the benefit of all concerned ; and that argument is 
 grounded on the common clause inserted in every policy, whereby 
 he is authorized " to sue, labour, and travail, without prejudice to 
 the insurance." Now this clause does not in my apprehension 
 warrant the position in so large an extent as it is contended for. 
 It seems to me that the meaning of that clause is, that till the 
 assured have been informed of what has happened, and have had 
 an opportunity of exercising their own judgment, no act done by 
 the master shall prejudice their right of abandonment. And that 
 is reasonable ; because, in general, the parties live in this country, 
 and the loss may happen at a great distance, so that they cannot 
 exercise their judgment immediately ; it is therefore necessary 
 that the master, who is on the spot, should do the best he can. 
 But I think that the assured are bound to decide, and signify their 
 election to the underwriters, whether they will abandon or not, 
 the first opportunity ; and for this reason, that though the person 
 who takes upon him to act on the occasion for the benefit of all 
 concerned, is not the agent of the assured, yet if, upon receiving- 
 notice of the loss, they do not elect to abandon to the under- 
 writers, then they adopt the acts of such person, and make him 
 their agent. This is something like the notice which is necessary 
 to be given to the drawer of a bill of exchange, in case of non-pay- 
 ment, which if the holder omit to do, he is considered as giving 
 credit to the acceptor, and therefore the loss, if any, must fall on 
 him. There may be cases where the previous acts of the master 
 may not make him the agent of either party, and he only acts in 
 common for them both, till notice is received by the parties at
 
 SECT. IV. — CRITERION OF TIME. 137 
 
 No. 10. — Mitchell v. Edie. 
 
 home. If after such notice he is continued in his agency, he be- 
 comes the agent of the party by whom he is so confirmed ; but lie 
 cannot be considered as the agent for the underwriters, till notice 
 has been given to them and they have had an opportunity of 
 exercising their discretion, whether they will or will not continue 
 him; though, till notice of the loss was first received by the 
 assured, the property continued at the risk of the underwriters. 
 Here it is plain that during the course of near three years, Cruden 
 was considered by the assured as their agent; credit was given to 
 him in that character; frequent applications were made to him 
 for payment; and till his insolvency, there was no appearance of 
 any intention to disown him ; that was the first moment when the 
 assured thought of abandoning. 
 
 Buller, J. The question is whether the owners are entitled to 
 recover as for a total loss. It is true that the owners are not 
 bound to abandon ; there never was a case which determined that 
 they were ; on the contrary, all the cases have said that where 
 they are entitled to abandon, if any part of the property 
 exists, they have the option whether they will abandon it or not. 
 A total loss is of two sorts : one, where in fact the whole of the 
 property perishes ; the other, where the property exists, but the 
 voyage is lost, or the expense of pursuing it exceeds the benefit 
 arising from it. I am of the same opinion with my brother 
 Ashhurst, that, where the voyage is lost, but the property is saved, 
 the owners have an option to abandon ; but that unless they do 
 elect to abandon, it is only an average loss. Whether many years 
 ago it might not have been wiser for the courts to have de- 
 termined that the owners should not in any case abandon where 
 the property did exist, is not for our consideration. About the 
 year 1745 that question was determined after much deliberation ; 
 but still unless the owners do some act signifying their intention 
 to abandon, it is only a partial loss. The case cited by the de- 
 fendant's counsel does not apply here. It was no part of the con- 
 sideration of the court there, whether the event which happened 
 in the outward-bound voyage should entitle the assured to recover 
 as for a total loss ; but the ground of that decision was, that, in 
 the homeward-bound voyage, the ship was captured and condemned, 
 which occasioned a total loss. The only question there was, whether 
 the owners, by the act of shifting the goods from one ship to an- 
 other, had precluded themselves from recovering on the policy ?
 
 138 ABANDONMENT. 
 
 No. 10. — Mitchell v. Edie. — Notes. 
 
 But in that case, as the assured had done everything for the benefit 
 of the cargo, the court thought they were entitled to recover. 
 
 Then the only point to be considered is, whether this doctrine 
 will be productive of any uncertainty ? If it would, that would 
 be a sufficient reason in a new case for not adopting it. But, in 
 my opinion, a contrary decision would be productive of infinite 
 uncertainty. For it would leave open a very vague question, 
 viz., what time the assured should be allowed to abandon. If 
 it can extend to three years, there is no reason why it should not 
 to a much longer period. But no uncertainty can follow from 
 this determination ; for our opinion is, that when the account of 
 a loss has reached the assured, they must make their election 
 whether they will abandon or not ; if they do, they must give 
 notice of their intention to the underwriters within a reasonable 
 time. If they act otherwise, they cannot be permitted at any 
 subsequent period to change the partial into a total loss. 
 
 ENGLISH NOTES. 
 
 A cargo of corn was insured free from particular average, and the ship, 
 having been stranded, was exposed to sea water for a month. Part was 
 kiln-dried and reshipped. Notice of the facts reached the owner of 
 cargo on the 2d February, but notice of abandonment was not given 
 until the 28th. Held, too late. Anderson v. Royal Ex. Ass. Co. 
 (K. B. 1805), 7 Fast. 38 ; 8 P. P. 589. 
 
 Cargo of oil insured for a voyage. Port of arrival blockaded and 
 blockade notified on the 6th September. Notice of abandonment given 
 on 14th October. Held, that although by reason of the blockade the 
 insured might have abandoned and so have recovered as upon a total 
 loss, he was too late in doing so, and could only recover as for a partial 
 loss. Barker v. Blokes (K. B. 1808), 9 East, 283 ; 9 P. P. 558. 
 
 Insurance on cargo of flour from a port in the United States to 
 Limerick. Ship detained at Philadelphia by American embargo, and 
 insured informed of this on the 11th of February, 1808. Notice of 
 abandonment given on 11th June following, held too late. Kelly v. 
 Walton (K. B. at nisi prius, 1808), 2 Camp. 155. 
 
 Delay in giving notice of abandonment by the insured on goods. 
 The ship's papers having been taken away by order of the Swedish 
 Government from the 7th December to 17th January, held fatal to a 
 claim for constructive total loss; although this did not preclude a claim 
 for actual total loss by reason of the goods having been afterwards seized 
 and never restored. Mellish v. Andrews, K. B. 1812; 15 East, 13 
 (s. c. under No. 6), p. 65, supra.
 
 SECT. IV. — CRITERION OF TIME. 139 
 
 No. 10. - Mitchell v. Edie. — Notes. 
 
 An assured is entitled to a reasonable time for acquiring a full knowl- 
 edge of the state of a damaged cargo before making bis election to 
 abandon. And therefore, where a cargo of damaged sugar came into 
 port on 20th December and began to be unshipped and examined on 
 21st December, but the assured did not receive the complete report of 
 the survey until the 7th January, it was held that an abandonment 
 made on the 7th January was made within a reasonable time. Gernon 
 v. Royal Ex. Ass. (Ex. 1815), 6 Taunt. 383. 
 
 In the case of Hunt v. Royal Ex. Ass. Co. (1816). cited under Nos. 
 2, 3, and 4, p. 33, supra, it was held that, allowing four days after 
 the final survey for communication between Waterford and London, a 
 delay of five days further in giving notice of abandonment would have 
 been sufficient to bar the claim. 
 
 Insurance on ship damaged by peril of the sea. Final survey made 
 at Kinsale, on 14th December, when it was ascertained that the cost 
 of repairs would exceed the value of the ship. Notice of abandon- 
 ment given on the following 6th of January. Tbe communication 
 between London and Kinsale being four or five days, this was held too 
 late. Aldridge v. Bell (K. B. at nisiprius, 1816), 1 Stark. 406. 
 
 The insured ship having started from Calcutta and returned there 
 shattered by a storm, the captain gave notice of abandonment to Lloyd's 
 agents there; and, tbe ship having been surveyed and reported unre- 
 pairable, he sells her. The captain arrived in London the 25th of 
 April ; tbe ship's papers, on the 3d July. On the 5th of July parol 
 notice of abandonment was given on the part of the owners to tbe 
 underwriters. After verdict for the plaintiff, who claimed as for a total 
 loss: held that the notice of abandonment was sufficient, and the sab- 
 having been justifiable, the insurers were bound by it. Bead v. Bonham 
 (C. P. 1821); 3 Brod. & Bing. 147. 
 
 Insurance of cargo of wine for a voyage. The ship was wrecked, part 
 of the cargo lost, and a large part of tbe rest greatly damaged, so that 
 it was questionable whether it was worthwhile to pursue the adventure. 
 Tbe owner gave notice of abandonment, and called a meeting of the 
 underwriters. Some of them attended, and with their sanction, tin 
 owners, for tbe benefit of all parties, advertised tbe wines to be soli I. 
 Two months later, others of the underwriters, including the defendant. 
 intervened to countermand tbe sale. Held, that the defendant bad. In- 
 lying by, acquiesced in the notice of abandonment. Hudson v. Har- 
 rison (C. P. 1821); 3 Brod. & Bing. 97. The reporters head-not.- states 
 the general proposition that "an insurer who rejects an abandonment 
 must do so within a reasonable time." But this, if it implies that 
 mere silence is a presumption of acceptance, is going too far. See 
 Provincial Ins. Co. of Canada r. Leduc, post.
 
 140 ABANDONMENT. 
 
 No. 10. — Mitchell v. Edie. — Notes. 
 
 Where a ship is driven ashore so that the cargo is imperilled, and it 
 is ultimately ascertained that it is impracticable to carry it to its desti- 
 nation, the point of time when the loss occurs is not necessarily that 
 when the peril was encountered, but may, in the interest of the assured, 
 be assigned as the time when the constructive total loss is so ascer- 
 tained. So held, where the question arose on a special term of the con- 
 tract that no action should be commenced but within twelve months 
 after any loss or damage should occur, and the action was commenced 
 within twelve months from the latter but not from the former event. 
 Browning v. Prov. Ins. Co. of Canada (1873), L. R., 5 P. C. 263. 
 
 If notice of abandonment is given by the assured to the insurers, and 
 they say and do nothing, the proper conclusion is that they do not accept 
 the abandonment. But if they, by their agent, after notice of abandon- 
 ment, take possession of the ship, do repairs upon it, and keep possession 
 of it for a considerable time without repudiating the notice or informing 
 the assured that they have taken and hold possession in a character 
 other than that of owners, then the inference arises that they have ac- 
 cepted the abandonment. Provincial Insurance Co. of Canada v. 
 Leduc, Jud. Com. of P. C. (appeal from Upper Canada) (1874), L. P., 
 P. C. App. 224 ; 43 L. J. P. C. 49. 
 
 AMERICAN NOTES. 
 
 Reasonable notice of intention to abandon must be given to the insurers 
 after receipt of information justifying an abandonment ; if not, so given, the 
 right to abandon is forfeited. Teasdale v. Charleston Ins. Co., 2 Brevard 
 (So. Car.), 190; 3 Am. Dec. 705; Chesapeake Ins. Co. v. Stark, 6 Crunch (U. S. 
 Sup. Ct.), 268; Fuller v. McCall, 1 Yeates (Penn.). 404; 1 Am. Dec. 312; 
 Savage v. Pleasants, 5 Binney (Penn.), 403 ; 6 Am. Dec. 424 ; Cohen v. Char- 
 leston F. §• M. Ins. Co., Dudley Law Pvep. (So. Car.) 147 ; 31 Am. Dec. 540. 
 But in the last case it was held that when the vessel had arrived at a foreign 
 port in a condition justifying abandonment, prior notice of that condition 
 was not necessary. 
 
 Offer to abandon, made as soon as the preliminary proof of loss is ob- 
 tained, is in time. Gardner v. Columbian Ins. Co., 2 Cranch Circ. Ct. (U. S), 
 550. So, on learning of condemnation, although the insured did not abandon 
 on learning of capture. Dorr v. Union Ins. Co.. 8 Mass. 494; Earl v. Shan-. 
 1 Johnson's Cases (X. Y..), oil. 
 
 Delay is immaterial unless it has prejudiced the insurers. Young v. 
 Union Ins. Co., 24 Fed. Rep. 279 (U. S. Dist. Ct.). But this is denied in 
 Taberv. China Ins. Co., 131 Mass. 239. (by Gray. Ch. J.), citing Mellon v. 
 Louisiana Ins. Co., 5 Martin x. s. (Louisiana), 503.
 
 SECT. V. — EFFECT AS TRANSFER. 141 
 
 No. 11. — Case v. Davidson. — Rule. 
 
 Section V. — Effect of Abandonment in transferring Rights. 
 
 No. 11. —CASE v. DAVIDSON. 
 
 DAVIDSON v. CASE (in error). 
 
 (k. b. 1816, and Ex. Oh. 1820 ) 
 
 RULE. 
 
 Abandonment of the ship transfers to the underwriters 
 the accruing freight : and his title to that freight is good 
 although freight has been insured by a separate policy, 
 and is abandoned to the underwriters on freight. 
 
 So held by judgment of the Court of King's Bench 
 (Ellenborough, C. J., Abbott, J., and Holroyd, J., diss. 
 Bayley, J.) ; and judgment affirmed (unanimously) in the 
 Exchequer Chamber. 
 
 Case v. Davidson. 
 Davidson v. Case. 
 
 5 M. & S. 79. 
 
 Assumpsit for money had and received, and the money counts. 
 Plea general issue. On the trial before Lord Ellenborough, C. J., at 
 Guildhall in Trinity Term, 1815, there was a verdict for the 
 plaintiff for £71 12s. Wd. damages, subject to the opinion of the 
 court upon the following case : — 
 
 Messrs. Brotherston and Begg were owners of the vessel called 
 the Fanny, which was a general seeking ship, and sailed on a 
 voyage from Bio de Janeiro to Liverpool with a cargo of goods on 
 freight, the property of different persons. On the 27th January, 
 1814, Messrs. Brotherston and Begg insured the vessel on the said 
 voyage, valued at £7000 ; and on the 22d April following they 
 insured the freight of the said, voyage by other policies and with 
 other underwriters, and valued the same at £4000. The vessel 
 with the cargo was captured in the course of the voyage by an 
 American privateer ; and thereupon Messrs. Brotherston and Begg 
 gave notice of abandonment at the same time to the respective 
 underwriters on ship and freight, who severally accepted the same. 
 Afterwards the vessel was recaptured by one of his Majesty's
 
 142 ABANDONMENT. 
 
 No. 11. — Case v. Davidson. 
 
 ships of war, was brought to London, and was by decree of the 
 High Court of Admiralty restored to the owners with the cargo, 
 on payment of salvage and expenses. The vessel arrived at 
 Liverpool and delivered her cargo and earned the freight. It was 
 agreed between the shipowners and the underwriters on ship (but 
 not by the underwriters on freight), that the defendants should 
 sell the ship and receive the proceeds thereof, and should also 
 receive the freight of the cargo for the use and benefit of all 
 persons respectively who should legally be entitled to it. The 
 underwriters on ship and freight severally paid or satisfied the 
 shipowners for a total loss. The underwriters on ship paid 
 the loss on ship before the underwriters on freight paid the loss 
 on freight, The defendants received and paid to the underwriters 
 on ship the amount produced by the sale of the ship, which was 
 about £33 per cent, on their subscriptions. The defendants also 
 received the freight, which they held under the terms of the agree- 
 ment, and which is £35 16s. 5d. per cent, clear on the sum insured 
 on the ship. The underwriters on ship and also the underwriters 
 on freight severally claimed from the defendants the freight thus 
 received. The plaintiff' is an underwriter on ship to the amount 
 of £200, and claims to recover a proportion of the money received 
 by the defendants for freight. The question for the opinion of 
 the court is, whether the plaintiff is entitled. to recover. If he is 
 entitled, the verdict to stand, otherwise a nonsuit to be entered. 
 
 This case was argued partly in last term, and partly on this day 
 (May 7), by Richardson for the plaintiff, and Littledale for the de- 
 fendants. For the plaintiff two points were made, first, that the 
 abandonment of ship conveyed to the underwriter on ship the 
 ship's future earnings; secondly, that the underwriter's title to 
 the earnings was not affected by an abandonment to the under- 
 writer on freight. In support of these propositions were cited the 
 eases of Thompson v. Koioeroft, 4 East, 34 ; Leatham v. Terr//, 3 Bos. 
 
 6 Pull. 479 ; M'Carthy v. Abel, 5 East, 388; Sharpe v. Gladstones, 
 
 7 East, 24. And Ghinnery v. Blackbume, 1 H. Bl. 117, in not. ; 
 Splidt v. Bowles, 10 East, 279 ; Morrison v. Parsons, 2 Taunt, 407, 
 were referred to arguendo, as showing, that by an assignment of 
 the ship, the freight passes to the assignee, and payment of it to 
 him will be good ; though if the ship be chartered the assignee 
 cannot, by reason of a technical rule of law, maintain an action 
 for the freight in his own name.
 
 SECT. V. — EFFECT AS TRANSFER. 143 
 
 No. 11. — Case v. Davidson. 
 
 For the defendants it was urged, that as by the law of England 
 freight might be made a distinct subject of insurance from ship, 
 the law would so mould these contracts, where they concurred, as 
 bo preserve the rights of the respective parties distinct, and apply 
 to each what properly belonged to it. Wherefore an underwriter 
 on ship who insures but the hull, materials, body, tackle, and 
 apparel of the ship, shall not, by an abandonment, be entitled to 
 the earnings ; for this would be to confound the two species of 
 abandonment, and would render an abandonment of freight of no 
 avail. It is true, indeed, that the beneficial interest in the freight 
 passes by assignment of the ship : the reason of which is, because 
 upon the purchase and sale of a ship, both parties intend that 
 not only the body of the ship but all its incidents should pass, and 
 agree upon a price accordingly ; whereas a contrary intention seems 
 necessarily to arise where there is a separate abandonment of ship 
 and freight. Abandonment, therefore, differs from a transfer of 
 the ship upon a sale, and extends no farther than to the thing- 
 insured. 
 
 Lord Ellexborough, C. J. Although this question now comes 
 distinctly in judgment before us for the first time, yet it has, I 
 own, been long considered, in my mind, as settled, that freight 
 follows, as an incident, the property in the ship: and therefore, as 
 between the respective underwriters on ship and freight, an 
 abandonment of the ship carries the freight along with it. This 
 subject was much under discussion at the time of the Russian 
 embargo, when the rights of the respective sets of underwriters 
 were considered. I believe it was at that time said that an aban- 
 donment to the underwriters of ship, like the traditio rei, divested 
 the owner of all his rights in favour of the party to whom he 
 abandoned. The underwriter, indeed, does not become privy, by 
 virtue of such abandonment, to any existing charter-party, nor 
 perhaps to any contract of affreightment before made with the 
 owner; but I think that by the abandonment, he acquires pos- 
 session of the thing from the use of which freight is to be earned. 
 It is true, that the shipowner may have entered into contracts for 
 the insurance of freight, and that by abandonment of ship the 
 underwriters on freight will be deprived of some rights to which 
 they would perhaps otherwise be entitled; but this will necessarily 
 happen, if the underwriter on ship is entitled to look, without 
 reference to the contracts of other persons, to his own contract,
 
 144 ABANDONMENT. 
 
 No. 11. — Case v. Davidson. 
 
 and to those consequences which result to him from abandonment. 
 An abandonment to the underwriter on ship transfers to him not 
 merely the hull, but the use of the ship, and the advantages result- 
 ing from the completion of the voyage. If, upon the completion 
 of the voyage, the abandonee may withhold the goods until the 
 freight is paid, he must have acquired an indefeasible title to it. 
 I consider his title as derived out of the use of the ship. It is 
 true, that by the usage of this country the shipowner may insure 
 his freight, but that is not to interfere with the insurance on ship ; 
 the underwriter on ship is to have his rights entire, which are not 
 to be affected by other contracts that the shipowner may think 
 proper to engage in; and, after abandonment, the underwriter on 
 ship is the person to be considered in possession. In the present 
 case, the voyage has been completed, freight has been earned, and 
 has been received by the defendants, for the use of such persons 
 as are entitled; and the question is, who those persons are; 
 to which I answer, the person whose ship earned the freight, 
 and that is the abandonee. This subject has been, on several oc< 
 sions, in the mind of the court, but more particularly in Sharpe v. 
 Gladstones, and Morrison v. Parsons ; and what was said in the 
 latter case by Lawrence, J., viz., that the right to freight sub- 
 sequently accruing must belong to the assignee of the ship, as 
 incident thereto, was not new doctrine at that time, but had been 
 intimated before by that learned judge, as his opinion; indeed, 
 there seems to have been a concurrence of opinion in Westminster 
 Hall upon that point. The underwriter on freight will certainly, 
 by this doctrine, lose the specific thing abandoned to him, except 
 where the assured is entitled to the freight . but abandonment of 
 the freight cannot break in upon the rights of those who are 
 entitled to the ship. And I own it seems to me, that it cannot 
 make a difference, whether the underwriter on ship has or has 
 not notice of the insurance on freight; for I rest on this simple 
 ground, that the abandonee of ship has all the rights of the 
 shipowner cast upon him, by operation of that emphatic word 
 in the law-merchant, "abandonment;" and being so entitled, 
 has a right, if he uses the ship for completing her voyage, to 
 her earnings, as against all the world. Who are the persons 
 liable to pay the wages, I do not think is a question here ; 
 very likely the sailors might libel the ship, and the abandonee 
 might be liable.
 
 SECT. V. — EFFECT AS TRANSFER. 145 
 
 No. 11. — Case v. Davidson. 
 
 Bayley, J. I think this is a question of considerable difficulty, 
 and it has made a different impression on my mind from that of 
 my Lord, and I believe the rest of the court. We have considered 
 the subject a great deal before we arrived at this stage of the case, 
 and seeing that we are not likely to come to an unanimous agree- 
 ment upon it, it is better that we should declare our opinions with- 
 out farther delay. This is an action by the underwriter on ship 
 against a person who has received and holds the freight for the 
 use of the party entitled to it. At one period of the adventure, 
 there was a capture, and there was a contemporaneous abandon- 
 ment to the respective underwriters of ship and freight. The ship 
 was afterwards recaptured, and completed her voyage, and ulti- 
 mately earned freight ; and the question is, if the underwriter on 
 ship is entitled to have ship and freight or only the ship : and the 
 underwriter on freight to have the freight. Now the impression 
 of my mind is, with deference to my Lord, that an abandon- 
 ment of ship, under such circumstances, from the nature of the 
 subject-matter, implies a virtual exception of the freight. Where 
 ship and freight are comprehended, as is most usual, in one 
 insurance, they are insured as one entire subject ; but where the 
 insurance is separate, they ought to be considered, to the termi- 
 nation of the adventure, as separate subjects. Freight is com- 
 pounded of several considerations ; it includes the wear and tear of 
 the ship, the provisions and wages of the crew, and a reasonable 
 return of profit to the owner for the employment of his capital. 
 The underwriter on ship understands that he insures only the 
 body, tackle, and apparel of the ship. I agree, that the ship- 
 owner, in ascertaining the value to be insured, includes in his 
 calculation not only the value of the ship, but also the expenses 
 of the outfit ; and this creates some difficulty, because when a loss 
 happens, it is computed, 1 believe, upon the value at the time the 
 ship set sail, and not at the time of the loss ; and as this value is 
 constantly diminishing as the voyage proceeds, it may be said that 
 the freight is no more than an equivalent for this decrease in 
 value. . Nevertheless, it seems to me, that the underwriter on ship 
 has no right to expect from an abandonment more than he has 
 insured, that is, the hull, tackle, and apparel of the ship, in the 
 plight in which she is at the time of abandonment. If the ship 
 completes her voyage, it is so much saved to him. I am not sorry 
 that the opinion of the court is against me, for I think the con- 
 vol. i. — 10
 
 14f> ABANDONMENT. 
 
 No. 11. — Case v. Davidson. 
 
 sequence will be, that in future there never will be an abandon- 
 ment of ship. If, by abandoning the ship, the assured must be 
 deemed to have abandoned the freight, there cannot be any aban- 
 donment to the underwriter on freight ; and the assured may be 
 liable to the underwriter on freight for the freight. The mariners 
 value on him for wages, and he is obliged to pay them. It is true, 
 that they may proceed against the ship in the Admiralty Court, 
 but they are not bound to go thither, and may sue the owner; and 
 the master of the ship cannot go to the Admiralty Court. That 
 seems to me to place the shipowner in such a predicament upon 
 abandonment, that it will not allow him for the future to make 
 abandonment of ship. I do not quote the cases of Sharpe v. Glad- 
 stones, and Barclay v. Stirling, because they do not involve any 
 question between the two sets of underwriters. But I ask, upon 
 what principle is the underwriter on ship to be entitled to the 
 freight ? Suppose the ship to have performed nine-tenths of her 
 voyage at the time of abandonment, the underwriter, if entitled 
 to the freight, will receive the whole benefit and earnings of the 
 voyage, although he is only at a few days expense for provisions. 
 This would be the consequence of its being understood, that by 
 abandonment of ship, it is the intention of the assured to abandon 
 all the rights belonging to her. If this is to be taken as the 
 intention, I agree that the underwriter is entitled to the growing 
 freight ; but it seems to me, from the nature of an abandonment, 
 and from the constant practice which has prevailed, of insuring 
 freight separately, that it must have been the understanding of 
 these parties, that an abandonment of the ship should not carry 
 with it the freight. If this be not so, it is wonderful that the 
 question has never been raised, so as to settle the right of the 
 abandonee of ship to the freight. For these reasons, I think 
 the plaintiff is not entitled. 
 
 Abbott, J. I am of opinion that the plaintiff is entitled to 
 recover. The question comes now for the first time to be decided, 
 but it is not new to the court ; an opinion has been expressed upon 
 it in several cases. Nor is it by any means a new point to the 
 minds of professional men, who have been at all conversant with 
 the law-merchant. Now this is a principle clearly established, 
 that if the ship be sold, the vendee is entitled to the freight as an 
 incident to the ship. And on that principle I found my judgment 
 in this ease, being of opinion that an abandonment is equivalent to
 
 SECT. V. — EFFECT As TRANSFER. 147 
 
 No. 11. — Case v. Davidson. 
 
 a sale of the ship. And considering freight to be an incident, I 
 cannot engraft upon the effect of an abandonment any exception, 
 hut take it to be a complete transfer of all the rights which are 
 consequent upon a sale of the ship-, it was argued by Mr. Little- 
 dale, that since a practice has prevailed in this country of insuring 
 ship and freight separately, the underwriter on ship must contem- 
 plate that inasmuch as freight may be the subject of a separate 
 insurance, it may also be separately abandoned. But this argu- 
 ment is built upon an assumption that an abandonment of freight 
 conveys to the abandonee a right to the freight in preference to 
 the right of the abandonee of ship; which is assuming the whole 
 question. As well might it be argued, that as the underwriter on 
 freight is aware that the ship may be separately insured, he must 
 therefore be taken to know that an abandonment of the ship will 
 convey all the incidents belonging to it to the abandonee. The 
 practice, therefore, of insuring ship and freight separately seems t<> 
 me to afford no argument whatever either way to show what the 
 law is or ought to be. If it had been the practice, that upon sep- 
 arate insurances the abandonee of freight should take the freight 
 notwithstanding an abandonment of the ship, such a practice might 
 have afforded a construction ; but we do not find that there has 
 been any such practice. It was further contended by Mr. Little- 
 <lale, that supposing this freight had not been insured, the ship- 
 owner and not the underwriter on ship would have been entitled to it 
 .after abandonment of the ship ; but I did not observe that he cited 
 any authority for this position ; and the practice, I believe, has 
 been the other way. I have never heard of an instance in which the 
 assured, after abandoning the ship to the underwriter, has stepped 
 in and claimed the freight as against the underwriter; on the 
 contrary, the practice has been uncontested that the abandonee 
 lias received the freight. It may perhaps be a question, as between 
 the underwriter on freight and the shipowner after abandonment, 
 to whom the freight belongs ; but this question it is unnecessary 
 at present to touch. It has been observed that nothing is to be 
 found in the foreign writers in favour of this claim of the under- 
 writer on ship. Foreign writers, I am aware, are not to be stated 
 as authorities in this court; but I find one learned foreign writer, 
 in commenting on the loth article, tit. Insurance, Valin, Liv. 
 iii. tit, 6. Dcs Assurances, art. 15, which prohibits the insur- 
 ance of freight, is of opinion that freight is an incident to the ship
 
 148 ABANDONMENT. 
 
 No. 11. — Case v. Davidson. 
 
 and must from its nature follow it. And he puts an instance 
 of a voyage to the West Indies, where it is usual to stipulate 
 for the freight on putting the goods on board. He then sup- 
 poses that the ship is lost in the voyage, and that the goods are 
 saved in part or in whole ; and concludes that the shipowner, in 
 making abandonment, is bound to answer to the •underwriter 
 for so much of the freight as is received. A stronger mode of 
 illustrating his opinion that the freight accompanies the ship can- 
 not be put. Although I do not quote this as an authority, yet it 
 is satisfactory to know that my opinion concurs not only with that 
 of other Judges, but also with that of foreign writers upon this 
 subject. 
 
 Holroyd, J. I am also of opinion, that the plaintiff is entitled 
 to recover, and I would adopt the same line of argument that has 
 been taken by my Lord and my Brother Abbott. It appears to 
 me that when the shipowner abandons his ship to the underwriter, 
 the latter stands in all respects as to future benefit in place of 
 the owner. The underwriter pays the whole loss, and in con- 
 sequence becomes quasi owner instead of the former owner. It 
 follows as a consequence of abandoning the ship that the owner 
 divests himself of his right to freight, which is incident to the 
 ship, and the same becomes vested in the abandonee, to whom it 
 is competent to possess himself of the ship, and if she should be 
 unfreighted to endeavour to obtain for her a freight. And if the 
 ship be freighted, yet, as it seems to me, the underwriter is not 
 bound to complete the voyage, because the rights of the owners 
 of the goods laden on board are personal, lying in contract with the 
 shipowner, and not running with the ship ; and being in respect of 
 a personal chattel, an action lies not against the underwriter, but 
 against the owner alone. Put the case of a voyage from London to 
 Madeira, or perhaps the West Indies ; an insurance is effected from 
 London to the West Indies, with leave to touch at Madeira ; a 
 loss happens before the ship reaches Madeira, and the assured 
 abandons ; is not the underwriter entitled to the freight if he 
 carries on the goods to the West Indies ? I apprehend he is ; for 
 otherwise it would follow that he could not possess himself of the 
 ship until her return home. Upon these grounds it appears to me 
 that the abandonee becomes entitled immediately to all the earnings 
 of the ship as a consequence of the abandonment. 
 
 Judgment for the plaintiff.
 
 SECT. V. EFFECT AS TRANSFER. 149 
 
 No. 11. — Davidson v. Case. 
 
 Davidson v. Case (in error). 
 
 8 Price, 542 (s. c. 2 Brod. & B. 379 ; 5 J. B. Moore, 116). 
 
 Error having been brought from the judgment in the King's 
 Bench, the case was argued in the Exchequer Chamber by Little- 
 dale for the plaintiff in error, and by Scarlett for the defendant in 
 error; and in Michaelmas Term, 1820, the judgment of the court 
 unanimously affirming the judgment of the King's Bench was de- 
 livered as follows (omitting preliminary and unimportant observa- 
 tions), by 
 
 Dallas, C. J. First, it is not denied that, generally speaking, 
 an assignment of ship includes freight ; but it is said that it does 
 so, because such is the natural effect and consequence of such 
 assignment where there is no agreement between the parties to 
 the contrary ; whereas, in cases of abandonment under insur- 
 ance, such agreement is to be implied from the practice of 
 making separate insurances, which the law of this country — 
 different in this respect from the law of other countries — per- 
 mits ; and that the law will therefore keep the interest of the 
 parties separate and distinct, giving to the underwriter on ship 
 the ship abandoned, and the freight to the underwriter on freight 
 abandoned. 
 
 That such a practice has prevailed is undoubtedly true ; but 
 there is a fallacy in confounding the fact of that practice with the 
 legal effect of a contract for insurance. It is the practice itself 
 that raises the legal question. To make the practice decisive of 
 the law, it would be necessary to go further, and to show a practice 
 of settling losses in conformity to it, and that the underwriters on 
 ship have never claimed the freight, and the underwriters on 
 freight have constantly received it. Such a practice, if of sufficient 
 prevalence and notoriety to raise the presumption of general 
 knowledge, would show the understanding of parties with refer- 
 ence to which they must be taken to deal, and would therefore 
 form the basis of the contract betweeen those who were respec- 
 tively privy to it. But it was admitted in the argument in the 
 court below, and adverted to upon the Bench, and has again been 
 admitted in the argument here, that there has been no such settled 
 practice ; but that, on the contrary, the question has altogether 
 hitherto been the subject of controversy, the underwriters on ship 
 having, in every instance, resisted the claim of the underwriters
 
 150 ABANDONMENT. 
 
 No. 11. — Davidson v. Case. 
 
 on freight, asserting that the freight belonged to themselves, as 
 owners of the ship, on the abandonment being made. 
 
 It is not pretended that there has been any actual agreement to 
 the contrary in this case, and it seems to follow of course that no 
 such agreement can be implied from the mere practice of insuring 
 separately, when we find that the practice stops with the fact of so 
 insuring, and the effect of such fact has constantly been matter of 
 dispute. I have dwelt on this the more, because I observe that, in 
 the court below, the argument was mainly pressed on the ground 
 that such an agreement was to be implied, — which I think it can- 
 not be, for the reasons which I have given. 
 
 It then becomes our business to inquire — there being then no 
 actual or implied agreement between the two sets of insurers — 
 what, in point of law, is the effect of the contract into which they 
 have respectively entered with the owners. I say the two sets of 
 insurers, because it is not necessary to consider the consequence 
 of a separate insurance and abandonment of freight between the 
 insurers on freight and the assured, under all circumstances thai 
 might possibly arise on the contract directly made between them. 
 Confining, therefore, the consideration in the manner stated, what 
 is the legal operation of the respective contracts ? In resolving 
 this question I put no stress upon the fact that freight passes- 
 under a general assignment of ship ; because that appears to me to- 
 be begging the question, — the question arising on a supposed dis- 
 tinction, existing in cases of abandonment, as being different from 
 common transfer by the ordinary modes. The effect of it, correctly 
 considered, is only to remit the question to the general operation 
 of law, supposing the distinction contended for to fail. Nor do I 
 place reliance on the assignee of the ship becoming the owner of 
 her, in a common case; for there again the question turns upon 
 the asserted distinction. Neither do I give weight to the mere 
 fact of separate insurances ; for this also would be to take that 
 point for granted : and they are not separate, but connected, if 
 made under a general understanding that each shall refer to and 
 be regulated by the other. 
 
 But the case seems to me to result to this : — If, in every other 
 case of transfer, the freight follows the assignment of the ship ; 
 and if abandonment be but a different term for assignment, and 
 the same in effect, unless modified to a different purpose by the 
 agreement of parties ; and if in this case, so far from there being
 
 SECT. V. — EFFECT AS TRANSFER. 151 
 
 No. 11. — Davidsou v. Case. — Notes. 
 
 any such agreement, either actual or in fact, or to be presumed in 
 law, the contrary is to be implied — the case only amounting to 
 claim on one side, and resistance to such claim on the other — the 
 reason fails for taking this case out of the general law ; and, con- 
 sequently, the underwriters on ship, under the abandonment to 
 them of ship, are entitled to freight. 
 
 In so deciding, we shall not break in upon the general legal 
 principle, by engrafting upon it an anomaly of doubtful conven- 
 ience ; nor will the decision lead to any difficulty in future, as ship 
 and freight may be made the subject of one and the same insur- 
 ance ; or, if there be any practicable objection to this, of which I. 
 am not aware, the parties may contract, with reference to the law 
 as now finally settled, supposing the case to end here. 
 
 ENGLISH NOTES. 
 
 The above ruling case finally decided for England a point which had 
 been frequently raised and much discussed in cases arising out of the 
 Russian embargo (in 1800). In one of these cases the decision had 
 turned upon a special point which may be here mentioned. The ship- 
 owner had separately insured ship and freight and abandoned them to 
 the respective underwriters, who accepted the abandonment. The em- 
 bargo being taken off, the ship completed her voyage and earned freight. 
 It was held, without deciding any question as to the right to abandon, 
 that the assured could not recover, as for a total loss, on the policy on 
 freight, because, 1st, the freight had been in fact earned; 2ndly, if lost 
 to the assured it was lost, not by a peril insured against, but by his 
 own voluntary act in abandoning the ship. McCarthy v. Abel (K. 1>. 
 1804); 5 East, 388. This doubtless involved the question, what would 
 have been the effect of an abandonment if justifiably made, and so paved 
 the way for the decision in the above ruling case. 
 
 A special contract of insurance effected by a charterer of a ship, stipu- 
 lated that the assured might claim a total loss if the ship should not be 
 allowed to load a cargo at St. Petersburgh. This event having hap- 
 pened, the master put in at Stockholm and earned freight on the home- 
 ward voyage from there. Held, that the underwriters, paying the total 
 loss, might retain as salvage the amount of the freight so earned. 
 Puller v. Staniforth (K. B. 1809); 11 East, 232. It appears to have 
 been assumed in the arguments and judgment that the homeward freight 
 was earned on account of the assured. But in a subsequent case, under 
 a similar charter-party, it was decided that the charterers were not en- 
 titled to freight earned by the master of the ship upon goods shipped 
 for the homeward voyage at another port, on tin 1 top of the original
 
 152 ABANDONMENT. 
 
 No. 11. — Davidson v. Case. — Notes. 
 
 cargo (of lead). And in an action on a similar policy effected by the 
 charterer in regard to the last-mentioned ship, judgment was given for 
 a total loss without any benefit of salvage. Puller v. Halliday (1810), 
 11' East, 494. 
 
 Under a policy on freight at and from port of loading at Jamaica to 
 London with leave to call at intermediate ports : — The ship got on shore 
 off Cuba, where a large part of the cargo, consisting of sugar, was washed 
 away. On intelligence of this the assured abandoned the freight, and 
 on an action for a total loss an adjustment was made on that footing. 
 The ship afterwards arriving with part of the original cargo and some 
 new cargo on which freight was earned, it was held that the under- 
 writers on freight were entitled by waj r of salvage to the whole of the 
 freight actually earned, including the new freight after deducting the 
 expense of obtaining that freight. Barclay v. Stirling (K. B. 1816); 
 5 M. & S. 6. 
 
 Ship and freight were insured in separate policies for a voyage from 
 Liverpool to New York, thence to Quebec, &e., thence to port of dis- 
 charge in the United Kingdom, and thereafter until moored in safety 
 at place of destination. The ship was injured by an iceberg on the 
 homeward voyage and reached Liverpool waterlogged, so that she could 
 not be taken into the docks or moored, and she was consequentl}- left to 
 take the ground just outside the dock. The water having been let out 
 of the ship at low water, the ship was ultimately got into the docks and 
 the cargo landed. The ship however was in such a condition as to re- 
 quire extensive repairs, and the shipowner abandoned to the under- 
 writers. An action was brought in the Court of Session in Scotland by 
 the shipowners against the underwriters on ship. The pursuer (plain- 
 tiff) in the action claimed as for a total loss; and the jury, under the 
 direction of the Lord President, — who said this depended on whether 
 the ship was worth repairing, — found for the pursuers, reserving, 
 under the same direction, the question as to whether the shipowner or 
 the underwriter was entitled to the freight. This latter point was subse- 
 quently argued before the Court of Session, who decided that the under- 
 writer was entitled to the freight as against the shipowner. The House 
 of Lords affirmed this decision. Stewart v. Greenock Marine Ins. Co. 
 (H. L. (appeal from Scotland), 1848), 2 H. L. C, 159. [It is to be ob- 
 served that the decision of the Court of Session (which had not been 
 appealed against) to the effect that the facts constituted a total loss was 
 inconsistent with the English authority of Cazalet v. St. Barbe (1786), 
 1 T. R. 187 (p. 128, ante), which apparently was not adverted to by 
 the parties at the original trial. See the case as reported in the Scotch 
 Reports, 6 Court of Session Cases, 2d series, p. 359. The Scotch case, 
 therefore, cannot be regarded as an authority on this point: and its
 
 SECT. V. — EFFECT AS TEANSFEE. 153 
 
 No. 11. — Davidson v. Case. — Notes. 
 
 only importance is upon the question of what becomes of the freight in 
 a case where there is a valid Abandonment.] 
 
 In another case arising out of the same circumstances as the last, the 
 assured having, in consequence of the decision in Stewart v. Greenock 
 Marine Ins. Co., been obliged to surrender the freight to the under- 
 writers on ship, brought an action against the underwriter on freight; 
 but the House of Lords, reversing the decree of the Court of Session, 
 held that they could not recover, because the loss of freight (which had 
 been actually earned) arose, not from the perils of the sea, but from 
 their own voluntary act in abandoning the ship to the underwriters on 
 ship, after the freight had been actually earned and received by the 
 shipowners. Scottish Marine Ins. Co. of Glasgow v. Turner (H. L. 
 1853), 1 Macq. 334. [It will be observed that this decision was sim- 
 ilar to McCarthy v. Abel, p. 151, ante, except that in that case the 
 abandonment had taken place before the freight was fully earned.] 
 
 Where the goods on board are the shipowner's own, so that there 
 could not be, properly speaking, any contract of affreightment, the 
 abandonee (underwriter on ship stranded and abandoned) cannot as 
 purchaser, any more than another purchaser of the ship, claim any 
 freight in respect of the whole voyage, or of the part of it performed at 
 the time of abandonment. But such an abandonee may be entitled, 
 upon an implied contract, to a payment in the nature of freight, in re- 
 spect of the service performed in carrying any cargo from the place of 
 stranding to the ultimate destination. Miller v. Wood/all (Q. B. 
 1857), 8 El. & Bl. 493; 27 L. J., Q. B. 120. 
 
 The judgment of the court delivered by Lord Campbell in the last- 
 mentioned case is interesting, as containing a clear statement by way 
 of contrast, of the principles of English and American law on the point. 
 He says: "The abandonees are considered as purchasers of the ship 
 at the moment of the casualty to which the abandonment refers : and, 
 although the contract of a shipowner does not run with the ship, 
 it is well settled that, as incident to the ship, the right to the whole 
 freight, pending at the time of the sale and subsequently earned, belongs 
 to the purchaser of the ship. The American courts, presuming that ship 
 and freight are always separately insured, and taking into consideration 
 the respective rights and equities of the different sets of underwriters 
 ■where the loss is finally adjusted among all parties, assured and assurers, 
 make an apportionment of the freight earned partly before and partly 
 after the casualty for which the abandonment on ship is made; so that 
 the freight earned previous to the casualty may go for the benefit of the 
 underwriters on freight to whom there has been an abandonment, and 
 only the freight earned after the casualty vests in the abandonee on 
 ship. (See the authorities collected, Arnould. § 404.) But (as in the
 
 154 ABANDONMENT. 
 
 No. 11. — Davidson v. Case. — Notes. 
 
 present case), in adjusting the rights of assured and assurer on ship, we 
 do not look beyond those parties; and the abandonee of the ship, like 
 the purchaser, has a right to the whole of the freight pending at the 
 casualty, although he could not claim freight paid or completely earned 
 in a prior part of the voyage: Stewart v. Greenock Marine Ins. Co., 
 •J 11. L. Cas. 159, s. c. 1 Macq. 8c. Ap. 328; the Scottish Marine In- 
 surance Co. of Glasgow v. Turner, 1 Macq. Sc. Ap. 334." Miller v. 
 Wood/all, at supra, 8 El. & Bl. 503. 
 
 Where, after disaster, the cargo is forwarded to the destination by 
 another ship at less than the freight of the whole voyage, so that freight 
 pro rata parte itineris is saved for the part of the voyage performed by 
 the original ship, such^ro rata freight does not (in England any more 
 than in America) go as salvage with the ship, but belongs to the original 
 owner, or goes as salvage to the underwriters on freight. — A ship which 
 had been chartered to carry troops to Calcutta, is insured by a valued 
 policy. The ship, having been, while at sea. damaged by a peril insured 
 against, is put into port, abandoned (after survey) to the underwriters. 
 and the abandonment is accepted. The captain having chartered another 
 ship and forwarded the troops to Calcutta, the whole of the original freight 
 is paid to the original owner of the ship. Held, that the captain was to 
 be presumed to have acted as agenl for the owners of the ship and not for 
 the underwriters, and that the latter were not entitled to any benefit 
 from the freight earned. Hickie v. Rodocanachi (Ex. 1859), 4 H. & N. 
 455; 28 L. J. Exch. 273. 
 
 Although the underwriter on ship acquires, on abandonment, all the 
 rights of the shipowner, including claims of damages against a colliding 
 vessel, he has no independent right of action; and he does not, there- 
 fore, acquire any right to compensation in the nature of damages against 
 a colliding vessel belonging to the same owner. The principle that the 
 insurer, by paying the indemnity, comes into the place of the assured in 
 respect of any indemnity due to him by reason of a wrong, does not de- 
 pend on abandonment, and is the same whether the indemnity between 
 the insurer and assured has been settled on the footing of a total or of 
 a partial loss. Yates v. Whyte (1838), 4 Bing. N. C. 272; Simpson v. 
 Thomson (H. L. from Scotland. 1877), 3 App. Cas. 279, and per Lord 
 Blackburn, p. 21)2. 
 
 AMERICAN NOTES. 
 
 The American rule is different, and is to the effect that "the insured is 
 entitled to recover the freight for the portion of the voyage performed," 
 Teasdalev. Charleston Tns. Co.. 2 Brevard (So. Car.), 190; 3 Am. Dec. 705, 
 " because upon abandonment, the underwriters, if they receive any part of 
 the goods, or their value, are liable for the freight of them. The goods are 
 always chargeable for their freight, and when goods are abandoned to the
 
 SECT. V. — EFFECT AS TRANSFER. 155 
 
 No. 11. — Davidson v. Case. — Notes. 
 
 insurers, the insurers of course are chargeable out of the goods for their 
 freight." The same was held in Kennedy v. Baltimore Ins. Co., 3 Harris cS: 
 Johnson (Maryland), 'Mu ; 6 Am. Dec. 4!»!t. The court said : — 
 
 " According to the opinion of the court, tin- abandonment of the ship for a 
 total loss on account of the capture did, by operation of law, transfer all the 
 right and interest of the appellant in the ship to the appellees, on their 
 •accejitance of the abandonment, and all the benefits and advantages direct h 
 -or incidentally accruing from the ship subsequent to the capture. The 
 abandonment tor a total loss has a retrospective relation to the cause of the 
 .abandonment, and in this case to the capture of the ship. At that time 
 all the right and interest of the appellant, the insured, in the ship ceased, and 
 the right and interest of the insurers commenced. The assured, by his aban- 
 donment, had made his election to take that which was substituted by mutual 
 consent as an equivalent for the ship, and the insurers, by their acceptance, 
 gave their assent to it. What were the respective rights of the assured and 
 insurers, at this time, as to the freight of the ship? If the freight is susceptible 
 of apportionment, and in our judgment it is, and may be apportioned in such 
 manner as will do justice to both parties, by giving to each the usufruct of the 
 .ship during the time of their respective ownership, the proportion of each in 
 this case to be ascertained according to existing circumstances. The principle 
 of apportionment in this case and those similarly circumstanced, is founded in 
 equity. The contingency which produced the abandonment cannot be attri- 
 buted to either party, and the result ought not to be more unfavourable to 
 one than the other. But if this principle is rejected on the ground that there 
 is no criterion by which the apportionment can lie made, then the insurers 
 would not be burdened with the loss against which they insured; but, by 
 receiving the whole of the freight, might be compensated for it; or, at any 
 rate, their loss would be very much diminished at the expense of the assured. 
 The court are of opinion that the appellant is entitled to all the emoluments 
 or earnings of the ship anterior to the capture, to be adjusted by a jury on 
 such evidence as is legally admissible before them." 
 
 In Cincinnati Inn. Co. v. Duffield, '! Ohio State, 200, it was held that (in 
 regard to the wreck) abandonment "operates as a transfer to the underwriters 
 of the property insured only to the extent of the indemnity contemplated by 
 the policy." 
 
 The American rule is also declared in Whitney v. N. Y. Firemen Tns. < '<> , 
 18 Johnson (X. Y.). 208; Davy v. Ilallelt, 3 Caines (X. Y.), 16; Hubbell v. 
 Great Western Ins. Co., 74 Xew York. 260. The last case, decided in 1878, 
 explicitly points out the disagreement between the English and the American 
 rule.
 
 156 ABATEMENT. 
 
 No. 1. — Dockwray v. Dickenson. — Rule. 
 
 ABATEMENT. 
 
 Note. — In this, as in many other classes of cases, it has been decided — in order 
 to meet the requirements of those American States which retain many of the older forms 
 of English procedure — to retain a heading appropriate to forms of pleading and 
 practice now obsolete in England. In such cases the rule is stated in language be- 
 longing to the procedure of the time, and must be understood with reference to the 
 date of the case. 
 
 It will he observed that although pleading in abatement is obsolete, many of the 
 cases referred to under this head involve principles which are still important, upon the 
 question who are the proper parties to an action. 
 
 Section I. As to Joinder of Plaintiffs. 
 
 Section II. As to Joinder of Defendants. 
 
 Section III. Various Causes of Abatement. 
 
 Section IV. Requirements of a Good Plea in Abatement. 
 
 Section I. — As to Joinder of Plaintiff's. 
 
 No. 1.— DOCKWRAY v. DICKENSON. 
 
 (1696.) 
 
 PILE. 
 
 A personal action ought to be joined in by all the per- 
 sons (as plaintiffs) entitled jointly or in common to the 
 right sued upon ; if they do not join as plaintiffs, then il* 
 the action is in tort the objection is matter for plea in 
 abatement, — for the party may make a tort joint and 
 several. But if a plaintiff sues upon a contract made with 
 him and others jointly, it is not matter for abatement, but 
 may be given in evidence under the plea of nihil debet or 
 non assumpsit, — because it is another contract. 
 
 Dockwray v. Dickenson. 
 
 Skinner, 640 (s. c. Comb. 366). 
 
 At Guildhall, in an action of trover for a ship and cargo, the 
 invoice and bill of lading was given in evidence ; the which was 
 opposed, because though it be evidence between the freighter and
 
 SECT. 1. — JOINDER OF PLAINTIFFS. 157 
 
 No. 1. — Dockwray v. Dickenson. -— Notes. 
 
 master, yet in this case the freighter and master are but as one 
 person, and it shall not be evidence against a third person; non 
 allocatur; for the bill of lading is always read in the case of a 
 policy to prove goods on board (the which was admitted, but not 
 to prove the value), and here though the certainty of the vain.' 
 does not appear, yet insomuch that the goods were proved to be 
 bought and paid for, by the plaintiff, and to amount to such a sum, 
 and that the invoice and bill of lading agreed; and that they were 
 entered as put on board such a ship; and that they were carried to 
 the place where the ship was taken; and that when the ship was 
 taken, there were such goods on board; and the master being dead, 
 his hand to the bill of lading was proved, and the master if he was 
 present might be sworn ; and therefore in this case they might 
 prove his hand; for these reasons the bill of lading was read; 
 upon the reading of which it was objected that the cargo was 
 shipped by A. and B. and Company, and B. being dead, the action 
 brought by A. only is ill, because it appears that others have an 
 interest, who ought to be named; non allocatur; for it does not 
 appear, and this ought to be proved (but in this case it seemeth as 
 if it might be presumed), and if there are others this is a matter in 
 abatement, and it ought to be pleaded; and the difference is, 
 where it is an action founded upon a tort, as here, and Not guilty 
 pleaded, and where it is founded upon a contract. 
 
 ENGLISH NOTES. 
 
 (1) As to torts : — 
 
 In trover by two out of three joint tenants of goods, on plea of not 
 guilty, held that the plaintiffs should not be nonsuited, but should 
 recover two-thirds of the damage. Observed, that the matter might 
 have been pleaded in abatement, quoad tantum. Nelthorpe v. Dor- 
 rington (1674), 2 Levinz, 113. 
 
 Addison v. Overend (179G), 6 T. R. 766, and Sedgeworth v. Overend 
 (1797), 7 T. R. 279, were two actions separately brought by two co- 
 owners of a ship against the same defendant for damage by a tort 
 (running down). In the former action, the defendant not having 
 pleaded in abatement, the plaintiff recovered in respect of the damage 
 to his share of the property. In the latter action, the defendant 
 pleaded in abatement, and it was held that the plea could not be sus- 
 tained because the other owner, having recovered his share of the 
 damage, could not have been properly joined in the action. So that 
 the plaintiff was right in suing alone.
 
 158 ABATEMENT. 
 
 No. 1. — Dockwray v. Dickenson. — Notes. 
 
 In trover by one of several assignees of a bankrupt, an assignee who 
 lias been removed without being divested of the legal estate must be 
 joined. If he is not joined, advantage can only be taken by plea in 
 abatement; and if this is not done, the plaintiff can only recover a pro- 
 portionate part of the damage. Bloxham v. Hubb<ird (1804), 5 East, 
 407. 
 
 In detinue, upon issue joined denying the propert}^ in the plaintiff, 
 it is no defence that there are other persons co-tenants with the plain- 
 tiff, who are not joined in the action. Broadbent v. Led want (1839), 
 11 Ad. & El. 209. So in trover : but the case is different where counts 
 have been added setting up a contract of bailment made with the plain- 
 tiff alone. In the latter, a plea stating that the goods were joint 
 property, pleaded in abatement to the whole declaration, is bad. Phil- 
 ipsx. Claggett (1841), 10 M.'&W. 102; 11 L. J. Exch. 349. 
 
 May v. Harvey (K. B. 1811), 13 East, 197, 12 II. R. 322, is an instruc- 
 tive case. The assignee in bankruptcy of B. sues D. in trover for a lease, 
 after demand and refusal to deliver it up. Issue having been joined 
 and the case tried, the facts appeared as follows: The lease had been 
 assigned by A. to B. who, to save the expense of a counterpart, agreed 
 that the lease should be deposited with C. on their joint account. 
 B. subsequently deposited the lease in C.'s hands without mentioning 
 that it, was on joint account. B., having become bankrupt, illegally 
 (as against the assignee in bankruptcy) assigned the lease to D., to 
 whom C. by B.'s authority delivered it. The plaintiff obtained a 
 verdict and the Court upheld it. But Lord Ellexborough, C. J., in- 
 timated that if the lease had been deposited by A. and B., and C. had 
 agreed to keep it for the two, it was not in the power of one of them 
 (or of the assignee who represented that one) to take it out of his 
 hands without the assent of the other. But in the present case C. & 
 1). dealt with the lease as belonging to B. alone. [That is to say, the 
 action of C. & D. was a pure tort involving no question of contract. 
 That it may have been a tort as against A., as well as against B.'s 
 assignee, was of course immaterial after verdict.] 
 
 (2) As to contracts : — 
 
 "All the persons with whom a contract is made must join in an 
 action for breach of it." Dicey on Parties, Rule 13. 
 
 "I take it to have been solemnly adjudged in several cases, and to 
 be known received law, that one co-covenantee, one co-obligee, or one 
 joint contractor by parol, cannot sue alone." Per Curiam (in judgment 
 delivered by Eyre, C. J.), in Scott v. Godwin (C. P. 1797), 1 Bos. & 
 Pul. 67, 71. 
 
 A covenant or promise to two, if proved in an action brought by
 
 SECT. I. — JOINDER OF PLAINTIFFS. 159 
 
 No. 1. Dockwray v. Dickenson. — Notes. 
 
 one of them, sustains a plea which denies the existence of the con- 
 tract. Wetherell v. Langston (1847), 1 Ex. 684, per Wilde, C. J., 
 <>44. Nor does it avail a plaintiff that the joint covenantee did not 
 seal the deed. Petrie v. Bury (1824), 3 B. c\: C. .'!."">. - ;. In the case 
 of Wetherell v. Langston (siipr.), it was held that it did not avail the 
 plaintiff that the joint covenantee had disclaimed by deed (to which 
 the covenantor was no party). But that decision lias since been doubted, 
 by Parke, B., in Linwood v. Squire (1854), 5 Ex. 235. 
 
 In an action upon a contract brought by one of two assignees of an 
 insolvent debtor under the Act 7 & 8 Vict, c. 90, the non-joinder of 
 the others is not matter for plea in abatement, but is a fatal objection, 
 under a plea that the plaintiff is not assignee modo ft forma. Jones v. 
 Smith (1848), 1 Ex. 831; 18 L. J. Exch. 145. 
 
 Executors ought all to be joined as plaintiffs in an action against a 
 debtor to the estate. But the case is so far exceptional that the non- 
 joinder may (and therefore must) be pleaded in abatement. Smith v. 
 Smith, 6 Jac. (1608), Yelv. 130; 1 Saund. 291. 
 
 One of two executors having absconded, the other executor sued a 
 mortgagor. The court refused on the application of the defendant to 
 add the absconding executor as defendant. Drage v. llartopp (1885), 
 28 Ch. D. 414; 54 L. J. Ch. 434. 
 
 Partners must all join as plaintiffs in an action for breach of a con- 
 tract made with the partnership. Teed v. El worthy (1811), 14 East, 
 210; Garrett v. Handley (1824), 3 B. & C. 462; Garrett and another 
 v. Handley (1825), 4 B. & C. 664. Except that — 
 
 (a) A dormant partner need not be joined as plaintiff. Leveck v. 
 Shafto (1795), 2 Esp. 468; Lloyd v. Archboicle (1810), 2 Taunt. 324; 
 Mawmanv. Gillett (1809), lb. 325 n. ; Lindley on Partnership, 5th 
 ed. p. 276. 
 
 (If) Partners may authorize certain persons (of their own number or 
 otherwise) to act for them and to sue alone upon contracts expressly 
 entered into with those persons. Such persons would be- called direc- 
 tors. Per Littledale, J., Phelps v. Lyle (1839), 10 Ad. & El. 116. 
 [But in this case it appeared that four persons had been so authorized 
 as directors, one of whom had become bankrupt, but it did not appear 
 that this put an end to his authority as director. In an action by the 
 remaining three directors they were nonsuited.] 
 
 (c) An action may be maintained (under an express contract not 
 disclosing the partnership deed) either in the name of the person with 
 whom the contract was actually made, or in the name of the parties 
 really interested; per Curiam, Skinner v. Stocks (1821), 4 B. & Aid. 
 437; Sims v. Bond (1833), 5 B. & C. 389, 393; —the defendant being 
 in the latter case (if he really was induced to enter into the contract
 
 160 ABATEMENT. 
 
 No. 1. — Dockwray v. Dickenson. — Notes. 
 
 by the belief that the person was contracting on his own account, 
 Cooke v. Eshelbg, H. L. 1887, 12 App. Cas. 271, 56 L. J., Q. B. 505), 
 entitled to be placed (as to set-off or otherwise) in the same situation at 
 the time of the disclosure of the real principal as if the agent had been 
 the contracting party. Sims v. Bond, nt supr. The principle here 
 stated belongs to the general law of principal and agent as applied to 
 partnership. 
 
 (d) The partner with whom the contract was immediately made may 
 sue alone if there was a separate consideration moving from him. 
 Agaclo v. Forbes (1861), 14 Moore P. C. 160. 
 
 It will be observed that the exception (c) is only a particular case 
 of implied authority within the principle of the exception (&). 
 
 That the rule is of substantial importance will appear on considering 
 the following case. There are two commercial partnerships, one con- 
 sisting of A. & B. and the other of B. & C. The house consisting of 
 A. & B. indorse a bill of exchange to the other house, B. & C. The 
 bill is satisfied by an arrangement made between the former house 
 (A. & B.) and the drawer; A. & C. cannot sue upon the bill, because A. 
 cannot contravene his own act in discharging the bill. Jacaud v. 
 French (1810), 12 East, 317. So that the liability upon the bill is at 
 an end, which would not be the case if C. had any independent right 
 of action. 
 
 As regards joinder of plaintiffs, covenants are in a similar position 
 to contracts. See Scott v. Godwin, cited p. 158, ante. 
 
 In this case of Scott v. Godwin, the plaintiff (A) sued alone upon the 
 covenants of a lease, setting forth in his declaration a title to the rever- 
 sion under a conveyance of that reversion to and to the use of " A. & B. 
 and the heirs of B., in trust for A. and his heirs." It was held on 
 demurrer that the declaration was bad, and that it was not necessary to 
 take the objection by plea in abatement. Eyre, C. J., in delivering 
 judgment, cited the rule mentioned in Cabell v. Vaugham, 1 Vent. 34 
 (and there cited from a case of Levitt v. Staineforth, B. R. 1651). " If 
 one be hound to two, one obligee cannot sue unless he avers that the 
 other is dead." Scott v. Godwin (C. P. 1797), 1 Bos. & Pul. 67, 74. 
 
 Why covenants are in the same position with contracts as regards 
 plaintiffs and not as regards defendants, has been explained as fol- 
 lows: " One and the same covenant cannot be made both joint and 
 several as regards the covenantees. It is otherwise as to the cove- 
 nantors. Judgment of Parke, B., in Bradburn v. Botfield (1845), 14 
 M. & W. 559, 573; 14 L. J. Exch. 830. 
 
 As to whether it is possible to read into the same deed two separate 
 and independent covenants in favour of parties in the same interest, 
 there is some conflict of opinion.
 
 SECT. I. JOINDER OF PLAINTIFFS. 161 
 
 No. 1. — Dockwray v. Dickenson. — Notes. 
 
 In Sllngsbys Case (in the Exchequer Chamber, 1587) 5 Co. Rep. 
 
 181, it was resolved that it is only when the interests arc several that 
 a covenant with several persons and each of them can lie a several 
 covenant; that where the interest is joint the covenant is joint and the 
 words of severalty are void; and that an interest cannot he granted 
 jointly and severally, so that if a person purports to grant an interest 
 in this way, the word "several" is void. This case is universally ac- 
 knowledged as an unimpeachable authority. 
 
 In Anderson v. Martindale (K. B. 1801), 1 East, 497; G E. B. 334, 
 it was held that a covenant to and with A., his executors, administrators 
 and assigns, and also to and with B. and her assigns, to pay an annuity 
 to A., his executors, &c, during the life of B., is a covenant in which 
 A. & B. have a joint legal interest, and on the death of A. the right to 
 sue upon it survives to B. 
 
 In Sorsbie v. Park (1843), 12 M. & W. 146, 155, Parke, B., in his 
 judgment states the principle as follows: "If there is a covenant 
 with A. and B. jointly that a certain thing should be done by the 
 covenantor, both of them must sue. But where it appears upon the 
 face of the deed that A. and B. have separate interests, they must sue 
 separately; for though the words be prima facie joint, they will be 
 construed to be several, if the interests of either party appearing upon 
 the face of the deed shall require that construction." 
 
 Hopkinson v. Lee (1845), 14 L. J. Q. B. 101, was an action upon a 
 covenant contained in a deed. By this deed, after reciting an agree- 
 ment that the plaintiff was to lend the defendant money held by the 
 plaintiff in trust for X., whereby the defendant in consideration of the 
 advance covenanted "with the plaintiff, his executors, &c, and also as 
 a separate and distinct covenant with and to X., her executors, &c, 
 that ixc." The Court after argument directed a nonsuit on the ground 
 of the non-joinder of X. 
 
 But in Keightley v. Watson (1849), 3 Ex. 716, 723; IS L. J. Exch. 
 339, where there were words of covenant expressed to be with A., his 
 executors, &c, and as a separate covenant with B., his executors, &c, 
 and where the interests of A. & B. were clearly separate and distinct, 
 the covenant with A. was held to be a separate covenant. A doubt was 
 at the same time suggested whether Hopkinson v. Lee was rightly 
 decided, and whether the words there did not so clearly express the 
 intention to make separate and distinct covenants, that they should be 
 so treated just as if they had been contained in separate instruments. 
 
 And in Palmer v. Mallet (1887), 36 Ch. D. 411; 57 L. J. Ch. 226, 
 where there was an agreement secured by a penal bond entered into 
 between the defendant and a firm of two medical men (A. & B.) not to 
 set up in competition with them; it was held that on the dissolution 
 
 VOL. 1. 11
 
 162 ABATEMENT. 
 
 No. 1. — Dockwray v. Dickenson. — Notes. 
 
 of the partnership there arose in each partner a several interest which 
 the agreement was intended to protect; and that A. suing alone was 
 entitled to an injunction. 
 
 The strict rule as to joinder of plaintiffs must have led to frequent 
 failures of justice had it not been, for the practice by which a plaintiff 
 under certain conditions was allowed to use the name of a co-plaintiff. 
 It is laid down that one partner may use the name of his co-partners in 
 legal proceedings, and that they cannot stay the proceedings; but the 
 partner who objects has a right to be indemnified against the costs. 
 Whitehead v. Hughes (1833), 2 Dowling Pr. Ca. 258. The same rule 
 held good for every joint right under contract, at all events where the 
 contract had been originally made with the authority (express or im- 
 plied) of the person whose name is so used. But, on the other hand, 
 one of two joint plaintiffs might release the defendant, and the question 
 as to his right to do so could have been raised on a suggestion to the 
 court, that the release is fraudulent. Emery v. Macklow (1833), 10 
 King. 23. Where, however, the whole transaction was unauthorized 
 by the person whose name is so used as plaintiff, he is entitled to have 
 his name struck out. Langston v. Wetherell (1858), 27 L. J. Ex. 400. 
 [See Dicey on Parties, p. 107 n. It is not unimportant, even in the 
 modern practice under the English Judicature Acts, to observe how 
 the rules worked under the old practice.] 
 
 (3) As to real actions : — 
 
 The rule as to joinder of plaintiffs in real actions and in ejectment 
 was different. 
 
 "The old rule certainly was, that in all real actions tenants in 
 common must sever, and that in personal actions they must join. In 
 mixed actions they were to sever. I do not see that the fictitious 
 nature of the proceedings in ejectment suggests any reason for depart- 
 ing from the rule." Per Littledale, J., in Doe d. Poole v. Errington 
 (1834), 1 Ad. & El. 750. 
 
 It was consequently held in the case just cited that tenants in com- 
 mon could not recover in ejectment under a count alleging a joint 
 demise by them to the nominal plaintiff. This result was altered by 
 the practice under the C L. P. Act 1852 (15 & 16 Vict. c. 76, § 180, 
 and schedule No. 13, &c). For the forms there given equally apply 
 whether the plaintiffs claim as joint tenants, tenants in common, or 
 otherwise. It would therefore seem that in an action by some of 
 tenants in common for the recovery of land there is no necessity of 
 amending to make the action maintainable; nor can there be any doubt 
 of the right of the plaintiffs in such an action to recover according to 
 the interest represented by them.
 
 SECT. I. — JOINDER OF PLAINTIFFS. 16; 
 
 No. 1. — Dockwray v. Dickenson. — Notes. 
 
 Modem practice (under Judicature Acts) as to joinder of Plaintiffs 
 in personal actions. 
 
 The rigid necessity as to the correct joinder of plaintiffs became 
 modified by the power of amendment introduced by the C. L. P. Acts, 
 1852 (15 & 16 Vict. c. 70, ss. 35, 36), and I860, 23 ,v 24 Vict. 
 c. 126, s. 19); and still more by the rules of the Supreme Court under 
 the Judicature Acts, particularly O. 16, Rules 1, 2 and 11. 
 
 It is moreover by 0. 21, R. 20, enacted that no plea or defence shall 
 be pleaded in abatement. 
 
 And by O. 48a. made on 19th June, 1891 (and which repealed the 
 former rules as to partners suing and being sued), partners carrying on 
 business within the jurisdiction may sue and be sued in the name of 
 their respective firms. 
 
 It was held by V. C. Malins in Sheehan v. G. E. By. Co. (1880), 
 1G Ch. D. 59, 50 L. J., Ch. 68, that an objection by a defendant that 
 other persons should have been joined as plaintiffs should be made 
 promptly under rules of court (see new O. 16, R. 12), and that if this 
 is not done the objection will not be listened to at the hearing. The 
 Vice-Chancellor referred to Hunter v. Young (1879), 4 Ex. D. 256, 
 48 L. J., Exch. G89 ; which was a similar decision of the Court of 
 Appeal in regard to the non-joinder of a defendant. 
 
 In Turquand v. Fearon (1879), 27 W. R. 396, 48 L. J., Q. B. 341. 
 a divisional court (Mellor & Field, JJ.) held that where applica- 
 tion is made under Order 16, R. 2 to add another person as plaintiff, 
 the court will require proof of the consent of that person. [It may be 
 questioned whether this is consistent with the principle stated in the 
 case next below cited, unless the court were prepared at the hearing 
 to dispense with the joinder of this person. But that would be a wider 
 departure from the old common-law practice than adding his name 
 without his consent]. 
 
 A patentee who had mortgaged his patent rights brought an action 
 against an infringer who pleaded (inter alia) that the plaintiffs were 
 not the proprietors and were not entitled to sue. The mortgagee had 
 declined to join as plaintiff, and had not been made a defendant. The 
 Court of Appeal held that if necessary the mortgagee could be added as 
 a defendant under 0. 16, R. 11. Lord Justice Bowex observed: "It 
 is of the- essence of the procedure since the Judicature Act to take care 
 that an action shall not be defeated by the non-joinder of right parties." 
 Van Gelder v. Sowerby Bridge, &c. Society (C. A. 1880) 44 Ch. D. 
 374; 59 L. J., Ch. 292. 
 
 In Richards v. Butcher (1890), 62 L. T. 867, where the plaintiffs. 
 importers of champagne, sued a defendant for breach of trademark", it 
 was held, by Kay, J., after argument on the point of law. that the
 
 164 ABATEMENT. 
 
 No. 1. — Dockwray v. Dickenson. — Notes. 
 
 plaintiffs being mere licencees, had no right to sue; but lie gave leave to 
 amend by making the owner of the trademarks plaintiffs. The report 
 does not mention whether there was any assent to this on the part of 
 the owners, but it may be inferred that there was. 
 
 AMERICAN NOTES. 
 
 1. As to Torts. Non-joinder of plaintiff in tort, unless it appears on the 
 face of the declaration, may be taken advantage of only by plea in abatement. 
 Scott v. Brown, 3 Jones Law (No. Carolina), 547, 67 Am. Dec. 256 ; by Kent, 
 C. J., in Wheelwright v. Depeyster, 1 Johnson (New York), 471 ; 3 Am. Dec. 
 345, citing the principal case, Johnson v. Richardson, 17 Illinois, 302 ; 63 Am. 
 Dec. 369 ; Hart v. Fitzgerald, 2 Massachusetts, 509, Deal v. Bogue, 20 Penn. 
 St. 228; 57 Am. Dec. 702, citing Addison v. Overend, 6 T. K. 766; Backensloss 
 v. StaMer's Admrs. 33 Penn. St. 251; 75 Am. Dec. 592; Clapp v. Pawtucket 
 Inst., 15 Rhode Island, 494; Bell v. Layman, 1 T. B. Monroe (Kentucky), 39; 
 15 Am. Dec. 83 ; Gordon v. Goodwin, 2 Nott and McCord (So. Carolina), 70 ; 
 10 Am. Dec. 573. 
 
 Or by way of apportionment of damages on the trial. Gilbert v. Dickerson, 
 7 Wendell (New York), 449 ; 22 Am. Dec. 592; Whitney v. Stark, 8 California, 
 514 ; 68 Am. Dec. 300. 
 
 But if the plaintiff sues in the right of another, the omission is ground for 
 nonsuit. Gordon v. Goodwin, supra. 
 
 2. As to Contracts. Non-joinder of plaintiffs need not be taken advantage 
 of by plea in abatement nor by demurrer, but may be given in evidence under 
 the plea of non-assumpsit. Hoffar v. Dement, 5 Gill (Maryland), 132; 46 
 Am. Dec. 628, citing Eccleston v. Clipsham, 1 Saund. 153, note 1; Leglise 
 v. Champante, 2 Str. 820. Same principle, Marshall v. Jones, 11 Maine, 54 ; 
 25 Am. Dec. 260; Wadsioorth v. Woodford, 1 Day (Connecticut), 28; Clapp 
 v. Pawtucket Inst.,15 Rhode Island, 494; Coffee v. Eastland, Cooke (Tennessee 
 Federal circuit court), 159. 
 
 The objection should be raised by demurrer, in bar, or on the general issue, 
 but not in abatement. Baker v. Jewell, Massachusetts, 460; 4 Am. Dec. 
 102 ; Scott v. Brown, 3 Jones Law (No. Carolina), 541 ; 67 Am. Dec. 257. 
 
 Where a lull does not show upon its face that necessary parties plaintiff 
 are omitted, the remedy is only by plea or answer. Robinson v. Smith, 3 
 Paige Cli. 222 (New York); 24 Am. Dec. 212. 
 
 "The non-joinder of a person who ought to have beeu made a plaintiff may 
 lie pleaded in abatement. It is more usual to take advantage of it on trial, 
 as a ground of nonsuit, for a variance between the declaration and the proof 
 offered. The subject was fully considered in the case of Scott v. Godwin, 
 1 B. & P. 67." Hilliker v. Loop, 5 Vermont, 116; 26 Am. Dec. 286. And in 
 Bakery. Jewell, 6 Massachusetts, 460; 4 Am. Dec. 162, it was said that "the 
 want of proper plaintiffs in actions on contracts is an exception to the merits, 
 and is to be taken advantage of either on demurrer, in bar, or on the general 
 issue, but not by plea in abatement." citing Scott v. Godwin, supra. 
 
 In Scott v. Brown, 3 Jones Law (Xo. Carolina), 541; 67 Am. Dec. 257, it
 
 SECT. I. — JOINDER OE PLAINTIFFS. 165 
 
 No. 1. — Dockwray v. Dickenson. — Notes. 
 
 was said: " In all actions on contracts, all in whom the legal interest vests 
 should in general be made parties plaintiff; and if any be omitted whom the 
 law requires to be joined, the defendant may take advantage of the omission 
 on the trial, under the general issue, as the contract proved will not be the 
 same declared on; or he may move in arrest of judgment, or proceed by writ 
 of error if the defect appear on the record. In an action simply of tort, as in 
 trespass to property, real or personal, the defendant must plead in abatement 
 the non-joinder of a part-owner, and cannot take advantage of the defect by 
 way of nonsuit on the trial ; because one part-owner may recover his aliquot 
 portion of the damages sustained if no notice by plea is given him that the 
 defendant intends to rely upon the defect. There is yet a third class of cases, 
 under which this arranges itself, namely, actions of tort arising ex contractu. 
 There the defendants may plead in abatement or take advantage on the trial 
 as in an action purely of contract. Scott v. Godwin, 1 B. is. P. 71 ; and 
 Powell v. Layton, 2 B. & P., N. R., 365, which is the fifth volume of Bos. & 
 Pul. ; Story's Eq. PI. 20, 87." 
 
 The objection may be raised by demurrer, in arrest or in error, plea in 
 abatement, or by motion for nonsuit. Phillips v. Pennywit, 1 Ark. 50 ; Dement 
 v. Rokker, 126 Illinois, 174 ; Holijoke v. Loud, 69 Maine, 59. 
 
 "There was formerly some difference of opinion as to the manner in 
 which " the defendant should take advantage of the omission. " Cases are to 
 be found in which it was ruled that the defendant could avail himself of this 
 omission only by plea in abatement ; but Sergeant Williams declares these 
 cases not to be law." Citing Vernon v. Jeffers, 2 Strange, 1116, and Scott v. 
 Godwin, 1 Bos. & Pul. 74, the law " allows the defendant to take advantage of 
 the non-joinder of the co-obligee when it appears on oyer, either by demurrer 
 or in arrest of judgment." Ehle v. Purdy, 6 Wendell (New York), 629. 
 
 3. As to real actions. Non-joinder of a party to a real action must be 
 pleaded in abatement, or the objection is lost. Campbell v. Wallace, 12 New 
 Hampshire, 362; 37 Am. Dec. 219. So in Sherman v. Fall River, fyc Co., 2 
 Allen (Mass.), 524; 79 Am. Dec. 799, it was held that the non-joinder of the 
 plaintiff's co-tenant, in an action for negligent injury to lands, could be raised 
 only by plea in abatement. The same was held in partition, in respect to the 
 alienage of one of the parties. Scanlan v. Wright, 13 Pickering (Mass.), 523; 
 25 Am. Dec. 314. 
 
 To recover a legacy charged on lands, the approved practice is to bring 
 suit against the executor and " the terre-tenants generally, without naming 
 them, or to sue them by name; but the former is the best form, and in Eng- 
 land is constantly used ; for if the plaintiff undertake to name them, he 
 must name them all ; and if he does not, those who are not named may 
 plead in abatement. Chahoon v. Hollenback, 16 Serg. & R. 432; 16 Am. Dee. 
 587; Beresford v. Cole, 2 Saund. 7, note 4." McLanahan v. Wyant, 1 Penrose 
 & Watts (Penn.), 96 ; 21 Am. Dec. 363. 
 
 In dower, several tenancy must be pleaded in abatement ; non-tenure may 
 be also pleaded in bar. Fosdick v. Gooding, 1 Greenleaf (Maine), 30 ; 10 Am. 
 Dec. 26. The court observe: "In England, non-tenure is pleadable in abate- 
 ment only: Booth, 28; Comyn's Dig. Abatement, F. 14." A plea of non- 
 tenure " would have been good here, though not in England."
 
 1GG ABATEMENT. 
 
 No. 2. — Boulston v. Sandiford. — Rule. 
 
 One tenant in common, sued alone in trespass, trover, or case, for anything 
 respecting the common land, may plead in abatement the non-joinder of his 
 co-tenant. Southard v. Hill, 41 Maine, 92 ; 69 Am. Dec. 85. 
 
 In an action for coal wrongfully removed from land and converted, if the 
 plaintiff has not the legal title, the defendant need not plead in abatement, 
 but may raise the objection under the general issue, or if the error appears on 
 the face of the declaration, by demurrer on motion in arrest of judgment. 
 McLean County Coal Co. v. Long, 91 111. 617. 
 
 In many of the United States the foregoing rules are inapplicable, because 
 the matter is regulated by statute or code, and defect of parties plaintiff must 
 be raised by demurrer. 
 
 Section II. — As to Joinder of Defendants. 
 
 No. 2. — BOULSTON v. SANDIFORD. 
 
 (a. d. 1690.) 
 
 RULE. 
 
 If an action, although formally laid in tort, is grounded 
 on the duty undertaken by a contract, all the contrac- 
 tors upon whom the duty lies ought to be joined as 
 defendants ( per Curiam). 
 
 But (according to the opinion of Dolben, J., which, 
 although overruled in this case, has since been ac- 
 cepted as law) the defendant can only take advantage 
 of the non-joinder of other co-contractors by plea in 
 abatement. 
 
 In an action on the case against shipowners as common 
 carriers of goods, the defendants pleaded not guilty ; and 
 at the trial objection was taken, and a special verdict 
 found, that there were other part-owners besides the 
 defendants, and that all the owners constituted the master 
 and mariners. It was agreed by all the court that all the 
 owners ought to have been joined, and held by the ma- 
 jority (Holt, C. J., Gregory and Eyres, JJ.) that the 
 objection could not have been pleaded in abatement, but 
 was well taken under the general issue at the trial. So 
 that judgment was given for the defendant. Dolben, J.,
 
 SECT. II. — JOINDER OE DEFENDANTS. 1G7 
 
 No. 2. — Boulston v. Sandiford. 
 
 contra, because it might have been pleaded in abatement. 
 X. B. — It is the opinion of Dolben, J., which has become 
 established as law. 
 
 Boulston v. Sandiford. 
 
 Skinner, 278 (s. c, s. n. Boson v. Sandford, 1 Shower, 101; Comb. 118; 
 Carthew, 58; 2 Freeman, 499). 
 
 Action upon the case, in which the plaintiff declares against the 
 defendants as owners of a bark, and shows that they constituted 
 J. S. master, who received such goods aboard to be carried from 
 London to Topsam, and that the defendants super se susceperunt to 
 carry, &c, and shows that the goods were damaged ; upon which, 
 &c, upon Not guilty pleaded, the jury found a special verdict, scil. 
 that the defendants were part-owners, but that there were other 
 owners insimul cum the defendants; and that all the owners 
 constituted the master and mariner, that the goods of the plain- 
 tiff were delivered to the master to be carried from London to 
 Topsam, and that they were damaged, &c , and whether (the action 
 not being brought against all the owners, but only against the 
 defendants) judgment shall be given for the plaintiff was the 
 question. 
 
 Adjudged by Holt, Chief Justice, Gregoky and Eyres, for the 
 defendants ; Justice Dolben, e contra, because it might have been 
 pleaded in abatement. 
 
 Holt, Chief Justice : The action in this case might have been 
 brought against the master alone without question, as in the case 
 of Morse and Slue, and the. master is in the nature of an officer ; 
 it might also have been brought against the owners, because they 
 have a benefit, scil. the freight ; and if there be a default in the 
 master, they are chargeable, for the master is their servant, and 
 appointed by them. And in this case, the defendants are not 
 chargeable in respect of the ownership, but of the advantage which 
 they have by the freight ; and therefore where part of the owners 
 would employ the ship, and the others would not, in such case the 
 advantage of the voyage will belong to them who fit and employ 
 the ship, and not to them who dissented; and if any damage be 
 to the lading, the action shall be only against them who fitted 
 the ship, and not against the others ; so ownership is not the 
 foundation of this action, but the trust and recompense, and the 
 trust in this case is as well with the others, as with the defend-
 
 168 ABATEMENT. 
 
 No. 2. — Boulston v. Sandiford. 
 
 ants, for the goods were delivered to the master, and not to the 
 defendants, and the receipt of the master is the receipt of the 
 owners, soil, of all the owners who appointed him ; and in every 
 trust there is a contract implied, and the trust being in all the 
 owners, the contract shall be so also; and therefore he agreed that 
 the case of a common carrier did not differ from the present case ; 
 and if this was in the case of a common carrier, all the partners 
 ought to be joined ; for they being upon the implied contract, all 
 privies to the contract, they ought to be joined in the action, and 
 super se susceperunt extends to all ; and this not being done, the 
 defendants may take advantage of it upon the general issue: If 
 the plaintiff had declared, that in consideration he had promised to 
 pay the defendants so much, they assumed to carry such goods, and 
 non assumpserunt pleaded, he did not doubt but that the defend- 
 ants might have taken advantage upon the general issue, that this 
 promise was also with A. and B. not named, &c, and that such 
 special consideration is sufficient to charge a carrier ; he cited 
 2 Cr. 262, Rogers versus Head & Pasch, 4 Car. E. B. in the case of 
 Symonds & Darhnoll ; per Hide, C. J., the delivery makes a con- 
 tract, and the not alleging that he was a common lighterman 
 does not hurt, Palmer, 523 ; and per Holt, a carrier is bound to 
 carry as well as an innkeeper to receive guests. Also in this the 
 employment is joint, and like to the case of joint officers, they all 
 make but one person, and a breach of trust by one is the breach of 
 all : The consideration is to be paid to all, and therefore all ought 
 to be charged, and the benefit is the cause of the charge, as in 2 Cr. 
 189, in the case of Clerk & Gelly, where a man left his goods in an 
 inn, and departed for two or three days, and in the interim they 
 are stolen ; the innkeeper shall not answer for them, because he 
 had no benefit by the custody of the goods ; but if it were an horse 
 it would be otherwise : Suppose in this case the owners had brought 
 an action, the defendant shall take advantage, that some of the 
 owners are not named upon the general issue, and the case of a 
 joint bond differs, for there the deed is several ; and if one is 
 dead, there the declaration against the other alone is good; and 
 upon Non est factum he shall not have the advantage, because this 
 is his deed, and a several deed ; but because the lien is joint, there 
 if it be pleaded in abatement, that another sealed the deed, who is 
 not named, and is yet living, there judgment shall be against the 
 plaintiff; but if it was upon a contract, and Nil debet pleaded, there,
 
 SECT. II. — JOINDER OF DEFENDANTS. 169 
 
 No. 2. — Boulston v. Sandiford. -- Notes. 
 
 without question, the defendant might give in evidence that the 
 contract was between him and A B., &c, not named, and upon this 
 it would be against the plaintiff: Suppose, in this case, this had 
 been pleaded in abatement, how shall it be pleaded, — shall it be 
 that you are part-owners and that others are owners, simul cum? 
 this would not be good, for it may be that you alone employed the 
 ship: shall it be that A. and B. are owners, and employed the ship 
 simul cum you ? this would not be good without an Absque hoc 
 that you employed, as the plaintiff has supposed, and would not 
 this have amounted to the general issue; and is not this another 
 undertaking ? so that he did not see how this shall be pleaded in 
 abatement. He confessed that 7 H. 4, 8, is that in an action upon 
 the case joint-tenancy ought to be pleaded in abatement, which is 
 the only case that he knew where it ought to be pleaded in a per- 
 sonal action ; b,ut he said that this was a personal action in regard 
 of a real charge scil., for not repairing of a wall, &c, and in those 
 days, upon actions for non-feasance, Not guilty was not pleaded ; 
 but they pleaded specially, and traversed any special point alleged 
 in the declaration : and Not guilty to such actions was not pleaded 
 till after the time of the case of Yalding v. Tay, Moor, 355 ; and 
 he cited the case of Cole v. Wilkes, Hutton, 121, which was debt 
 against a joint lessee for not setting out of tithes, and held upon a 
 trial at bar, that it does not lie: but there it being found that one 
 only occupied the land, adjudged that the action w T ell lay. And he 
 said that Not guilty is a good plea in debt upon the statute for not 
 setting out of tithes, as Moor, 914, Champernoon v. Hill. He 
 said that he desired to be of opinion for the plaintiff, if he might, 
 but the law would not permit him; for though it be hard to com- 
 pel the plaintiff to take notice who are the owners, yet is it not 
 more hard, that if victuals or any other tiling be delivered to the 
 use of the ship that the plaintiff will sue the owners, when, with- 
 out question, he might have sued the master ? and so he concluded 
 for the defendant. 
 
 ENGLISH NOTES. 
 
 The above is the much-canvassed case commonly known under the 
 name of Boson v. Sandford, under which it is reported in Shower. 
 Although Shower's report gives the opinion of the several judges more 
 in detail, it adds nothing essential to the more elegant report in 
 Skinner. It has since been acknowledged, and must now be considered 
 as settled law, that the opinion of Dolbex, J., upon the point in differ-
 
 170 ABATEMENT. 
 
 No. 2. — Boulston v. Sandif ord. — Notes. 
 
 cnce was right, and the decision of the majority was wrong. Bearing 
 this in mind, the case remains still the most instructive of the old cases 
 as to joinder of defendants. The statement hy Lord Ellenborougii in 
 Govett v. Radnidfje, 3 East, G8; 6 K. Ii, 542, that the case of Boson v. 
 Sandford has beeu "shaken to its- foundation in the main points which 
 it assumed to determine," is clearly an exaggerated expression. It will 
 be observed that all the judges concur in the first of the propositions 
 stated in the above rule ; and they were likewise agreed upon the point 
 that if the matter could have been pleaded in abatement, the objection 
 could not have been taken under the general issue at the trial. Upon 
 these jjoints the decision is still unshaken. 
 
 That the non-joinder of defendants who are alleged to be jointly 
 chargeable with a duty ex contractu is pleadable in abatement, and can- 
 not be taken advantage of upon the general issue, may be considered 
 as finally settled by the decisions in Rice v. Shute (K. B. 1770), 5 Burr. 
 2611, and Abbott v. Smith (C. P. 1774), 2 Bl. 947. The latter of these 
 cases is instructive as establishing the true doctrine by older author- 
 ities in the Year Books (Mich. 35 H. 6, .38 ; Trim 9 Ed. 4, 24 B, and 
 Pasch. 10 Ed. 4, 5), which support the opinion of Dolbex, J. in Bouts- 
 ton v. Sandiford, and as pointing out the convenience of the rule, 
 namely, that "by forcing the defendant to plead this in abatement, 
 or waive it entirely, he cannot turn the plaintiff round more than once, 
 by setting up fresh partners upon every fresh action. 1 ' He is to plead the 
 whole truth of the case, and give the plaintiff a better writ (2 Bl. 951). 
 
 It may be observed that Lord Mansfield's decision in Bice v. Shute, 
 supra, is accompanied by the dictum that "all contracts with partners 
 are joint and several." But the principle that non-joinder of co-con- 
 tractors is pleadable only in abatement clearly does not rest upon this 
 dtctum, as appears from the reasoning and authorities given in Abbott v. 
 Smith. At all events that dictum is repudiated by the authority of the 
 House of Lords in Kendall v. Hamilton (1879), 4 App. Ca. 504; 48 
 L. J., C. P. 705; and it is now settled law that such a contract is only 
 several in the sense that on the death of one of the partners there arises 
 a several liability in equity of the estate of the deceased partner for the 
 partnership debts. See Kendall v. Hamilton, p. 175, post, and In re 
 Hodgson, Beckett v. Ramsdale (C. A. 1885). 31 Ch. D. 177; 55 L. J. 
 Ch. 241. 
 
 In Gravenor v. Stevens (1697), 10 Mod. 166, it was laid down as a 
 general rule that where a fact could have been pleaded in abatement, 
 it could not be assigned for error in fact upon a writ of error. Where 
 in an action on a bill of exchange it was pleaded in abatement that 
 the promise was made by A. & B. jointly with the defendant, a replica 
 tion to the effect that A. & B. were in Scotland at the commenceme it
 
 SECT. II. — JOINDER OF DEFENDANTS. 171 
 
 No. 2. — Boulston v. Sandiford. — Notes. 
 
 of the action, and had no property within the jurisdiction of the court, 
 was held bad, because the plaintiff might have proceeded to outlawry 
 against them. Sheppard v. Baillie (K. B. 1795), 6 T. R. .">27. But 
 see modern practice, infra. 
 
 In an action against A. on joint promises by A., & B. who is an out- 
 law, a plea by defendant that there is no record of outlawry against I>. 
 was considered to be in effect a plea in abatement ; and such a plea 
 when pleaded in bar was on demurrer held to be bad. Nowlan v. Geddes 
 (1801), 1 East. 634. 
 
 Where there are several partners who are living (liable on a contract), 
 one of them may be declared against as the sole debtor; and the only 
 objection to this mode of declaring is, that the plaintiff is liable to 
 be turned round by a plea in abatement. But, where the other part- 
 ner is dead, there is no room for the plea in abatement; and the action 
 lies against the survivor on the joint debt as if it had been a separate 
 debt. Richards v. Heather (1817), 1 B. & Aid. 29, per Lord Ellen- 
 
 BO ROUGH, 33. 
 
 As to obligees by bond, the law was laid down per Curiam in 
 Whelpdale's Case (1604), 5 Co. Rep. 119 A, as follows: " Where two 
 are jointly bound in a bond, although neither of them is bound by 
 himself, yet neither of them can say that the bond is not his deed, for 
 he has sealed and delivered it, and each of them is bound for the whole. 
 And therefore, if they are both sued, and one appears and the other 
 makes default, and by process of law is outlawed, he who appears should 
 be charged for the whole," and for this authorities are cited from 
 40 & 41 Eliz. It was therefore — the action being an action for debt 
 on a bill obligatory — resolved that the defendant might have pleaded 
 in abatement of the writ, but cannot plead non est factum. 
 
 So in Cabell v. Vaugham (1669), 1 Saund. 291; 1 Sid. 420 (s. n. 
 Chap-pel v. Vaugham), 1 Vent. 34, 2 Keb. 525, 528, it was held that 
 where A. is sued alone upon a bond containing a joint obligation by 
 A. & B. it is a good plea in abatement that B. sealed the bond and is 
 alive. 
 
 It will be observed that in the principal case of Boulston v. Sandiford 
 an attempt was made to distinguish Wlielj>dale , s case, on the ground that 
 it was the case of a bond and not a simple contract. But it now appears 
 clear that if the early authorities which were referred to in Abbott v. 
 Smith, 2 Bl. 247, 250, 251, had been looked at, this distinction could not 
 have been maintained. The only difference upon the point in question, 
 between a bond and a simple contract, appears to be that if a bond is 
 expressly made, as regards the persons bound, joint and several, it will 
 be in effect joint and several as to them. And so: "If three be bound 
 jointly and severally in a bond, the obligee cannot sue two of them
 
 172 ABATEMENT.' 
 
 No. 2. — Boulston v. Sandiford. — Notes. 
 
 only, but he must either sue them all or each of them separately." Per 
 Puller, J., Stratfleld v. Halliday (1790), 3 T. P. 779. 
 
 A scire facias against two defendants on a joint and several recogniz- 
 ance of four persons, without averring the other two to be dead, was 
 held bad. It was argued that on a joint and several recognizance the 
 Crown might proceed against all jointly, or against each separately; 
 but not against two out of four. It was further argued that a plea in 
 abatement was not necessary in this case, as in the case of a bond ; for a 
 bond might purport to be made by four persons though only executed by 
 three, and therefore it was necessary to put on record the fact of execu- 
 tion by all four; but a recognizance is conclusive evidence; and these 
 arguments were in effect held good. R. v. Yuan;/ and Glennie (Ex. 
 1794), 2 Anstr. 448. 
 
 When a bond is joint and several, a discharge of one by the obligee 
 has the effect of releasing both; and so if the obligee makes one of the 
 obligors his executor the other is discharged. Cheetham v. Ward 
 (1797), 1 Pos. & Pul. 630. Re Wolmershaussen (Ch. I). 1890), 62 
 L. T. 541. Put this does not apply to a judgment recovered against one 
 of several joint and several debtors. l 3 er Stirling, J., in Blijth v. 
 Fladgate (Ch. D. 1890), 1 Ch. 337, 353; 63 L. T. 546, 533. 
 
 CHANGE IN THE PRACTICE AS TO JOINDER OK DEFENDANTS. 
 
 Py 3 & 4 W. 4, c. 42 (1833) it was enacted (s. 8) as follows: "No 
 plea in abatement for the non-joinder of any person as a co-defendant 
 shall be allowed in any Court of Common Law unless it shall lie stated 
 in such plea that such person is resident within the jurisdiction of the 
 Court, and unless the place of residence of such person shall be stated 
 with convenient certainty in an affidavit verifying such plea." 
 
 And by the same statute it was (by s. 9) enacted to the effect that 'to 
 a plea in abatement for non-joinder of another person, the plaintiff may 
 reply that such person has been discharged in bankruptcy. 
 
 Under the above statute it was (in 1847) decided by the Court of 
 Common Pleas that if the defendant cannot give the plaintiff the means 
 of bringing all the parties before the court, he cannot have any plea 
 in abatement for non-joinder of contractors. It was observed that be- 
 fore the passing of the act the inconvenience was that unless the plain- 
 tiff sued all the parties to the contract, he ran the risk of a plea of 
 abatement being put on the record; and if he did sue all. and one was 
 out of the jurisdiction, he must outlaw him before he could proceed 
 against the others. The defendant in a [ilea of abatement was required 
 to allege the non-joinder of all the co-contractors, it being his duty to 
 give the plaintiff a better writ. The statute was intended to relieve the 
 plaintiff from the embarrassment, but not to relax the rules of pleading
 
 SECT. II. — JOINDER OF DEFENDANTS. 173 
 
 No. 2. — Boulston v. Sandiford. — Notes. 
 
 in favour of the defendant. J<>11 v. Lord Curzon (C. P. 1847), 4 C. B. 
 249, 16 L. J., C. P. 172. 
 
 The power of amendment under the Common Law Procedure Acts 
 already referred to (p. 172, ante) did not do away the plea of abatement 
 as to non-joinder of defendants, though they simplified the procedure 
 for setting the record right in case of such a plea being taken. 
 
 The procedure under the Judicature Acts was further simplified 
 through the abolition of pleas of abatement as above mentioned (p IGo, 
 ante), and by the wider powers of amendment as to parties and of giv- 
 ing judgment against one or more of the defendants. Orel. 1(3, Rules 4, 
 5, 6, &c. But, as the following ruling case shows, the old rules as to 
 abatement are still of great importance in regard to the question as 
 to the proper parties to an action, and the effect of a judgment where 
 defendants who might have been joined have been left out. 
 
 AMERICAN NOTES. 
 
 As to Contracts. In an action on a joint contract, it was early held, if only 
 one of the contracting parties is sued, the non-joinder of the other can be 
 taken advantage of only by plea in abatement. State v. Woram, 6 Hill (Xew 
 York), 33; 40 Am. Dec. 378; Lurlon v. Gilliam, 1 Scammon (Illinois), 577; 
 33 Am. Dec. 130; Fogg v. Virgin, 19 Maine, 352; 3(3 Am. Dec. 757; Nash v. 
 Skinner, 12 Vermont, 219 ; 36 Am. Dec. 338 ; Jones v. Pitcher, 3 Stewart & 
 Porter (Alabama), 135; 21 Am. Dec. 716. In the latter case the court 
 observe : " In the early cases in England it was held that where the action 
 was founded on contract, all the proprietors must be joined, and that the 
 non-joinder need not be pleaded in abatement, but was a good ground for 
 nonsuit at the trial: Boson v. Sandford, 2 Show. 478; 3 Mod. 321. But it 
 appears that this latter point has since been settled differently in Rice v. 
 Shule, 5 Burr. 2611, K. B. ; and in Abbot v. Smith, 2 W. Bl. 947, in the C. 
 Pleas, and that the usual practice has subsequently been to require the non- 
 joinder to be pleaded in abatement, or the exception will be waived. This 
 rule of practice is evidently most salutary ; it avoids the danger of defeat in 
 many actions for the same cause, and for the want of information very often 
 possessed by the defendants alone." The court also cite and comment on 
 G'ooetl v. Radnidge, 3 East, 62 ; Powell v. Laglon, 5 B. & P. 365 ; Max v. 
 Roberts, 12 East, 89, and Bretherlon v. Wood, 3 Brod. & B. 54. In Le Page v. 
 McCrea, 1 Wendell (Xew York), 164; 19 Am. Dec. 469, it was held that the 
 non-joinder of a defendant in contract is matter for plea in abatement : 
 Robertson v. Smith, 18 Johnson (New York), 459; 9 Am. Dec. 227; Bank of 
 Rochester v. Monteath, 1 Denio (New York), 402; 43 Am. Dec. 681. This rule 
 is also supported by Stoneg v. M' Neil I, Harper (So. Carolina), 173; Norton v. 
 Cook, 2 Watts (Penn.), 40 ; Moore v. Russell, 2 Bibb (Kentucky), 443 ; Brown 
 v. Warrant, 3 Har. & John. (Maryland), 572 ; Powers v. Spear, 3 New Hamp- 
 shire, 35; Coffee v. Eastland, Cooke (Tennessee), 159; M' Arthur v. Ladd, 5 
 Ohio, 517; Holyoke v. Loud, 69 Maine, 59; Metcalfv. Williams, 104 C. S. <):)-. 
 Douglas v. Chapin, 26 Connecticut, 76 ; Hine v. Houston, 2 Greene (Iowa), 161 ;
 
 174 ABATEMENT. 
 
 No. 2. — Boulston v. Sandif ord. — Notes. 
 
 Smith v. Cooke, 31 Maryland, ITT; 100 Am. Dec. 58; Porter v. Leache, 56 
 Michigan, 40; Maurer v. Miclay, 25 Nebraska, 575; Means v. Milliken, 33 
 Pennsylvania State, 517 ; Denis v. Willis, 47 Texas, 154; Wilson v. McCormick, 
 86 Virginia, 995; SWtes v. Imnan, 55 Mississippi, 40!). 
 
 ••As to the mode of taking advantage of a partnership in an action of 
 assumpsit, the true rule is this : If one of two partners be sued, upon a part- 
 nership demand, he must plead the matter in abatement, and set out the 
 names of the partners, so that the plaintiff may, if need be, sue them all 
 together. But if one of two partners brings a suit upon a partnership 
 demand, the defendant may take advantage of it, at the trial of the cause, for 
 he may not know, until it comes out in evidence, that the fact is so." Coffee 
 v. Eastland, Cooke (Tennessee Federal circuit court), 159. 
 
 '•This has always been the prevailing doctrine," says Professor Minor, "in 
 respect to the action of covenant and of debt, even on simple contracts; but 
 from the time that, under the sanction of Slade's Case, 4 Co., 93 a, the action 
 of trespass on the case in assumpsit came into common use as a concurrent 
 remedy with debt on promises to pay money, not under seal, it was long the 
 practice in that action to prove the non-joinder of the co-contractor at the 
 trial, upon the general issue of non-assumpsit, on the notion that a variance was 
 thereby established between the declaration and the proofs. This practice, 
 however, under the influence of Lord Mansfield, was abandoned in Rice v. 
 Shute, Burr. 2611, a case which was followed by Abbot v. Smith, 2 Wm. Bl. 
 947, and has ever since prevailed in England and America. 4 Minor Inst. 
 (2d ed.) marg. p. 630 ; Barry v. Foyles, 1 Peters, 311 ; Metcalfv. Williams, 104 
 P. S. 93; Seymour v. Minturn, 17 Johnson, 109; Williams v. Allen, 7 Cowen, 
 310; Henderson v. Hammond, 19 Alabama, 310; 1 Smith Lead. Cas. (7th Am. 
 ed.), 873, notes to Rice v. Shute." 
 
 In respect to the form of action against carriers, — 
 
 Courts are inclined to consider actions against carriers, to recover damages 
 for private injuries, as founded in tort, unless a special contract very clearly 
 appears to be made the gravamen and object of the complaint. JYeic Orleans, 
 fyc. R. Co. v. Hurst, 36 Mississippi. 000; 74 Am. Dec. 785; Hern v. M'- 
 Caughan, 32 Mississippi, 17 ; 66 Am. Dec. 592, citing Anscll v. Walerhouse, 
 M. & S. 385; Pozzi v. Shipton, 8 Add. & Ell. 963; Baltimore City, frc. Ry. Co. v. 
 Kemp. 01 Maryland. 619; 48 Am. Pep. 134, citing Bretherton v. Wood, 3 Brod. 
 & H. 54. 
 
 In Hawkins v. Hoffman, Hill (New York), 580. the rule is thus stated: 
 -Trover will lie where the goods have been lost to the owner by the act of 
 the carrier, though there may have been no intentional wrong; as where the 
 goods are by mistake or under a forged order delivered to the wrong person : 
 Youl v. Harbollle, Peake ('as. 49"; Devereux v. Hare/ay, 2 Hani. & Aid. 702; 
 Stephenson v. Hart, 4 Bing. 170; Lubbock v. Inglis, 1 Stark. 83. But it will 
 not lie for the mere omission of the carrier; as where the property has been 
 stolen or lost through his negligence, and so cannot be delivered to the owner. 
 The remedy in such cases is assumpsit, or a special action on the case. Anon., 
 2 Salk. 055 ; Ross v. Johnson, 5 Burr. 2825 : and see Dewell v. Moron, 1 
 Taunt. 391 ; 2 Saund. 47. f. ; M'Combie v. Davies, 6 East. 538." But as has 
 been said before, the changes wrought l>y the codes of procedure must be 
 borne in mind.
 
 SECT. II. — JOINDER OF DEFENDANTS. 175 
 
 No. 3. — Kendall v. Hamilton. — Rule. 
 
 No. 3. — KENDALL v. HAMILTON. 
 
 (ii. l. 1879.) 
 
 rule. 
 
 The abolition by the rules under the Judicature Acts of 
 pleadings in abatement makes no difference in the prin- 
 ciple of the law as to the proper parties to an action. 
 
 If A., B., and C, are jointly liable upon a contract, and 
 the creditor sues A. and B., and they make no objection, 
 the creditor may recover judgment against them. But he 
 cannot afterwards sue C. in respect of the same contract. 
 
 The plaintiffs recovered judgment against A. and B. 
 in an action against them for money advanced under a 
 credit arrangement, entered into by an agreement in writ- 
 ing between the plaintiffs and the firm, consisting of A. 
 and B. Afterwards, the judgment being unsatisfied, the 
 plaintiffs discovered that C. was interested as a partner in 
 the adventure to which the credit related. Held that, the 
 contract having passed into a judgment, the plaintiffs could 
 not maintain an action against C. for the amount which 
 remained unsatisfied. 
 
 So adjudged by the Lord Chancellor (Cairns), Lord 
 Hatherley, Lord O'Hagan, and Lord Blackburn. Dis- 
 sentiente, Lord Penzance. 
 
 Kendall v. Hamilton. 
 
 4 App. Cas. 504-54C,; 48 L. J., C. P. 705. 
 
 The following judgment of Lord Blackburn states the case, and 
 substantially expresses the ratio decidendi of the House: — 
 
 My Lords, in this case the plaintiffs entered into transactions 
 with the firm of Wilson, McLay & Co., then consisting of two per- 
 sons — Matthew Wilson and Joseph Corrie Shutters McLay. They, 
 at the request of that firm and in consequence of contracts made 
 with that firm, accepted bills and entered into other transactions, 
 the result of which was that a large sum was owing to the plaintiffs
 
 176 ABATEMENT. 
 
 No. 3. — Kendall v. Hamilton. 
 
 for which they might have maintained an action for money lent 
 against those two persons. 
 
 The plaintiffs did not, at the time when they entered into the 
 contracts which resulted in this cause of action, know that any 
 other person was interested in the contracts ; they dealt with Wil- 
 son & McLay, and with them alone, and gave credit to them alone. 
 But afterwards (in the view which I take of the case, it is imma- 
 terial when) the plaintiffs discovered that the defendant Hamilton 
 had agreed to share with Wilson & McLay in certain adventures 
 which would require the advance of money, and that "the financial 
 arrangements should be managed " by Wilson & McLay. 
 
 This amounted to an authority to Wilson & McLay to borrow 
 money for the joint account of Wilson, McLay & Hamilton, who 
 were the undisclosed principals of Wilson & McLay in the con- 
 tract of loan. And it is, I think, now firmly established as law, 
 that a person entering into a contract with one to whom, and to 
 whom alone he trusted, may, on discovering that the contractor 
 really had a principal, though he neither trusted to him nor gave 
 credit to him, nor even knew of his existence, charge that principal 
 unless something has happened to prevent his doing so. He is not 
 bound to do so. In the present case, Wilson & McLay could not, 
 if sued before the -Judicature Acts, have pleaded in abatement the 
 non-joinder of Hamilton; nor if Wilson & McLay had sued the 
 plaintiffs, could they have resisted a set-off of the money lent to 
 them, on the ground that in borrowing it they were agents for a 
 concealed principal. 
 
 I will first consider how this case would have stood at law before 
 the Judicature Acts, and then inquire what difference these Acts 
 make. I take it, for the reasons I have given, to be clear that, 
 under such circumstances as exist in the present case, the new 
 plaintiffs might have maintained an action for money lent-against 
 Hamilton, on the ground that he, jointly with Wilson & McLay, 
 being undisclosed principals to Wilson & McLay, was, as such, 
 liable to the plaintiffs. But the facts are such that Hamilton could 
 have proved a plea that the contract on which he was sued was 
 made by the plaintiffs with the defendant and Wilson & McLay, 
 jointly, and not with the defendant alone, and that the plaintiffs, 
 before action, had recovered judgment against Wilson & McLay for 
 the same loan upon the same contract. And then the question 
 would have arisen, whether a judgment recovered against one or
 
 SECT. II. — JOINDER OF DEFENDANTS. 177 
 
 No. 3. — Kendall v. Hamilton. 
 
 more of several joint contractors was (without satisfaction) a bar 
 to an action against another joint contractor sued alone. The 
 decision in King v. Hoare, 13 M. & W. 4 ( J4, was that it is a bar. 
 
 I have already said that, in my view of the matter, it was imma- 
 terial when the plaintiffs first discovered that they had a right to 
 have this recourse against Hamilton, which they had never bar- 
 gained for, and which was to them a piece of pure good luck. If 
 the principle on which King v. Hoare, supra, was decided had been 
 that, by suing some he had elected to take them as his debtors to 
 the exclusion of those whom he had not joined in the action, it 
 would be material ; for I assent to the argument that there cannot 
 be election until there is knowledge of the right to elect. But 
 King v. Hoare, supra, proceeded on the ground that, the judgment 
 being for the same cause of action, that cause of action was gone. 
 Transmit in rem judicatam, which was a bar, partly on positive 
 decision, and partly on the ground of public policy, that there 
 should be an end of litigation, and that there should not be a vexa- 
 tious succession of suits for the same cause of action. The basis of 
 the judgment was that an action against one on a joint contract 
 was an action on the same cause of action as that in an action 
 against another of the joint contractors, or in an action against all 
 the joint contractors on the same contract. 
 
 From very early times it was the law that a contract was an 
 entire thing, and that, therefore, all who were parties to the con- 
 tract must, if alive, join as plaintiffs and must be joined as defend- 
 ants. If this was not done there must be a plea in abatement 
 (Com. Dig. Abatement, E. 12, F. 8). That very learned lawyer 
 cites 7 Hen. 4, 6, and 20 Hen. 6, 11, as authorities for this, and 
 probably earlier authorities might be found, but I think it unne- 
 cessary to search for them, as it has never, as far as I know, been 
 doubted that the defendant might plead the non-joinder of his joint 
 contractors in abatement, and in that way compel the plaintiff to 
 join as defendants all who were parties to the joint contract and 
 were still alive. But there was long a controversy as to whether 
 the plea in abatement was the only way in which the objection 
 could be raised. If on the evidence it was proved that the contract 
 was joint, it was thought that there was a variance between the 
 proof of a joint contract with the parties to the action, and some 
 one not a party to the action and still alive, and the allegation m 
 the declaration which, it was thought, must be taken to be an allega- 
 vol. i. — 12
 
 178 ABATEMENT. 
 
 No. 3. — Kendall v. Hamilton. 
 
 tion of a contract between the parties to the action and no others, 
 and consequently that there should be a nonsuit or verdict for the 
 defendant on the ground of variance. This, it has now been settled, 
 is the law in cases where the objection is the non-joinder of a plain- 
 tiff; and consequently the non-joinder of a co-contractor as plaintiff 
 was never in modern times pleaded in abatement.' And it was long 
 thought by many that the same course was open to a defendant. 
 Such was the decision of Lord Holt and the Court of King's Bench 
 in Boson v. Sandford, 2 Salk. 440. My Lords, I need hardly point 
 out that if this had been still followed as law, it would have made 
 it clear that the cause of action against the one was the same as 
 that against all ; or rather that there was no cause of action at all 
 against the one alone, and never could be judgment against one 
 alone ; and so the point could never have risen. But it was estab- 
 lished by a series of cases, which may be found collected in Serjeant 
 Williams' note to Cabell v. Vaughan, 1 AVms. Saund. 290 a, that 
 though all the joint contractors must be joined as co-defendants, 
 the only way of taking advantage of the non-joinder was by a plea 
 in abatement. The first case in which I find this decided, was Bice 
 v. Shute, 5 Burr. 2611. The last in which I find it controverted, 
 though unsuccessfully, was Evans v. Lewis, 1 Wins. Saund. 291 (d); 
 Bayley on Bills, 381, 1 in 1794. But though the mode of enforcing 
 the joinder of all was thus cut down, it still remained the law that 
 all ought to be joined. And consequently I cannot doubt that the 
 Judges in King v. Hoare, 13 M. & W. 494, were accurate in holding 
 that the two actions were upon the same cause of action. I cannot 
 agree in what seems to be the opinion of the noble and learned 
 Lord on my left (Lord Penzance) that the Judicature Act has taken 
 away the right of the joint contractor to have the other joint con- 
 tractors joined as defendants, or made it a mere matter of discretion 
 in the court to permit it. With great deference I think that the 
 right remains, though the mode of enforcing it is changed. 
 
 I do not think the defence a meritorious one; but I think in the 
 present case there is no great hardship. The plaintiffs had a right 
 of recourse against Hamilton, for which they never bargained; but 
 they did nothing inequitable in taking advantage of that which 
 the law gave them. They have destroyed that remedy by taking 
 a judgment against persons who turn out to be insolvent. I do 
 not see that Hamilton does anything inequitable in taking advan- 
 1 See also Lord Ellenborocgh, in Mountstephen v. Brooke, 1 B. & Aid. 226.
 
 SECT. II. — JOINDER OF DEFENDANTS. 179 
 
 No. 3. — Kendall v. Hamilton. 
 
 tage of the defence which the law gives him. The plaintiffs got a 
 
 right by operation of law, without any merits of their own, by what, 
 .as far as regards them, was pure good luck. They have lost it by 
 what was no fault of theirs, but was, as far as they were concerned, 
 pure bad luck. If the plaintiffs were willing to take advantage of 
 their good luck against the defendant, it seems no hardship that 
 lie should take advantage of their bad luck against them. 
 
 But in such a case as King v. Hoare, 13 M. & W. 494, where the 
 plaintiff had contracted with the provisional committee of a com- 
 pany, and consequently was very uncertain how many were joint 
 •contractors, it did operate harshly. He dared not join many in the 
 first action, for, as the law then stood, if he failed as to any one he 
 failed as to all; and it does seem hard that a judgment obtained 
 under such circumstances against one should be without satisfaction 
 a bar as to all the others. This hardship is very much removed by 
 the provisions of the existing law, by which the plaintiff recovers 
 judgment against those whom he proves to be his debtors, though 
 he has joined others as defendants ; he has only to pay the costs of 
 those improperly joined. But I think that the hardness of the 
 law, even if it exist, is a reason for altering it, not for refusing to 
 act upon it ; and I think no doubt has ever been expressed, unless 
 perhaps in Ex parte Waterfall, 4 De G. & Sm. 199, that King v. 
 Hoare, 13 M. & W. 494, does truly state the law as it existed before 
 the Judicature Acts, and it was not doubted in the courts below, 
 or I think seriously questioned at the bar, that it did so. 
 
 But since the Judicature Act, 1873, § 24, law and equity are to 
 be concurrently administered. And, therefore, if before the passing 
 of those Acts the plaintiffs could have sued in equity on these facts, 
 or if they could have successfully applied for an injunction to pre- 
 vent the defendant from pleading tins defence, they may raise the 
 same point in this suit in the Common Pleas division. But the 
 Judicature Acts do not create any equity applicable to this case 
 which did not exist before. They only enable the court to admin- 
 ister the equities already existing without the delay and expense 
 formerly required. 
 
 On the first argument at your Lordships' bar, Mr. Bighy, in a 
 very excellent argument, convinced me that in cases of joint con- 
 tracts there was no difference between law and equity, except in 
 the single case of the death of one. of the parties to a joint contract, 
 where the contract was such that the maxim inter mcrcatores jus
 
 180 ABATEMENT. 
 
 No. 3. — Kendall v. Hamilton. — Notes. 
 
 accrescendi locum non habet applied ; but I was diffident of my opin- 
 ion on a question of such pure, and I might say, technical equity ; 
 and was therefore very willing that the case should be re-argued. 
 
 I have now heard the opinion of the noble and learned Lords 
 who are conversant with the proceedings in the courts of equity, 
 and have no diffidence in saying that I am of the same opinion. 
 
 ENGLISH NOTES. 
 
 The decision of the House of Lords in Kendall v. Hamilton has put 
 an end to the authority of Lord Mansfielb's dictum in A* ice v. Sit ate 
 (p. 170, ante) that "contracts .with partners are joint and several," and 
 shows that while the partners are alive their liability upon the part- 
 nership contracts is joint only. But the reason given for the decision 
 likewise shows that, although the partners are not, as such, jointly and 
 severally liable, there arises in equity oil. the death of a partner a several 
 liability of bis estate for the partnership debts. And it has been decided 
 by the Court of Appeal that a judgment recovered in an action against 
 the surviving partner is no bar to a claim against the estate of the 
 deceased partner for the same debt; nor is a claim carried in and proved 
 against such estate any bar to an action against the surviving partner. 
 In re Hodgson, Beckett v. Ramsdale (C. A. 1885), 31 Ch. D. 177, 55 
 L. J. Ch. 241. 
 
 Lord Penzance in his dissenting judgment in the last cited case tried 
 to minimise the weight of the judgment delivered by Baron Parke in 
 King v. Hoare, and set up against it the dictum of Lord Mansfield in 
 Hice v. Shute. But the result of the judgment of the House is to 
 establish conclusively the authority of the judgment in King v. Hoare. 
 
 King v. Hoare <T844), 13 M. & W. 494, was an action of debt for 
 goods sold and delivered. It was pleaded (in bar of action) that the 
 goods were sold and delivered to the defendant 11. jointly with S. ; that 
 the price became due from H. and S. jointly, and that the plaintiffs 
 had recovered judgment for the debt in an action against S. This was 
 demurred to, and after argument on the demurrer, the judgment of the 
 court was delivered by Parke, B. He said the question of substance 
 was, "Whether a judgment recovered against one of two joint contractors 
 is a bar in an action against another." He showed that where one has 
 a cause of action against another and judgment is recovered in a court 
 of record, the judgment is a bar to the original cause of .action. Transit 
 in rem judicatam. This is true where there is but one cause of action. 
 whether it be against a single person or many. The judgment of a 
 court of record changes the nature of that cause of action, and prevents 
 it being the subject of another suit, and the cause of action, being sin-
 
 SECT. II. — JOINDER OF DEFENDANTS. 181 
 
 No. 3. — Kendall v. Hamilton. — Notes. 
 
 gle, cannot afterwards be divided into two. Tims it has been held, that 
 if two commit a joint tort, the judgment against one is. of itself, with- 
 out execution, a sufficient bar to the action against the other for the 
 same cause: Brown v. Wootton, Yelv. (17. . . . We do not think that 
 the case of a joint contract can, in this respect, be distinguished from 
 a joint tort. There is but one cause of action in each case. The party 
 injured ma} - sue all the joint tort-feasors or contractors, or he may sue 
 one, subject to the right of pleading in abatement in the one case and 
 not in the other; but for the purpose of this decision they stand on the 
 same footing. Whether the action is brought against one or two, it is 
 for the same cause of action. The distinction between the case of a joint 
 and several contract is very clear. It is argued that each party to a joint 
 contract is severally liable, and so he is in one sense, — that if sued sev- 
 erally and he does not plead in abatement, he is liable to pay the entire 
 debt; but he is not severally liable in the same sense as he is on a joint 
 and several bond, which instrument, though on one piece of parchment 
 or paper, in effect comprises the joint bond of all, and the several bonds 
 of each of the obligors, and gives different remedies to the obligee." 
 
 In an action for damages to cargo brought against three persons as 
 owners of the ship, an application was made (under Ord. XVI. R. 11, of 
 the Rules of the Supreme Court, 1883) by the defendants to have three 
 other persons, alleged to be part-owners, added as defendants, it was 
 held, by a divisional court, — Lord (Jolekidge, C. J., and Hawkins, J., 
 — notwithstanding the dicta of Lord Blackburn - , p. 179, supra, that 
 the court had a discretion under the rules ; and as the court thought 
 that the omission of these defendants would not prevent them from 
 effectually doing justice, they refused the application. Leduc v. Ward 
 (Q. B. D. 1886), 54 L. T. 214. 
 
 An action is brought against A. and B. charging them as joint ac- 
 ceptors of a bill. The action is abandoned against A., and judgment 
 signed against B. A. is discharged; and that discharge is not affected 
 by the plaintiffs having obtained with defendants' consent an order to 
 set aside the judgment. Per Hawkins, J., in Ode// v. Cormack (1887), 
 19 Q. B. D. 223, 228. The decision of this point was not necessarv to 
 the judgment in Ode// v. Cormack, but in 1891, a similar point came 
 before a divisional court of the Queen's Bench Division. The plaintiff, 
 a firm of printers, had sued the defendants for the cost of printing a 
 newspaper of which they supposed him to lie sole proprietor. Final 
 judgment was signed by consent, and subsequently the plaintiff ascer- 
 tained that one T. was a partner of the defendant. The plaintiffs with 
 consent of the defendant then applied that the judgment should be set 
 aside and the writ amended by adding T. as a defendant. The court 
 held, that as the cause of action was gone against T. they had no juris-
 
 .182 ABATEMENT. 
 
 No. 3. — Kendall v. Hamilton. — Notes. 
 
 diction to make the order. Hammond v. Schofield (1891), 1 Q. B. 453: 
 60 L. J. Q. B. 539. 
 
 Plaintiff sold goods to a firm (A. & Co.) consisting of A. & B. The- 
 partnership was dissolved, and subsequently A., in the partnership name 
 (A. & Co.), accepted hills drawn by plaintiff, who was not aware of the 
 dissolution, for the price. The plaintiff sued A. & Co. as a firm (under 
 the Judicature Acts) on the hills and recovered judgment. Held, by 
 Field and Manistv, JJ., that this judgment, which was only a judg- 
 ment against A., was a bar to the plaintiff's afterwards suing B. on the 
 original contract. Cambefoot v. Chapman (1887), 19 Q. B. D. 229; 
 56 L. J. Q. B. 639. This seems to he stretching the authority of 
 Kendall v. Hamilton . In that case the plaintiff only failed to fix the 
 liability on a person on whose credit he did not bargain. The effect of 
 this judgment of Field and Manistv, JJ., was to release a person 
 on whose credit the plaintiff did bargain, and whom he throughout 
 intended to hold liable. But the case is at least a good authority for 
 the proposition that an unsatisfied judgment against one joint contractor 
 on a bill of exchange given by him alone for the joint debt, is a liar to 
 an action against the Other joint contractor on the original contract. 
 
 It follows from Kendall v. Hamilton that a defendant is entitled to 
 an order under the Judicature rules for the joinder as defendant of a 
 person who has contracted jointly with him. Pllleij v. Robinson (1887) r 
 20 Q. B. D. 155; 59 L. J. Q. B. 54. 
 
 AMERICAN NOTES. 
 
 There are in the American codes provisions for summoning one joint debtor 
 on contract to be bound by a judgment obtained against his co-debtors, where 
 he was not served with process. But the doctrine of the principal case pre- 
 vails in the United States. The latest writer on judgments. Mr. Black, says 
 (2 Judgments, § 770. a. d. 1891): "In one of the early decisions of the 
 United States Supreme Court, the position was taken by Chief Justice Mar- 
 shall, that a recovery in an action against one of the obligors on a joint bond, 
 without satisfaction, was no bar to a subsequent action against a co-obligor. 
 Sheehy v. Mandeville, <> Cranch, 253. But this ruling has been much criti- 
 cised, and although the case may never have been explicitly overruled, yet 
 the doctrine which it announced has been completely abandoned by that 
 court, and the latest utterances of the same tribunal have sanctioned an 
 exactly opposite view. Mason v. Eldred, <> Wallace, 231 ; Sessions v. Johnson. 
 95 U. S. 347; United States v. Ames, 100 U. S. 35: Ferrall v. Bradford, 2 
 Florida. 508 ; 50 Am. Dec. 293. The opinion that such a judgment does 
 not merge the cause of action against the other co-obligor appears to be still 
 adhered to in one of the States. Collins v. Lemasters, 1 Bailey Law (So. 
 Carolina), 348 ; 21 Am. Dec. 409; Union Bank v. Hodges, 11 Richardson Law 
 (So. Carolina). 480. But this stands as an exception to the universal con-
 
 SECT. II. — JOINDER OF DEFENDANTS. 183 
 
 No. 4. — Mitchell v. Tarbutt. —Rule. 
 
 sensus of opinion in England and America, and the rule is now established, 
 by nothing less than a multitude of authorities, that when- the contract or 
 obligation sued on is joint, a recovery against one of the joint contractor- 
 merges the entire cause of action and bars any subsequent suit on the same 
 obligation against the other debtors or any of them." Citing the principal 
 case and King v. Hoare, 13 Mees. & W. 494. This doctrine is supported-by 
 Trafion v. United Stales, 3 Story (U. S. Circ. Ct.), 646; Ward v. Johnson, 
 13 Massachusetts, 148; Suydam v. Barber, 18 New York. 468; 7"> Am. Dec. 
 •2.14; Smith v. Black, 9 Sergeant & Rawle (Penn.), 142; 11 Am. Dec. 686; 
 Moale v. Hollins, 11 (iill & Johnson (Maryland), 11 ; 33 Am. Dec. 684; Brown 
 v. Johnson, 13 Grattan (Virginia), b44 ; Elliot v. Purler, ."> Dana (Kentucky). 
 299 ; 30 Am. Dec. 689 ; Clinton Bank v. Hart, 5 Ohio St. 33 : Wilson v. Buell, 
 117 Ind. 315; People v. Harrison, 82 Illinois, S4 ; Bones/eel v. Todd, 9 Michi- 
 gan, 371 ; SO Am. Dec. 90; Lauer v. Bandow, 48 Wisconsin, 638. " A sepa- 
 rate judgment taken against one of several joint makers of a note, in a suit 
 to which the others are not parties, or in which steps are not taken to pre- 
 serve the right to a subsequent judgment against such others, may be pleaded 
 as a bar to a subsequent suit against those not included in the first suit or 
 judgment." Kennard v. Carter, 64 Indiana, 31. 
 
 The precise point of the principal case is approved in Dill v. White, 52 Wis- 
 consin, 456, where after speaking of the "statute enacted to give the plaintiff 
 a remedy in such a case against the joint debtor not served," the court 
 observed: "It does not give an action on the original joint obligation, 
 because that is merged in the judgment against the joint debtor or debtors 
 served with process ; but it gives a proceeding in the nature of scire facias 
 against the joint debtor not served, which may result in holding him bound 
 by the judgment in the same manner as if he had been originally sum- 
 moned." See also Yoho v. Mc Govern, 42 Ohio St. 11; Erwin v. Scotlen. 10 
 Indiana, 389. 
 
 No. 4. — MITCHELL v. TARBUTT. 
 (k. b. 1794.) 
 
 RULE. 
 
 Where the ground of action is a pure tort, the defendant 
 cannot set up, either by plea in abatement, or otherwise, 
 that others were joint wrong-doers. 
 
 Mitchell v. Tarbutt. 
 
 5 T. R. 649 (also 2 R. R. 684). 
 
 This was an action on the case for negligence, wherein tin- 
 declaration stated, That whereas one J. Jones and one G. Hol- 
 land, at the time of committing the grievance thereinafter men- 
 tioned, were possessed of a certain ship called the Albion, which
 
 184 ABATEMENT. 
 
 No. 4. — Mitchell v. Tarbutt. 
 
 was then proceeding on a voyage from Jamaica to Bristol, and 
 that there were then on board the said ship 600 hds. of sugar 
 belonging to the plaintiff; and that whereas the said G. Tarbutt, 
 N. A., J. H., I). T., and J. E. (the defendants), were at the time 
 when, &c, possessed of a ship called the Amity Hall, whereof 
 one G. Young was then master, then also sailing on the high seas, 
 and the said G. Young, their servant in that behalf, then and there 
 had the management of the said ship Amity Hall ; yet, that the 
 defendants, by their said servant, so negligently navigated their 
 ship that the said ship, by the negligence of their servant, with 
 great force struck against the said ship of Jones and Bolland, then 
 sailing with the plaintiff's goods on board, and so damaged the 
 goods that they were wholly lost to the plaintiff. To this the 
 defendants pleaded in abatement, that the grievance (if any) was 
 committed by the defendants, and one A. Shakespear, C. Bryan, 8. 
 Orr, and J. Neuffville jointly, and not by the defendants only. To 
 which there was a general demurrer, and joinder. 
 
 Giles, in support of the demurrer, was stopped by the court. 
 
 Wood, contra. If the declaration had charged a personal tort 
 on the defendants themselves, the demurrer to the plea might 
 have been sustained, because it might -have been said to have been 
 the separate trespass of each of the parties ; but the injury is 
 expressly alleged to have happened by the act of their servant, in 
 which case one of the parties cannot be answerable more than 
 another. And that is the distinction between trespass and case : 
 in the former each person to whom the act is referable is liable, 
 but in case all the parties who are answerable should be sued 
 jointly ; especially where, as in the present instance, the act com- 
 plained of is not done by themselves personally. The liability of 
 the defendants arises from their being partners of the ship, and 
 jointly responsible for the acts of their servants: and as they 
 could not have sued alone for any damage done to their own 
 vessel under these circumstances, so neither ought they to be 
 severally answerable for the acts of others. In Boson v. Sandford, 
 Skin. 278, 1 which was an action upon the case in which the plain- 
 tiff declared against the defendants as owners of a bark in which 
 his goods were, and showed that they were damaged by negligence ; 
 on a special verdict found, it was adjudged by Holt, C. J., Gregory, 
 and Eyres, that this was a good defence, even on not guilty pleaded ; 
 1 Vide No. 2. — Bouhton v. Sandiford, p. 166 supr.
 
 SECT. II. — JOINDER OF DEFENDANTS. 185 
 
 No. 4. — Mitchell v. Tarbutt. 
 
 but Dolben thought tbat it should have been pleaded in abatement. 
 The difference of opinion, therefore, Was only as to the mode in 
 which the defendant should take advantage of the objection ; for 
 all the court agreed, that he was entitled to avail himself of it in 
 some shape or other. And to that difference must be referred 
 the distinction which was taken between actions arising ex con- 
 tractu et ex delicto. But that such a plea in abatement may be 
 pleaded even to actions on the case in tort, appears from a case as 
 far back as the Year Books. 7 Hen. IV. 8. 1 A man brought a writ 
 of trespass on the case against the abbot of Stratford, and counted 
 that he held certain land in the vill, by reason whereof he ought 
 to repair a wall on the bank of the Thames ; that plaintiff had 
 lands adjoining, and that for default of reparation of the wall, his 
 meadows and pastures were drowned with water. To which 
 Skrene says, it may be that the abbot had nothing in the land, by 
 cause whereof he should be charged but jointly with another ; or 
 otherwise, that the plaintiff had nothing in the land which was 
 supposed to be surrounded with water, but jointly ; in which case 
 the one cannot answer without the other ; nor can the plaintiff sue 
 any action without the joint feoffee. Upon the whole, though this 
 would not be a good plea to an action of trespass vi ct armis, or 
 even if the defendants had been personally charged with the 
 act which occasioned the loss, yet to an action on the case, 
 where they are only charged by reason of their relation to a third 
 person, and of their joint property in the ship, the plea may be 
 maintained. 
 
 Lord Kenyon, C. J. With regard to the last case cited, there 
 certainly is a distinction in the books between cases respecting real 
 property and personal actions : where there is any dispute about 
 the title to land, all the parties must be brought before the court. 
 But upon this question it is impossible to raise a doubt. I have 
 seen the case of Boson v. Sandford, in the different books in which 
 it is reported, in all of which this doctrine is clearly established, 
 that if the cause of action arise ex contractu, the plaintiff must sue 
 all the contracting parties ; but where it arises ex delicto, the plain- 
 tiff may sue all or any of the parties, upon each of whom individu- 
 ally a separate trespass attaches. The case of Boson v. Sandford, 
 
 1 Vide Bro. Abr. tit. Joint tenancy, case does not appear to have been decided 
 pi. 12. The possession of Skrene is referred on that ground, 
 to. as one which was not denied ; but the
 
 186 ABATEMENT. 
 
 No. 4. — Mitchell v. Tarbutt. — Notes. 
 
 was treated by the whole court as an action for a breach of con- 
 tract; there indeed it was also determined that the defendant 
 might take advantage of the objection, that all the contracting 
 parties were not sued, on the plea of non assumpsit, but that being 
 found inconvenient, a contrary doctrine has been since established. 1 
 But this being an action ex delicto, the trespass is several; and it 
 is immaterial whether the tort were committed by the defendant 
 or his servant, because the rule applies, qui /"fit per alium, facit 
 per se. 
 
 Grose, J. The same distinction between the actions of tort and 
 assumpsit was laid down in Child v. Sand, Carth. 294. 
 
 Lawrence, J. In Carth. 171, it was held that an action for a 
 false return to a mandamus was founded on a tort, and that " there- 
 fore it might be either joint or several, at the election of the party, 
 as in trespass," &c. Judgment for plaintiff? 
 
 ENGLISH NOTES. 
 
 In an action on the case against certain road-trustees for nuisance by 
 reason of their works, held, after verdict, no objection that others who 
 were trustees and jointly responsible for the works ought to have been 
 joined. Sutton v. Clarke (1815), (5 Taunt. 29. 
 
 Trust funds were paid pending investment to the account of a firm of 
 solicitors, A.. B., and C. By the instrumentality of A., who was the 
 active partner in the matter, the funds were invested on insufficient 
 security in the names of A.. X., and Y. A.. X.. and Y. were shortly 
 afterwards appointed trustees of the settlement. In an action by a bene- 
 ficiary under the trust, judgment was obtained against A.. X. and Y.. 
 making them jointly and severally liable. Held, that this judgment 
 was no bar to an action by the same plaintiff against 15. and C. to make 
 them liable for negligence as solicitors in respect of the improper invest- 
 ment. For the partners were implicated in the breach of trust which was 
 committed, and the liability thence arising being ex delicto was not 
 joint merely, but joint and several. Blyth v. Fladgate (1891), 1 Ch. 
 :;:!7. 353; ('><> 1.. J. Ch. 66. (Judgment of Stirling, J.) But the 
 claim may also be regarded as arising ex contractu, and therefore sur- 
 vived against the estate of a deceased partner. lb. p. 366. 
 
 Actions against carriers have been a fertile source of conflicting 
 opinions. 
 
 1 Vide Rice v. Shute, 3 Burr. 2611: - Vide Bristou- v. James, 7 T. R. 
 Abbot v. Smith, ib 2614, 5; and Germaine 237. 
 \. Frederic, Tr. 23 Geo. III. B. IT
 
 SECT. II. JOINDER OF DEFENDANTS. 187 
 
 No. 4. — Mitchell v. Tarbutt. — Notes. 
 
 Where a common carrier has been sued on what was called the custom 
 •of the realm, it .seems to have been generally considered that the ground 
 •of action was a tort. If he did not deliver the goods he was presumed 
 to have converted them to his own use, and was sued in trover. This 
 presumption had doubtless its origin in a rude condition of the country 
 when carriers lay under the suspicions of being sometimes in collusion 
 with thieves (compare the celebrated text of the Roman law: Nautae, 
 Oaupones, &c, Dig. IV. 9). But there was a difficulty in framing the 
 declaration so as not to infringe the general rule that counts tor tort and 
 contract could not lie joined. Eventually in the case of Dickson v. 
 Clifton (17(3(5), 2 Wils. 319, common sense prevailed, and it was allowed, 
 in an action against a common carrier, to join a count in trover with a 
 count stating the promise to give due care in the carrying, and the 
 breach by negligence. 
 
 On the question, whether the ground of action in the ordinary case of 
 loss of or damage to goods in the hands of a common carrier is essentially 
 tort or contract, there has been a conflict of opinion which has not been 
 set at rest; though perhaps the question is now of little importance. 
 The authorities showing that such an action is essentially founded on 
 contract are (besides the case of Boulston v. Sandiford, p. 166, ante) 
 Buddie v. Wilson (K. B. 1795), 6 T. R. 369, 3 I£. \\. 202; Powell v. 
 Layton (C. l.\ 1806), 2 Bos. & P. N. R. 365. See also, as to carriers of 
 passengers, Alton v. Midland By. Co. (I860), 19 C. B. x. s. 213; 
 -34 L. J. C. P. 292. On the other side are Govett v. Radnidge (K. B. 
 1802), 3 East, 69; Bretherton v. Wood (C. P. 1821), 3B. & B. 54; Pozzi 
 v. Shipton (K. B. 1838), 8 Ad. & El. 963. That in certain cases a lia- 
 bility arises independently of the contract, appears from Marshall v. 
 York, &e., By. Co. (1852), 21 L. J. C. P. 3d, 11 ('. 15. 055, where a 
 servant was held entitled to sue for the loss of his baggage, though the 
 contract of carriage was made with his master: and Austin v. G. W. 
 By. Co. (1867), L. R., 2 Q. B. (per Blackburn, p. 445) 447, 36 L. d. 
 Q. B. 202. So in Foul has v. Metr. Dist. A'//. Co. (1880), 5 C. P. D. 
 117; 49 L. J. C. P. 361, where the defendant, having taken a ticket 
 issued by the S. Ry. Co., travelled in a carriage of the Metr. Dist. Ry. 
 Co.. ami was injured owing to the unsuitableness of that carriage to the 
 platform where he got out. On a review of the traffic arrangements it 
 was considered that there was a contract with the Metr. Dist. Co.. but 
 independently of that they were held liable for negligence. 
 
 AMERICAN NOTES. 
 
 In an action of tort the non-joinder of defendants is no defence. Inhabitants 
 o/Milford v. Holbrook, It Allen (.Massachusetts), 2-\ ; 85 Am. Dec. 735. -The 
 general rule in America is that the liability of two or more persons who
 
 188 ABATEMENT. 
 
 No. 5. — Sylvester's Case. — Rule. 
 
 jointly engage in the commission of a tort is joint and several, and gives the 
 same rights of action to the person injured as a joint and several contract." 
 2 Black on Judgments, § 777. See Sessions v. Johnson, 95 U. S. 34 ; Preston 
 v. Hutchinson, 29 Vermont, 14-4; Sheldon v. Kibbe, 3 Connecticut, 214; 8 Am. 
 Dec. 176; Atlantic Dock Co. v. Mayor, 53 New York, 04; Elliot v. Porter, 5 
 Dana (Kentucky), 299; 30 Am. Dec. 089; United Soc. v. Underwood, 11 
 Bush (Kentucky), 205; 21 Am. Rep. 214; Knott v. Cunningham, 2 Sneed 
 (Tennessee), 204; Turner v. Hitchcock, 20 Iowa, 310; Williams v. Sutton, 43 
 California, 05; Creed v. Hartmann, 29 New York, 591. 
 
 As a general rule, in actions in form ex delicto, for a tort committed by 
 several, the plaintiff may sue any of them, and the non-joinder of others can- 
 not he pleaded in abatement ; but when the action relates to real property. 
 if it be such as to draw in question the title, all those jointly concerned 
 should be made co-defendants. Low v. Mumford, 14 Johnson (New York), 
 420 ; 7 Am. Dec. 409. This was an action for flowing lands. The court said : 
 "In the case of Mitchell v. Tarbutt, 5 T. R. 049, Lord Kenyon recognizes this 
 distinction, and says : ' Where there is any dispute about the title to land, all 
 the parties must be brought before the court.' " This case was followed in 
 Southard v. Hill, 44 Maine, 92 ; 69 Am. Dec. 85, the court saying : " One 
 reason why the plaintiff in an action ex delicto should not be required to in- 
 clude all the tortfeasors is that he may not know them, or be able to find 
 proof against them. But where the gist of the action is that the defendants 
 are proprietors of the land, and have neglected a duty incident to their title, 
 it is otherwise." 
 
 Section III. — Various Causes of Abatement. 
 
 No. 5. — SYLVESTEK'S CASE. 
 
 (1701.) 
 
 RULE. 
 
 It is a good plea in abatement that the plaintiff is an alien 
 
 enemy. 
 
 Sylvester's Case. 
 
 7 Mod. 150. 
 
 Sylvester was a French refugee. To an action brought by 
 him, it was pleaded in abatement, that he was an alien enemy, 
 born under the ligeance of the French king, then in war witli the 
 queen. 
 
 To this there was a demurrer. 
 
 And per Curiam. The plea is good ; for though he be a poor 
 refugee, and under the queen's protection, which enables him to 
 sue, yet whether his protection be special, or general as by procla- 
 mations, he ought to plead it.
 
 SECT. III. — VAU10US CAUSES. 189 
 
 No. 5. — Sylvester's Case. Notes. 
 
 And per Curiam. If a writ be abatable in itself, as being for a 
 wrung man, the defendant may say, petit judicium de Mild, be- 
 cause there the action is ill conceived; but where the writ is 
 well conceived, but bad for misnomer, the defendant cannot con- 
 clude so. 
 
 And per Curiam. If an alien enemy come into England with- 
 out the queen's protection, he shall be seized and imprisoned by 
 the law of England, and he shall have no advantage of the law of 
 England, nor for any wrong done to him here ; but if lie has 
 a general or a special protection, it ought to come of his side in 
 
 pleading. 
 
 ENGLISH NOTES. 
 
 Pendency of another action for the same cause is a good plea in abate- 
 ment. Bowler v. Spathurst (1696), Lutw. 31. 
 
 But it is no ground for staying proceedings in an action in the Eng- 
 lish court that an action is pending between the same parties for the 
 same cause of action in a foreign country. Cox v. Mitchell (1859), 7 
 C. B., n.s. 55; 29 L. J. C. P. 33. This is followed by Mr. Justice 
 Chitty in McHenry v. Lewis (1882), 21 Ch. D. 202; 52 L. J. Ch. 325. 
 And the same principle was followed by the court of appeal in Mutrie 
 v. Binney (1887), 35 Ch. P. 614. 
 
 This last-mentioned case was an application for striking out a counter- 
 claim to have certain accounts taken, on the ground that a decree for 
 taking those accounts had been made in Honduras. The court inti- 
 mated that if the defendant had, without an action being brought against 
 him here, himself brought an action to have the accounts taken, after 
 getting a decree for that purpose in Honduras, they would have stayed 
 the action as vexatious. But since, although the decree has. been made 
 in Honduras, the action has not been finally wound up, it would be 
 wrong to strike out the counter-claim so as to prevent full justice being 
 done in the English action, having regard to the state of the Honduras 
 action. But they observed that the defendant could not be allowed to 
 raise again here &xiy questions which have been decided by a competent 
 tribunal, as between him and the plaintiff, in the Honduras action. 
 Mutrie v. Binney, supra, 35 Ch. D. 639. 
 
 In an action of contract against A. he cannot plead in abatement the 
 pendency of another action for the same cause against B. Henry v. 
 Goldney (1846), 15 M. & W. 494; 15 L. J. Exch. 298. 
 
 The following rules are established by the case of Foxtwist v. Tre- 
 maine (1670), 2 Saunders, 212. 
 
 1. It is, in general, a good plea in abatement that a plaintiff suing 
 by attorney is an infant.
 
 190 ABATEMENT. 
 
 No. 5. — Sylvester's Case. — Notes. 
 
 2. In an action by executors affecting the trust estate, if one of the 
 executors is not joined. as plaintiff, it maybe pleaded in abatement. 
 
 But, 3. If an executor is under age, the other executor, being of full 
 age, may make an attorney for him. 
 
 It is a good plea in abatement that the plaintiff has been attainted 
 of high treason. See Blsse v. Harcourt (1787), 3 Mod. 281. 
 
 It is a good plea in abatement that the plaintiff was a feme covert at 
 the time of action brought. Gravenor v. Stevens (1697), 10 Mod. 1G6. 
 
 The death of a party (as a general rule) abates an action, but where 
 the action is against several defendants in trespass, the death of one- 
 does not abate the action. Dacres v. Dunkin (1693), 2 Levinz, 82. 
 
 But where execution in the name of two has issued upon a judgment in 
 a personal action, the death of one does not abate the writ. And semble, 
 that even on the death of one after judgment execution may jiroeeed in 
 the name of the other without a scire facias. Laic x.Toothill & Rawlins 
 (1667), Carter, 193. 
 
 Actions by the administrator durante absentid as plaintiff abate by 
 the return of the absent person. Actions against him continue against 
 the complete personal representative. Clare and Hodges Claim (1690), 
 1 Lntw., fo. 342. 
 
 By the C. L. Procedure Act of 1852 (15 & 16 Vict. c. 76) it was 
 provided (§§ 136, 137, 138) that there should be no abatement of an 
 action by the death of a party if the cause of action survives; and by 
 these sections and the 92d section of the C. L. P. Act, 1851 (17 & 18 
 Vict. c. 125) a simple procedure was laid down for giving effect to this 
 provision. The question as to what causes of action survive will be 
 treated of under the topic of "Action." 
 
 By the C. L. P. Act, 1852 (15 & 16 Vict. c. 76) it was, by § 141, 
 further provided that the marriage of a woman plaintiff or defendant, 
 should not abate an action. The Act left untouched the rule that the 
 coverture of the plaintiff at the time of action brought was pleadable in 
 abatement; only in this as in other cases of non-joinder or mis-joinder 
 of plaintiffs it gave (by §§ 35 & 36) new facilities for amendment. See 
 as to "modern practice, &c," p. 163. ante. 
 
 AMERICAN NOTES. 
 
 The doctrine of the principal case is laid down in Jackson v. Henri/, 10 
 Johnson (New York), 185; Hutchinson v. Brock, 11 Massachusetts, 119; Rus- 
 sell v. Skipwilh, Binney (Penn.), 241; Bagwell v. Babe, 1 Randolph (Vir- 
 ginia), 272; Coxe v. Gulick, 5 Halstead (New Jersey), 328 ; Brinley v. Avery* 
 Kirby (Connecticut), 25. 
 
 Pendency of another and former action for the same cause in the same 
 State is a valid plea in abatement. Humphries v. Dawson, 38 Alabama, 199 ; 
 Prosser v. Chapman, 29 Connecticut, 515 ; Buffum v. Tilton, 17 Pickering, 
 (Mass.), 510 ; Grider v. Apperson, 32 Arkansas, 332.
 
 SECT. IV. — HOW PLEADED. 191 
 
 No. 6. — Warner v. Irby. — Rule. 
 
 Not .so of an action in a foreign court, or in a court of another State, or in 
 a Federal court. Lyman v. Brown, 2 Curtis (U. S.), 559; Bowne v. Joy, 9 
 Johnson (New York). 221 : Newell v. Newton, 10 Pickering (.Mass.), 170. 
 
 The following are also good grounds for the plea : that plaintiff is a fictiti- 
 ous person. Doe v. Penfield, 19 Johnson (Xew York), 308; Boston Type Foun- 
 dry v. Spooner, 5 Vermont, 93; or was dead before suit. Sandback v. Quigley, 
 8 Watts (Penn.),460; or is an infant and lias declared by attorney, Schemer- 
 horn v. Jenkins, 7 Johnson (New York), 373 ; Blood v. Harrington, 8 Pickering 
 (Mass.), 552; Smith v. Hm Houten, 4 Halsted (New Jersey), 381; or insane 
 and under guardianship. Collard v. Crane, Brayton (Vermont), 18 ; or a, feme 
 covert and her husband is not joined, Lyman v. Albee, 7 Vermont, 508; or 
 that persons suing in representative characters are not entitled. Conkey v. 
 Kingman, 21 Pickering (Mass.), 115; Childress v. Emory, 8 Wheaton (U. S. 
 Sup.). 642; Varick v. Bodine, 3 Hill (Xew York), 444; or that the alleged 
 testator is living. Hummel v. Brown, 24 Pennsylvania State, 310; coverture of 
 defendant, Surtell v. Brailsford, 2 Bay (So. Carolina), 333 ; infancy of defend- 
 ant. Penrose v. Curren, 3 Rawle (Penn.), 351 ; privilege of defendant, Forc 
 Alstyne v. Dearborn, 2 Wendell (New York), 580; /tm^/ v. Co//. 1 Day 
 (Connecticut), 12!) ; variance between writ and declaration, Pierce v. L«c#, 
 '_':'> Mississippi, 193; that alleged husband and wife are not married, Coombs 
 v. Williams, 15 Massachusetts, 243; misnomer, SmifA v. Bowker, 1 Massa- 
 chusetts, 76; defect in process, Hooper v. Jellison, 22 Pickering (Mass.). 250 ; 
 (contra) Jones v. Nelson's Executrix, 51 Alabama. 171 ; or in return, Embry v. 
 Deoinney, 8 Dana (Kentucky), 202. 
 
 The principal case is cited in Johnson v. Thirteen Bales of Goods, 2 Paine 
 (U. S. Circ. Ct.), 641, with the remark: -Although these books are not 
 esteemed very high authority, this case receives credit and respect from a 
 reference in Bacon." (As to the estimate put on Modern Reports in this 
 country, see Wallace's •• Reporters," p. 354.) 
 
 Section IV. — Requirements of a good Plea in Abatement. 
 
 No. 6. — WARNER v. IRBY. 
 (1704.) 
 
 RULE. 
 
 A plea in abatement must be pleaded with strict exactness, 
 and give the plaintiff a better writ. 
 
 Warner v. Irby. 
 
 2 Lord Ray in. 1178. 
 
 In two actions against the defendant by the name of Sir Edward 
 Irby, baronet, the defendant pleads in one thus : Et prcedictus
 
 192 ABATEMENT. 
 
 No. 6. — Warner v. Irby. — Notes. 
 
 Edwardus Irby, armiger, in propria persona sua venit et dicit, that 
 he is not a baronet ; and in the other he pleaded the same matter, 
 only with this difference, that he said only prcedictus Edwardus 
 venit, &c. The plaintiff demurred. Mr. Southonse took exception 
 to the pleas, that it was said prazdictus Edwardus, which was 
 admitting himself to be tight named, and after that he is estopped 
 to plead any misnomer. But he ought to have pleaded that Ed- 
 wardus Irby, armiger, qui per nomen Edwardi Irby, baronetti, is 
 sued, venit in propria persona sua, &c., et dicit, &c. Sergeant 
 Broderick, for the defendant, insisted that there was a difference, 
 where misnomer of the surname or addition is pleaded in abate- 
 ment, and where misnomer of the Christian name : there you may 
 say praidictus the Christian name, where it is the misnomer of the 
 surname is pleaded, or praxlictus the Christian and surname where 
 it is only the misnomer of the addition ; but otherwise if misno- 
 mer of the Christian name be pleaded. And he cited 1 Edw. IV. 
 3, and said that all the books were so. Holt seemed to doubt the 
 difference, but said, that if it were so, yet the plea was naught, for 
 want of showing what he is. For every one that will abate the 
 plaintiffs writ must give him a better. And therefore it is not 
 enough for the defendant to say, he is not a baronet, without show- 
 ing what he is. And besides, he said, one of the pleas was not 
 within his own rule, for he ought according to that to have said 
 only praidictus Edwardus, or prcedictus Edwardus Irby, and not 
 praidictus Edwardus Irby, a rm iger. But the surest way of pleading 
 it would have been to have said, venit Edwardus Irby, armiger, 
 who is sued per nomen Edwardi Irby, baronetti, et dicit, that he is 
 an esquire, and not a baronet. 
 
 The court gave judgment, that the defendant respondeat ulterius, 
 nisi, &c. 
 
 ENGLISH NOTES. 
 
 A plea in abatement is bad which docs not give the plaintiff a better 
 writ, but tends to show lie can maintain no action. Anon. (1705), 3 
 Salk. 1 ; Evans, qui tam, v. Stevens (K. B. 1791), 4 T. R. 224. 
 
 When parties went to trial upon a pica in abatement for non-joinder 
 of defendants, and it appeared in evidence that there were other co-con- 
 tractors besides those mentioned in the plea, the plea was held disproved 
 and verdict entered for the defendants, and the verdict was upheld after 
 argument upon a rule for a new trial. Crellin v. Calvert, So. me v. 
 Brook (1845), 14 M. & W. 11; 14 L. J. Exch. 375.
 
 SECT. IV. — HOW PLEADED. 193 
 
 No. 6. — Warner v. Irby. — Notes. 
 
 By the Act 4 & 5 Ann. c. 1G (1705), § 11, every dilatory plea (which 
 included pleas in abatement) must be verified by affidavit. 
 
 If the affidavit in support of the plea is insufficient, the Court will 
 set aside the plea for irregularity. Bray v. Haller (< !. P. 1818), 2 M oore, 
 213. Such a plea is a mere nullity. Garratt v. Hooper (C. P. 1831), 
 1 Dowl. 28. 
 
 The Act 3 & 4 Win. IV. c. 42 (1833), §§ 8 and 9, introduced new pro- 
 visions as to the plea of abatement for non-joinder of co-defendants (see 
 p. 172, ante). 
 
 The affidavit under 3 & 4 Win. IV. c. 42, § 8, verifying the plea of 
 abatement for non-joinder of a co-contractor, must state the place of resi- 
 dence of the co-contractor, and not merely his place of business. May- 
 bury v. Mudie (1847), 5 C. B. 283; 17 L. J., C. P. 95; Wheatley v. 
 Golney (1841), 9 Dowl. 1019. The true residence or domicile of the 
 person ought to be stated; and this satisfies the statute, although tem- 
 porarily the defendant was absent from his home, and the house occupied 
 by another person. Lambe v. Smythe (1846), 15 M. & W. 433; 15 L. J. 
 Exch. 287. 
 
 Where a mistake was made in stating the residence the plea was set 
 aside; but, upon showing that the mistake was purely accidental, the 
 defendant obtained leave to plead over. Newton v. Stewart (1846), 4 
 D. & L. 89; 15 L. J. Q. B. 384. 
 
 The affidavit must give the residence at the time of the plea, and not 
 of the commencement of the suit. White v. Gascoyne (1848), 3 Ex. 36. 
 
 As to the abolition of abatement by modern rules see p. 163, ante. 
 The requirements of the affidavit under the old practice are referred 
 to in argument in the case of Drage v. Hartopp, (1885, p. 159, ante), 
 28 Ch. D. 414; 54 L. J. Ch. 434. 
 
 AMERICAN NOTES. 
 
 The doctrine of the principal case is also that of the old American cases. Hay- 
 wood v. Cheslney, 13 Wendell (New York), 495 ; Clark v. Warner, 3 Connecticut. 
 655; Townsend v. Jeffries' Adm'r, '24 Alabama, 329; Pearson v. French, 9 Ver- 
 mont, 349; East v. Cain, 49 Michigan, 473; Ellis v. Ellis, 1 Rhode Island, 
 110. This is because these pleas are dilatory and suspicious. Clark v. 
 Warner, supra. In this plea, form is substance, and so a plea in abatement 
 in trespass, defending the "wrong and injury" instead of the "force and in- 
 jury," was held bad. Townsend v. Jeffries' Adm'r, supra. So of " writ and 
 declaration " instead of " bill and declaration." Haywood v. Chestney, supra. 
 There will be no intendment in favour of it. Pearson v. French, supra. 
 
 In this country the plea is generally required to be supported by proof of 
 its truth, as under 4 & 5 Anne, ch. 16, § 11 (4). See Am. & Eng. Ency. of 
 Law. Abatement, p. 11. These technicalities have been generally obviated 
 by the modern American codes of procedure. 
 
 VOL. I. — 13
 
 194 ACCELERATION. 
 
 Lainson v. Lainson. — Rule. 
 
 ACCELERATION. 
 
 LAINSON v. LAINSON. 
 
 (chancery, 1853, 1854.) 
 
 RULE. 
 
 Where a testator devises property to A. for life, and after 
 his death to B., and by a codicil revokes the life estate, the 
 intention, prima, facie, is to accelerate the subsequent gift. 
 and that gift comes into immediate operation, just as if the 
 life estate had been determined by death. 
 
 Lainson v. Lainson. 
 
 18 Reav. 1; 5 De G. M. & G. 754 (s. C 23 L. J. Cli. 170; 24 L. J. Cli. 46). 
 
 The testator devised his freehold estates to three trustees, upon 
 trust to pay certain annuities to his wife for life, and to his son John 
 until he should attain thirty; "and from and after such time as his 
 son should have attained his age of thirty years, or should have died 
 under that age, upon further trust" to pay the rents "to his son 
 John Lainson, for and during the term of his natural life, in case 
 lie should attain the said age of thirty years. And from and imme- 
 diately after his decease, whether he should or should not live to 
 attain the age of thirty years, to stand seised of and interested in 
 all his said freehold estates, in trust for the first and every other 
 son of his said son John Lainson," successively in tail, with divers 
 remainders over, and with an ultimate remainder to the testator's 
 own right heirs. The residuary personal estate was bequeathed on 
 trust to invest on freeholds, or leaseholds, which were to be held 
 upon the same trusts as the freeholds. 
 
 The testator's son married in May, 1844, on which occasion the 
 testator entered into a bond for his benefit. 
 
 On the 12th of June, 1844, the testator made a third codicil to 
 his will, whereby, after reciting his will, the marriage of his son, 
 and the provisions then made, he revoked the trusts for paying John
 
 ACCELERATION. 1 ( J5 
 
 Lainson v. Lainson. 
 
 Lainson the rents of his freehold and leasehold estates during his 
 life, from and after he should have attained the age of thirty years, 
 and in lieu and instead of, and in substitution for such provisions, 
 he directed his trustees to pay him an additional annuity. But he 
 retained to his son the same powers of charging the estate with 
 portions for his younger children, and jointure for his wife, which 
 he might execute as if he had been entitled to the rents for life ; 
 and the testator declared, that his trustees might exercise the powers 
 of leasing, sale, and exchange, given to them by the will, without 
 his son's consent, and " as if he had departed this life." 
 
 The testator died three days afterwards (15th June, 1844), and 
 John Lainson subsequently had a son Arthur, born in 1845. John 
 Lainson attained thirty in 1846, and the question now was, whether 
 the revocation by the codicil of the life estate to John Lainson 
 created pro tanto an intestacy as to his life estate, and enured to 
 his benefit as heir-at-law, or whether the subsequent estate to 
 Arthur Lainson became, by the revocation of the prior life estate, 
 accelerated ? 
 
 Mr. Willcock and Mr. Messiter, for the plaintiffs, the trustees and 
 executors. 
 
 Mr. C. P. Cooper and Mr. Greene, for John Lainson, the testator's 
 heir-at-law. The gift to the issue of John Lainson is only to take 
 effect " from and immediately after his (John Lainson's) death." The 
 consequence is that, until that event happens, the rents are undis- 
 posed of, and " whatever is not given to some devisee, goes to the 
 heir-at-law." Fitch v. Weber, 6 Hare, 145 ; Tregonwell v. Sydenham, 
 3 Dow. H. Lds. Cas. 206. The latter case decides distinctly that 
 there is no acceleration of the estate of the issue in tail. There the 
 testator devised estates in Dulverton to trustees for sixty years, to 
 raise two sums amounting together to £20,000, for the purchase of 
 lands, to be limited to uses held to be partially too remote ; " and 
 after the said two sums, amounting to £20,000 and expenses, should 
 be raised," the testator devised these estates to persons who had 
 died, with remainder to the plaintiff John Sydenham for life, &c. 
 The existing trusts of the lands to be purchased being too remote, 
 the House of Lords held, that John Sydenham took nothing until the 
 two charges had been raised, and that the heir-at-law was entitled 
 to the estates to be purchased with these charges as undisposed of. 
 The present case is distinguishable from the instance of " a series 
 of consecutive limitations " referred to by Jarman on Wills, vol. 1,
 
 196 ACCELERATION. 
 
 Lainson v. Lainson. 
 
 p. 515, for here the thing devised was minus the life estate of John 
 Lainson, and was not a parcelling out of the whole fee simple 
 between parties successively for life, with the remainder to others. 
 They also cited Carrick v. Errington, 2 P. Wins. 361. 
 
 Mr. R. Palmer, for the widow, who was interested in the undis- 
 posed of personal estate. 
 
 Mr. Eoupell and Mr. Murray, for the next of kin. 
 Mr. A. Smith, for trustees. 
 
 Mr. Lloyd and Mr. Speed, for Arthur Lainson. First, the life 
 estate to John Lainson being revoked, the subsequent estate of his 
 son is accelerated. The case is decided by the oldest authority. 
 Thus it is said, "If a man seised of land devise it to a monk for life, 
 witli remainder to a stranger in fee, and the devisor dies, the monk 
 being alive, in this case the remainder shall take effect presently, 
 because the monk took nothing by the devise." Perkins, Sect. 567. 
 In Fuller v. Fuller, Cro. Eliz. 422, there was a devise to Richard 
 and his heirs of his body, "and after his death without issue" to 
 Edward. Richard pre-deceased the testator, leaving issue; and one 
 question was, whether the testator's heir should have the estate 
 while any issue of the body of Richard were living, or whether 
 Edward should enter presently, it not having been limited to him 
 until the death of Richard without issue; and it was agreed by the 
 whole court that Edward should have it presently. Again, in 
 Sidney v. Shelley, 19 Yes. 352, an estate was devised to trustees for 
 ninety-nine years, upon the trusts after expressed, "and from and 
 after the expiration or other sooner determination of the said term" 
 to parties in strict settlement. No trusts having been expressed, 
 it was held that the term attended the inheritance, and that it did 
 not belong to the heir, as excepted from the devise. The same doc- 
 trine is stated in Sheppard's Touchstone, p. 435, and 1 Jarman on 
 Wills, p. 513, note (/), who observes that "the principle of the cases 
 would undoubtedly apply to the case of a devise of a life estate being 
 revoked by the testator." Pie observes that "the doctrine evidently 
 proceeds upon the supposition, that, though the ulterior devise is, 
 in terms, not to take effect in possession until the decease of the 
 prior devisee if tenant for life, or his decease without issue if ten- 
 ant in tail, yet that, in point of fact, it is to be read as a limitation 
 of a remainder, to take effect in every event which removes the 
 prior estate out of the way." The limitations here are, therefore, 
 to be read as to A. for life, and subject thereto to B.
 
 ACCELERATION. 197 
 
 Lainson v. Lainson. 
 
 Secondly, there is upon the face of the codicil an evident intention 
 that the subsequent limitation should take effect immediately, as if 
 John Lainson were dead, for the testator declares Ins trustees may 
 exercise the powers of leasing, sale, and exchange, without his con- 
 sent, and " as if my said son had departed this life." 
 
 Mr. Follett and Mr. Kinglake, for other parties. 
 
 Mr. Greene, in reply. The earlier authorities are favourable to 
 acceleration, but modern decisions tend the opposite way. This is 
 not the case of a devise to A. for life, "with remainder," or "subject 
 thereto," or "from and after the determination of A.'s estate," to B., 
 but the gift to Arthur is limited and circumscribed, and is only to 
 take effect " from and immediately after the decease " of his father. 
 The life estate is removed out of the will altogether, and there is, 
 therefore, no devise whatever of the beneficial interest until after 
 the death of John Lainson. John Lainson, it is true, is to be treated 
 as dead for some purposes, but he is considered alive for others, as 
 for executing powers of jointuring and charging portions. 
 
 Lord Garrington v. Payne, 5 Ves. 404 ; Roach v. Haynes, 6 Yes. 
 153, 8 Yes. 584; Barley v. Langworthy, 3 B. P. C. 359, were also 
 cited. 
 
 The Master of the Eolls (Sir John Bomilly). The question arose 
 upon the construction of the third codicil of the will of Alderman 
 Lainson. It may be shortly stated to this effect. The testator by 
 his will gave his real and personal estate to trustees, and directed 
 them, subject to certain payments thereout, to pay the rents to his 
 son John Lainson for life ; and from and after the decease of his 
 son, he gave the estate to his first and other sons in tail male. 
 
 By a third codicil, the testator revoked the bequest in favour of 
 his soir, and in lieu of it he gave him an annuity, but he did not, by 
 that or any other codicil, dispose of the rents of the estate during 
 the life of John Lainson his son. 
 
 The question is, whether this creates an intestacy, or an accelera- 
 tion of the estate to the son of John Lainson; and I am of opinion, 
 that it is an acceleration of the estate to the son and not an intes- 
 tacy. I have looked carefully at the authorities, and I am unable 
 to distinguish the case where a person gives an estate to another, 
 and that fails, from the case where the testator himself directs that 
 it shall fail; and although the expression used is, that the estate to 
 the son of John Lainson is only to take effect "from and after John 
 Lainson's decease," I am of opinion that the meaning is, "from and
 
 198 ACCELERATION. 
 
 Lainson v. Lainson. 
 
 after the determination of his estate by death or otherwise." In 
 deciding thus, I fulfil the intention of the testator. It is expressly 
 stated on the will, that the testator did not intend the son to take 
 the estate in addition to the annuity (which he would do if I were 
 to hold there was an intestacy), but in lieu of it. The result is, 
 that I must make a declaration that there is an acceleration of the 
 estate to the eldest son of John Lainson. 
 
 The case having been brought on appeal before the Lord Justices, 
 the decision of the Master of the Rolls was affirmed. The follow- 
 ing were the judgments pronounced. 
 
 The Lord Justice Knight Bruce. It is to be regretted, that a slip 
 in the preparation of this codicil — (a slip by way of omission) — ■ 
 lias rendered an argument on the testator's intention maintainable 
 and necessary — has rendered it necessary to attend to the whole 
 of the codicil from beginning to end. It is, however, less to be 
 regretted in this, than in many ether cases, because an attentive or 
 even a slight consideration of the whole codicil renders it clear 
 beyond a doubt, what was really the testator's meaning; namely, 
 that the previous life estate given to his son should be abolished, 
 in favour of those who were to come after, subject only to the 
 express provision made by the codicil for his son's benefit. The 
 appeal must be dismissed with costs. 
 
 The Lord Justice Turner. The question in this case is, not 
 whether an intention is to be collected in favour of the testator's 
 son and heir (who requires no intention in his favour); but whether 
 there is an intention in favour of the grandson. The question may 
 lie considered in two points of view; first, as regards the will; 
 secondly, as regards the codicil. By the will, the estate is given 
 upon trust for the testator's son for life ; and, from and immediately 
 after his decease, upon trust for his first and other sons in tail. 
 These words may have one of two imports, either that the grandson 
 was to take nothing till after the death of his father, or else merely 
 to show the order of the limitations, through which the estate was 
 to pass. I take the cases cited to establish the proposition, that 
 primd facie these words are to be understood as denoting the order 
 of succession of the limitations. Is there then anything in the will 
 to lead to a different conclusion ? I can see nothing. If John Lain- 
 son had died, there can be no doubt that the grandson would have 
 come into possession immediately ; and what difference does it make,
 
 ACCELERATION. 199 
 
 Lainson v. Lainson. — Notes. 
 
 whether the previous estate is removed by death or by revocation ? 
 The words of the codicil seem to me to confirm this view. It is 
 the clear intention of the will to dispose of all the estate for the 
 benefit of the testator's son, and his issue. The codicil does not at 
 all alter this intention, but only changes the order of succession in 
 which the devisees are to take. No doubt, a will might be drawn 
 in such a way as to show an intention that the remainderman should 
 not take till after the death of the first devisee ; but there is noth- 
 ing in this codicil to show such an intention. I agree that the 
 appeal must be dismissed with costs. 
 
 ENGLISH NOTES. 
 
 In the cases of Tregonwell v. Sydenham (1815), 3 Dow. 194, and 
 Carrick v. Errington (1726), 2 P. Williams, 361, referred to in the 
 argument, the interest was held, on failure of the devise, to go to the 
 heir-at-law; there being nothing to imply a contrary intention. In 
 the former of those cases, there was a term of sixty years given to 
 trustees upon trust to raise a sum of £20,000, and to invest it in land 
 to be held upon limitations which were void for remoteness. That 
 circumstance was held not to accelerate the estates of the persons who 
 took subject to the term. And the benefit of the £20,000 went to the 
 heir-at-law. In the latter (Carrick v. Errington), land was settled 
 by deed to A. for life, remainder to B. (a papist) for life, remainder to 
 trustees to preserve contingent remainders, remainder to the first and 
 other sons of B. successively in tail, remainder to (J. (a protestant), 
 &c. On the death of A. it was held that C.'s estate was not (by reason 
 of the then disability of papists) accelerated; for the trust was inter- 
 posed to preserve the remainders for the benefit of B.'s sons, — and 
 that the heir-at-law took the benefit during B.'s life. It was ruled 
 that if the estate had simply been limited to A. for life, remainder to 
 B. for life, remainder to C, the estate of C. would have been accelerated 
 by reason of B.'s disability. 
 
 Lainson v. Lainson was followed, and the principle of acceleration 
 applied to personalty, by Romilly, M. R., in Eavestaff v. Austin 
 !bS~>4), 19 Beav. 591; and by Peaksox, J., in In re Stephenson. 
 Stephenson v. Stephenson (1885), 54 L. J. Ch. 928; 52 L. T. 576. 
 
 In Craven v. Brady (1869), L. R. 4 Ch. 296; 38 L. J. Ch. 345, a 
 testator under a general power had appointed to his wife for life, re- 
 mainder to her son, with a proviso for forfeiture of her life estate in 
 case of her doing any act by which she deprived herself of the control 
 of the property. She married without a settlement, so that, as the
 
 200 ACCELERATION. 
 
 Lainson v. Lainson. — Notes. 
 
 law then stood, her husband came into the control of her property. It 
 was held that the remainder to the son was accelerated, and took im- 
 mediate effect. 
 
 In Jail v. Jacobs (1876), 3 Ch. D. 703, the testator gave real and 
 personal estate to his daughter during her lifetime, and after her death 
 to be equally divided between her children on their becoming of age. 
 The daughter had been one of the attesting witnesses to the will; and 
 was therefore disabled from taking, under the statute (1 Vict. c. 26, 
 § 15). V. C. Malins held that the gift to the children was accelerated, 
 and took effect immediately. This was followed by V. C. Bacon, in 
 In re Clark, Clark v. Handle (1885), 31 Ch. D. 72; 55 L. J. Ch. 89. 
 In In re Love, Green v. Tribe (1878), 47 L. J. Ch. 783, the same 
 principle was followed by Fky, J., in regard to a legacy of £1000 
 bequeathed in trust for E. for life, remainder to her children. Only, 
 there being no child in existence at the time of the will coming into 
 operation, the income which might accrue until a child was born must 
 fall into residue. 
 
 In the case of In re Townsend's estate, Townsend v. Townsend 
 (Chitty, J., 1886), 31 Ch. D. 357; 56 L. J. Ch. 237, there was a gift of 
 real and personal estate, income to A. for life, and after his death to pa} r 
 the capital and income to his children in equal shares. The will had 
 been attested by A. 's wife, so that he could not take. It was held that, 
 until he had a child, the gift of income could not be accelerated, and 
 that the income in the meantime went to the heir-at-law. But if a 
 child of A. should be born, the case of Jull v. Jacobs would apply, and 
 the interest of the children be accelerated. 
 
 It has been likewise held that a power of sale exercisable on an 
 estate coming into possession at the death of a tenant for life, is, as 
 well as the estate with which it is associated, accelerated by the sur- 
 render of the life estate. Truell v. Tyson (1856), 21 Beav. 437; 24 
 L. J. Ch. 801. A power of charging is distinguishable, on the ground 
 that to admit acceleration might lead to an undue multiplying of charges. 
 
 The principle of Lainson v. Lainson has been recognized and ap- 
 plied by the Judicial Committee of the Privy Council (in an appeal 
 from India) to the construction of a will of a native proprietor of an 
 estate in Oudh; so as to accelerate the gift in remainder, on the prior 
 gift for life to a widow failing to take effect. Ajudhia BuJcsh v. 
 Mussamut Rukmin Kuar and another (1883) L. K. 11 Ind. App. 1. 
 
 AMERICAN NOTES. 
 
 If the devisees of property for life decline to accept it, it vests in possession 
 in those to whom it was limited in remainder, and the heirs of the devisor 
 have no right to the possession of the property during the life of the first
 
 ACCELERATION. 201 
 
 Lainson v. Lainson. — Notss. 
 
 devisee. Yeaton v. Roberts, 28 New Hampshire, 459; Adams v. Gillespie, 2 
 Jones Equity (No. Carolina), 241; Macknet v. Macknet, 9 ('. E. Green 
 ( New Jersey), 277. 
 
 See note on Acceleration, 19 Abbott's New Cases (New York), 331. 
 
 A legacy payable at a future time, and not charged on land, becomes pay- 
 able presently on the legatee's death before the day of payment, if the 
 postponement was intended for his benefit; otherwise if it was intended for 
 the benefit of others. Jacobs v. Bull, 1 Watts (Penn.), 370 ; 26 Am. Dec. 72. 
 This was the case of a legacy to an infant payable in instalments, with inter- 
 est, and the court said: "the protraction of the payment was intended to 
 prevent him from the temptation to squander, incident to the possession 
 of large sums of ready money." 
 
 In Macknet v. Macknet, supra, the Chancellor said : " It is perfectly settled 
 that if an estate is devised, charged with legacies, and the legacies fail, no 
 matter how, the devisee shall have the benefit of it and take the estate. Lord 
 Alvanley, M. R., in Kennell v. Abbott, 4 Vesey, 802, 811. See also King v. 
 Denison, 1 Vesey & Bea. 200. . . . The early cases in which it was held that 
 an estate in reversion vests immediately upon the determination of the life- 
 estate upon which it is limited, by the death of the tenant for life, or by the 
 surrender or forfeiture of his estate, or his disqualification to take it, 1 Jar- 
 man on Wills, 513; Sheppard's Touchstone, 435, have been followed in this 
 country in such cases as the present." 
 
 In Yeaton v. Roberts, supra, were cited Goodright v Opie, 8 Mod. 126 ; Fuller 
 v. Fuller, Cro. Eliz. 422 ; Cranmer's Case, Dyer, 309, b. 
 
 The English doctrine of acceleration of a devise is recognized in Hinkley v. 
 House of Refuge, 40 Maryland, 461 ; 17 Am. Rep. 617, where it is said : "It is 
 certainly true that at law, if a party devise to A. for life, with remainder to 
 15., and A. renounce the devise, or the first devise be void, the remainder is 
 good, and will take effect immediately." Citing Shelley's Case, 1 Co. 101a: 
 Rector of Chedinglon's Case, id. 151; Brett v. Rig/fen, Plowd. 344; Hodgson v. 
 Ambrose, 1 Doug. 337. In this case a testator devised his property in trust for 
 his wife for life, and after her death to pay certain legacies to charities, and to 
 hold the residue for the vise of certain of his relatives. The widow elected to 
 waive the provisions of the will and take as in case of intestacy. Held, that 
 the time for the payment of the legacies to the charities was not thereby 
 hastened, and that such charities were not entitled to take until the decease 
 of the wife. The court observed : — 
 
 "But while this is the general rule, it is modified under certain circum- 
 stances by the application of the principles of equity, where it is apparent 
 that the event producing the acceleration of the time for vesting the remainder 
 in possession is not contemplated by the will, and the result produced would 
 contravene the intention of the testator. In this case, it is manifest, that it 
 was never contemplated by the testator that the legacies now claimed as pay- 
 able presently should lie paid before the death of his widow. The renuncia- 
 tion by the widow is an event not provided for by the will ; and as by that 
 event a certain portion of the principal or corpus of the estate is withdrawn 
 from the trust intended for the benefit of the children of the daughter and 
 sister of the testator, it is but equitable that they should lie indemnified or
 
 202 ACCELERATION. 
 
 Lainson v. Lainson. — Notes. 
 
 compensated as far as can be, by tbe appropriation of the benefit renounced 
 by the widow. This is not an application to compel an election, but to have 
 declared the effect of an election already made ; and in such case, the general 
 and well-established principle applies, that a court of equity will assume 
 jurisdiction to sequester the benefit intended for the refractory donee, in order 
 to secure compensation to those disappointed by the election. 2 Story, Eq. 
 Jur., Sec. 1083." The court distinguished Clark v. Tennison, 33 Maryland. 85, 
 where property having been bestowed on the wife during widowhood, with a 
 limitation over to the children after her death, it was held that the limitation 
 took effect on her remarriage. 
 
 Where a legacy is to be paid at twenty-one, and interest is given during 
 minority, if the legatee dies under age, his representatives are entitled imme- 
 diately ; but if interest is not given, they must wait until the legatee if 
 living would have become twenty-one. Merrill v. Richardson, 14 Allen 
 (Mass.), 2:39. 
 
 When a division is delayed during minority, not on account of the minor, 
 but for purposes independent of him, the minority being used only as a 
 measure of time, the division will not be accelerated by the minor's death 
 under age. Robinson v. Greene, If Rhode Island, 181, citing Coales v. Need- 
 ham, 2 Vern. 65; Carter v. Church, 1 Ch. Cas. 113 ; Boraston's Case, 3 Rep. 19 a. 
 The same is held in Titus v. Weeks, 37 Barbour (New York), 136. 
 
 In Dale v. Bartley, 58 Indiana, 101, the will devised certain lands to the 
 wife for life, to be sold on her death and the proceeds divided among certain 
 legatees, and in case of the death of any of them, their portion was to go to 
 certain others. She elected to take under the statute instead of the will. 
 It was held that the sale and division could not be had until her death, 
 because " until that time it could not be told what legatees would survive, 
 and therefore be entitled to the legacy."
 
 ACCIDENT. 20; 
 
 No. 1. — Davis v. Saunders. — Rule. 
 
 ACCIDENT (Inevitable). 
 
 No. 1. — DAVIS v. SAUNDEES. 
 (k. b. 1770.) 
 
 RULE. 
 
 A person engaged in a lawful act is not responsible for 
 damage arising from a pure accident in the doing of it. 
 
 Davis v. Saunders. 
 
 2 Chitty, G39. 
 
 This was an action of trespass. The first count of the declaration 
 set forth that the defendants, with force and arms, took and carried 
 away goods and chattels of the plaintiff's (consisting of casks of 
 brandy, &c), and converted them to their own use. The second 
 count set forth that the defendants, with force and arms, broke and 
 damaged a certain sloop of the plaintiffs, whereby, &c. At the 
 assizes a verdict had been found for the defendant on the first 
 count and for the plaintiffs on the second count, subject to the opin- 
 ion of the court on the following case. That the plaintiff was owner 
 of the sloop, and the defendants owners of two other sloops. That 
 having reason to believe there was a raft of brandy left in the sea 
 by the smugglers at Torbay, several vessels went out in search of 
 it. That John Descent was the first discoverer of the raft, and laid 
 hold of it with his boat-hook ; but not being able to hold it, lie left 
 his boat-hook sticking in the cable, and which boat-hook remained 
 visible above water. That Descent still continued there, and was 
 about to return, but before he got up, Davis, the plaintiff, fixed his 
 anchor to the cable to which the raft of casks was fastened, and 
 drew them, up to the bow of the vessel. That whilst Davis was 
 getting in some of the casks, the defendants, Saunders and Full in 
 one boat, and Cookes and Bartlett in the other, came up, and each 
 got hold of another part of the raft. That whilst they had so hold, 
 by the rolling of the sea and blowing of the wind their ships drove 
 against the plaintiff's vessel, and did lv'ui damage to the amount of
 
 204 ACCIDENT. 
 
 No. 1. — Davis v. Saunders. — Notes. 
 
 the verdict. That the casks which Cookes and Saunders took from 
 the raft were immediately taken to the customs and condemned 
 in the Exchequer, no one laying a claim thereto. Whether the 
 plaintiff is entitled to recover in this action for the damage done 
 to his ship. 
 
 Borland, Serjeant, for plaintiff. Plaintiff was the actual possessor 
 of the "raft. If, in the prosecution of an unlawful attempt to dis- 
 possess a man of goods in his possession, a damage is done, trespass 
 may be maintained. Even a person having an illegal possession, 
 may support this action against any person hut the legal owner. 
 Cro. Eliz. 819; 5 Co. 24(b)) Stra. 777; 1 Salk. 290; 2 Saund. 47, c. 
 Nor is the intent or design of the wrong-doer to be much considered. 
 3 Wils. 309; 2 Bla. E. 832; 3 East, 599, 601. Where a soldier, 
 exercising, discharges his musket, and hurts another; or a person 
 in shooting at one but hits another, trespass will lie. Hob. 134; 
 Stra. 596. The cpuestion here is, whether it was not an unlawful 
 attempt to dispossess plaintiff, who was in the actual possession of 
 the raft. Bro. Abr. 358. 
 
 Mansfield, for defendant. The jury have found the fact of pos- 
 session of the brandy against the plaintiff, and therefore they have 
 found, on the first count, against him ; this is decisive as to the 
 second count; if he had no possession, defendant would not be 
 guilty of wrongful act. Ld. Raym. 1399. Here the injury was 
 merely accidental. It is true, that even if it had been through 
 negligence, it must have been an action of trespass. 
 
 Burland, in reply. When the first act was unlawful, though the 
 injury had been intended to a third person, if an injury ensues to me, 
 trespass lies. It is even so in the case of felony. If in prosecution 
 of an unlawful act, a man is killed, it is murder. 
 
 The court decided generally for the defendants upon the whole 
 declaration, being of opinion that the original act of the defendants 
 was not unlawful. Judgment for defendant*. 
 
 ENGLISH NOTES. 
 The above lias been chosen as a short case embodying a general 
 principle which has been frequently applied under varying circum- 
 stances of detail in later cases. Of these Hammack v. JV/iife (1862), 11 
 C. B. K. s. 588, has been frequently cited as a leading case. It was 
 an action by a widow and administratrix, under Lord Campbell's Act 
 (9 & 10 Vict. c. 93), against the defendant for having by his negli-
 
 ACCIDENT. 205 
 
 No. 1 — Davis v. Saunders. — Notes. 
 
 gence caused the death of the intestate. The defendant had bought a 
 horse at Tattersall's, and the next day took him out to try him in 
 Finsbury Circus, a much frequented thoronghfare. According to the 
 evidence, as stated by Ekle, C. J. (p., o l .)5), the defendant was seen rid- 
 ing at a slow pace, the horse seemed restless, and the defendant was 
 holding the reins tightly, omitting nothing that he could do to avoid 
 the accident; but the horse swerved from the roadway on to the pave- 
 ment where the deceased was walking, knocked him down and injured 
 him fatally. On trial of the cause in the Lord Mayor's Court, the 
 recorder, being of opinion that there was nothing in the evidence to 
 warrant a jury in finding that the defendant had been guilty of negli- 
 gence, directed a nonsuit. This ruling was unanimously upheld after 
 argument, by the Court of Common Pleas, consisting of Ekle, C. J., 
 Williams, J., Willes, J., and Keating, J. 
 
 The judgment of the Court of Exchequer in Holmes v. Mather (1875), 
 L. E. 10 Ex. 261; 44 L. J. Exch. 170, embodies the same principle. 
 The defendant, who had two horses kept in a livery stable, wishing to try 
 them for the first time in double harness, had them harnessed together 
 in his carriage. At his request a groom drove, the defendant sitting on 
 the box beside him. After driving for a short time the horses, startled 
 by a dog which suddenly rushed out and barked at them, ran away and 
 became so unmanageable that the groom could not stop them, though 
 he could to some extent guide them. After guiding them safely round 
 several corners, the carriage was arriving at the end of a street faced 
 by a shop in another street lying at right angles. The groom tried to 
 guide the horses through this cross street to the right, but, not entirely 
 succeeding, the carriage struck against the palisades in front of the 
 shop, and knocked down a woman (the plaintiff), who was on the pave- 
 ment. There was a verdict for the defendant, leave being reserved to 
 the plaintiff to move. The case was argued partly on the question 
 whether the defendant was responsible for the groom's driving; but the 
 court, Bramwell, B., Cleasby, B., and Pollock, B., came to the 
 conclusion that, even on the assumption that the whole acts of the 
 groom were to be considered as done by the defendant, the defendant 
 was not liable. The driver had done nothing wrong, but endeavoured 
 to do what was best under the circumstances. The misfortune hap- 
 pened through the horses being so startled by the dog that they ran 
 away, with the groom and the defendant sitting beside him. "For the 
 convenience of mankind," says Mr. Baron Bkamwell (p. 267)," in 
 carrying on the affairs of life, people as they go along roads must ex- 
 pect, or put up with, such mischief as reasonable care on the part of 
 others cannot avoid." 
 
 In Manzoni v. Douglas (1880), 6 Q. B. D. 145; 50 L. J. Q. B. 289,
 
 206 ACCIDENT. 
 
 No. 1. — Davis v. Saunders. — Notes. 
 
 the same principle was again affirmed by a Divisional Court of the Com- 
 mon Pleas Division, consisting of Dexmax, J., and Lixdley, J. A 
 horse drawing a brougham had, for some unexplained cause, bolted. The 
 coachman was trying his best to stop the horse. He did not succeed. 
 The horse fell over the kerb on to the pavement in Cock spur Street; 
 and the plaintiff, who was walking there, was knocked down from behind. 
 The case was tried at the Westminster County Court, where the judge, 
 upon the authority of Ham?nac7e v. White, nonsuited the plaintiff. 
 The Divisional Court held the nonsuit to be right. 
 
 In the cases above cited in this note, the person charged with the 
 damage was engaged in an act which he had right as one of the 
 public to do. The rule above stated is not less applicable to occur- 
 rences arising from the use or exercise, by the defendant, of a right of 
 private property. But in such cases there is a different and more 
 ready presumption of negligence, — the principle of res ipsa loquitur 
 being frequently applied; and. in effect, the duty of care is more 
 exact. 
 
 In Byrne v. Boodle (1863), 2 H. & C. 722, 33 L. J. Ex. 13, the 
 plaintiff walking along the public street was damaged by a barrel of 
 flour falling from the defendant's warehouse above his shop. The fact 
 was held prima facie evidence of negligence. 
 
 In Scott v. London Dock Co. (1865), 3 H. & C. 596, 31 L. J. Ex. 
 17, 22, a custom house officer, upon his lawful business, was damaged 
 by the fall of sugar bags from a lift over a door on the defendant's 
 premises. No explanation was given of the cause of the occurrence. 
 In an appeal to the Exchequer Chamber from the Court of Exchequer, 
 the court held that evidence of negligence was necessary to make out 
 the plaintiff's case; but, by a majority, Cromptox, Byles, Blackburn 
 and Keating, JJ., against Erle, C. J., and Mellor, J., it was held 
 that the fact of the bags falling was evidence of negligence on the part 
 of the defendant or his servants. 
 
 In Briggs v. Oliver (1866), 1 H. & C. 103, 35 L. J. Ex. 163, the 
 damage was occasioned by the fall of a packing case which was rested 
 against the wall of the defendant's premises, under the care of his 
 servant in the public street. The Court by a majority — PlGOTT and 
 Bramwell, BB.. against Martin, B. — held that the fact was, 
 against the defendant, evidence of negligence. 
 
 In Kearney v. L. B. & S. C. By. Co. (1870, 1871), L. 11. 5 Q. B. 411, 
 6 Q. 15. 759, the circumstance of a brick falling out of the supports of 
 a girder-bridge, upon a person in the public road under the bridge, was 
 held evidence, against the company, of negligence on their part, in 
 not keeping the bridge in proper repair. The judgment in this case- 
 was affirmed in the Exchequer Chamber.
 
 ACCIDENT. 207 
 
 No. 1. — Davis v. Saunders. — Notes. 
 
 The case i.s different where the negligence to be inferred from the 
 fact, may be that of a person (e. g., a contractor) for whose acts the 
 defendant is hot responsible. 
 
 In Higgs v. Maynard (1866), 14 W. K. 610, the plaintiff, who was 
 at work in a passage where he had right to be, had his eye damaged by 
 broken glass from the defendant's window. The window was broken 
 by the fall of a ladder from the inside, but there was nothing to show 
 that the defendant or his' sen ants had anything to do with the ladder. 
 The court held a nonsuit to be right. 
 
 In Welfare v. L. B. & S. C. By. Co. (1869), L. E, 4 Q. B. 693; 
 38 L. J. Q. B. 241, an intending passenger looking at the time tables in 
 a Eailway Station, was damaged by a plank and roll of zinc falling 
 through the roof, by the fault (apparently and so far as there appeared 
 to be any fault) of a man on the roof, who was presumably in the employ 
 of a contractor. The court held that the circumstance did not consti- 
 tute prima fade evidence of negligence on the part of the company. 
 
 The principle of the above rule is frequently applied in cases of 
 damage by collision between ships. Of these it will be sufficient 
 briefly to mention a few examples. 
 
 It has been laid down by the judgment of the Judicial Committee of 
 the Privy Council in the case of The Marpesia (1872), L. E. 4 P. 
 C. 212, 219, that the burden of proof of negligence lies in the first 
 instance on the party seeking to be indemnified for the damage; but 
 when a prima fade case of negligence and want of due seamanship is 
 shown, the burden of proving inevitable accident lies on those charged 
 with the damage. 
 
 In the case of The William Lindsay (1873), L. E. 5 P. C. 338, 
 the ship charged with the damage had been moored to a buoy with the 
 sanction of the authorities of the port. A storm being expected, the 
 anchor had been got ready to drop. The shackle band of the buoy 
 gave way under the stress of weather; and, on the anchor being let 
 go, the windlass jammed. The ship was then driven against, and 
 damaged, another ship lying at moorings. It was held that inevitable 
 accident was established. 
 
 In the case of the Virgo S. S. (1876), 35 L. T. x. s. 519; 25 W. E. 
 397, at the critical moment when, under the circumstances, the helm 
 had to be starboarded, the steering gear was found to have gone wrong. 
 The order was given to reverse engines, but it was too late to avoid 
 the collision. It was proved that the steering gear was thoroughly 
 good in every respect when it was put up, that it had been surveyed 
 from time to time, and reported to be in perfect condition. The cause 
 of the failure was found to be the breaking of a piece of iron, in the 
 centre of which was discovered two small flaws, which could not have
 
 208 ACCIDENT. 
 
 No. 1. — Davis v. Saunders. — Notes. 
 
 been detected b} 7 any means previously. Shortly before the occurrence, 
 and to get out of the way of some barges, the helm had been put hard- 
 a-port, and the vessel had answered her helm properly. It was held 
 that the burden of proof of inevitable accident was satisfied. The cir- 
 cumstances were observed to be similar to those in the case of Head- 
 /trad v. Midland By. Co. (1867, 1869), L. R. 2 Q. B. 412, 4 Q. B. 
 379, 38 L. J. Q. B. 169, where the Railway Company, being sued for 
 damage to a passenger whom they carried, was exonerated by showing 
 that the catastrophe was caused by the breaking of a tyre through a 
 latent defect not attributed to any fault of the manufacturer, and not 
 to be detected previously to the breaking. 
 
 AMERICAN NOTES. 
 
 The general rule laid down by the principal case is universally recognized 
 in America. 
 
 In the absence of negligence, persons engaged in the prosecution of a law- 
 ful act are not liable for an accidental injury occurring in the performance 
 of it. ''The authorities all agree, that an injury resulting from a superior 
 cause, unmixed with negligence from the defendant, imposes no liability." 
 Kay on Negligence of Imposed Duties, the latest text-writer on the subject. 
 bo where a railroad is not required to be fenced, the company will not he 
 liable for killing cattle straying on it, unless negligent. Williams v. Mirlir/an 
 ( \ hi. /.'. Co., 2 Michigan, 259 ; 55 Am Dec. 59. So where water, falling on 
 noxious substances on one's land, percolates into and corrupts another's well. 
 Brown v. I/lius, 27 Connecticut, 84 ; 71 Am. Dec. 49. So in respect to com- 
 munication of fire. Fahn v. Reichart, 8 Wisconsin, 255; 76 Am. Dec. 237. So 
 where one's property is carried away by flood and deposited on the land of 
 another (unless he reclaims the property). Sheldon v. Sherman, 42 New 
 York, 484; 1 Am. Rep. 569; Livezey v. Philadelphia, 64 Penn. St. 106; 3 Am. 
 Rep. 578. So of fire by sparks from a steam engine. Hinds v Barton, 25 
 New York, 544. So of damage by a runaway horse. Brown v. Collins, 53 
 New Hampshire, 442; 16 Am. Rep. 372; Vincent v. Stinehour, 7 Vermont, 
 62 ; 29 Am. Dec. 145, and note, 149. So where one lawfully defending him- 
 self struck another, mistaking him for the assailant. Pax/on v. Boyer, 67 
 Illinois, 132; 16 Am. Rep. 615. So of one who in separating his dog from 
 another while fighting, accidentally hurts a bystander. Brown v. Kendall, 6 
 Cushing (Mass.), 292. So an innkeeper is not liable for property of his guests 
 destroyed without his negligence by accidental fire. Cutler v. Bonney, 30 
 Michigan, 259 (disapproving Hulelt v. Swift, 33 New York, 571); Merrill v. 
 Clayhorn, 23 Vermont, 177. So of snow sliding from a roof. Garland v. 
 Toivne, 55 New Hampshire, 56 ; 20 Am. Rep. 164. So of a wash-out on a 
 railroad caused by an unprecedented storm, and injuring an employee, 
 Central, Sfc. Co. v. Kent, 87 Georgia, 402 ; or a passenger, Railroad Co v. 
 Halloren, 53 Texas, 46 ; 37 Am. Rep. 744. So of an explosion of goods on a 
 carrier's premises injuring other premises. Nitro-Glycerine Case, 15 Wallace 
 (U. S. Sup. Ct.), 524.
 
 ACCIDENT. 209 
 
 No. 1. — Davis v. Saunders. — Notes. 
 
 To the same effect, The Mollie Mahler, 2 Bissell (U. S. Circ), 288 ; The Lady 
 Pike, id. 141 ; The New Jersey, Olcott (U. S. Circ), 448 ; Fergusson v. Brent, 
 12 Maryland, 33, "an opinion characterized by fine discrimination and by 
 accurate research." 1 Smith Lead. Cas., 413 ; Percival v. Hickey, 18 Johnson 
 (New York), 289; Lewis v. Flint, 54 Michigan, 55; Bennett v. Ford, 47 
 Indiana, 2(34 (runaway horse); Sutton v. Bunnell, 111 Indiana. 243 (discharge 
 of pistol); Baltimore, $fc. R. Co. v. School District, 96 Penn. St. 65; 42 Am. 
 Rep. 52!). 
 
 Overflow of water obstructed by a dam, across an abandoned river bed, 
 which was lawful when built, is to be laid to the account of Providence, and 
 not to the hand of man, if it would not have happened except for the filling 
 up of the new channel of the river by natural causes. Payne v. Kansas City, 
 frc. R. Co., 112 Missouri, 6 ; 17 Lawyers' Rep. Annotated 628. 
 
 The slipping of a wagon against and breaking a lamp post, owing to the 
 slipperiness of the street, is an inevitable accident. Roche v. Milwaukee Gas 
 Co., 5 Wisconsin, 55. See Strouse v. Whittlesey, 41 Connecticut, 559 ; 15 Am. 
 Law Reg. (n. s.), 33. 
 
 A learned review may be found in Bizzell v. Booker, 16 Arkansas, 308, a 
 case where campers were alleged to have negligently left a fire burning in the 
 woods, which communicated to and destroyed plaintiff's property. The court 
 said : " Where one is doing a lawful act, or an act not mischievous, rash. 
 reckless, or foolish, and naturally liable to result in injury to others, he is not 
 responsible for damages resulting therefrom by accident or casualty, while 
 he is in the exercise of such care and caution as a prudent man would 
 observe," &c. 
 
 By " accident " is meant an inevitable occurrence, not to be foreseen or 
 prevented by vigilance, care, and attention, and not occasioned or contributed 
 to, in any manner, by the act or omission of the defendant, his agents, ser- 
 vants, or employees. Carroll v. Staten Island R. Co., 58 N. Y. 126; 17 Am. 
 Rep. 221. An accident is an event from superior causes. Gaidt v. Humes, 20 
 Maryland, 297. Inevitable accident is one not resulting from neglect of any 
 duty. Parrot/ v. Wells, 15 Wallace (82 U. S.) 524; Brown v. Collins, 53 New 
 Hampshire, 442; Searles v. Manhattan Ry. Co, 101 Xew York, 661 ; Ohio, 
 fyc. Co. v. Lackey, 78 Illinois, 55. 
 
 But where a violent storm renders jettison necessary, to save the rest of the 
 cargo, the loss is excused. Price v. Hartshorn, 44 New York, 94 ; 4 Am. Rep. 
 6 b". 
 
 Tt has, however, been held that a carrier is liable for loss by fire unless 
 traced to lightning or other superhuman cause. Miller v. Steam Nav. Co., 
 10 Xew York, 431 ; Chicago, #"c. R. Co. v. Sawyer, 69 Illinois, 285. 
 
 So the fall of a large wooden sign, caused by an ordinary wind, may not be 
 deemed an act of God or inevitable accident. St. Louis, fyc. R. Co. v. 
 Hopkins, 54 Arkansas, 209 ; 12 Lawyers' Rep. Annotated, 189. 
 
 The collision of two vessels in the dark is not an act of God, but is an 
 inevitable accident. The Morning Light, 2 Wallace (U. S. Sup. Ct.), 560. 
 
 But the act must be lawful, and the injury unintentional and without original 
 design naturally rendering the injury possible. 
 
 VOL. I. — 14
 
 210 ACCIDENT. 
 
 No. 2. — The Uhla. — Rule. 
 
 N> an action lies for an accidental injury caused by the glancing of a bullet 
 in shooting at a mark. Welch v. Durand, 36 Connecticut, 182; I Am. Rep. 55. 
 This is put on the ground of neglect, as to time and place. The court cite a 
 case of shooting at butts with bow and arrow. Year Book, 21 Hen. VII., 28a. 
 •So in Castle v. Duryea, 32 Barbour, 480, the defendant, colonel of a militia 
 regiment, was held liable for an injury by a bullet from a gun fired in a gen- 
 eral discharge, by his order, the regiment facing the spectators about three 
 hundred and fifty feet distant. So in Cole x . Fisher, 11 Massachusetts, b>7. 
 the defendant, for the purpose of drying a gun. having discharged it at the 
 door of his shop, near the highway, causing plaintiff's horse, standing tied 
 therein, to run away and break the vehicle, was held liable. So where an 
 infant threw a piece of mortar at another, not intending to hurt him. Peter- 
 son v. Haffner, 59 Indiana, 130; 26 Am. Rep. 81 ; Conway v. Reed, 06 Mis- 
 souri, 346; 27 Am. Rep. 351. The same principle in Coming v. Corning, 
 New York, 07; Bullock v. Babcock, '■> Wendell (Xew York), 391. So where 
 one injures another in righting or wrestling. Adams v. Waggoner, 33 In- 
 diana, 531 ; Bell v. Hansley, 3 Jones Law (No. Carolina), 131 ; Dole v. Erskine, 
 :'.."> New Hampshire, 503. Or where one shoots at a fox and kills a hound, 
 Wright v. Clark, 50 Vermont, 130; or points a pistol at another. Sutton v. 
 Bonnett, 111 Indiana, 213. 
 
 Similar in principle, but involving the doctrine of proximate and remote 
 cause of injury, are the celebrated Xew York cases of Vandenburgh v. Truax, 
 1 Denio, 101, and Guille v. Swan, 19 Johnson, 381. In the former the defend- 
 ant in a quarrel with a boy in the street, chased him into plaintiff's store, 
 where the boy in endeavouring to evade him, ran against a cask of wine, 
 knocked out the faucet, and caused the wine to escape. In the latter case, 
 the defendant, an aeronaut, making an ascension, descended involuntarily and 
 violently into plaintiff's garden, and crying for help, a crowd of persons 
 rushed in and trampled the growing vegetables. The defendants w r ere held 
 liable in both cases. 
 
 No. 2. — THE UHLA. 
 
 (ADM. 1868.) 
 IJULE. 
 
 Where such ordinary diligence and skill as persons exer- 
 cise, who property discharge their duty, could have pre- 
 vented the disaster, there is not an inevitable accident. 
 
 The Uhla. 
 
 19 Law Times, v. s. 89. 
 This was an action brought in the Admiralty Court by the Fal- 
 mouth Dock Company for damage caused to their breakwater by 
 the ship Uhla, which during a gale had been abandoned by the 
 crew and left beating against the breakwater. The defences were,
 
 ACCIDENT. 211 
 
 No 2. — The Uhla. 
 
 I want of jurisdiction in the court; (2) that the damage was the 
 result of inevitable accident. 
 
 The former question having been argued, and the jurisdiction 
 having been sustained by Dr. Ltjshington, upon construction of the 
 Admiralty Court Act, 1861, the evidence was gone into upon the 
 latter defence. 
 
 Dr. LUSHINGTON (addressing the Elder Brethren of the Trinity 
 House) said : Gentlemen, — That damage was done by this vessel 
 "to the pier or jetty or breakwater in question there can be no doubt 
 whatever ; it is an admitted fact in the case, and the defence on 
 the part of those who own the vessel is couched in the following 
 words : "The damage proceeded for by the plaintiff's was not caused 
 hy any negligence or default or want of skill on the part of the 
 master or crew of the Uhla, but was the result of inevitable acci- 
 dent." Therefore we have to try whether the damage was occa- 
 sioned by any negligence, by any default, or by any want of skill 
 on the part of the master or of the crew. Then as to what inevit- 
 able accident is : you have already had one authority quoted to 
 you; but I should prefer to bring under your consideration another 
 and an earlier one. I had occasion to lay down this law very early 
 in the time that I exercised the duties of the judge of the Admir- 
 alty Court, and after great care and great caution, and as it has 
 jiever been overruled, of course I maintain and persist in it at the 
 present time : " Inevitable accident is that which a party charged 
 with an offence could not possibly prevent by the exercise of ordi- 
 nary care, caution, and maritime skill. It is not enough to show 
 that the accident could not be prevented by the party at the very 
 moment it occurred, but the question is, what previous measures 
 liave been adopted to render the occurrence of it less probable." 
 Now it appears to me that to a certain extent the doctrine laid 
 down in that case is applicable to the present, but there is another 
 case which was decided subsequently, — the case of the Europa, 14 
 Jut. 629, which I wish also to request you to consider. "Inevit- 
 able accident is where one vessel doing a lawful act without any 
 intention of harm; and using proper precautions to prevent danger, 
 unfortunately happens to run into another vessel." Of course we 
 are speaking of collisions, but the doctrine is the same. The 
 caution which the law requires is not the utmost that can be used, 
 it is sufficient that it be reasonable, such as is usual in ordinary 
 and similar cases, such as has been found by long experience- in the 
 -ordinary course of things to answer the end. that end. being the
 
 212 ACCIDENT. 
 
 No. 2. — The TJhla. 
 
 safety of life and property. I bring your attention particularly to 
 that, because we must not expect, in vessels of this kind, that the 
 master and crew should be possessed of such extraordinary nauti- 
 cal skill that they would be quite certain to discover that which is 
 the best to be done, and quite certain to do it ; but we look at the 
 general degree of intelligence, care, and caution which we find in 
 people of the same description. Having brought these matters to 
 your consideration, I have very little to say, because everything 
 has been said by counsel that can be said ; but the questions I 
 must put to you are these. I shall ask your opinion whether you 
 think that the not letting out more chain was either an act of 
 neo'lioence or an act of want of skill. That more chain could have 
 been paid out (and this is the only part of the subject upon which 
 I will venture an opinion) I cannot entertain much doubt, because 
 there was a great deal more chain ready to be let out; and con- 
 sidering the state of things, at least early in the morning, I cannot 
 understand if it was proper to let out more chain, which is entirely 
 for your consideration, why it should not have been done. Dr. 
 Deane relied very much, at the conclusion of his speech, on the 
 state of the wind and weather, and he contended that the state of 
 the wind and weather was a mitigating circumstance ; that in such 
 a state of wind and weather as there was here, which was no doubt 
 very tempestuous, there was an excuse for not adopting those 
 measures which were otherwise entirely proper and fit to be 
 adopted, and that that ought to be received as an excuse. Now 
 that is a doctrine we must look upon with great care and caution, 
 because, although I should be exceedingly reluctant to strain the 
 principle too severely against the owners or masters of any ves- 
 sel that comes into collision, yet if we relax it so far, and were to 
 introduce a lax system into our mercantile navy, the mischief in- 
 deed would be very great. With respect to striking the yards, I 
 have only to say I ask your opinion, and with respect to the sails 
 the same. The simple question I put to you is, was it right or 
 wrong to do it, or was the omission right or was the omission from 
 want of nautical skill ? Then, with respect to the abandonment of 
 the ship, I do not know that it is necessary for me to press that 
 subject upon you, unless it can be brought to this conclusion, that 
 the abandonment of the ship was an unnecessary and an improper 
 act on the part of the master and crew. I am not prepared to give 
 an opinion upon that point ; I would rather, if it is necessary, have 
 your opinion upon it. It has also been said here that the state of
 
 ACCIDENT. 211 
 
 No. 2. — The Uhla. — Notes. 
 
 the vessel and crew were such, that what happened could not he 
 avoided. If you are of opinion from the state of the crew, or the 
 injured state of the vessel, it was incompetent to do that which 
 ought to have heen done, and that that is clearly proved to he so, 
 that ought to operate as an excuse for not doing what I have just 
 mentioned to you. If you come to that conclusion, of course it 
 would he right to say that the vessel was so damaged and the crew 
 so injured that they were incompetent to do their duty. If the 
 crew were injured by accident, of course they are not to blame. 
 But you must come to that conclusion after having well considered 
 that it was in consequence of the injured state of the vessel that 
 the crew could not perform their duty. 
 
 The court and the Elder Brethren then retired, and upon their 
 return 
 
 Dr. Lushington said : I am advised by the Trinity Masters that 
 the defence in this case is not made out, — that it was not a case of 
 inevitable accident. Therefore I must pronounce for the damage. 
 
 Dr. Deane. May I ask the court what the reasons are, — what 
 the Uhla ought to have done ? 
 
 Dr. Lushingtox. I do not know whether I could express in 
 sufficiently clear and definite terms the opinion which the Trinity 
 Masters have come to : I am afraid to undertake that. I could 
 not defend their opinion in the way in which they defend it 
 themselves. 
 
 Dr. Deane. AVe are placed in this position. There is no cross 
 action here. The other side ought to have made out the omission 
 of something or the commission of something. 
 
 Dr. Lushingtox. I will state one omission ; they think you 
 ought to have slipped and made sail, and if you had done that, the 
 tide would have brought you up into a place of safety. 
 
 ENGLISH NOTES. 
 
 In the Virgil (Dec. 1842), 7 Jur. 1174, Dr. Lushington laid down 
 the rule as follows: "In law, inevitable accident is that which a 
 party charged with an offence could nor possibly prevent by the exer- 
 cise of ordinary care, caution, and maritime skill; it is not inevitable 
 accident if a vessel sailing eight or nine knots an hour, when she ought 
 to be sailing three or four. — it is not enough to say 'I could not pre- 
 vent the accident at the very moment it occurred;' could you have 
 previously adopted measures to render the occurrence of it less proba«
 
 214 ACCIDENT. 
 
 No. 2. — The Uhla. — Notes. 
 
 ble." In the ease in question, the Trinity Masters found that at the? 
 time of the collision the Virgil (the vessel charged) was sailing free, 
 the other vessel being close-hauled upon the port tack; and that the- 
 former was carrying studding sails. The defence being that the night 
 was dark and hazy, they considered the Virgil ought to have been under 
 more reduced sail, and that she was to blame. With this opinion Dr. 
 Li shington concurred. 
 
 This ruling of Dr. Lushixgtox is quite in accordance with the cases? 
 where, as well in the Common Law Court as in the Admiralty Court, 
 it has been held that although the complaining party has been to blame* 
 in the origin of a dangerous situation; yet if the other could, by the use- 
 of ordinary care, have averted the danger, he will be responsible (and in 
 admiralty cases solely responsible) for the ensuing damage. Of this 
 principle a single instance is afforded by Davies v. Mann (the oft quoted 
 donkey case, Ex. 1842), 10 M. & W. 546; 12 L. J. Ex. 10, where a 
 donkey tethered on a highway by the imprudent act of its owner, was 
 run over by a wagon negligently driven by the defendant's servant. So, 
 where a barge had negligently got in the way of a steamer, the latter was, 
 on the common-law grounds of liability, and independently of the rules 
 of the Merchant Shipping Act, held liable for a collision which she had 
 the ready means of averting. Tuff v. Warman (1857, 1858), 2 ( '. B., 
 n. s. 740; 5 C. B., n. s. 573; 26 L. J. C. P. 263; 27 L. .1. C P. 222. 
 
 The same principle was applied by the House of Lords in Cayz&rv, 
 Catron Compamj (1884), 9 App. Cas. 873; 54 L. J. P. D. & A. 18, the 
 case of a collision between two steamships, A. and 15., on the Thames. It 
 had been contended on the part of vessel A., that vessel B. had placed 
 herself where she was by a breach of the Thames navigation rules. Put 
 the House of Lords, without deciding whether this contention was sup- 
 ported by the evidence or not, held that, as vessel A. could have avoided 
 the collision by ordinary care, and, on the contrary, produced the col- 
 lision by the adoption of a dangerous and reckless course, vessel A.. 
 and not vessel B.. was responsible for the calamity which ensued. But 
 in the case of the Bywell Castle (C A. 1878), 4 B. D. 219, the Court 
 of Appeal laid down this qualification of the rule: that where a ship 
 by wrong manoeuvres has placed another in a position of extreme danger, 
 the latter is not to be held responsible if she is not manoeuvred with 
 perfect skill and presence of mind. 
 
 Smith v. L. X- S. W. By. Co. (Ex. Ch. from C. P. 1870), L. R., 6 C. P. 
 14; 40 L. J. C. P. 21, may be cited as an illustration of this rule. Tit 
 an exceptionally dry season workmen employed by a railway company to 
 trim their banks and hedges, had left the trimmings lying by the side <»f 
 the railway for a fortnight. The dry and inflammable heaps so left lying 
 had been ignited by sparks from a passing engine, and the fire burned
 
 ACCIDENT. - 1 5 
 
 No. 2. — The UWa. — Notes. 
 
 the hedge, and was thence carried by a high wind across a stubble field 
 and a public road, and destroyed the goods of the plaintiff in a cottage 
 about two hundred yards from the railway. The circumstance of the dry 
 trimmings having been so left was held evidence, to go to the jury, of 
 negligence as the proximate cause of the loss; and the plaintiff, having 
 a verdict, was allowed to hold it. 
 
 AMERICAN NOTES. 
 
 This exception has been applied to carriers. Thus a carrier is liable for 
 loss occasioned by natural elements, which might have been avoided by his 
 exercise of proper precautions. As where the transportation is unnecessarily 
 delayed, and goods are consequently subjected to damage. Michaels v. N. Y. 
 Cent. R. Co., 30 New York, 564; 86 Am. Dec. 415; American Express Co. v. 
 Smith, 33 Ohio St. 511; 31 Am. Rep. 561; Wolf v. Am. Exp. Co., 43 Mis- 
 souri, 421 ; 97 Am. Dec. 406, and note, 409 ; Richmond, Sfc. R. Co. v. Benson, 
 86 Georgia, 203; 22 Am. St. Rep. 446; or an unusually low tide brings a 
 vessel in contact with a timber projecting from a wharf, New Brunswick, ^r. 
 Co. v. Tiers, 4 Zabriskie (New Jersey), 607 ; 61 Am. Dec. 391, citing For- 
 ward v. Plttard : or a vessel is unseaworthy, Packard v. Taylor, 35 Arkansas, 
 402 ; 37 Am. Rep. 37 ; or goods are negligently allowed to remain ou a wharf, 
 Morgan v. Dibble, 29 Texas, 107 ; 91 Am. Dec. 261, 268 ; or a vessel runs on a 
 rock marked by a buoy, Fergusson v. Brent, 12 Maryland, 9 ; 71 Am. Dec. 582. 
 
 The same was held in respect to a warehouseman, in respect to goods 
 allowed to remain on a wharf and there injured by an unprecedentedly high 
 tile. Merchants', fyc. Co. v. Story, 50 Maryland, 1: 33 Am. Rep. 293. Here the 
 wharf had been submerged before, then- were signs of a high tide, and there 
 was time for the removal of the goods to a higher and safe part of the wharf. 
 So of a washout of a railway embankment by an unprecedented storm, the 
 provision for drainage at the point, however, being defective. Philadelphia, 
 Sec. R. Co. v. Anderson, 91 Perm. St. 351 ; 39 Am. Rep. 787. See also Wolf 
 v. Am. Exp. Co., 13 Missouri, 121 ; Daniels v. Ballantine. 23 Ohio State, 532; 
 Michigan Cent. R. Co. v. Burrows, 33 Michigan, 6 ; and see note 37 Am. Rep. 719. 
 
 An accident is an occurrence which happens unexpectedly from the uncon- 
 trollable operations of nature alone, and without human agency; or resulting 
 undesignedly and unexpectedly from human agency alone, or from the joint 
 operation of both. Morris v. Piatt, 32 Connecticut, 85. An unforeseen and un- 
 expected event occurring externally to the person affected by it, and of which 
 his agency is not the proximate cause. Koppcr v. Dyer, 59 Vermont, 177 ; 59 
 Am. Rep. 712. Not that which was physically impossible in the nature of 
 things to prevent, but not occasioned in any degree, either remotely in- 
 directly, by want of care or skill such as the law holds every man bound 
 to exercise. Dygert v. Bradley. 8 Wendell (New York), 173, citing Wakeman 
 v. Robinson, 1 Bing. 213. A casualty preventable by known and proper means 
 is not an " inevitable accident." Ladd v. Foster, 31 Fed. Rep. 827. 
 
 A case much in point is Washburn v. Oilman, 61 Maine, 163; 18 Am. Rep. 
 216, where the defendant was held liable for injury by refuse from his mill.
 
 216 ACCIDENT. 
 
 No. 3. — Forward v. Pittard. — Rule. 
 
 deposited without care or oversight on the ice in a stream, and washed on his 
 neighbour's land below by a freshet. " The defendant is not to be held respon- 
 sible for the freshet," said the court, " but as freshets are of frequent occur- 
 rence, he is bound to know that fact equally as any other fact occurring in the 
 course of nature, and he is liable for negligently leaving his drift stuff," &c. 
 See also Blzzell v. Booker, 16 Arkansas, 308, ante, p. 209, recognizing the dis- 
 tinction of the principal case. 
 
 No. 3. — FOEWAED v. PITTAED. 
 (K. b. 1783.) 
 
 No. 4. — NUGENT v. SMITH. 
 
 (c. a. 1876.) 
 
 RULE. 
 
 A common carrier is responsible for the goods committed 
 to him, at all events, except the act of God or of the king's 
 enemies. He is therefore liable for events which, though 
 not preventable by him, are assignable to the intervention 
 of man (other than the king's enemies), as, for instance, a 
 fire not proved to have been caused by lightning or other 
 inevitable cause of purely natural agency. 
 
 But he is not liable for an accident as to which he can 
 show that it is due to natural causes directly and ex- 
 clusively, without human intervention, and that it could 
 not have been prevented by any amount of foresight, pains, 
 and care, reasonably to be expected of him. 
 
 Forward v. Pittard. 
 1 T. R. 27; 1 R. R. 146. 
 
 This was an action on the case against the defendant as a com- 
 mon carrier, for not safely carrying and delivering the plaintiff's 
 goods. On the trial the jury found a verdict for the plaintiff, sub- 
 ject to the opinion of the court on the following case : — 
 
 The defendant was a common carrier from London to Shafts- 
 bury. On the 14th of October, 1784, the plaintiff delivered to him 
 on Wevhill twelve pockets of hops, to be carried by him to An- 
 dover, and to be by him forwarded to Shaftsbury by his public 
 road wagon, which travels from London through Andover to
 
 ACCIDENT. 217 
 
 No. 3. — Forward v. Pittard. 
 
 Shaftsbury. By the course of travelling the wagon was not to 
 leave Andover until the Saturday evening following. In the night 
 of the following day after the delivery of the hops a fire broke out 
 in a booth at the distance of one hundred yards from the booth in 
 which the defendant had deposited the hops, which burnt some 
 time with unextingnishable violence, and during that time com- 
 municated itself to the booth in which the defendant had deposited 
 the hops, and entirely consumed them, without any negligence in 
 the defendant. The fire was not occasioned by lightning. 
 
 At the conclusion of the argument, 
 
 Lord Mansfield observed : There is a nicety of distinction 
 between the act of God and inevitable necessity. In these cases 
 actual negligence is not necessary to support the action. 
 
 The court took time for consideration ; and on a subsequent day 
 
 Lord Mansfield delivered the unanimous judgment of the 
 court. 
 
 After stating the case — The question is, whether the common 
 carrier is liable in this case of fire? It appears from all the cases 
 for one hundred years back, that there are events for which the 
 carrier is liable independent of his contract. By the nature of his 
 contract, he is liable for all due care and diligence ; and for any 
 negligence he is suable on his contract. But there is a further 
 degree of responsibility by the custom of the realm, that is, by the 
 common law; a carrier is in the nature of an insurer. It is laid 
 down that he is liable for every accident, except by the act of God, 
 or the king's enemies. Now what is the act of God ? I consider 
 it to mean something in opposition to the act of man : for every- 
 thing is the act of God that happens by his permission ; everything, 
 by his knowledge. But to prevent litigation, collusion, and the 
 necessity of going into circumstances impossible to be unravelled, 
 the law presumes against the carrier, unless he shows it was done 
 by the king's enemies, or by such act as could not happen by the 
 intervention of man, as storms, lightning, and tempests. 
 
 If an armed force come to rob the carrier of the goods, he is 
 liable : and a reason is given in the books, which is a bad one, viz., 
 that he ought to have a sufficient force to repel it : but that would 
 be impossible in some cases, as for instance in the riots in the year 
 1780. The true reason is, for fear it may give room for collusion, 
 that the master may contrive to be robbed on purpose, and share 
 the spoil.
 
 218 ACCIDENT. 
 
 No. 4. — Nugent v. Smith. 
 
 In this case it does not appear but that the fire arose from the 
 act of some man or other. It certainly did arise from some act of 
 man ; for it is expressly stated not to have happened by lightning. 
 The earlier, therefore, in this case is liable, inasmuch as he is liable 
 for inevitable accident. Judgment fur the plaintiff. 
 
 Nugent v. Smith. 
 
 1 C. P. I). 10, 42.5 ; 45 L. J. Q. B. I). 19, 697. 
 
 This was an action against the defendant as secretary of a com- 
 pany who advertised a line of steamers to run between London and 
 Aberdeen, for the conveyance of passengers and goods, to recover 
 damages for the loss of a mare. 
 
 The cause was tried before Bkett, J., at the sittings in London 
 after Hilary Term, 1874, when a verdict was entered for the defen- 
 dant, leave being reserved to the plaintiff to move to enter the verdict 
 for him upon certain findings of the jury. 
 
 The case was argued upon a rule accordingly. 
 
 The facts appear from the judgment of COCKBURN, C. J., given 
 below. 
 
 Hall and Douglas Walker, for the defendant, referred to the fol- 
 lowing authorities : Liver Alkali Co. v. Johnson, L. R., 7 Ex. 267 ; 
 in error, 9 Ex. 33S ; Morse v. Slue, 3 Ker. 72, 112, 135 ; 1 Ventr. 
 190, 238; 1 Mod. 85; 2 Lev. 69; the judgment of Lord Holt in 
 Coggs v. Bernard, 2 Ld. Raym. 909 ; 1 Salk. 26 ; Jones on Bailments, 
 103; Story on Bailments, §§489, 523, 900; Angell on Carriers, 
 §§ 149, 150, 151, 154, 158 ; Lane v. Cotton, 1 Ld. Raym. 646, 653 ; 
 Abbott on Shipping (8th ed.), 345, 882 ; Pickering v. Barclay, 2 Roll. 
 Abr. 248 ; Sty. 182 ; Barclay v. Y-Gana, 8 Doug. 389 ; Lavaroni v. 
 Drury, 8 Ex. 166 : 22 L. J. (Ex.) 2 ; M'Lachlan on Shipping. 337 ; 
 Bacon's Abridgment, Carriers ; Benett v. Peninsular and Oriental 
 Steam Hunt Co., 6 ( '. B. 775 ; IS L. J. C. P. 85 ; Crouch v. London 
 and North Western By. Co., 14 C. B. 255 ; 23 L. J. C. P. 73 ; For- 
 ward v. Pitta rd, 1 T. R. 27 ; Pianeiani v. London and South West- 
 ern Tig. Co., 18 C. B. 226 ; Amies v. Stevens, 1 Str. 127 ; Trent and 
 Mersey Navigation Co. v. Wood, 3 Esp. 127 ; 4 Doug. 287 ; Smith 
 v. Shepherd, Abbott on Shipping (11th ed.), 338 ; Oakley v. Ports- 
 mouth and Byde Steam Packet Co., 11 Ex. 618; 25 L. J. Ex. 99; 
 Colt v. M'Mechen, -Tubus. Rep. (X. Y.) 160 ; Parsons on Shipping.
 
 ACCIDENT. 219 
 
 No 4. — Nugent v Smith. 
 
 ?/. 
 
 ed. 1869, c. 7, p. 253 ; Kendall v. London and Smith Western I! 
 Co., L. It., 7 Ex. 373 ; Blower v. Great Western Ry. Co., L. It., 7 C 1'. 
 855; Lawrie v. Douglas, 15 M. & W. 746; Notara v. Henderson, 
 L. R, 5 Q. B. 346; in error, 7 Q. 15. 225 ; Grill v. General Iron Screw 
 Colliery Co., L. E., 1 C. P. 600 ; in error, 3 C. P. 476. 
 
 Cohen, Q, C; and Lanyon, fur the plaintiff, relied upon the judg- 
 ment of the Court of Queen's Bench in Lloyd v. Guibert, E. E., 1 
 ty. B. 115. Cur. adv. milt. 
 
 On the 2nd of November, 1875, the judgment of the Court of 
 Common Pleas — the Court consisting of Brett and Denman, JJ. 
 - — was delivered by Brett, J. On an elaborate argument, the 
 Court came to the conclusions, 1st, that the shipowner, by carrying 
 goods for hire, without having made any express stipulation to the 
 contrary, was subject to the liability of a common carrier ; and 
 2ndly, that injuries not having been shown to have arisen from the 
 "act of God," the defendant was liable. 
 
 The defendant appealed to the Court of Appeal, and in the course 
 of the argument it was conceded that the defendant, as owner of 
 a general ship, was a common carrier, although one of the ter- 
 mini was beyond the realm. The question whether the circum- 
 stances came within the exception of the "act of God" was fully 
 argued. On the 29th of May, 1876, the following judgments were 
 delivered : — 
 
 COCKBURN, ( '. J. This case involves a question of considerable 
 importance as regards the law relating to carriers by sea ; but the 
 facts are few and simple. The plaintiff being the owner of two 
 horses, and having occasion to send them from London to Aber- 
 deen, shipped them on board a steamship belonging to the com- 
 pany of which the defendant is the representative, plying regularly 
 as a general ship between the two ports. The horses .were shipped 
 without any bill of lading. In the course of the voyage a storm of 
 more than ordinary violence arose ; and partly from the rolling of 
 the vessel in the heavy sea, partly from struggling caused by exces- 
 sive fright, one of the animals, a mare, received injuries from which 
 she died. It is to recover damages in respect of her loss that this 
 action is brought. 
 
 Tha jury, in answer to a question specifically put to them, have 
 expressly negatived any want of due care on the part of the defen- 
 dant, either in taking proper measures beforehand to protect the
 
 220 ACCIDENT. 
 
 No. 4. — Nugent v. Smith. 
 
 horses from the effect of tempestuous weather, or in doing all that 
 could be done to save them from the consequences of it after it had 
 come on. A further question put to the jury was, whether there 
 was any known means, though not ordinarily used in the convey- 
 ance of horses by people of ordinary care and skill, by which the 
 defendant could have prevented the injury to the mare ; but to this 
 question the jury returned no answer. 
 
 The question is, whether on this state of facts the shipowners are 
 liable. 
 
 For the defendant it was insisted that the storm which was the 
 primary and, in a partial degree, the proximate cause of the loss, 
 must be taken to have been an "act of God" within the legal 
 meaning of that term, so as, all due care having been taken to con- 
 vey the mare safely, to afford immunity to the defendants, as car- 
 riers, from liability in respect of the loss complained of. And 
 the question to be determined is whether this contention is well 
 founded. " 
 
 The judgment of the Common Pleas Division in favour of the 
 plaintiff, as delivered by Mr. Justice Brett, involves, if I rightly 
 understand it, the following propositions : 1. That the Roman 
 law relating to bailments has been adopted by our courts as part 
 of the common law of England; 2. That by the Roman law the 
 owners of all ships, whether common carriers or not, are equally 
 liable for loss by inevitable accident ; 3. That such is the rule of 
 English law, as derived from the Roman law, and as evidenced by 
 English authorities; 4. That to bring the cause of damage or loss 
 within the meaning of the term "act of God," so as to give 
 immunity to the carrier, the damage or loss in question must have 
 been caused directly and exclusively by such a direct and violent 
 and sudden and irresistible act of nature, as the defendant could 
 not by any .amount of ability foresee would happen ; or, if lie 
 could foresee that it would happen, he could not by any amount 
 of care and skill resist, so as to prevent its effect; 5. That, 
 notwithstanding the inability of the jury to agree to an answer 
 to the fifth question left to them, the defendant has in this case 
 failed to satisfy the burden of proof cast upon him, so as to bring 
 himself clearly within the definition, as it is impossible to say 
 that no human ability could foresee the reasonable probability 
 of the happening of rough weather on the voyage, and that a 
 horse at sea might be frightened by it, or that no human ability
 
 ACCIDENT. 22 L 
 
 No. 4. — Nugent v. Smith. 
 
 could prevent injury to a frightened horse in such weather as 
 occurred. 
 
 In no part of this reasoning am I able to concur. But before 1 
 
 proceed to deal with it, I must observe that as the vessel by which 
 the mare was shipped was one of a line of steamers plyiu" habitu- 
 ally between given ports, and carrying the goods of all comers, as 
 a general ship, and as from this it necessarily follows that the own- 
 ers were common carriers, it was altogether unnecessary to the 
 decision of the present case to determine the question, so elaborate ly 
 discussed in the judgment of Mr. Justice Brett, as to the liability 
 of the owner of a ship, not being a general ship, but one hired to 
 carry a specific cargo on a particular voyage, to make good loss or 
 damage arising from inevitable accident. 
 
 The question being, however, one of considerable importance, 
 though its importance is materially lessened by the general practice 
 of ascertaining and limiting the liability of the shipowner by char- 
 ter party or bill of lading, and the question not having before pre- 
 sented itself for judicial decision, I think it right to express my 
 dissent from the reasoning of the Court below; the more so as, for 
 the opinion thus expressed, I not only fail to discover any authority 
 whatever, but find all jurists who treat of this form of bailment 
 carefully distinguishing between the common carrier and the private 
 ship; and Parsons, a writer of considerable authorit}' on this sub- 
 ject, defines a common carrier to be " one who offers to carry goods 
 for any person between certain termini and on a certain route." 
 " He is bound to carry for all who tender to him goods and the 
 price of carriage, and insures these goods against all loss but that 
 arising from the act of God or the public enemy, and has a lien on 
 the goods for the price of the carriage." "If either of these ele- 
 ments is wanting, we say the carrier is not a common carrier either 
 by land or by water." "If we are right in this," lie adds, "no 
 vessel will be a common carrier that does not ply regularly, alone, 
 or in connection with others, on some definite route, or between two 
 Certain termini." (Parsons, Shipping, p. 245.) 
 
 Story seems to be of a like opinion. "When it is. said," he 
 observes, " that the owners and masters of ships are deemed com- 
 mon carriers, it is to be understood of such ships as are employed 
 as general ships, or for the transportation of merchandise for per- 
 sons in general, — such as vessels employed in the coasting trade, or 
 foreign trade, or on general freighting business, for all persons
 
 22:2 ACCIDENT. 
 
 No. 4. — Nugent v. Smith. 
 
 offering goods on freight for the port of destination." " But if the 
 owner of a ship employs it on his account generally, or if he lets 
 the tonnage, with a small exception, to a single person, and then, 
 for the accommodation of a particular individual, he takes goods 
 on hoard for freight, not receiving them for persons in general, he 
 will not he deemed a common carrier, hut a mere private carrier." 
 (Story on Bailments, § 501.) 
 
 So Angell, speaking of shipowners as common carriers, says* 
 "When it is said that the owners and masters of ships are treated 
 as common carriers, it is to be understood of such ships as are 
 employed for the transportation of merchandise for all persons 
 indifferently. Should the owner of a ship employ it on his; 
 account, and, for the special accommodation of a particular indi- 
 vidual, take goods on board for freight, not receiving them for 
 all persons indifferently, he does not come within the definition 
 of a common carrier, he not holding himself out as engaged in 
 a public employment." (Angell on Carriers, § 89.) But the 
 learned author does not say what would be the case where a 
 shipowner holds himself out as ready to send his vessel with 
 cargo to any place that may be agreed on, on a private bargain, 
 and not as a general ship. 
 
 In the absence of all common law authority for the proposition 
 that by the law of England every carrier by sea is subject to the 
 same liability as the common carrier, as asserted in the judgment 
 below, the authority of the Roman law is invoked ; but this law r 
 on which so much stress is laid in the judgment of the Court of 
 Common Pleas, affords no support to this doctrine. In the first 
 place, it is a misapprehension to suppose that the law of England r 
 relating to the liability of common carriers, was derived from the 
 Roman law; for the law relating to it was first established by 
 our Courts with reference to carriers by land, on whom the Roman 
 law, as is well known, imposed no liability in respect of loss beyond 
 that of other bailees for reward. In the second place, the Roman 
 law made no distinction between inevitable accident arising from 
 what in our law is termed " act of God " and inevitable accident 
 arising from other causes, but, on the contrary, afforded immunity 
 to the carrier, without distinction, wherever the loss resulted front 
 casus fortuities, or, as it is also called, damnum fa talc, or vis major, — 
 unforeseen and unavoidable accident. The language of the Praeto- 
 rian Edict, as given in the Digest, might, indeed, if it stood alone^
 
 ACCIDENT. 
 
 No. 4. — Nugent v. Smith. 
 
 lead to the supposition that the liability of the carrier by sea was 
 unlimited. "Ait praetor, nauhe, caupones, stabularii quod cujusque 
 salvum fore receperint, nisi restituant, in eos judicium dabo." 
 (Dig. IV. Tit. 9.) But Ulpian, who gives the words quoted in his 
 treatise on the Edict, explains their meaning: "Hoc edicto < mi - 
 nimodo qui recepit tenetur, etiam si sine culpa ejus res periit vel 
 damnum datum est, nisi si quid damno fatali contingit. hide 
 Labeo scribit, si quid naufragio aut per vim piratarurn perierit, 
 non esse iniquum exceptionem ei dari. Idem erit dicendum si 
 in stabulo aut in caupona vis major contigerit." In the one case 
 the absence of culpa makes no dift'erence ; in the other, it dues. 
 No difference of opinion exists amongst civilians as to the law 
 on this subject. There is no doubt that inevitable accident — 
 damnum fatale, casus fortuities, vis major (for these are synony- 
 mous terms) — exempts the carrier from liability. " Casus fortuitus," 
 says Averani, "appellatur vis major, vis divina, fatum, damnum 
 fatale, fatalitas." 
 
 Such is the Roman law, and such is the existing law of all the 
 nations which have adopted the Roman law, — France, Spain, Italy, 
 Germany, Holland, and, to come nearer home, Scotland. It is em- 
 bodied in the Code Civil of France. Treating of carriers by land 
 and water, the Code says (Art. 1754), " lis sont responsables de la 
 perte et des avaries des choses qui leur sont confides, a moins qu'ils 
 ne prouvent qu'elles out 4t6 perdues et avarices par cas fortuit ou 
 force majeure." 
 
 That such is the law of Scotland, we learn from what is said in 
 Erskine's Institutes, pp. 591, 592 n., from which it appears that by 
 that law, not only storm and pirates, but also housebreaking and 
 fire constitute damnum fatale, which will exonerate the innkeeper 
 or carrier. (See also the Appendix to Stair's Institutes, by More. 
 p. 57.) 
 
 But not only does this essential difference between the Roman 
 law and our own suffice to show that, so far as the liability of car- 
 riers is concerned, our law has not been derived from the Roman. 
 As matter of legal history, we know that the more rigorous law of 
 later times, first introduced during the reign of Elizabeth, was, in 
 the first instance, established with reference to carriers by land, to 
 whom, by the Roman law, no such liability attached. It was not 
 till the ensuing reign, in the. 11th of James I., that it was decided 
 in Rich v. Kneeland, 3 Cro. Jac. 330 ; Hob. 17, that a common
 
 224 ACCIDENT. 
 
 No. 4. — Nugent v. Smith. 
 
 hoyman or carrier by water stood on the same footing as a common 
 carrier by land, and rightly : for in principle there could be no dif- 
 ference between them. The next case in point of date, and it is 
 the first case in the books in which the liability of the owners of 
 a sea-going ship comes in question, is the well-known case of 
 Morse v. Slue, 1 Ventr. 190, 238, which is no authority for the 
 position that the liability of a common carrier attaches to the ship- 
 owner or master where the ship is not a general ship. It is men- 
 tioned in the report in Ventris that the ship was a vessel of 150 
 tons burden, bound for Cadiz, and that the goods shipped by the 
 plaintiff consisted of three trunks, containing 400 pairs of silk 
 stockings and 174 lbs. of silk. It seems idle to suppose that a 
 ship of that size would have been hired on such a voyage for the 
 purpose of carrying the plaintiffs three trunks as her entire cargo. 
 There seems, therefore, no reasonable doubt that the ship was a 
 general ship. 
 
 After commenting on the cases of Dale v. Hall, 1 Wils. 281 ; 
 Barclay v. Cuculla-y-Gana, 3 Dougl. 389 ; Lyon v. Mells, 5 East, 42S ; 
 and The Liver Alkali Company v. Johnson, L. If., 9 Exch. 338 ; 43 
 L. J. R. Exch. 216, the Lord Chief Justice observed that as the 
 decision of the Court of Exchequer Chamber in the last-mentioned 
 case proceeded on the ground that the defendant in that case was 
 a common carrier, the decision is no authority for the position 
 taken in the Court below, that all shipowners are equally liable for 
 loss by inevitable accident. I cannot, therefore [he said], concur in 
 the opinion expressed in the judgment delivered by Mr. Justice 
 Brett, that by the law of England all carriers by sea are subject 
 to the liability which by that law undoubtedly attaches to the 
 common carrier, whether by sea or by land. 
 
 But there being no doubt that in the case before us the ship- 
 owner was a common carrier, we have now to deal with the ques- 
 tion on which the decision really turns, — namely, whether the loss 
 was occasioned by what can properly be called the "act of God." 
 
 The definition which is given by Mr. Justice Buett of what is 
 termed in our law "the act of God," is that it must be such a 
 direct and violent and sudden and irresistible act of nature as 
 could not by any amount of ability have been foreseen, or, if fore- 
 seen, could not by any amount of human care and skill have been 
 resisted. The judgment then proceeds: "We cannot say, not- 
 withstanding the inability of the jury to agree to an answer to
 
 ACCIDENT. 225 
 
 No. 4. — Nusrent v. Smith 
 
 the fifth question left to them, that the defendant has in this 
 case satisfied the burden of proof cast upon him, so as to bring 
 himself clearly within the definition. It seems to me impossible 
 to say that no human ability could foresee the reasonable proba- 
 bility of the happening of rough weather on the voyage, and that 
 a horse at sea might be frightened by it, or that no human ability 
 could prevent injury to a frightened horse in such weather as 
 occurred." 
 
 The exposition here given appears to me far too wide as regards 
 the degree of care required of the shipowner, and as exacting more 
 than can properly be expected of him. 
 
 It is somewhat remarkable that previously to the present case 
 no judicial exposition has occurred of the meaning of the term 
 "act of God," as regards the degree of care to be applied by the 
 cariicr, in order to entitle himself to the benefit of its protection. 
 We must endeavour to lay down an intelligible rule. 
 
 That a storm at sea is included in the term "act of God" can 
 admit of no doubt whatever. Storm and tempest have always 
 been mentioned, in dealing with this subject, as among the in- 
 stances of vis major, coming under the denomination of ''act of 
 God." But it is equally true, as has been already pointed out, 
 that it is not under all circumstances that inevitable accident aris- 
 ing from the so-called "act of God," will, any more than inevitable 
 accident in general by the Roman and Continental law, afford 
 immunity to the carrier. This must depend on his ability to 
 avert the effects of the vis major, and the degree of diligence 
 which he is bound to apply to that end. 
 
 It is at once obvious, as was pointed out by Lord Mansfield in 
 Forward v. Pittarcl, supra, that all causes of inevitable accident, 
 casus fortuitus, may be divided into two classes, — those which are 
 occasioned by the elementary forces of nature, unconnected with 
 the agency of man, or other cause, and those which have their 
 origin either in the whole or in part in the agency of man, whether 
 in acts of com mission or omission, of nonfeasance or of misfeas- 
 ance, or in any other cause independent of the agency of natural 
 forces. 
 
 It is obvious that it would be altogether incongruous to apply 
 the term "act of God" to the latter class of inevitable accident. 
 It is equally clear that storm and tempest belong to the class to 
 which the term "act of God" is properly applicable. 
 vol. i. — 15
 
 226 ACCIDENT. 
 
 No. 4. — Nugent v. Smith. 
 
 On the other hand, it must be admitted that it is not because an 
 accident is occasioned by the agency of nature, and therefore by 
 what may be termed the "act of God," that it necessarily follows 
 that the carrier is entitled to immunity. The rain which fertilises 
 the earth, and the wind which enables the ship to navigate the 
 ocean, are as much within the term " act of God " as the rainfall 
 which causes a river to burst its banks and carry destruction over 
 a whole district, or the cyclone that drives a ship against a rock 
 or sends it to the bottom. Yet the carrier, who by the rule is 
 entitled to protection in the latter case, would clearly not be able 
 to claim it in case of damage occurring in the former, for he it 
 another principle comes into play. The carrier is bound to do 
 his utmost to protect goods committed to his charge from loss or 
 damage, and if he fails herein, becomes liable from the nature of 
 his contract. In the one case he can protect the goods by proper 
 care; in the other, it is beyond his power to do so. If, by his de- 
 fault in omitting to take the necessary care, loss or damage ensues, 
 he remains responsible, though the so-called "act of God" may 
 have been the immediate cause of the mischief. If the ship is 
 unseaworthy, and hence perishes from the storm which it other- 
 wise would have weathered ; if the carrier, by undue deviation or 
 delay, exposes himself to the danger which he otherwise would 
 have avoided; or if by his rashness he unnecessarily encounters 
 it, as by putting to sea in a raging storm, — the loss cannot be said 
 to be due to the "act of God "' alone, and the carrier cannot have 
 the benefit of the exception. This being granted, the question 
 arises as to the degree of care which is to be required of him to 
 protect him from liability in respect of loss arising from the "act 
 of God." Not only, as has been observed, has there been no judi- 
 cial exposition of the meaning of the term "act of God," as regards 
 the degree of care to be applied by the carrier in order to entitle 
 himself to its protection, but the text writers, both English and 
 American, are for the most part silent on the subject, and afford 
 little or no assistance. 
 
 Being here, however, on common ground with the civilians, so 
 far as one head of inevitable accident is concerned, it may be of 
 use, while endeavouring more clearly to fix the limits of that class 
 of inevitable accidents which come under the head of "act of God," 
 to turn to their views on the subject with reference to inevitable 
 accidents in general.
 
 ACCIDENT. 227 
 
 No. 4. — Nugent v. Smith. 
 
 As the result of the different instances of casus fortuities which 
 occur in the Digest, Vinnius gives the following definition: 
 "Casum fortuitum definimus onme quod huniano cceptu praevideri 
 non potest nee cui proviso potest resisti " (Partit. Juris, Lib. II. 
 c. 66). He enumerates various instances, "Casus fortuiti varii 
 sunt: veluti a vi ventorum, turbinuin, pluviarum, grandinum, ful- 
 niinuni, aestus, frigoris, et similium calamitatum quae ccelitus im- 
 mittuntur. Nostri vim divinam dixerunt. Graeci, Oeov (3iav. 
 Item naufragia, aquarum inundationes, incendia, mortes anima- 
 lium, ruina' aedium, fundorum chasmata, incursus hostium, praedo- 
 nuin impetus. His adde daniua omnia a privatis illata, quae 
 quominus inferrentur nulla eura eaveri potest." Baldus (Quaest. 
 12, No. 4) gives the following definition: "Casus fortuitus est 
 accidens, quod per custodian), curam, vel diligentiam mentis 
 human aa non potest evitari ah eo qui patitur." 
 
 In our own law on this subject, judicial authority, as has been 
 stated, is wanting, and the text writers, English and American, 
 with one exception, afford little or no assistance. Story, however, 
 in speaking of the perils of the sea, in which storm and tempest 
 are of course included, and consequently to a great extent the 
 instances of inevitable accident at sea which come under the 
 term " act of God," uses the following language : " The phrase 
 'perils of the sea,' whether understood in its most limited sense, 
 as importing a loss by natural accident peculiar to that ele- 
 ment, or whether understood in its more extended sense, as 
 including inevitable accidents occurring upon that element, must 
 still in either -case be understood to include such losses only to 
 the goods on board as are of an extraordinary nature, or arise 
 from some irresistible force, or from inevitable accident, or from 
 some overwhelming power, which cannot be guarded against by 
 ordinary exertions of human skill and prudence. Hence it is 
 that if the loss occurs by a peril of the sea which might have 
 been avoided by the exercise of any reasonable skill or dili- 
 gence, at the time when it occurred, it is not deemed to be, in 
 the sense of the phrase, such a loss by the perils of the sea as 
 will -exempt the carrier from liability, but rather a loss by the 
 gross negligence of the party." (Story on Bailments, 512 a.) 
 Story, it will be observed, here speaks only of " ordinary exertion 
 of human skill and prudence," and "the exercise of reasonable skill 
 and diligence."
 
 228 ACCIDENT. 
 
 No. 4. — Nugent v. Smith. 
 
 In my opinion this is the true view of the matter, and what 
 Story here says of perils of the sea applies, I think, equally to the 
 perils of the sea coming within the designation of " acts of God." 
 In other words, that all that can be required of the carrier is, that 
 he shall do all that is reasonably and practically possible to ensure 
 the safety of the goods. If he uses all the known means to which 
 prudent and experienced travellers ordinarily have recourse, he 
 does all that can be reasonably required of him, and if, under such 
 circumstances, he is overpowered by storms or other natural 
 agency, he is within the rule which gives immunity from the 
 effects of such vis major as the " act of God." I do not think that 
 because some one may have discovered some more efficient method 
 of securing the goods, which has not become generally known, or 
 because it cannot be proved that if the skill and ingenuity of 
 engineers or others were directed to the subject, something more 
 efficient might not be produced, that the carrier can be made liable. 
 I find no authority for saying that the vis major must be such as " no 
 amount of human care or skill could have resisted," or the injury 
 such as "no human ability could have prevented," and I think this 
 construction of the rule erroneous. 
 
 That the defendants here took all the care that could reasonably 
 be required of them to ensure the safety of the mare, is, I think, 
 involved in the finding of the jury, directly negativing negligence; 
 and I think that it was not incumbent on the defendants to 
 establish more than is implied by that finding. 
 
 The matter becomes, however, somewhat complicated from the 
 fact that the jury have found that the death of the mare is to be 
 ascribed to injuries caused partly by the rolling of the vessel, 
 partly by struggles of the animal occasioned by fright, leaving it 
 doubtful whether the fright was the natural effect of the storm, or 
 whether it arose from an unusual degree of timidity peculiar to the 
 animal, and in excess of what would generally be displayed by 
 horses. But the plaintiff is in this dilemma, — if the fright which 
 led to the struggling of the mare was in excess of what is usual in 
 horses on shipboard in a storm, then the rule applies that the 
 carrier is not liable where the thing carried perishes, or sustains 
 damage, without any fault of his, by reason of some quality in- 
 herent in its nature, and which it was not possible for him to 
 guard against. If, on the other hand, the fright was the natural 
 effect of the storm and the agitation of the ship, then it was the
 
 ACCIDENT. 229 
 
 No. 4. — Nugent v. Smith. 
 
 immediate consequence of the storm ; and the injuries occasioned 
 by the fright are sufficiently closely connected with the storm — 
 in other words, with the act of God — to afford protection to the 
 cariier. If the disaster is the result of a combination of causes, 
 for neither of which the carrier was responsible, he cannot be 
 made liable any more than if it had resulted from either of them 
 alone. 
 
 For these reasons I am of opinion that the judgment of the 
 Court below must be reversed, and judgment entered for the 
 defendant. 
 
 James, L. J. I am of the same opinion. To say that a com- 
 mon carrier is nut liabb for the act of God is merely a short 
 way of expressing this proposition : A common carrier is not 
 liable for any accident as to which he can show that it was 
 due to natural causes, directly and exclusively, without human 
 intervention, and that it could not have been prevented by any 
 amount of foresight, pains, and care reasonably to be expected 
 from him. In this case the defendant has, in my opinion, made 
 this out. 
 
 Hellish, L. J. I do not wish to give any opinion on the 
 question whether the defendants, if they had not been common 
 carriers, would have been subject to the liability of common carri- 
 ers. It is unnecessary to give any opinion on that question, 
 because it was admitted in the argument before us that the defen- 
 dants were common carriers. I agree with the Lord Chief Justice 
 that the judgment of the Common Pleas Division ought to be 
 reversed, and generally with the reasons he has given in his judg- 
 ment. If the jury had found that the injury to the mare was 
 caused solely by more than ordinary bad weather, without any 
 negligence of the defendants' servants, or any fright and conse- 
 quent struggling of the mare, I am of opinion that a plea that the 
 injury to the mare was caused by the act of God would have been 
 proved. It is obvious that, if a horse is properly secured on deck, 
 and properly attended to by the carriers servants, and is quiet, 
 and nevertheless is so injured as to be killed by the pitching of 
 the vessel, the violence of the storm must be very great indeed, 
 and the whole accident would be of such an extraordinary char- 
 acter as plainly to amount to the act of God within the authorities. 
 So, also, if the jury had found that the injury was caused solely by 
 the conduct of the mare herself, by reason of fright, and consequent
 
 23 D ACCIDENT. 
 
 No. 4. — Nugent v. Smith. 
 
 struggling, without any negligence on the part of the defendant's 
 servants, I am of opinion that a plea that the injury to the mare 
 was caused by the vice of the mare herself would have been 
 proved. 
 
 The cases of Kendall v. The London and Soldi) Western Railway 
 Company, h. R., 7 Excli. 373; 41 L. J. E. Exch. 184, and The Ureal 
 Western Railway Company v. Blower, L. lb, 7 C. 1*. 655; 41 L. J. It. 
 C. 1'. 268, arc direct authorities to this effect. Now, if these con- 
 clusions are correct, it seems to me it would be absurd to hold 
 that, although the injury to the mare was occasioned by tin- 
 causes combined, for neither of which the carrier was responsible, 
 nevertheless, he was liable. 
 
 It may be true that, as the injury to the mare was not solely 
 occasioned by more than ordinary bad weather, the bad weather 
 may not have been so bad as to deserve the description of a direct 
 and violent and sudden and irresistible act of nature, which, in 
 the Court below, it was said it must amount to, in order to amount 
 to an act of God. 
 
 The bad weather may not have been irresistible, because, if it 
 had not been for the conduct of the mare herself, it might have 
 been resisted. So, also, the conduct of the mare herself may not 
 have been the sole and irresistible cause of the injury, because, if 
 it had not been for the bad weather, any injurious effect from the 
 fright and struggling of the mare might, by reasonable precaution, 
 have been prevented. 
 
 Still, it may be perfectly true, and I think the jury must be 
 taken to have found it was true, that the more than ordinary bad 
 weather, and the fright and struggling of the mare herself, did 
 together form a direct and violent and irresistible cause of the 
 damage done which the mare suffered. In the Court below the 
 learned Judges first consider this question, Whether the loss in 
 this case can be considered to have occurred by the act of God ? 
 And because the bad weather did not, in their opinion, amount to 
 a direct and violent and sudden and irresistible act of nature, 
 they come to the conclusion that the loss was not occasioned by 
 the act of God. They then consider whether the loss was occa- 
 sioned by the vice of the mare herself; and because they think 
 that the fright and struggling of the mare was occasioned princi- 
 pally by the bad weather, they hold that the loss was not occa- 
 sioned by the vice of the mare herself.
 
 ACCIDENT. 231 
 
 No. 4. — Nugent v. Smith. 
 
 The objection to this mode of considering the case seems to me 
 to be, that the two causes of loss are considered separately, and 
 because neither, taken separately, affords an answer to the plain- 
 tiff's claim, it is assumed that both, taken together, cannot afford 
 an answer. Now, I am of opinion we ought to hold that, notwith- 
 standing neither the more than ordinary bad weather nor the fright 
 and struggling of the mare herself, each, taken separately, were suffi- 
 cient to account for the loss, yet if both taken together formed an 
 irresistible cause of the loss in this sense, that by no reasonable 
 precaution on the part of the carrier could the damage resulting 
 from them have been prevented, the carrier is protected. It being 
 a clear rule of law that, if the loss of the goods carried is occasioned 
 by an irresistible act of nature, the carrier is protected ; and 
 another clear rule of law, that, if the loss of the goods is solely 
 occasioned by a defect in the thing itself, the carrier is also pro- 
 tected, it seems to me to follow that, if a loss is occasioned partly 
 by an act of nature, although one not of itself irresistible, and 
 partly by a defect in the thing itself, although that defect is not 
 the sole cause of the loss, and the carrier has no means of prevent- 
 ing the combined effect of the two causes, he ought to be held to 
 be protected. 
 
 The principle seems to me to be that a carrier does not ensure 
 against acts of nature, and does not ensure against defects in the 
 thing carried itself ; but in order to make out a defence, the carrier 
 must be able to prove that either cause, taken separately, or both 
 taken together, formed the sole and direct and irresistible cause of 
 the loss. I think, however, that, in order to prove that the cause 
 of the loss was irresistible, it is not necessary to prove that it was 
 absolutely impossible for the carrier to prevent it, but that it is 
 sufficient to prove that, by no reasonable precaution, under the 
 circumstances, could it have been prevented. 
 
 For these reasons I am of opinion that the judgment of the Court 
 below ought to be reversed, and the rule to enter a verdict for the 
 plaintiff discharged. 
 
 Mellok, J., and Cleasby, B. concurred. 
 
 The judgment of the Common Pleas ivas accordingly reversed.
 
 232 ACCIDENT. 
 
 Nos. 3, 4. — Forward v. Pittard, &,c. — Notes. 
 
 ENGLISH NOTES. 
 
 The principle of the liability of common carriers was finally settled, 
 for the purposes of English law, by the judgment of Lord Mansfield 
 in Forward v. Pittard, nor has it since been called in question. The 
 case of Nugent v. Smith contains a well reasoned and authoritative defini- 
 tion of the extreme boundary of the liability. Upon the principle and 
 its limit there appears nothing to add. 
 
 The numerous cases referred to in the arguments and judgments in 
 Nugent v. Smith are cited chiefly as showing that shipowners (speaking 
 generally) are liable as common carriers. It is not necessary or appro- 
 priate to the main topic now under consideration to enter further into 
 the question of what persons are liable as common carriers. Only it 
 may be here observed that when the carrier has brought the goods to, 
 and deposited them in, the place where by usage or by a term of the 
 contract otherwise expressed or implied, they are to remain for some in- 
 definite time, there is an end of his peculiar liability as a carrier; and 
 if the place of deposit is on premises of his own, he is liable merely as a 
 warehouseman, and by reason only of negligence or want of due care in 
 that capacity. Garside v. Trent, &c. Navigation (K. B. 1792), 4 T. R. 
 581; 2 R. R. 468; Rome v. Pickford (Ex. 1817), 8 Taunt. 83; In re 
 Webb (Ex. 1818), 8 Taunt. 443. But, if his contract is to deliver at the 
 address of the consignee, — which is to be inferred if he charges for cart- 
 age, — he is liable as carrier until the actual delivery. Hydex. Trent, 
 &c. Navigation (K. B. 1793), 5 T. R. 389; 2 R. R. 620. And, if he is 
 not to deliver at the actual address of the consignee, it is to be presumed, 
 unless the contrary is shown by established usage or otherwise, that be- 
 fore the carrier can thus change the character of his custody the consignee 
 is to be allowed a reasonable time to call for or take away the goods; and 
 where the consignee has a fixed and convenient address it w r ould appear 
 that notice of the arrival ought to be given him. Bourne v. Gatliffe 
 (1841, 1844), 3 Man. & Gr. 643; 11 CI. & F. 45. Where the consignee 
 has no fixed address, the fact of the goods having been addressed to a 
 certain station, and having been kept there by the railway company for 
 two days, is sufficient to raise the presumption that the company have 
 changed their character from that of carriers to warehousemen. Chap- 
 man v. G. W. By. Co. (1880), 5 Q. B. D.278, 280; 49 L. J. Q. B. 420. 
 
 The case of Readhead v. Midland Ry. Co. (1867, 1869) L. R,, 2 Q. B. 
 412; 4 Q. B. 379; 36 L. J. Q. B. 181; 38 L. J. Q. B. 169, mentioned 
 on p. 208, supra), shows that the liability of common carriers is not to 
 he extended to railway companies as carriers of passengers. The re- 
 sponsibility of carriers of passengers, as well as the question how far 
 the liability of carriers of goods may be restricted by special contracts, 
 need not be further discussed here.
 
 ACCIDENT. 233 
 
 Nos. 3, 4. — Forward v. Pittard, &-c. — Notes. 
 
 AMERICAN NOTES. 
 
 The principal case is unanimously followed by an innumerable crowd of 
 cases in this country. The cases unanimously recognize the "act of God" 
 as something superhuman and distinguishable from the act or participation 
 of man. It will be useful to refer only to a few of the most prominent. The 
 following are classed as "acts of God," or inevitable accident, excusing the 
 carrier: a "snag" in the usual channel of a river, Sviyrl v. Niolon, 2 Bailey 
 (So. Carolina), 421 ; 23 Am. Dec. 146 ; a rock in the sea, Williams v. Grant, 1 
 Connecticut, 1ST ; 7 Am. Dec. 2-55 ; a sudden failure of wind, causing running 
 aground, Colt v. McMechen, 6 Johnson (New York), 1(30; 5 Am. Dec. 200; a 
 snow storm, Ballentine v. No. Missouri R Co., 40 Missouri, 491 ; 93 Am. Dec. 
 315; a furious wind which blows a car from the track, Blythe v. Denuer, fyc. 
 ( 'o , 15 Colorado, 353 ; 11 Lawyers' Rep. Annotated, 615, and notes ; the Johns- 
 town flood of 1889, caused by the breaking of a dam, Longv Penn. R. Co., 147 
 Penn. St. 34 >; 14 Lawyers' Hep. Annotated, 741 ; a flood such as has occurred 
 but twice in a generation, Pearce v. The Thomas Newton, 41 Federal Reporter, 
 1013 ; Smilh,v. Western Ry Co., 91 Alabama, 455 ; 11 Lawyers' Rep. Annotated, 
 (319 ; the freezing of canals and rivers, Bowman v. Teall, 23 Wendell (New 
 York), 308; Harris v Band, 4 New Hampshire, 259; Crosby v. Filch, 12 Con- 
 necticut, 410; delay caused by discharged strikers, Pittsburgh, fyc. R. Co. v. 
 Iluzen, 84 Illinois, 3(3; 25 Am. Rep. 422; Geismer v. Lake Shore, §'c. R. Co., 
 102 New York, 563 ; 55 Am. Rep. 837. 
 
 The following have been held not " acts of God " or inevitable accident : 
 all catastrophes in which human agency in any degree unites; see cases cited 
 ante, p. 208 ; fire other than by lightning, Gilmore v. Carman. 1 Smedes & Mar- 
 shall (Mississippi), 279; 40 Am. Dec. 96; displacement of a buoy by natural 
 causes, Reaves v. Waterman, 2 Speers Law (So. Carolina), 197 ; 42 Am. Dec. 
 364 ; collision of vessels without fault of either, Plaisted v. Boston, Sfc. Co., 27 
 Maine, 132 ; 46 Am. Dec. 587, citing Forward v. Pittard and Coggs v. Bernard ; 
 running of flatboat on sunken log in river, Steele v. McTyer's Adm'r, 31 Ala- 
 bama, 667 ; 70 Am. Dec. 516; driving of a vessel by a squall on the mast of 
 a sunken vessel projecting out of water, Merrill v. Earle, 2.9 New York, 115; 
 86 Am. Dec. 292 ; a recently formed bar in a river, Friend v. Woods, 6 Grat- 
 tan (Virginia), 189; 52 Am. Dec. 119, citing Forward v. Pittard : Mr Arthur v. 
 Sears, 21 Wendell (New York), 196; a reservoir, filled by unusual rains, but 
 broken by a stranger, Polack v. Pioche, 35 California, 416 ; 95 Am. Dee. 11."), 
 and note, 118 ; the great Chicago fire (caused by a cow's kicking over a lamp 
 in a shed). Chicago, frc. Ry. Co. v. Sawyer, 69 Illinois, 285 ; 18 Am. Rep. 613, 
 and note, 618, giving C.J. Cockburn's opinion in Nugent v. Smith, and observ- 
 ing, that "as we believe, the meaning of the term has never been before 
 judicially passed upon ; " attack on a train by thieves and the driving of them 
 away by a band of citizens, and the destruction by the latter of a quantity of 
 whiskey to prevent its falling into the hands of the former, Long v. Pennsyl' 
 vania R. Co. (Penn.). 147 Penn. St. 343. 
 
 As to the amount of skill and diligence which a carrier is bound toexert in 
 order to avert the consequences of an act of God, the substance of the cases
 
 234 ACCIDENT. 
 
 Nos. 3, 4. — Forward v. Pittard, &.c. — Notes. 
 
 is well expressed in Nashville, Sfc. R. Co. v. David, Heiskell (Tennessee), 
 261 ; 19 Am. Rep-. .">!>4, the case of an unprecedented flood, in which it was held 
 that the carrier is not bound to use all the diligence which human sagacity 
 could suggest, but only to use actively and energetically such means as would 
 suggest themselves to and be within the knowledge and capacity of well- 
 informed and competent business men in such positions, and such diligence 
 as prudent, skilful men engaged in that kind of business might be expected 
 to use. In regard to any stricter requirement, the court said : " It might 
 with equal propriety be required that the road should use all reasonable 
 efforts to provide against a flood such as the Deluge in the days of Noah." 
 And so in Long v. Perm. R. Co., supra, the Johnstown Flood case, the court 
 said : the loss " happened in spite of the utmost care exercised by agents and 
 employees to escape the dangers it knew to exist or had reasonable ground to 
 apprehend. It may lie possible for us, looking back coolly and in the light of 
 history, to see how property and life might have been saved if men on the 
 ground had realized the awful magnitude of the impending calamity. It was 
 not realized. The inhabitants of the populous valley sat in their homes, or 
 went about their business, while the deluge was approaching. So swift was 
 its approach that the horseman, running to warn the city, was overtaken and 
 swallowed up, and the flood fell unannounced, and swept the day express and 
 the city of Johnstown before it. What was done on that day must be consid- 
 ered in the light of what was then known, and what with such knowledge it 
 was reasonable to apprehend." " Reasonable prudence and diligence " is the 
 test. Smith v. West. Rg.. supra. 
 
 If the ad of God was of such an overwhelming and destructive character 
 as by its own force, and independently of the particular negligence alleged or 
 shown, to produce the injury, there would be no liability, though there was 
 some negligence on the part of the carrier. To create liability, it must have 
 required the combined effect of the act of God and the concurring negligence 
 of the party to produce the injury. Baltimore, Sfc. R. Co. v. Sulphur Springs, 
 ;Ve. District, 90 Penn. St. 05; Collier v. Valentine, 11 Missouri, 299 ; Denng v. 
 X. V. Cent. R. Co., 13 Gray (Massachusetts). 481. So held also in Morrison v. 
 Davis, 20 Penn. St. 171 ; .17 Am. Dec. 095, where a canal-boat was delayed by 
 the lameness of a horse and caught in an extraordinary flood. The last two 
 cases were approved in Railroad Co. v. Reeves, 10 Wallace (U. S. Sup. Ct.), 190, 
 Mr. Justice Miller, giving the opinion, declaring that proof of vis major ex- 
 cuses the defendant from showing that he was guilty of no negligence. But 
 the doctrine of the last three cases was explicitly denied in Condict v. Grand 
 Trunk R. Co., 51 Xew York, 505.
 
 ACCIDENT. 235 
 
 No. 5. — Fletcher v. Rylands. — Bule. 
 
 No. 5. — FLETCHER v. RYLANDS. 
 RYLANDS v. FLETCHER. 
 
 (ex. 1866; H. l. 1868.) 
 
 No. 6. — NICOLLS v. MARSLAND. 
 (c. a. from Ex. 1876.) 
 
 RULE. 
 
 The person who for his own purposes brings on his 
 land, and collects and keeps there, anything likely to 
 do mischief if it escapes, is prima facie answerable, if 
 it escapes, for all the damage which is the natural 
 consequence. 
 
 So that where the defendant had collected water on his 
 land by means of a reservoir, and the water as soon as 
 the reservoir was half-filled escaped through underground 
 shafts in old workings which were unknown to the 
 defendant, and flooded and damaged the plaintiff's mine, 
 the defendant was held liable for the damage. 
 
 Bat the storing of water by a person on his own land in 
 a reservoir constructed in a proper manner and so as to be 
 in fact sufficient when full, under ordinary circumstances, 
 to contain the water, is an act not in itself unlawful ; and 
 a person so storing it is not answerable for damage effected 
 by the escape of the water, if the escape is caused by the 
 act of God or the Queen's enemies, without any fault on 
 the part of the defendants. And if a reservoir so con- 
 structed gives way by the action of a flood so great that 
 it could not reasonably have been anticipated ; the defen- 
 dants by showing this, and proving that all reasonable 
 care w r as taken in the construction and maintenance of 
 the reservoir, will be exonerated.
 
 236 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 Fletcher v. Rylands. 
 Eylands v. Fletcher. 
 
 L. R., 1 Ex. 265; L. E., 3 H. L. 330 (s. c. 35 L. J. Ex. 154; 12 Jur. n. s. 603 ; 14 
 L. T. 523; 14 W. R. 799; 4 H. & C. 263; 37 L. J. Ex. 161 ; 19 L. T. 220). 
 
 Error from the judgment of the Court of Exchequer on a 
 special case. 
 
 Declaration. First count, that the defendants were possessed 
 of land in the township of Ainsworth, except the mines and veins 
 of coal under the surface ; and that the plaintiff was possessed of 
 coal mines lying near the defendants' land ; and that by reason 
 thereof, and of a license from the person in possession of certain 
 underground cavities near the mines, he was entitled to use those 
 cavities for the purpose of working the mines, and getting coals 
 from the mines and carrying them through the cavities; yet the 
 defendants so carelessly and negligently constructed on the said 
 land a reservoir to contain water, and kept therein, in their pos- 
 session and under their care, large quantities of water, and took so 
 little and such bad care of the water that large quantities thereof, 
 by reason of the premises, escaped from the reservoir and flowed 
 towards and into the said mines and cavities, whereby the plaintiff 
 was prevented for a long time from working the mines, and 
 getting coal therefrom, and carrying the same through the 
 cavities, and was put to expense in pumping out the water and 
 repairing damage done by it, and lost gains and profits ; and that 
 such reasonable fear of being drowned in the mines and cavities 
 was caused in the minds of workmen then and theretofore em- 
 ployed in the mines, and of others, that the working of the mines 
 was rendered permanently more expensive and more difficult than 
 it had been or would otherwise have continued to be. 
 
 Second count, that the plaintiff was possessed of coal mines, and 
 that by reason thereof, and of a license, &c. (repeating the alle- 
 gations as to the cavities); and that the defendants were possessed 
 of large quantities of water then by the defendants kept in a 
 reservoir near to the mines and cavities ; yet the defendants took 
 so little and such bad care, &c. (repeating the allegations as to 
 negligence and damage to the end of the first count). 
 
 Third count, that the plaintiff was possessed of mines and veins 
 of coal in and under certain land, and the defendants were pos-
 
 ACCIDENT. 237 
 
 No. 5. — Fletcher v. Rylands. 
 
 sessed of the said land above part of the said mines and veins ; yet 
 the defendants so negligently, carelessly, and improperly made and 
 constructed a reservoir on the said land, and collected and dammed 
 up thereon large quantities of water on the surface ; that by reason 
 of the premises large quantities of the said water flowed and forced 
 their way through and out of the reservoir, towards, to, and into 
 the mines and veins of coal of the plaintiff, whereby the mines 
 and veins of coal were much damaged, and the plaintiff' was 
 prevented, &c. (repeating the allegations as to damage). 
 
 Plea, Not guilty. Issue thereon. 
 
 The action came on to be tried at the Liverpool summer assizes, 
 1862, and a verdict was entered for the plaintiff for £5000, subject 
 to an award on the terms mentioned in an order of nisi jprius, 
 made 3d of September, 1862. By a subsequent order of Channell, 
 B., made 31st of December, 1864, the arbitrator was empowered, 
 instead of making an award, to state a special case for the opinion 
 of the Court of Exchequer, in such form as he should think fit, 
 and it was ordered that the verdict should be subject to such 
 special case, and that error might be brought on the judgment 
 thereon, and on the judgment of the Exchequer Chamber, in the 
 same manner as on a judgment on a special verdict. 
 
 The special case was argued in the Court of Exchequer in Trinity 
 Term, 1865, before Pollock, C. B., and Martin and Bramwell, BB., 
 and judgment was given for the defendants by Pollock. C. B., and 
 Martin, B. ; Bramwell, B., dissenting. 3 H. & C. 774; 34 L. J. 
 (Ex.) 177. 
 
 On this judgment the plaintiff brought error. The case stated 
 as follows : — 
 
 The plaintiff had, since 1850, occupied a colliery in the township 
 of Ainsworth, called the Eed House Colliery, as tenant to the Earl 
 of Wilton. 
 
 The defendants owned a mill, called the Ainsworth Mill, lying 
 to the west of the Bed House Colliery. 
 
 In 1860, the defendants, in pursuance of an arrangement with 
 Lord Wilton, made a reservoir for their mill in other land of Lord 
 Wilton's lying to the north-west of the colliery, and separated 
 from it, and from the mill, by lands belonging to two persons 
 named Hulton and Whitehead. Whitehead's land lay to the 
 north of and adjoining the land over the Eed House Colliery ; on 
 the west it adjoined Hulton's land; and on all other sides was
 
 238 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 surrounded by Lord Wilton's land. Hulton's land lay to the 
 west of and adjoining Whitehead's land; on the north it adjoined 
 the land of Lord Wilton, in which the reservoir was constructed, 
 and on the south it adjoined the Eed House Colliery and the de- 
 fendants' mill, the mill being to the west of the colliery. 
 
 The seams of coal belonging to the Red House Colliery are 
 continued under the lands of Hulton and Whitehead, and under 
 the lands in which the reservoir was made, and their dip is down- 
 wards from north-east to south-west. The coal under the site of 
 the reservoir, and under Lord Wilton's land lying between that 
 site and Hulton's land, as well as under the lands of Hulton and 
 Whitehead, had at some time beyond living memory been partially 
 worked ; and, before the commencement of the plaintiff's workings 
 at the Red House Colliery, the old coal workings under the site 
 of the reservoir communicated with old coal workings under 
 Whitehead's land by means of the intervening old coal workings 
 under the land of Hulton and under the land of Lord Wilton 
 lying to the north of Hulton's land. 
 
 Soon after the plaintiff commenced to work the Red House 
 Colliery in 1850 he made arrangements with Whitehead to work 
 the ungotten coal lying under Whitehead's land by means of the 
 Red House pit ; and in 1851 he accordingly worked through from 
 the Red House Colliery into the coal under Whitehead's land, 
 and so into, the old workings there. This was done in the first 
 instance without the knowledge of Lord Wilton ; but afterwards, 
 and whilst the plaintiff was working this coal by the Red House 
 pit, the fact became known to the earl's agents, and from that 
 time the plaintiff so worked it without any objection on the part 
 of the earl or his agents. 
 
 In consequence of these workings, the old coal workings under 
 the site of the reservoir were, by means of the intervening under- 
 ground workings, made to communicate with the plaintiff's coal 
 workings in the Red House Colliery ; so that water which found 
 its way into the old workings under the reservoir would, by means 
 of this communication, flow down to and into the Red House 
 Colliery. 
 
 These underground communications were effected several years 
 before the defendants commenced making their reservoir, and 
 continued down to the time when it burst ; but until that time 
 their existence was not known to the defendants, nor to any agent
 
 ACCIDENT. 239 
 
 No. 5. — Fletcher v. Rylands. 
 
 of theirs, nor to any other person 'employed by them; neither was 
 
 it till that time known to them, or to any of the persons employed 
 by them in or about the selecting of the site, or the planning or 
 constructing of the reservoir, that any coal had been worked under 
 the reservoir, or under any of the land of Lord Wilton lying to 
 the north of Hulton's land. 
 
 In the course of constructing and excavating for the bed of the 
 reservoir, five old shafts, running vertically downwards, were met 
 with in the portion of land selected for its site ; but though the 
 timber sides of three of them remained, the shafts themselves were 
 filled up with soil ; and it was not known to or suspected by the 
 defendants, or any of the persons employed by them in making the 
 reservoir, that they led down to old coal workings under its site. 
 
 For the selection of the site, and for the planning and construc- 
 tion of the reservoir, it was necessary that the defendants should 
 employ an engineer and contractors ; and they did for those 
 purposes employ a competent engineer and competent contract- 
 ors, by whom the site was selected, and the reservoir planned 
 and constructed. On the part of the defendants themselves there 
 was no personal negligence or default whatever ; but, with reference 
 to the shafts met with, reasonable and proper care and skill were 
 not exercised by the persons they employed, to provide for the 
 sufficiency of the reservoir to bear the pressure of water which, 
 when filled to the height proposed, it would have to bear. 
 
 The reservoir was completed about the beginning of December, 
 1860, and the defendants caused it to be partially filled with water. 
 On the morning of the 11th December, whilst it was thus partially 
 filled one of the shafts gave way and burst downwards, and the 
 water flowed into the old coal workings beneath, and by means of 
 the underground communications found its way into the coal work- 
 ings in the Red House Colliery, and flooded the colliery, so that 
 its working was necessarily suspended, and after some unsuccess- 
 ful attempts to renew it, the colliery was finally abandoned. 
 
 The question stated for the opinion of the court was whether 
 the plaintiff was entitled to recover any, and, if any, what damages 
 from the defendants, by reason of the matters hereinbefore 
 stated. 1 
 
 1 The case contained various state- there was no argument or decision as to 
 ments for the purpose of showing the the amount of damages, those statements 
 damage suffered by the plaintiff; but as are omitted. See mite at end of ease.
 
 240 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 Feb. 8. Manisty, Q. 0. (J. A. Russell with him), for the plaintiff. 
 First, omitting the consideration that the defendants became ten- 
 ants of Lord Wilton, the plaintiffs landlord, subsequently to the 
 demise to the plaintiff, and to the making of the works connect- 
 ing the underground passages, and dealing with the matter as 
 if they were mere strangers, the plaintiff is entitled to recover 
 damages. The principle of law which governs the case is, that he 
 who does upon his own land acts which, though lawful in them- 
 selves, may becomes sources of mischief to his neighbours, is bound 
 to prevent the mischief from occurring, or in the alternative to 
 make compensation to the persons injured. This will be peculiarly 
 the case when the act done consists in the construction and use of 
 artificial works, for the purpose of collecting and impounding in 
 vast quantities an element which will certainly cause mischief if 
 it escapes. The case does not resemble that of a servient and a 
 dominant tenement with acquired rights, as seems to have been 
 thought by Martin, B., in his comment upon Tenant v. Goldwin, 
 2 Ld. Raym, 108'J; 1 Salk. 21, 360, and the duty is independent of 
 the immediate neighbourhood of the lands. Neither is the circum- 
 stance material which is relied on by the Chief Baron, that the 
 communication by which the water passed was underground and 
 unseen ; for the plaintiff's right of action is founded on his absolute 
 right to enjoy his property undisturbed by the acts of his neigh- 
 bours, and is independent of the amount of care exercised by them, 
 or of their means of knowledge. This is the effect of Lambert v. 
 Bessy, Sir T. Raym. 421, and the opinions there pronounced. 
 
 [Blackburn, J. In the cases put there the tilings done were 
 all prima facie wrong, but the difficulty here is in saying that 
 what was rightful in the first doing, became wrongful in the con- 
 tinuance. The other side will contend that their duty was to take 
 care, but not to take successful care.] 
 
 The duty is the same as that of rendering support to neighbour- 
 ing land, from which the landowner is not excused by his ignor- 
 ance of the state of adjoining land which may contribute to the 
 injury, or of the position of the strata which he cannot know; he 
 is absolutely bound not to injure his neighbour by the withdrawal 
 of support. Bonomi v. Backhouse, 9 H. L. C. 503 ; E. B. & E. 622, 
 659 ; 27 L. J. (Q. B.) 378 ; 28 L. J. (Q. B.) 378 ; 34 L. J. (Q. B.) 181. 
 Similarly the mine-owner who works to the edge of his land 
 subjects himself to the natural flow of water into his mine, but not
 
 ACCIDENT. 241 
 
 No. 5. — Fletcher v. Rylands. 
 
 to the flow of water artificially brought there by a neighbouring 
 mine-owner ; these two propositions are established by the cases of 
 Smith v. Kenrick, 7 C. B. 515, and Baird v. Williamson, 15 C. B. 
 (N. s.) 37G ; 33 L. J. (C. P.) 101. The case of Hodgkinson v. 
 Ennor, 4 11 & S. 229 ; 32 L. J. (Q. B.) 231, is an authority for the 
 plaintiff, resembling the present case in the fact that the commun- 
 ication by which the defendant's dirty water flowed to the plain- 
 tiff's premises was underground. 
 
 [Blackburn, J., referred to the case of damage done by the 
 bursting of waterworks companies' reservoirs.] 
 
 Such cases usually arise under a clause in the special act of the 
 company, imposing on them a liability to make compensation. 
 The case, however, of Bagnall v. London & North Western Bail- 
 way Company, 7 H. & N. 423, 452 ; 31 L.J. (Ex.) 121, 480, though 
 not so simple in its circumstances as the present, is in principle 
 indistinguishable. 
 
 [Blackburn, J. The point in that case was, that however the 
 water got upon the line, the company were bound by their act to 
 have their drains in order to carry it off, and that their drains 
 were not in order. 
 
 Willes, J. That was certainly the ground of the judgment of 
 this court.] 
 
 The principle contended for is laid down in Aldred's case, 9 Rep. 
 57 b, and in Williams v. Groucott, 4 B. & S. at p. 157 ; 32 L. J. 
 (Q. B.) 237, by Blackburn, J., who says : " When a party alters 
 things from their normal condition so as to render them dangerous 
 to already acquired rights, the law casts on him the obligation of 
 fencing the danger, in order that it shall not be injurious to those 
 rights ; " and by Gibbs, C. J., in Sutton v. Clarke, 6 Taunt, at p. 44, 
 who, distinguishing the case then before him, says : " This case is 
 perfectly unlike that of an individual, who, for his own benefit, 
 makes an improvement on his own land, according to his best skill 
 and diligence, and not foreseeing it will produce any injury to his 
 neighbour; if he thereby unwittingly injure his neighbour, he is 
 answerable." The question as to the purity or impurity of the 
 water discharged is immaterial, the same principle applies to both 
 cases. 
 
 [Blackburn, J. It is a different sort of mischief, but it is 
 equally a mischief.] 
 
 Chauntler v. Robinson, 4 Exch. 163-170, is no authority against 
 
 VOL. I. — 1G
 
 242 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 the plaintiff; for it decides nothing but that the owner of a 
 house is not obliged to repair merely because he is owner. The 
 ease, however, mostly relied upon on the other side is Chadwick 
 v. Troiver, 6 Bing. X. C. 1 ; the plaintiff there was held to have no 
 right to support for his vault from the vault of his neighbour, 
 who was ignorant of the existence of the plaintiffs vault, and the 
 judgment proceeded on the ground of the absence of right to such 
 support, and on the fact that no circumstance existed imposing on 
 the defendant the duty of care. 
 
 [Lush, J. In fact the plaintiff there sought to impose a servi- 
 tude on the defendants' premises.] 
 
 Secondly, the plaintiff was tenant of Lord Wilton, and the com- 
 munication was effected by workings made with the landlord's 
 consent nine years before the defendants became tenants of the 
 site of the reservoir; the defendants could only take their land 
 subject to the obligation which was imposed upon the landlord by 
 this state of facts. 
 
 Thirdly, the defendants were liable for the negligence of the 
 persons who made the reservoir ; for, first, they could not dis- 
 charge themselves of their duty of care by employing them, and 
 secondly, the knowledge of those persons of the existence of the 
 shafts was notice to the defendants both of the facts and of the 
 danger. 
 
 Mellish, Q. C. (T. Jones with him), for the defendants. The 
 question is a novel one, but authority and reason are in favour 
 of the defendants. It is true the defendants have altered the 
 condition of their land, but, on the other hand, if the plaintiff had 
 left the intervening land in its natural state, no mischief would 
 have ensued. The mischief was caused by secret acts done partly 
 by strangers, partly by the plaintiff' himself, which have broken 
 down the natural partition of the lands, and opened the channels 
 by which the water has come, and it will be strange if those secret 
 acts, not communicated to the defendants, should impose on them 
 a liability. But on broad principles, there is no such obligation 
 as is contended for on the other side. The only obligation on the 
 defendants is to take care, that is, reasonable care, not to injure 
 the property of others ; and to establish their liability in this 
 action, it will be necessary to go the length of saying that an 
 owner of real property is liable for all damage resulting to his 
 neighbour's property from anything done upon his own land. It
 
 ACCIDENT. 243 
 
 No. 5. — Fletcher v. Rylands. 
 
 is clear that there is no such obligation with respect to personal 
 property. The right, not to have " foreign water '' sent upon one's 
 land, is nut a greater or more important right than the right not 
 to have one's person injured; but in the latter case no right (if 
 action arises unless the damage is caused by the direct act of the 
 -defendant himself, or by his negligence. The same rule applies 
 to real property, and though the cases are fewer they arc to this 
 •effect. The instances in which the owner of real property has 
 been held liable may be classified thus ; first, acts of trespass ; 
 second, acts purposely done, and which are calculated to cause the 
 injury complained of, as in Aldred's cane, 9 Eep. 57 b. ; third, cases 
 where, by reason of the natural relation of the properties, a legal 
 relation has been constituted between them ; as in the case of the 
 right to support, or the right to a watercourse, which are natural 
 easements, and as to which the plaintiff need not allege any special 
 title in himself, nor any negligence in the defendant. Here no 
 right of this latter class is involved, but the right is the same as 
 the right of any subject not to be injured by any other subject ; 
 and the fallacy in the judgment of Bramwell, B., in the court below, 
 is, in assuming that there is any such right as " to be free from 
 foreign water," or " not to have water turned in upon one." There 
 is no such right distinct from the general right of ownership in the 
 soil, and the case stands on the same footing as if the owner had 
 himself been drowned at the bottom of the mine. The second 
 olass of cases is illustrated by Hodgkinson v. Ennor, 4 B. & S. 229 ; 
 o2 L. J. (Q. B.) 231, for it was there found as a fact that the 
 defendant knew that the channel down which he poured the dirty 
 water would carry it to the plaintiff's premises ; he threw it into 
 the swallet meaning that it should be carried away, and it might 
 perhaps be admitted that, having done this intentionally, he would 
 be liable whether he knew where it would go to or not ; but the 
 defendants here have tried to keep the water in, but by its own 
 weight it has forced its way through. 
 
 [LUSH, J. Suppose the bank of the reservoir had burst, and 
 the water had flowed over the surface and down the pit's mouth.] 
 
 The distinction between the surface and underground passages 
 is only material as a circumstance of negligence ; with reference 
 to the surface, the facts are known which give rise to the obliga- 
 tion to take care, but the ignorance of the state of things under- 
 ground takes away the opportunity of exercising care, and there-
 
 244 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 fore the duty to exercise it. It is for this purpose only that the 
 defendants rely on the case of Chadwick v. Trower, 6 Bing. N. C. 1 ; 
 supposing it made out that there is no liability except where there 
 is carelessness, that case shows that there can be no carelessness 
 where there is no knowledge, nor any circumstances giving the 
 means of obtaining knowledge, with a duty to know ; and there is 
 no case where a defendant has been held liable without such 
 knowledge or notice. That being so, it is immaterial whether 
 or not the duty to take care means a duty to insure against all 
 consequences, for the occasion of that duty has never arisen. 
 
 [Blackbukn, J. The present point may be illustrated thus; 
 suppose a man leans against my cart, if I remove the cart sud- 
 denly, and without warning, not knowing he is there, I am not 
 liable, but if I do so knowing that he is there, though he has no 
 right to lean against my cart, yet 1 am liable if my act injures him. 
 
 Willes, J. Take the case of a continuous nuisance, I mean 
 continuous in its own character ; the person who erects it is liable 
 at once, the person who succeeds to it is not liable unless he lias 
 notice and continues it, but it is said that as soon as he has notice 
 of it he must abate. Suppose a man to collect a quantity of 
 springs in such a manner as to cause them to pour down his 
 neighbour's mine. Assuming that the person who succeeded to 
 the possession of the land where the springs were so collected 
 would not be liable until notice, yet you would admit that upon 
 receiving notice he would be liable for continuing it. Then is 
 there any case where the same doctrine has been held to apply to 
 the originator of the nuisance?] 
 
 It is submitted that the liability would turn on the defendants' 
 knowledge, and that in each case knowledge is the essential con- 
 dition of liability. In the. absence of any authority distinguishing 
 liability in respect of injury to real property from liability in 
 respect of other injuries, the doctrine laid down as to actions 
 of the latter kind applies, and in these it is clear that negligence 
 must be shown. This is illustrated by the case of Scott v. London 
 Dock Company, 3 H. & C. 596; 34 L. J. (Ex.) 17, 220, where it 
 was never doubted that negligence must be alleged and proved, and 
 the only question was, whether the fact that the bale which fell 
 was under the management of the defendants' servants was suffi- 
 cient prima facie evidence of negligence. A common instance is 
 that of collisions of ships at sea, or accidents caused by driving or
 
 ACCIDENT. 245 
 
 No. 5. — Fletcher v. Rylands. 
 
 riding along the highway, as Hammack v. White, 11 C. B. (x. S.) 
 588; 31 L. J. (C. P.) 129, in all which cases without negligence 
 there is no liability. 
 
 LUSH, J. Suppose the case of a gunpowder magazine bursting, 
 what liability do you say its owners would incur ? ] 
 
 None, if there was no negligence as to the place where the 
 powder was kept, or in the manner of keeping it. The liability as 
 to tire, formerly an absolute duty to insure against all mischief 
 caused to your neighbours by tire arising on your own property, 
 is said to have been by the custom of the realm: Turbervil v. 
 Stamp, 1 Salk. 13 ; Com. Dig., Action on the Case for Negligence, 
 (A (3) ; and since the passing of 14 Geo. III. c. 78, and the decision 
 upon § 86 of that act in Filliter v. Phippard, 11 Q. B. 347, 
 the liability for injury by fire is restricted to mischief arising 
 from negligence, that is, it is put on the same footing as liability 
 for other injuries. The sum of the argument is, that to make the 
 defendant liable a wrongful act must be shown, and that to prove 
 the act wrongful you must prove it negligent. 
 
 [Willes, J., referred to Gregory v. Piper, 9 B. & C. 591.] 
 
 That was a case of trespass, to which this cannot be compared, 
 nor is there any count in trespass here. In Gregory v. Piper, supra, 
 it was proved to be impossible that the act of the defendant's ser- 
 vant could be done as the defendant directed without committing 
 a trespass ; the act, therefore, became the direct act of the defend- 
 ant, and that was the ground of the judgment. The distinction 
 is between acts done directly by the defendant, which include all 
 acts which are specifically directed by him, although not done by 
 him physically or in his presence, and things which are only the 
 consequences of what he does or directs to be done ; it is in respect 
 of these last that negligence is material. 
 
 [Blackbukx, J., referred to Tenant v. Goldwin, 2 Ld. Etaym. 
 108',); 1 Salk. 21, 360; 6 Mod. 311; Holt, 500.] 
 
 That case is open to the same observation ; the mischief was the 
 inevitable consequence of the combined facts that the defendant 
 put the tilth there, and that he did not repair the wall, which was 
 his own wall. The case may indeed be put as a case of negligence, 
 the negligence consisting in taking no care to prevent the tilth 
 from flowing into his neighbour's premises. 
 
 With respect to the cases cited upon the other side, they are all 
 distinguishable. Bonomi v. Backhouse, 9 H. L. C. 503; 34 L. J.
 
 246 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 (Q. B.) 181, belongs to the third class of cases mentioned above, 
 and depended on the right arising by reason of the contiguity of 
 the lands. Lambert v. Bessy, Sir T. Ray m. 421, was a case of 
 trespass. Bitird v. Williamson, 15 C. B. (n. s.) 376 ; 33 L. J. (C. P.) 
 101, was a case in which the defendant purposely caused the 
 water to flow into the adjoining mine ; no right is contended for 
 here to use the plaintiff's land as an outlet. On the other hand, 
 the language used in Smith v. Kenrick, 7 C. B. at p. 564, supports 
 the defendants' contention : " It would seem to be the natural right 
 of each, of the owners of two adjoining coal mines — neither being 
 subject to any servitude to the other — to work his own in the 
 manner most convenient and beneficial to himself, although the 
 natural consequence may be that some prejudice will accrue to 
 the owner of the adjoining mine, so long as that does not arise 
 from the negligent or malicious couduct of the party." Aldred's 
 case, 9 Rep. 57 b, was also an instance of an act purposely done, 
 and calculated to cause a nuisance : Bagnall v. London & North 
 Western, Railway Company, 7 H. & N. 423 ; 31 L. J.(Ex.), 121, 480, 
 turned upon the obligation imposed upon the company by their 
 act. As to the dictum of Gibbs, C. J., in Sutton v. Clarice, 6 
 Taunt, at p. 44, it was pronounced obiter, the decision in the case 
 being in favour of the defendants on the ground that they were 
 public trustees. 
 
 Secondly, the defendant is not liable for the negligence of the 
 contractors employed by him. It was laid down in Butler v. 
 Hunter, 7 H. & X. 826 ; 31 L. J. (Ex.) 214, that when one gives an 
 order to a skilled person to do a particular thing, he must be 
 taken to mean that it shall be done with the proper precautions. 
 The negligence of the contractor w<is negligence towards his 
 employer as well as towards third persons, and he, as the wrong- 
 doer, is liable to actions by both parties, who have been both in 
 different ways injured by his carelessness ; but, the plaintiff having 
 a right of action against him, there is a presumption against the 
 liability of the defendants, for the plaintiff would then have a 
 double remedy. 
 
 [Willes, j", referred to Pichard v. Smith, 10 C. B. (N. s.) 470. 1 ] 
 
 1 The defendant occupied a refresh- going along the platform, fell down the 
 
 ment-room and coal cellar at a railway opening whilst the trap-door was raised 
 
 station, the trap of the coal cellar heing in lor the purpose of the coal-merchant dis- 
 
 the platform of the station. The plain- charging coal into the cellar, and was 
 
 tiff, a passenger by the railway, as lie was under the coal merchant's control. It was
 
 ACCIDENT. 247 
 
 No. 5. Fletcher v. Rylands. 
 
 Manisty, Q. C, in reply. It seems to be admitted that if a 
 trespass has been committed the defendants are liable ; and here 
 the collecting of the water in such a manner as to invade the 
 premises of the plaintiff was a trespass; as there would have been 
 a trespass in Boaomi v. Backhouse, 9 H. L. C. 503 ; 34 L. J. (Q. 15.) 
 181, if the consequence of the withdrawal of support had been to 
 let down a house upon the plaintiff's land; and as the flow of tin- 
 tilth is actually described to be in Tenant v. Goldwin, 2 Ld. Raym. 
 1089; 1 Salk. 21, 360. He also referred to the case of Barber 
 v. Nottingham & Grantham Railway Company, 15 C. B. (x. s.) 
 726 ; 33 L. J. (C. P.) 193, handed to him by McMahon. 
 
 [Hellish, Q. C. That case turned on the language of the defend- 
 ants' special act ; I argued the case, and the court refused to give 
 any answer to my question, whether at common law an action 
 would lie.] Cur. adv. vidt. 
 
 May 14. The judgment of the court (Willes, Blackburn, Keat- 
 ing, Mellok, Montague Smith, and Lush, J J.) was delivered by 
 
 Blackbukn, J. This was a special case stated by an arbitrator, 
 under an order of nisi prius, in which the question for the court 
 is stated to be, whether the plaintiff is entitled to recover any, and, 
 if any, what damages from the defendants, by reason of the matters 
 thereinbefore stated. 
 
 In the Court of Exchequer, the Chief Baron and Martin, B., 
 were of opinion that the plaintiff was not entitled to recover at all, 
 Bramwell, B., being of a different opinion. The judgment in the 
 Exchequer w r as consequently given for the defendants, in conformity 
 with the opinion of the majority of the court. The only question 
 argued before us was, whether this judgment was right, nothing 
 being said about the measure of damages in case the plaintiff 
 should be held entitled to recover. "We have come to the conclusion 
 that the opinion of Bramwell, B., was right, and that the answer 
 to the question should be that the plaintiff was entitled to recover 
 damages from the defendants, by reason of the matters stated in 
 
 held that the defendant was liable as the plicable to cases in which the act which 
 
 occupier of the cellar; and in delivering occasions the injury is one which the 
 
 the judgment of the court, Williams, J., contractor was employed to do; nor, by 
 
 after referring to the rule which exempts parity of reasoning, to cases in which the 
 
 the employer from liability for the negli- contractor is entrusted witli the perform- 
 
 gence of an independent contractor em- ance of a duty incumbent on his employer, 
 
 ployed by him to do a lawful act, says and neglects its fulfilment, whereby an 
 
 (p. 480) : "The rule, however, is not ap- injury is occasioned."
 
 248 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 the case, and consequently, that the judgment below should be 
 reversed, but we cannot at present say to what damages the 
 plaintiff is entitled. 
 
 It appears from the statement in the case, that the plaintiff was 
 damaged by his property being flooded by water, which, without 
 any fault on his part, broke out of a reservoir constructed on the 
 defendants' land by the defendants' orders, and maintained by the 
 defendants. 
 
 It appears from the statement in the case, p. 238, supra, that 
 the coal under the defendants' land had, at some remote period, 
 been worked out ; but this was unknown at the time when the de- 
 fendants gave directions to erect the reservoir, and the water in 
 the reservoir would not have escaped from the defendants' land, 
 and no mischief would have been done to the plaintiff, but for this 
 latent defect in the defendants' subsoil. And it further appears, 
 p. 239, supra, that the defendants selected competent engineers 
 and contractors to make their reservoir, and themselves personally 
 continued in total ignorance of what we have called the latent 
 defect in the subsoil ; but that these persons employed by them in 
 the course of the work became aware of the existence of the ancient 
 shafts filled up with soil, though they did not know or suspect 
 that they were shafts communicating with old workings. 
 
 It is found that the defendants, personally, were free from all 
 blame, but that in fact proper care and skill was not used by the 
 persons employed by them, to provide for the sufficiency of the 
 reservoir with reference to these shafts. The consequence was, 
 that the reservoir when filled with water burst into the shafts, the 
 water flowed down through them into the old workings, and thence 
 into the plaintiff's mine, and there did the mischief. 
 
 The plaintiff, though free from all blame on his part, must bear 
 the loss, unless he can establish that it was the consequence of 
 some default for which the defendants are responsible. The question 
 of law therefore arises, what is the obligation which the law casts 
 on a person who, like the defendants, lawfully brings on his land 
 something which, though harmless whilst it remains there, will 
 naturally do mischief if it escape out of his land. It is agreed 
 on all hands that he must take care to keep in that which he has 
 brought on the land and keeps there, in order that it may not 
 escape and damage his neighbours ; but the question arises whether 
 the duty which the law casts upon him, under such circumstances,
 
 ACCIDENT. 249 
 
 No. 5. — Fletcher v. Rylands. 
 
 is an absolute duty to keep it in at his peril, or is, as the majority 
 
 of the Court of Exchequer have thought, merely a duty to take 
 all reasonable and prudent precautions in order to keep it in, but 
 no more. If the first be the law, the person who has brought on 
 his land and kept there something dangerous, and failed to keep 
 it in, is responsible for all the natural consequences of its escape. 
 If the second be the limit of his duty, he would not be answerable 
 except on proof of negligence, and consequently would not be 
 answerable for escape arising from any latent defect which ordi- 
 nary prudence and skill could not detect. 
 
 Supposing the second to be the correct view of the law, a further 
 question arises subsidiary to the first, viz., whether the defendants 
 are not so far identified with the contractors whom they employed, 
 as to be responsible for the consequences of their want of care and 
 skill in making the reservoir in fact insufficient with reference to 
 the old shafts of the existence of which they were aware, though 
 they had not ascertained where the shafts went to. 
 
 We think that the true rule of law is, that the person who for 
 his own purposes brings on his lands and collects and keeps 
 there anything likely to do mischief if it escapes, must keep it in 
 at his peril, and, if he does not do so, is prima facie answerable 
 for all the damage which is the natural consequence of its escape. 
 He can excuse himself by showing that the escape was owing to 
 the plaintiff's default; or perhaps that the escape was the con- 
 sequence of vis major, or the act of God ; but as nothing of this 
 sort exists here, it is unnecessary to inquire what excuse would 
 be sufficient. The general rule, as above stated, seems on princi- 
 ple just. The person whose grass or corn is eaten down by the 
 escaping cattle of his neighbour or whose mine is flooded by 
 the water from his neighbour's reservoir, or whose cellar is in- 
 vaded by the filth of his neighbour's privy, or whose habitation is 
 made unhealthy by the fumes and noisome vapours of his neigh- 
 bour's alkali works, is damnified without any fault of his own; 
 and it seems but reasonable and just that the neighbour, who has 
 brought something on his own property which was not naturally 
 there, harmless to others so long as it is confined to his own prop- 
 erty, but which he knows to be mischievous if it gets on his 
 neighbour's, should be obliged to make good the damage which 
 ensues if he does not succeed in confining it to his own property. 
 But for his act in bringing it there no mischief could have accrued,
 
 250 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 and it seems but just that he should at his peril keep it there so 
 that no mischief may accrue, or answer for the natural and antici- 
 pated consequences. And upon authority, this we think is es- 
 tablished to be the law whether the things so brought be beasts, 
 or water, or filth, or stenches. 
 
 The case that has most commonly occurred, and which is most 
 frequently to be found in the books, is as to the obligation of the 
 owner of cattle which he has brought on his land, to prevent their 
 escaping and doing mischief. The law as to them seems to be per- 
 fectly settled from early times ; the owner must keep them in at his 
 peril, or he will be answerable for the natural consequences of 
 their escape ; that is, with regard to tame beasts, for the grass they 
 eat and trample upon, though not for any injury to the person of 
 others, for our ancestors have settled that it is not the general 
 nature of horses to kick, or bulls to gore; but if the owner knows 
 that the beast has a vicious propensity to attack man, he will be 
 answerable for that too. 
 
 As early as the Year Book, 20 Ed. IV. 11, placitum 10, Brian, 
 C. J., lays down the doctrine in terms very much resembling those 
 used by Lord Holt in Tenant v. Goldmn, 2 Ld. Bavin. 1089; 1 
 Salk. 360, which will be referred to afterwards. It was trespass 
 with cattle. Plea, that the defendant's land adjoined a place where 
 defendant had common, that the cattle strayed from the common, 
 and defendant drove them back as soon as he could. It was held 
 a bad plea. Brian, C. -I., says: "It behoves him to use his com- 
 mon so that he shall do no hurt to another man, and if the land in 
 which he has common be not enclosed, it behoves him to keep the 
 beasts in the common and out of the land of any other." He adds, 
 when it was proposed to amend by pleading that they were 
 driven out of the common by dogs, that although that might give 
 a right of action against the master of the dogs, it was no defence 
 to the action of trespass by the person on whose land the cattle 
 went. In the recent case of Cox v. Burbidge, 13 C. B. (n. s)., at 
 p. 438; 32 I, J. (C. B.) 89, Williams, J., says, "I apprehend the 
 general rule of law to be perfectly plain. If I am the owner of 
 an animal in which by law the right of property can exist, I am 
 bound to take care that it does not stray into the land of my 
 neighbour, and I am liable for any trespass it may commit, and for 
 the ordinary consequences of that trespass. Whether or not the 
 escape of the animal is due to my negligence is altogether
 
 ACCIDENT. 251 
 
 No. 5. — Fletcher v. Rylands. 
 
 immaterial." So in May v. Burdett, 9 Q. B. at p. 112, the court, 
 after an elaborate examination of the old precedents and authori- 
 ties, came to the conclusion that, " a person keeping a mischievous 
 animal, with knowledge of its propensitieSj is bound to keep it 
 .secure at his peril." And in 1 Hale's Pleas of the Crown, 430, Lord 
 Hale states that where one keeps a beast, knowing its nature 
 or habits are such that the natural consequence, of his being 
 loose is that he will harm men, the owner " must at his peril 
 keep him up safe from doing hurt, for though he use his dili- 
 gence to keep him up, if he escape and do harm, the owner is 
 liable to answer damages ; " though, as he proceeds to show, he 
 will not be liable criminally without proof of want of care. In 
 these latter authorities the point under consideration was damage 
 to the person, and what was decided was, that where it was known 
 that hurt to the person was the natural consequence of the animal 
 being loose, the owner should be responsible in damages for such 
 hurt, though where it was not known to be so, the owner was not 
 responsible for such damages ; but where the damage is, like eat- 
 ing grass or other ordinary ingredients in damage feasant, the 
 natural consequence of the escape, the rule as to keeping in the 
 animal is the same. In Com. Dig. Droit (M. 2) it is said that, 
 " if the owner of 200 acres in a common moor enfeoffs B. of 50 
 acres, B. ought to enclose at his peril, to prevent damage by his 
 cattle to the other 150 acres. For if his cattle escape thither 
 they may be distrained damage feasant. So the owner of the 150 
 acres ought to prevent his cattle from doing damage to the 50 
 acres at his peril." The authority cited is Dyer, .372 b., where 
 the decision was that the cattle might be distrained ; the inference 
 from that decision, that the owner was bound to keep in his cattle 
 at his peril, is, we think, legitimate, and we have the high 
 authority of Comyns for saying that such is the law. In the note 
 to Fitzherbert Nat. Brevium, 128, which is attributed to Lord 
 Hale, it is said, "If A. and B. have lands adjoining where there 
 is no inclosure, the one shall have trespass against the other on an 
 esape of their beasts respectively, Dyer, 372, Rastal Ent. 621, 20 
 Ed. IV. 10, although wild dogs, &c, drive the cattle of the one into 
 the lands of the other." No case is known to us on which in 
 replevin it has ever been attempted to plead in bar to an avowry 
 for distress damage feasant, that the cattle had escaped without 
 any negligence on the part of the plaintiff, and surely if that could
 
 252 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 have been a good plea in bar, the facts must often have been such 
 as would have supported it. These authorities, and the absence of 
 any authority to the contrary, justify Williams, J., in saying, as he 
 does in Cox v. Burbidge, 13 C. B. (n. s.) at p. 438 ; 32 L. J. (C. P.) 
 89, that the law is clear that in actions for damage occasioned by 
 animals that have been kept in by their owners, it is quite imma- 
 terial whether the escape is by negligence or not. 
 
 As has been already said, there does not appear to be any 
 difference in principle, between the extent of the duty cast on him 
 who brings cattle on his land, to keep them in, and the extent of 
 the duty imposed on him who brings on his land, water, filth, or 
 stenches, or any other thing which will, if it escape, naturally do 
 damage, to prevent their escaping and injuring his neighbour, and 
 the case of Tenant v. Goldwin, 1 Salk. 21, 360 ; 2 Ld. Eaym. 1089 ; 6 
 Mod. 311, is an express authority that the duty is the same, and is, 
 to keep them in at his peril. 
 
 As Martin, 11, in his judgment below appears not to have 
 understood that case in the same manner as we do, it is proper to 
 examine it in some detail. It was a motion in arrest of judg- 
 ment after judgment by default, and therefore all that was well 
 pleaded in the declaration was admitted to be true. The declara- 
 tion is set out at full length in the report in 6 Mod. p. 311. It 
 alleged that the plaintiff had a cellar which lay contiguous to a 
 messuage of the defendant, " and used (solebat) to be separated 
 and fenced from a privy house of office, parcel of the said messuage 
 of defendant, by a thick and close wall, which belongs to the 
 said messuage of the defendant, and by the defendant of right 
 ought to have been repaired (jure dehuit reparari)" Yet he did not 
 repair it, and for want of repair filth flowed into plaintiff's cellar. 
 The case is reported by Salkeld, who argued it, in 6 Mod., and by 
 Lord Raymond, whose report is the fullest. The objection taken 
 was that there was nothing to show that the defendant was under 
 any obligation to repair the wall, that, it was said, being a charge 
 not of common right, and the allegation that the wall de jure 
 delimit reparari by the defendant being an inference of law which 
 did not arise from the facts alleged. Salkeld argued that this 
 general mode of stating the right was sufficient in a declaration, 
 and also that the duty alleged did of common right result from 
 the facts stated. It is not now material to inquire whether he 
 was or was not right on the pleading point. All three reports
 
 ACCIDENT. 253 
 
 No. 5. — Fletcher v. Rylands. 
 
 concur in saying that Lord Holt, during the argument, intimated an 
 opinion against him on that, but that after consideration the court 
 gave judgment for him on the second ground. In the report of ti 
 Mod. at p. 314, it is stated, "And at another day per totam curium .- 
 The declaration is good ; for there is a sufficient cause of action ap- 
 pearing in it; but not upon the word 'solebat.' If the defendant 
 has a house of office inclosed with a wall which is his, he is of 
 common right bound to use it so as not to annoy another. . . . The 
 reason here is, that one must use his own so as thereby not to hurt 
 another, and as of common right one is bound to keep his cattle 
 from trespassing on his neighbour, so he is bound to use anything 
 that is his so as not to hurt another by such user. . . . Suppose one 
 sells a piece of pasture lying open to another piece of pasture 
 which the vendor has, the vendee is bound to keep his cattle from 
 running into the vendor's piece ; so of dung or anything else." 
 There is here an evident allusion to the same case in Dyer (see 
 ante, p. 251 , as is referred to in Com. Dig. Droit (M. 2). Lord 
 Raymond in his report, 2 Ld. Raym. at p. 1092, says : " The last day 
 of term, Holt, C. J., delivered the opinion of the court, that the dec- 
 laration was sufficient. He said that upon the face of this declar- 
 ation there appeared a sufficient cause v)f action to entitle the 
 plaintiff to have his judgment ; that they did not go upon the 
 solebat, or the jure debuit rejoarari, as if it were enough to say that 
 the plaintiff had a house, and the defendant had a wall, and lie 
 ought to repair the wall ; but if the defendant has a house of 
 office, and the wall which separates the house of office from the 
 plaintiffs house is all the defendant's, he is of common right bound 
 to repair it. . . . The reason of this case is upon this account, that 
 every one must so use his own as not to do damage to another ; 
 and as every man is bound so to look to his cattle as to keep them 
 out of his neighbour's ground, that so he may receive no damage ; 
 so he must keep in the filth of his house of office, that it may not 
 flow in upon and damnify his neighbour. ... So if a man has two 
 pieces of pasture which lie open to one another, and sells one piece, 
 the vendee must keep in his cattle so as they shall not trespass 
 upon the vendor. So a man shall not lay his dung so high as to 
 damage his neighbour, and the reason of these cases is because 
 every man must so use his own as not to damnify another." 
 Salkeld, who had been counsel in the case, reports the judgment 
 much more concisely, 1 Salk. 361, but to the same effect; he says :
 
 254 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 " The reason lie gave for bis judgment was because it was the de- 
 fendant's wall, and the defendant's filth, and he was bound of com- 
 mon right to keep his wall so as his filth might not damnify his 
 neighbour, and that it was a trespass on his neighbour, as if his 
 beasts should escape, or one should make a great heap on the 
 border of his ground, and it should tumble and roll down upon his 
 neighbour's ; ... he must repair the wall of his house of office, for 
 he whose dirt it is must keep it that it may not trespass." Tt is 
 worth noticing how completely the reason of Lord Holt corres- 
 ponds with that of Brian, C. J., in tJie cases already cited in 20 
 Ed. IV. Martin, B., in the court below, says that he thinks this 
 was a case without difficulty, because the defendant had, by letting 
 judgment go by default, admitted his liability to repair the wall. 
 and that he cannot see how it is an authority for any case in 
 which no such liability is admitted. But a perusal of the report 
 will show that it was because Lord Holt and his colleagues thought 
 (no matter for this purpose whether rightly or wrongly) that the 
 liability was not admitted, that they took so much trouble to con- 
 sider what liability the law would raise from the admitted facts, 
 and it does therefore seem to us to be a very weighty authority in 
 support of the position tfiat he who brings and keeps anything, no 
 matter whether beasts, or filth, or clean water, or a heap of earth 
 or dung, on his premises, must at his peril prevent it from getting 
 on his neighbour's, or make good all the damage which is the 
 natural consequence of its doing so. No case has been found in 
 which the question as to the liability for noxious vapours escaping 
 from a man's works by inevitable accident has been discussed, but 
 the following case will illustrate it. Some years ago several actions 
 were brought against the occupiers of some alkali works at Liver- 
 pool for the damage alleged to be caused by the chlorine fumes of 
 their works. The defendants proved that they at great expense 
 erected contrivances by which the fumes of chlorine were con- 
 densed, and sold as muriatic acid, and they called a great body of 
 scientific evidence to prove that this apparatus was so perfect that 
 no fumes possibly could escape from the defendants' chimneys. On 
 this evidence it was pressed upon the jury that the plaintiffs dam- 
 age must have been due to some of the numerous other chimneys 
 in the neighbourhood ; the jury, however, being satisfied that the- 
 mischief was occasioned by chlorine, drew the conclusion that it 
 had escaped from the defendants' works somehow, and in each case
 
 ACCIDENT. 255 
 
 No. 5. — Fletcher v. Rylands. 
 
 found for the plaintiff. No attempt was made to disturb these 
 verdicts, on the ground that the defendants had taken every pre- 
 caution which prudence or skill could suggest to keep those fumes 
 in, and that they could not be responsible unless negligence was 
 shown ; yet, if the law be as laid down by the majority of the 
 Court of Exchequer, it would have been a very obvious defence. 
 If it had been raised, the answer would probably have been that 
 the uniform course of pleading in actions on such nuisances is t<> 
 say that the defendant caused the noisome vapours to arise on 
 his premises, and suffered them to come on the plaintiff's, without 
 stating there was any want of care or skill in the defendant, and 
 that the case of Tenant v. Goldwin, 1 Salk. 21, 360; 2 Ld. Raym. 
 1089; 6 Mod. 311, showed that this was founded on the general 
 rule of law, that he whose stuff it is must keep it that it may not 
 trespass. There is no difference in this respect between chlorine 
 and water ; both will, if they escape, do damage, the one by scorch- 
 ing, and the other by drowning, and he who brings them there 
 must at his peril see that they do not escape and do that mischief. 
 What is said by Gibbs, C. J., in Sutton, v. Clarke, 6 Taunt, at p. 44, 
 though not necessary for the decision of the case, shows that that 
 very learned judge took the same view of the law that was taken 
 by Lord Holt. But it was further said by Martin, B., that when 
 damage is done to personal property, or even to the person, by 
 collision, either upon land or at sea, there must be negligence in 
 the party doing the damage to render him legally responsible ; and 
 this is no doubt true, and as was pointed out by Mr. Mellish dur- 
 ing his argument before us, this is not confined to cases of collision, 
 for there are many cases in which proof of negligence is essential, 
 as, for instance, where an unruly horse gets on the footpath of a 
 public street and kills a passenger. Hammack v. WJiite, 11 C. B. 
 (n. s.) 588, 31 L. J. (C. P.) 129 ; or where a person in a dock is 
 struck by the falling of a bale of cotton which the defendant's ser- 
 vants are lowering, Scott v. London, Dock Co., 3 H. & C. 596; 34 
 L J. (Ex.) 17, 220 ; and many other similar cases may be found. 
 But we think these cases distinguishable from the present. Traffic 
 on the highways, whether by laud or sea, cannot be conducted 
 without exposing those whose persons or property are near it to 
 some inevitable risk ; and that being so, those who go on the high- 
 way, or have their property adjacent to it, may well be held to do 
 so subject to their taking upon themselves the risk of injury from
 
 256 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 that inevitable danger; and persons who by the license of the 
 owner pass near to warehouses where goods are being raised or 
 lowered, certainly do so subject to the inevitable risk of accident. 
 In neither case, therefore, can they recover without proof of want 
 of care or skill occasioning the accident ; and it is believed that all 
 the cases in which inevitable accident has been held an excuse for 
 what primd facie was a trespass, can be explained on the same 
 principle, viz., that the circumstances were such as to show that 
 the plaintiff had taken that risk upon himself. But there is no 
 ground for saying that the plaintiff here took upon himself any 
 risk arising from the uses to which the defendants should choose 
 to apply their land. He neither knew what these might be, nor 
 could he in any way control the defendants, or hinder their build- 
 ing what reservoirs they liked, and storing up in them what water 
 they pleased, so long as the defendants succeeded in preventing the 
 water which they there brought from interfering with the plain- 
 tiffs property. 
 
 The view which we take of the first point renders it unnecessary 
 to consider whether the defendants would or would not be respon- 
 sible for the want of care and skill in the persons employed by 
 them, under the circumstances stated in the case [p. 237]. 
 
 We are of opinion that the plaintiff is entitled to recover, but as 
 we have not heard any argument as to the amount, we are not able 
 to give judgment for what damages. The parties probably will 
 empower their counsel to agree on the amount of damages; should 
 they differ on the principle, the case may be mentioned again. 1 
 
 Judgment for the plaintiff. 
 
 Against this judgment of the Exchequer Chamber a proceeding 
 in error was brought into the House of Lords. The plaintiff's in 
 error in this last proceeding (who are here, for convenience, called 
 the appellants) were the original defendants in the action, and 
 were also the defendants in error in the proceedings in the Ex- 
 chequer Chamber. The arguments and authorities for the appel- 
 lants, so far as not repeating those insisted on in the court below, 
 may be summed up as follows : The judgment of the Exchequer 
 Chamber goes to this, that a man using his lawful rights without 
 malice and without knowledge of danger, may still be liable for 
 
 1 On a subsequent day (Juue 18), Manisty, Q. ('., stated to the court that the 
 damages had been agreed at £937.
 
 ACCIDENT. 257 
 
 No. 5. — Fletcher v. Rylands. 
 
 any mischief occurring from such use, is too wide. Knowledge of 
 possible mischief is of the essence of the liability incurred by 
 occasioning it. Acton v. Blundell (1844), 12 M. & W. 324 ; 13 L. J. 
 Exch. 289 ; Chasemorc v. Richards (1850), 7 H. L. C. 349 ; 29 L.J. 
 Exch. 81. This principle has been adopted from us, by the courts 
 in America. Pixley v. Clark, 32 Barbour's Eep. (New York). The 
 defendants employed competent persons to do something which was, 
 in itself, perfectly lawful, and they cannot be held liable in damages 
 without clear evidence of impropriety or negligence on their own 
 parts. The person who does the work is alone liable. Butler v. 
 Hunter (1862), 31 L. J. (Ex.) 214 ; 7 H. & N. 826 ; Peachey v. Bow- 
 land (1853), 13 C. B. 182 ; 22 L. J. C. P. 81 ; Allen v. Hayward 
 (1845), 7 Q. B. 960 ; 15 L. J. Q. B. 99. The respondents, in addition 
 to the authorities relied on in the court below, cited Bonomi v. 
 Bacl-huuse (1858, 1850, 1862), E. B. & E. 622, 646 ; 9 H. I, C. 503 ; 
 34 L. J. Q. B. 181 ; Bamford v. Turnley (1860), 3 B. & S. 62; 31 
 L. J. Q. B. 286 ; Tipping v. St. Helen's Smelting Co. (1863, 1865), 
 4 B. & S. 608 ; 11 H. L. C. 642 ; 35 L. J. Q, B. 66. 
 
 The Lord Chancellor (Lord Cairns). My Lords, in this case 
 the plaintiff (I may use the description of the parties in the action) 
 is the occupier of a mine and works under a close of land. The 
 defendants are the owners of a mill in his neighbourhood, and 
 they proposed to make a reservoir for the purpose of keeping and 
 storing water to be used about their mill upon another close of 
 land, which, for the purposes of this case, may be taken as being 
 adjoining to the close of the plaintiff, although, in point of fact, 
 some intervening land lay between the two. Underneath the close 
 of land of the defendants on which they proposed to construct 
 their reservoir there were certain old and disused mining passages 
 and works. There were five vertical shafts, and some horizontal 
 shafts communicating with them. The vertical shafts had been 
 filled up with soil and rubbish, and it does not appear that any 
 person was aware of the existence either of the vertical shafts or 
 of the horizontal works communicating with them. In the course 
 of the working by the plaintiff of his mine, he had gradually 
 worked through the seams of coal underneath the close, and had 
 come into contact with the old and disused works underneath the 
 close of the defendants. 
 
 In that state of things the reservoir of the defendants was con- 
 structed. It was constructed by them through the agency and 
 VOL. i. — 17
 
 258 ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 inspection of an engineer and contractor. Personally, the defend- 
 ants appear to have taken no part in the works, or to have been 
 aware of any want of security connected with them. As regards 
 the engineer and the contractor, we must take it from the case 
 that they did not exercise, as far as they were concerned, that 
 reasonable care and caution which they might have exercised, 
 taking notice, as they appear to have taken notice, of the vertical 
 shafts filled up in the manner which I have mentioned. How- 
 ever, my Lords, when the reservoir was constructed, and filled, or 
 partly filled, with water, the weight of the water bearing upon the 
 disused and imperfectly filled-up vertical shafts, broke through 
 those shafts. The water passed down them and into the horizon- 
 tal workings, and from the horizontal workings under the close of 
 the defendants, it passed on into the workings under the close of 
 the plaintiff, and Hooded his mine, causing considerable damage, 
 for which this action was brought. 
 
 The Court of Exchequer, when the special case stating the 
 facts to which I have referred was argued, was of opinion that 
 the plaintiff had established no cause of action. The Court of 
 Exchequer Chamber, before which an appeal from this judgment 
 was argued, was of a contrary opinion, and the judges there unani- 
 mously arrived at the conclusion that there was a cause of action, 
 and that the plaintiff was entitled to damages. 
 
 My Lords, the principles on which this case must be determined 
 appear to me to be extremely simple. The defendants, treating 
 them as the owners or occupiers of the close on which the reser- 
 voir was constructed, might lawfully have used that close for any 
 purpose for which it might in the ordinary course of the enjoyment 
 of land be used ; and if, in what I may term the natural user of 
 that land, there had been any accumulation of water either on the 
 surface or underground, and if by the operation of the laws of 
 nature that accumulation of water had passed off into the close 
 occupied by the plaintiff, the plaintiff could not have complained 
 that that result had taken place. If he had desired to guard 
 himself against it, it would have lain upon him to have done so 
 by leaving or by interposing some barrier between his close and 
 the close of the defendants in order to have prevented that opera- 
 tion of the laws of nature. 
 
 As an illustration of that principle, I may refer to a case which 
 was cited in the argument before your Lordships, — the case of 
 Smith v. Kenrick in the Court of Common Pleas, 7 C. B. 515.
 
 ACCIDENT. . 251> 
 
 No. 5. — Fletcher v. Rylands. 
 
 On the other hand, if the defendants, not stopping at the 
 natural use of their close, had desired to use it for any purpose 
 which T may term a non-natural use, for the purpose of intro- 
 ducing into the close that which in its natural condition was not 
 in or upon it, for the purpose of introducing water either ahove or 
 below ground in quantities and in a manner not the result of any 
 work or operation on or under the land, and if in consequence of 
 their doing so, or in consequence of any imperfection in the mode 
 of their doing so, the water came to escape and to pass off into 
 the close of the plaintiff, then it appears to me that that which the 
 defendants were doing they were doing at their own peril ; and 
 if in the course of their doing it the evil arose to which I have 
 referred, — the evil, namely, of the escape of the water and its 
 passing away to the close of the plaintiff and injuring the plain- 
 tiff, — then for the consequence of that, in my opinion, the 
 defendants would be liable. As the case of Smith v. Kenrick is 
 an illustration of the first principle to which I have referred, so 
 also the second principle to which I have referred is well illus- 
 trated by another case in the same court, — the case of Baird v. 
 Williamson, 15 0. B. (x. s.) 317, which was also cited in the argu- 
 ment at the bar. 
 
 My Lords, these simple principles, if they are well founded, as 
 it appears to me they are, really dispose of this case. 
 
 The same result is arrived at on the principles referred to by 
 Mr. Justice Blackburn in his judgment in the court of Exchequer 
 Chamber, where he states the opinion of that court as to the law 
 in these words : " We think that the true rule of law is, that the 
 person who for his own purposes brings on his land and collects 
 and keeps there anything likely to do mischief if it escapes, must 
 keep it in at his peril; and if he does not do so, is 'prima facie 
 answerable for all the damage which is the natural consequence of 
 its escape. He can excuse himself by showing that the escape was 
 owing to the plaintiff's default; or, perhaps, that the escape was the 
 consequence of vis major, or the act of God; but as nothing of this 
 sort exists here, it is unnecessary to inquire what excuse would be 
 sufficient. The general rule, as above stated, seems on principle 
 just. The person whose grass or corn is eaten down by the 
 escaping cattle of his neighbour, or whose mine is flooded by the 
 water from his neighbour's reservoir, or whose cellar is invaded 
 by the filth of his neighbour's privy, or whose habitation is made
 
 260 - ACCIDENT. 
 
 No. 5. — Fletcher v. Rylands. 
 
 unhealthy by the fumes and noisome vapours of his neighbour's 
 alkali works, is damnified without any fault of his own ; and it 
 seems but reasonable and just that the neighbour who has brought 
 something on his own property (which was not naturally there), 
 harmless to others so long as it is confined to his own property, 
 but which he knows will be mischievous if it gets on his neigh- 
 bour's, should be obliged to make good the damage which ensues 
 if he does not succeed in confining it to his own property. But 
 for his act in bringing it there no mischief could have accrued ; 
 and it seems but just that he should at his peril keep it there, 
 so that no mischief may accrue, or answer for the natural and 
 anticipated consequence. And upon authority this we think is 
 established to be the law, whether the things so brought be beasts, 
 or water, or filth, or stenches." 
 
 My Lords, in that opinion I must say I entirely concur. There- 
 fore, I have to move your Lordships that the judgment of the 
 Court of Exchequer Chamber be affirmed, and that the present 
 appeal be dismissed with costs. 
 
 Lord Cranworth. My Lords, I concur with my noble and 
 learned friend in thinking that the rule of law was correctly stated 
 by Mr. Justice Blackburn in delivering the opinion of the Exchequer 
 Chamber. If a person brings or accumulates on his land anything 
 which, if it should escape, may cause damage to his neighbour, he 
 does so at his peril. If it does escape, and cause damage, he is 
 responsible, however careful he may have been, and whatever pre- 
 cautions he may have taken to prevent the damage. 
 
 In considering whether a defendant is liable to a plaintiff for 
 damage which the plaintiff may have sustained, the question in 
 rreneral is not whether the defendant has acted with due care and 
 caution, but whether his acts have occasioned the damage. This 
 is all well explained in the old case of Lambert v. Bessey, reported 
 by Sir Thomas Raymond (Sir T. Raym. 421). And the doctrine is 
 founded on good sense. For when one person, in managing his 
 own affairs, causes, however innocently, damage to another, it is 
 obviously only just that he should be the party to suffer. He is 
 bound sic uti suo ut non Imdat alienum. This is the principle of 
 law applicable to cases like the present, and I do not discover in 
 the authorities which were cited anything conflicting with it. 
 
 The doctrine appears to me to be well illustrated by the two mod- 
 ern cases in the Court of Common Pleas referred to by my noble
 
 ACCIDENT. 261 
 
 No. 5. — Fletcher v. Rylands. 
 
 and learned friend. I allude to the two cases of Smith v. Kenrick, 
 7 C. B. 564, and Baird v. Williamson, 15 C. B. (x. s.) 376. In the 
 
 former the owner of a coal mine on the higher level worked out 
 the whole of his coal, leaving no barrier between his mine and the 
 mine on the lower level, so that the water percolating through the 
 upper mine ilowed into the lower mine, and obstructed the owner 
 of it in getting his coal. It was held that the owner of the lower 
 mine had no ground of complaint. The defendant, the owner of 
 the upper mine, had a right to remove all his coal. The damage 
 sustained by the plaintiff was occasioned by the natural flow or 
 percolation of water from the upper strata. There was no obliga- 
 tion on the defendant to protect the plaintiff against this. It 
 was his business to erect or leave a sufficient barrier to keep 
 out the water, or to adopt proper means for so conducting the 
 water as that it should not impede him in his workings. The 
 water, in that case, was only left by the defendant to flow in its 
 natural course. 
 
 But in the later case of Baird v. Williamson the defendant, 
 the owner of the upper mine did not merely suffer the water to 
 flow through his mine without leaving a barrier between it and 
 the mine below, but in order to work his own mine beneficially he 
 pumped up quantities of water which passed into the plaintiff's 
 mine in addition to that which would have naturally reached it, 
 and so occasioned him damage. Though this was done without 
 negligence, and in the due working of his own mine, yet he was 
 held to be responsible for the damage so occasioned. It was in 
 consequence of his act, whether skilfully or unskilfully performed, 
 that the plaintiff had been damaged, and he was therefore held 
 liable for the consequences. The damage in the former case may 
 be treated as having arisen from the act of God ; in the latter, 
 from the act of the defendant. 
 
 Applying the principle of these decisions to the case now before 
 the House, I come without hesitation to the conclusion that the 
 judgment of the Exchequer Chamber was right. The plaintiff 
 had a right to work his coal through the lands of Mr. Whitehead, 
 and up to the old workings. If water naturally rising in the 
 defendants' land (we may treat the land as the land of the defend- 
 ants for the purpose of this case) had by percolation found its 
 way down to the plaintiff's mine through the old workings, and 
 so had impeded his operations, that would not have afforded him
 
 262 ACCIDENT. 
 
 No. 6. — Nichols v. Marsland. 
 
 any ground of complaint. Even if all the old workings had been 
 made by the plaintiff, he would have done no more than he was 
 entitled to do ; for, according to the principle acted on- in Smith v. 
 Kenrick, the person working the mine under the close in which 
 the reservoir was made had a right to win and carry away all the 
 coal without leaving any wall or barrier against Whitehead's land. 
 But that is not the real state of the case. The defendants, in order 
 to effect an object of their own, brought on to their land, or on to 
 land which for this purpose may be treated as being theirs, a large 
 accumulated mass of water, and stored it up in a reservoir. The 
 consequence of this was damage to the plaintiff; and for that 
 damage, however skilfully and carefully the accumulation was 
 made, the defendants, according to the principles and authorities 
 to which I have adverted, were certainly responsible. 
 
 I concur, therefore, with my noble and learned friend in think- 
 ing that the judgment below must be affirmed, and that there 
 must be judgment for the defendant in error. 
 
 Judgment of the Court of Exchequer Chamber a firmed. 
 
 Nichols v. Marsland. 
 
 2 Ex. D. 1 (s. C. 46 L. J. Ex. 174; 35 L. T. 174 ; 25 VV. R. 173). 
 
 Appeal from a judgment of the Court of Exchequer (Kelly, 
 C. B., Bramwell and Cleasby, BB.), making absolute a rule tu enter 
 the verdict for the defendant. The facts are fully set out in the 
 report of the case in the court below, Law Rep., 10 Ex. 255. For 
 the present purpose they are sufficiently stated in the judgment. 
 
 June 13, 14. Cotton, Q. C. (Mclntyre, Q. C, and Coxon, with 
 him), for the plaintiff, appellant. Assuming the jury to be right 
 in finding that the defendant was not guilty of negligence, and 
 that the rainfall amounted to vis major, or the act of God, still the 
 defendant is liable, because she has, without necessity, and volun- 
 tarily for her own pleasure, stored on her premises an element 
 which was liable to be let loose, and which, if let loose, would be 
 dangerous to her neighbours. One who keeps a mischievous ani- 
 mal, with knowledge of its propensities, is bound to keep it secure 
 at his peril, and if he does not, is liable for the damage caused, 
 though innocent of negligence. May v. Burdett, 9 Q. B. 101, 112; 
 1G L. J. (Q. B.) 64, 67. The House of Lords has decided that 
 water is in the same category. Rylands v. Fletcher, Law Rep., 1
 
 ACCIDENT. 2G3 
 
 No. 6. — Nichols v. Marsland. 
 
 Ex. 2G5, 279; affirmed Law Eep., 3 H. L. 330, 339, 340. So, 
 though a railway company, when authorized by statute to use 
 locomotives, is not liable for the damage done by sparks of fire, if 
 they have taken all reasonable precautions, and are not guilty of 
 negligence, Vaughan v. Taff Vale By. Co., 5 H. & X. 679; 29 
 L. J. (Ex.) 247, yet they are liable when not expressly authorized 
 by statute. Jones v. Festiniog By. Co., Law Rep., 3 Q. B. 733. 
 These authorities were all discussed in Madras lit). Co. v. Zemin- 
 dar of Carvatcaaija i'ii in, Law Rep., 1 Ind. App. 3G4, 385, where 
 the defendant was held not liable on the ground that it was his 
 duty to maintain the reservoirs on his premises. The present 
 defendant was under no such duty. Even if she be considered 
 innocent of wrong-doing, why should the plaintiff suffer for the 
 defendant's voluntary act of turning an otherwise harmless stream 
 into a source of danger ? But for the defendant's embankments, 
 the excessive rainfall would have escaped without doing injury. 
 The fact of the embankments being so high caused the damage. 
 They ought to have been much higher or less, or the weirs ought 
 to have been much larger and kept in order. Even if vis major 
 does excuse from liability, the vis major must be the sole cause of 
 the damage, which it was not here. Such a storm as this occurs 
 periodically, and may be foreseen, and is therefore not the act of 
 God, or vis major, in the sense that it excuses from liability. 
 
 Gorst, Q. C, and Hughes (Dunn with them), for the defendant, 
 cited Car stairs v. Taylor, Law Eep., 6 Ex. 217; McCoy v. Danbcy, 
 20 Penn. St. R. 85 ; Tennent v. Earl of Glasgoiv, 1 Court of Ses- 
 sion Cases, 3rd series, 133. Cur. adv. vult. 
 
 Dec. 1. The judgment of the court (Cockburn, C. J., James, 
 and Mellish, L.JJ., and Baggallay, J. A.), l was read by 
 
 Mellish, L. J. This was an action brought by the county sur- 
 veyor under 43 Geo. III. c, 59, § 4, of the county of Chester against 
 the defendant to recover damages on account of the destruction of 
 four county bridges which had been carried away by the bursting 
 of some reservoirs. At the trial before Cockburn, C. J., it ap- 
 peared that the defendant was the owner of a series of artificial 
 ornamental lakes, which had existed for a great number of years, 
 and had never previous to the 18th day of June, 1872, caused any 
 
 1 Archibald, J., who was a member of the court when the case was argued, died 
 before judgment was delivered.
 
 264 ACCIDENT. 
 
 No. 6. — Nichols v. Marsland. 
 
 damage. On that day, however, after a most unusual fall of rain, 
 the lakes overflowed, the dams at their end gave way, and the 
 water out of the lakes carried away the county bridges lower 
 down the stream. The jury found that there was no negligence 
 either in the construction or the maintenance of the reservoirs, 
 but that if the flood could have been anticipated, the effect might 
 have been prevented. 1 Upon this finding, the Lord Chief Justice, 
 acting on the decision in Hi/lands v. Fletcher, Law Rep., 3 H. L. 
 330, as the nearest authority applicable to the case, directed a 
 verdict for the plaintiff, but gave leave to move to enter a verdict 
 for the defendant. The Court of Exchequer have ordered the 
 verdict to be entered for the defendant, and from their decision an 
 appeal has been brought before us. 
 
 The appellant relied upon the decision in the case of Rylands v. 
 Fletcher, Law Rep., 3 H. L. 330. In that case the rule of law on 
 which the case was decided was thus laid down by Mr. Justice 
 Blackburn in the Exchequer Chamber, Law Rep., 1 Ex. at p. 279 : 
 " We think the true rule of law is that the person who for his 
 own purposes brings on his lands and collects and keeps there 
 anything likely to do mischief if it escapes, must keep it at his 
 peril, and if he does not do so, is primd facie answerable for all 
 the damage which is the natural consequence of its escape. He 
 can excuse himself by showing that the escape was owing to the 
 plaintiff's default ; or perhaps that the escape was the consequence 
 of vis major, or the act of God ; but as nothing of the sort exists 
 here it is unnecessary to inquire what excuse would be sufficient." 
 It appears to us that we have two questions to consider : First, 
 the question of law, which was left undecided in Rylands v. 
 Fletcher, Law Rep., 3 H. L. 330, can the defendant excuse herself 
 by showing that the escape of the water was owing to vis major, 
 or, as it is termed in the law books, the "act of God"? And, 
 secondly, if she can, did she in fact make out that the escape was 
 so occasioned ? 
 
 Now, with respect to the first question, the ordinary rule of law 
 is, that when the law creates a duty, and the party is disabled 
 from performing it without any default of his own, by the act of 
 
 1 The judgment of the court below, banks were fit for all events to be antici- 
 
 read by Bramwell, B., states the finding patcd, and the weirs broad enough; that 
 
 thus : " In this case I understand the jury the storm was of such violence as to be 
 
 to have found that all reasonable care properly called the act of God, or vis 
 
 had been taken by the defendant, that the major."
 
 ACCIDENT. 265 
 
 No. 6. — Nichols v. Marsland. 
 
 God, or the King's enemies, the law will excuse him ; but when a 
 party by his own contract creates a duty, he is bound to make it 
 good notwithstanding any accident by inevitable necessity. We 
 can see no good reason why that rule should not be applied to the 
 case before us. The duty of keeping the water in and preventing 
 its escape is a duty imposed by the law and not one created by 
 contract. If, indeed, the making a reservoir was a wrongful act 
 in itself, it might be right to hold that a person could not escape 
 from the consequences of his own wrongful act. But it seems to 
 us absurd to hold that the making or the keeping a reservoir is a 
 wrongful act in itself. The wrongful act is not the making or 
 keeping the reservoir, but the allowing or causing the water to 
 escape. If, indeed, the damages were occasioned by the act of 
 the party without more — as where a man accumulates water on 
 his own land, but, owing to the peculiar nature or condition of the 
 soil, the water escapes and does damage to his neighbour — the 
 case of Rylands v. Fletcher, Law Eep., 3 H. L. 330, establishes that 
 he must be held liable. The accumulation of water in a reservoir 
 is not in itself wrongful ; but the making it and suffering the 
 water to escape, if damage ensue, constitute a wrong. But the 
 present case is distinguished from that of Rylands v. Fletcher, 
 Law Eep., 3 H. L. 330, in this, that it is not the act of the defend- 
 ant in keeping this reservoir, an act in itself lawful, which alone 
 leads to the escape of the water, and so renders wrongful that 
 wdiich but for such escape would have been lawful. It is the 
 supervening vis major of the water caused by the flood, which, 
 superadded to the water in the reservoir (which of itself would 
 have been innocuous), causes the disaster. A defendant cannot, 
 in our opinion, be properly said to have caused or allowed the 
 water to escape, if the act of God or the Queen's enemies was the 
 real cause of its escaping without any fault on the part of the de- 
 fendant. If a reservoir was destroyed by an earthquake, or the 
 Queen's enemies destroyed it in conducting some warlike opera- 
 tion, it would be contrary to all reason and justice to hold the 
 owner of the reservoir liable for any damage that might be done 
 by the escape of the water. We are of opinion, therefore, that the 
 defendant was entitled to excuse herself by proving that the 
 water escaped through the act of God. 
 
 The remaining question is, did the defendant make out that the 
 escape of the water was owing to the act of God ? Now the jury
 
 2GG ACCIDENT. 
 
 Nos. 5, 6. — Fletcher v. Rylands, &/C. — Notes. 
 
 have distinctly found, not only that there was no negligence in 
 the construction or the maintenance of the reservoirs, but that the 
 flood was so great that it could not reasonably have been antici- 
 pated, although, if it had been anticipated, the effect might have 
 been prevented ; and this seems to us in substance a finding that 
 the escape of the water was owing to the act of God. However 
 great the flood had been, if it had not been greater than floods 
 that had happened before and might be expected to occur again, 
 the defendant might not have made out that she was free from 
 fault ; but we think she ought not to be held liable because she 
 did not prevent the effect of an extraordinary act of nature, which 
 she could not anticipate. In the late case of Nugent v. Smith, 
 1 C. P. D. 423, we held that a carrier might be protected from 
 liability for a loss occasioned by the act of God, if the loss by no 
 reasonable precaution could be prevented, although it was not 
 absolutely impossible to prevent it. 
 
 It was indeed ingeniously argued for the appellant that at any 
 rate the escape of the water was not owing solely to the act of 
 God, because the weight of the water originally in the reservoirs 
 must have contributed to break down the dams, as well as the 
 extraordinary water brought in by the flood. We think, however, 
 that the extraordinary quantity of water brought in by the flood 
 is in point of law the sole proximate cause of the escape of the 
 water. It is the last drop which makes the cup overflow. 
 
 On the whole, we are of opinion that the judgment of the 
 Court of Exchequer ought to be affirmed. 
 
 Judgment affirmed. 1 
 
 ENGLISH NOTES. 
 
 The decision of the Court of Appeal in Nichols v. Marsland adopts 
 the exception of the act of God, or vis major, which was doubtfully 
 admitted as a possible one, in Rylands v. Fletcher. And, so far, 
 the cases are consistent. But the judgment of the Court of Appeal 
 in the latter case suggests the further question whether the facts in 
 Fletcher v. Rylands made it necessary to lay down the rule of law so 
 broadly as was done by Mr. Justice Blackburn in the Exchequer 
 Chamber. And, although both Lord Cairns and Lord Cranworth 
 in the House of Lords agree in expressing their concurrence with the 
 
 1 The question whether the rule should evidence, was reserved lor future dis- 
 he made ahsolute for a new trial, on the cussion, if the plaintiff should desire it. 
 ground that the verdict was against the
 
 ACCIDENT. 267 
 
 Nos. 5, 6. — Fletcher v. Rylands, &oc. — Notes. 
 
 rule of law laid down by Mr. Justice Blackburn, it does not follow 
 that this rule of law — if broader than was necessary for the decision 
 of the actual cast' — is conclusively to be taken as the ratio decidendi 
 of the House. 
 
 The question is: What is the duty, and what are the liabilities, of a 
 person who, without statutory authority, stores water in a reservoir for 
 his own purposes. — purposes not necessary for the ordinary cultivation 
 of his land? Of various answers which might be given, the choice 
 appears to lie between the three following: — 
 
 1. He is under an absolute duty, at all events, to restrain the water 
 from escaping so as to do damage; or, 
 
 2. He is bound to restrain the water at all events excepting the act 
 of God or of the Queen's enemies; or, 
 
 3. He is under an absolute duty to provide and maintain a reservoir 
 capable of holding the water under all circumstances reasonably to he 
 expected; but if he has done this, he is not liable for vis major, or for 
 the acts of other persons over whom he has no control. 
 
 The first answer appears to be the rule of law intended to be laid 
 down in the judgments pronounced in Fletcher v. Rylands. And, if 
 the analogy of a person harbouring a wild beast or noxious filth is 
 correctly applied, there is ample authority for this view of the legal 
 relation. 
 
 The second answer is the same as the first, modified so as to be consis- 
 tent with the decision in Nichols v. Marsland, This answer would, 1 
 think, be consistent with the actual decision in all the cases, except 
 that of the Exchequer Division in Box v. Jubb (p. 270, j)ost). But, if 
 this is the true rule, the whole reasoning founded on the analogy of 
 persons harbouring wild beasts, or bringing filth on their premises, be- 
 comes questionable. For the authorities on which this class of cases 
 rests hardly appear to admit of the exception of the act of God. 
 
 The third answer adopts the supposed rule of law, and the analogy 
 on which it is founded, so far as necessary for the actual decision in 
 Fletcher v. Rylands, and is the rule which the Court of Appeal seems 
 to favour in Nichols v. Marsland. It would be consistent with the 
 actual decision in all the cases, including Box v. Jubb. If this answer 
 is correct, the analogy of a dangerous animal would only hold for an 
 improperly constructed reservoir; and, in one properly constructed, the 
 water would be regarded as mansuetae naturae. 
 
 Having so far explained the rule, it seems useful to cite the cases 
 bearing upon it, with some particularity in the circumstances. The 
 order of date will be followed, except so far as may be convenient for 
 grouping the cases of similar circumstances. 
 
 William AldrecVs case, cited in the arguments of Fletcher v. Rylands
 
 268 ACCIDENT. 
 
 Nos. 5, 6. — Fletcher v. Rylands, &c. — Notes. 
 
 in the Exchequer Chamber, was a case in the King's Bench, 7 James I. 
 (1609), and is reported in 9 Co. Rep. 57 b. It was there decided that 
 an action on the case lies for erecting a hog-stye so near the house of 
 the plaintiff that the air thereof was corrupted. And (p. 59 a) it is 
 said, citing a case from the Year Books (H. VII. 26 1>.) : " If a man has 
 a watercourse running in a ditch from the river to his house, for his 
 necessary use; if a glover sets up a lime-pit for calve-skins and sheep- 
 skins so near the said water-course that the corruption of the lime-pit 
 has corrupted it, for which cause his tenants leave the said house, an 
 action on the case lies." 
 
 Most of the other cases cited in the judgments of Fletcher v. fit/lands 
 are there sufficiently explained without requiring further comment. 
 
 The case of Jones v. Festlniog By. Co. (1868), L. R., 3 Q. B. 733; 
 37 L. J. Q. B. 214, was decided by the Queen's Bench, not long after 
 the decision of the House of Lords in Rylands v. Fletcher. The de- 
 fendants were a company incorporated under an act in 1832 empower- 
 ing them to make and maintain a railway, but containing no express 
 power, such as is contained in the Railways Clauses Consolidation Act 
 of 1845, to use locomotive engines. The defendants used a steam 
 locomotive engine; and in passing the plaintiff's premises the engine 
 emitted sparks, which ignited the plaintiff's haystack. The Court of 
 Queen's Bench, on the principle of Fletcher v. Rylands, held the de- 
 fendants responsible. Blackburn, J., says (p. 736): " The defendants 
 were using a locomotive engine, with no express parliamentary powers 
 making lawful that use, and they are therefore at common law bound 
 to keep the engines from doing injury; and if the sparks escape and 
 cause damage, the defendants are liable for the consequences, though 
 no actual negligence be shown on their part." The same principle is 
 applied by the Court of Appeal in Powell v. Fall (1880), 5 Q. B. D. 597; 
 49 L. J. Q. B. 428, to the use of a steam locomotive on a turnpike road, 
 the Locomotive Acts, 1861 and 1865, which apply to the use of locomo- 
 tives on turnpike roads, affording no defence, as they carefully preserve 
 the right of action for a nuisance. 
 
 In Wilson v. Newberry (1871), L. R., 7 Q. B. 31; 41 L. J. Q. B. 
 31, on a declaration that the defendant was possessed of yew trees the 
 clippings of which he knew to be poisonous; and that he took so little 
 care of the clippings that the same were placed on land not occupied by 
 him. whereby the horses of the plaintiff were poisoned: it was held (on 
 demurrer) that no cause of action was disclosed. It was not alleged 
 that the plaintiffs clipped the trees, or caused them to be placed on the 
 neighbour's land. The rule in Fletcher v. Rylands related to the escape 
 of something which had a tendency to escape, not to something which 
 might be carried by the act of a stranger. But in Crowhurst v. Burial
 
 ACCIDENT. 269 
 
 Nos. 5, 6. — Fletcher v. Rylands, &.c. — Notes. 
 
 Board of Amersham (1878), 4 Ex. D. 5; 48 L. J. Exch. 109, the defend- 
 ants having planted, within four feet of their own boundary, a yew-tree 
 which grew through and beyond the railings, and poisoned the plaintiff's 
 horse, who eat the berries, were held liable, on the principle Sic utere 
 tuo ut alienum non laedas, as applied in Fletcher v. Rylands. 
 
 Smith v. Fletcher (1872), L. II., 7 Ex. 305; 41 L. J. Exch. 193, was 
 a case very similar to Fletcher v. Rylands. An accumulation of water 
 was the result — the natural, though not the desired result — of artifi- 
 cial operations of the defendant. The plaintiff having been damaged 
 by the invasion of this water, it was held that the defendants, having 
 brought the water there without providing means for its getting away 
 safely, were liable. 
 
 In Crompton v. Lea (1874), L. E., 19 Eq. 115; 44 L. J. Ch. 69, a 
 bill in Chancery averred that a mine which the defendant threatened to 
 work could not be worked without letting in a river and flooding de- 
 fendant's mine, and through that the plaintiff's mine. A demurrer was 
 overruled by Vice Chancellor Hall, on the ground that the work alleged 
 to be intended, if it could not be done without this consequence, was 
 not an ordinary operation of mining which the proprietor as such was 
 entitled to carry on; and that the common rule as between mines on 
 different levels did not apply, but the rule of Rylands v. Fletcher must 
 be applied. There is a well-known distinction in regard to accumula- 
 tions of water arising in the ordinary operations of mining. And 
 where cracks in a previously impervious surface are made, by the 
 ordinary operations of mining, by A., so that the rainfall over that sur- 
 face flows into the adjacent lower coal-field of B., that forms no ground 
 of complaint by B. against A., who has only made the natural use of 
 his property : Wilson v. Waddell (H. L. on appeal from Scotland, 1876), 
 2 App. Cas. 95. The principle of Smith v. Kenrirh (1849), 7 C. B. 
 515; 18 L. J. C. P. 172 (referred to on pp. 246 and 258, supra) was here 
 adopted and applied. The same principle is again applied by the Court 
 of Appeal in West Cumberland Iron Co. v. Kenyon (1879), 11 Ch. D. 
 782; 48 L. J. Ch. 793, where defendant in sinking a shaft had tapped 
 the water accumulated in old workings, and then made a bore hole at the 
 bottom of the shaft to let the water out. It was held that he was not 
 liable for the consequential flooding of plaintiff's mine. 
 
 If dampness to A.'s house comes through an artificial work of B. in 
 the nature of a large artificial sponge which collects, absorbs, and keeps 
 it together " until it oozes out by reason of the nature of the sponge," 
 it is a matter for which B. is responsible. Per Jessel, M. R., Broder 
 v. Saillard (1876), 2 Ch. D. 692; 45 L. J. Ch. 414. 
 
 In a case before the Superior Court in Scotland, Chalmers v. Dixon 
 (1876), Court of Session, 4th series, vol. 3, p. 461, the defendants,
 
 270 ACCIDENT. 
 
 Nos. 5, 6. — Fletcher v. Eylands, &c. — Notes. 
 
 a company of ironmasters, had in the course of their trade accumulated 
 ironstone refuse into an enormous mass, which by some unexplained 
 cause got ignited, causing a nuisance to the plaintiff. It was a rare 
 occurrence for such stuff to become ignited spontaneously, but when 
 ignited it was in its nature practically impossible to extinguish. It was 
 held that the plaintiff was entitled to recover, without proof of specific 
 fault. 
 
 In Humphries v. Cousins (1877), 2 C. P. D. 239; 46 L. J. C. P. 438, 
 plaintiff and defendant were the respective occupiers of adjoining houses, 
 through both of which an old drain passed. The part of the drain on de- 
 fendant's premises was decayed, and his sewage escaped and did damage 
 to the plaintiff's premises. The defendant was held liable. In the judg- 
 ment of the Court (Dexmax and Lindley, JJ., delivered by the lat- 
 ter), it was (p. 245) observed that the true doctrine is contained in the 
 following passage of the judgment of Blackburn, J., in the case of 
 Hodgkinson v. Ennor (4 B. & S. at p. 241): "I take the law to be as 
 stated in Tenant v. Goldwin (2 Lord Raym. 1089, Salk. 21, 360), that 
 you must not injure the propert} r of your neighbour; and consequently 
 if filth is created on any man's land, then in the quaint language of the 
 report in Salkeld, 361, ' he whose dirt it is must keep it that it may not 
 trespass.' " 
 
 In Hurdman v. N. E. Ry. Co. (C. A. 1878), 3 C. P. D. 168; 47 L.J. 
 C. P. 368, a statement that the surface of defendant's land had been arti- 
 ficially raised, and that consequently the rainfall over defendant's land 
 made its way through defendant's wall into the adjoining house of the 
 plaintiff, was, on demurrer, held to state a good cause of action. 
 
 In Box v. Juhb (1879), 4 Ex. I). 76; 48 L. J. Exch. 417, where the 
 overflow of the defendant's reservoir was caused by acts of other persons, 
 over whose acts he had no control, — namely, the combined effect of 
 tlie emptying of a reservoir above and an obstruction in a watercourse 
 below, — the defendant was held not liable. See observations as to the 
 judgment of the Court of Exchequer in this case, p. 267, supra. 
 
 Where an accumulation of water has, by means of an unprecedented 
 rainfall, come upon the property of A. so as to endanger it, he is not 
 entitled to secure his property by diverting the mass of water upon B.'s 
 land, so as to do damage there. Whalley v. Lane. & York R>j. Co. 
 (C. A. 1881 ). 13 Q. B. D. 131; 53 L. J. Q. B. 285. In that case, water 
 had collected above a railway embankment so as to endanger the rail- 
 way; and the company had made a cutting through the embankment, 
 letting the water out. It was assumed in the argument that the flood 
 was extraordinary, and such as could not be expected ; otherwise the 
 question might have arisen whether the company could not have averted 
 the danger in the first instance by proper culverts and drains.
 
 ACCIDENT. 271 
 
 Nos. 5, 6. — Fletcher v. Rylands, &-c. — Notes. 
 
 In Snow v. Whitehead (1884), 37 Ch. D. 588; 53 L. J. Ch. 885, the 
 defendant while building a house allowed water to collect in his cellar 
 and to percolate into the plaintiff's cellar; it was held by Kav, J., that 
 the principle of Rylands v. Fletcher applied, and that the plaintiff was 
 entitled to damages. 
 
 In Ballard v. Tomlinson ( 1885), 29 Ch. D. 115; 54 L. J. Ch. 454, the 
 defendant had dug a well on his own premises, and after discontinuing 
 the use of it as a well, constructed a drain by means of which the sewage 
 from a water-closet found its way into the well, and contaminated the 
 supply of the plaintiff's well. It was held by the Court of Appeal, 
 reversing the judgment of Pearson, J., that the plaintiff was entitled to 
 an injunction, as well as damages. The judgment of Mr. Justice Peak- 
 son had been founded upon Chasemore v. Richards (No. 16 under the 
 head " Action, 1 ' post). In effect the Court of Appeal decided that, though 
 a man may suck dry the stratum which is a common sponge for himself 
 and his neighbours, he is not entitled to poison the sponge. 
 
 A different element is involved where the accumulation of water is 
 brought on the land, not merely for the defendant's own purposes, but 
 for a purpose in which plaintiff and defendant have a common interest. 
 
 Madras Ry. Go. v. Zemindar of Carvatenagarum (Judicial Com- 
 mittee of P. C. on appeal from India, 1874), L. E., 1 Ind. App. 364, 
 was a case in which the plaintiffs, the railway company, sued the 
 defendant for damage produced by the bursting and consequent escape 
 of the water of two ancient tanks. These tanks it was the duty of the 
 defendant, the Zemindar, to maintain as part of an ancient national 
 system of irrigation. It was found as a fact by the judge of first 
 instance, that the defendant had used all reasonable precautions in the 
 maintenance of the tanks; that they were constructed with escapements 
 sufficient for all ordinary floods; and that the breach took place by an 
 extraordinary flood. The Judicial Committee, affirming the judgment 
 of the High Court of Madras, as well as of the judge of first instance, 
 held that the defendants were not liable. The same principle was 
 applied in a more recent case to the liability of a proprietor, ratione 
 tenurae, to repair an ancient sea-wall forming a common defence for 
 the low level lands of himself and other owners. Repairs having been 
 necessitated by an extraordinary high tide and storm, the proprietor 
 was held entitled (having made the repairs) to lie reimbursed by a rate 
 on the owners of the whole level. Reg. v. Commissioners of Sew&>*s 
 for Essex (C. A. 1884), 14 Q. B. D. 561. 
 
 The same principle applies in the cast' of a common water-supply en- 
 joyed by the occupiers of the different floors of a bouse. In Anderson v. 
 Oppenheimer (C. A. 1880), 5 Q. B. D. 602; 49 L. J.' Q. B. 708, the 
 plaintiff, who was the tenant of the basement of a house owned by the
 
 272 ACCIDENT. 
 
 Nos. 5, 6. — Fletcher v. Rylands, &/C. — Notes. 
 
 defendant and let by him in separate floors to different tenants, had 
 suffered damage through the bursting of a water-pipe forming part of 
 the system for the common supply of the house: it was held that, the 
 water being stored for the benefit of the defendant in common with the 
 plaintiff and his other tenants, the principle of Rylands v. Fletcher 
 did not apply; and the defendant, not having been guilty of any negli- 
 gence in keeping and maintaining the pipe, which the jury had found 
 to be reasonably tit and proper for the supply, was not liable. Boss v. 
 Fedden (1872), L. K., 7 Q. B. 661; 41 L. J. Q. B. 270, was a similar 
 decision in an action between two tenants of different floors of a house. 
 There had been a similar decision in a case where the defendant was 
 himself the landlord occupying the upper part of the house. Carstairs 
 v. "Taylor (1871), L. R., 6 Ex. 217; 40 L. J. Exch. 129. And tbere is 
 a similar decision by Stephen, J., in Blake v. Land& House Property 
 Corporation (1887), 3 Times R. 667. But the occupier of the upper floor 
 is liable for the negligent act of a servant in the course of his employ- 
 ment. As where a tap in a lavatory intended for use of defendant's 
 clerks is negligently left running by one of the clerks. Buddiman v. 
 Smalt, (1SS9), 60 L. T. 708. 
 
 AMERICAN NOTES. 
 
 The case of Fletcher v. Rylands has been cited and its doctrine approved in 
 Wuson v. City of New Bedford, 108 Massachusetts, 201 ; 11 Am. Rep. 352, 
 a case of water percolating from a reservoir; in Shipley v. Fifty Associates, 
 100 Massachusetts, 194; 8 Am. Rep. 318, a case of snow and ice falling from a 
 roof into a street; in Gorhamv. Gross, 125 Massachusetts, 232; 28 Am. Rep. 
 234, a case of a falling wall ; in Cahill v. Eastman, 18 Minnesota, 324 ; 10 Am. 
 Rep. 184, a case of a tunnel excavated under a stream, and the water breaking 
 through and Undermining plaintiff's land, — a very learned examination of 
 the English and American adjudications; in Colton v. Onderdonk, 09 Cali- 
 fornia, 155; 58 Am. Rep. 550, a case of blasting; Sanderson v. Penn. Coal 
 Co., 80 Penn. St. 401 ; 27 Am. Rep. 711, fouling a stream by a colliery. 
 (But in a later hearing of the same case, 113 Penn. St. 120 ; 50 Am. Rep. 89, 
 note, Fletcher v. Eylands was distinguished, and also disapproved.) 
 
 The doctrine of Fletcher v. Rylands is perhaps impliedly recognized in 
 Pixley v. Clark, 35 New York, 520, the case of water percolating through a 
 reservoir ; in Heeg v. Licht, 811 New York, 579 ; 30 Am. Rep. 654, the case of 
 keeping gunpowder; Jacobs v. Allard, 42 Vermont, 303; 1 Am. Rep. 331, dis- 
 charging waste into a stream ; in People v. Gold, Sfc. Co., 60 California, 138; 
 50 Am. Rep. 80, discharging gravel into a stream ; Mairs v. Manhattan, 8cc. 
 Ass'n, 89 New York, 498, accidental escape of collected surface water in a 
 street. 
 
 The doctrine of Fletcher v. Rylands is impliedly denied in Swell v. Cuds, 50 
 New Hampshire, 439; 9 Am. Rep. 270, a case of surface water. 
 
 In respect to explosions, the leading American case is Hay v. Cohoes Co., 2
 
 ACCIDENT. 
 
 Nos. 5, 6. — Fletcher v. Rylands, &c. — Notes. 
 
 New York, 159, in which the defendant was held liable for injury to his neigh- 
 bour's land by blasting on his own, without reference to the question of negli- 
 gence. This was followed in the similar cases of City of Tiffin v. McCormack, 
 34 Ohio St. 638; 32 Am. Rep. 408; Mc Andrews v. Colierd, 13 Vroom, 189; 
 36 Am. Rep. 508 ; Mairs v. Manhattan. Sfc. Ass'n, 89 New York, 498, in these 
 cases the defendant's act was intrinsically dangerous. 
 
 This doctrine however has been held not to extend to the explosion of a 
 steam-boiler, in the absence of negligence. Losee v. Buchanan. 51 Xew York, 
 476 ; 10 Am. Rep. 623, distinguishing Hay v. Co/toes Co. and Fletcher v. Rylands, 
 the latter on the ground that it was based on the rule respecting the escape 
 of animals, but observing that "the law as laid down" in that case "is in 
 direct conflict with the law as settled in this country," and citing Lapham v. 
 Curtis, 5 Vermont, 371 ; Todd v. Cochell, 17 California, 97 ; Shrewsbury v. 
 Smith, 12 Gushing. 177; Pixley v. Clark, 35 New York, 520; Sheldon v. Sher- 
 man, 42 id. 484; 1 Am. Rep. 569. 
 
 Losee v. Buchanan is followed in Marshall v. Welwood, 9 Vroom (New .Jer- 
 sey), 339 ; 20 Am. Rep. 394, a precisely similar case. Of Fletcher v. Rylands 
 the court say : — 
 
 " This principle would evidently apply to, and rule, the present case ; for 
 water is no more likely to escape from a reservoir and do damage, than steam 
 is from a boiler; and therefore if he who collects the former force upon his 
 property, and seeks, with care and skill, to keep it there, is answerable for his 
 want of success, so is he who under similar conditions endeavours to deal with 
 the latter. There is nothing unlawful in introducing water into a properly 
 constructed reservoir on a person's own land, nor raising steam in a boiler of 
 proper quality ; neither act, when performed, is a nuisance per se ; and the 
 inquiry consequently is, whether in the doing of such lawful act the party 
 who does it is an insurer against all flaws in the apparatus employed, no mat- 
 ter how secret, or unascertainable by the use of every reasonable test, such 
 flaws may be. This English adjudication takes the affirmative side of the 
 question, conceding however that the subject is not controlled by any express 
 decision, and that it is to be investigated with reference to the general 
 grounds of jurisprudence. I have said the doctrine involved has been learn- 
 edly treated, and the decision is of great weight, and yet its reasoning has 
 failed to convince me of the correctness of the result to which it leads, and 
 such result is clearly opposed to the course which judicial opinion has taken 
 in this country. The fallacy in the process of argument by which judgment 
 is reached in this case of Fletcher v. Rylands, appears to me to consist in this : 
 that the rule mainly applicable to a class of cases which, I think, should 
 be regarded as in a great degree exceptional, is amplified and extended into 
 a general, if not universal principle. The principal instance, upon which 
 reliance is placed, is the well-known obligation of the owner of cattle, to pre- 
 vent them from escaping from his land and doing mischief. The law as to 
 this point is perfectly settled, and has been settled from the earliest times, 
 and is to the effect, that the owner must take charge of his cattle at his 
 peril, and if they evade his custody he is, in some measure, responsible for 
 the consequences. This is the doctrine of the Year Books, but I do not find 
 vol. i —18
 
 274 ACCIDENT. 
 
 Nos. 5, 6. — Fletcher v. Rylands, &.c. — Notes. 
 
 that it is grounded in any theoretical principle, making a man answerable 
 for his acts or omissions, without regard to his culpability. That in this 
 particular case of escaping cattle so stringent an obligation upon the owner 
 should grow up, was not unnatural. That the beasts of the landowner 
 -should be successfully restrained, was a condition of considerable impor- 
 tance to the unmolested enjoyment of property, and the right to plead that 
 the escape had occurred by inevitable accident, would have seriously im- 
 paired, if it did not entirely frustrate, the process of distress damage feasant. 
 Custom has had much to do in giving shape to the law, and what is highly 
 convenient readily runs into usage, and is accepted as a rule. It would but 
 rarely occur that cattle would escape from a vigilant owner, and in this 
 instance such rare exceptions seem to have passed unnoticed, for there appears 
 to be no example of the point having been presented for judicial considera- 
 tion : for the conclusion of the liability of the unnegligent owner rests in 
 dicta, and not in express decision. But waiving this, there is a consideration 
 which seems to me to show that this obligation which is put upon the owner 
 of errant cattle should not be taken to be a principle applicable, in a general 
 way, to the use or ownership of property, which is this : that the owner of 
 such cattle is, after all, liable only sub modo for the injury done by them, 
 that is, he is responsible, with regard to tame beasts who have no exception- 
 ally vicious disposition so far as is known, for the grass they eat, and such 
 like injuries, but not for the hurt they may inflict upon the person of others, 
 — a restriction on liability which is hardly consistent with the notion that 
 this class of cases proceeds from a principle so wide as to embrace all per- 
 sons whose lawful acts produce, without fault in them, and in an indirect 
 manner, ill results which disastrously affect innocent persons. If the prin- 
 ciple ruling these cases was so broad as this, conformity to it would require 
 that the person being the cause of the mischief should stand as an indem- 
 nifier against the whole of the damage. It appears to me therefore that this 
 rule, which applies to damage done by straying cattle, was carried beyond its 
 true bounds, when it was appealed to as proof that a person in law is answer- 
 able for the natural consequences of his acts, such acts being lawful in 
 themselves, and having been done with proper care and skill." 
 
 The doctrine of Fletcher v. Rylands is disapproved in Brown v. Collins, 53 
 New Hampshire. 442; Hi Am. Rep. 372, the case of a runaway horse, and in 
 ■Garland v. Towne, 55 New Hampshire, 55; 20 Am. Rep. 104, a case of snow 
 and ice falling from a roof into the street. In the latter case, the court, 
 speaking of Fletcher v. Rylands, say: "I am not aware that any court on 
 this side the Atlantic has gone so far as this," and - 1 apprehend it would 
 he a surprise," &c. In the former case the court say: — 
 
 " Everything that a man can bring on his land is callable of escaping, 
 against his will, and without his fault, with or without assistance, in some 
 form, solid, liquid, or gaseous, changed or unchanged by the transforming 
 processes of nature or art, and of doing damage after its escape. Moreover 
 if there is a legal principle that makes a man liable for the natural con- 
 sequences of the escape of things which he brings on his land, the application 
 of such a principle cannot be limited to those things ; it must be applied to
 
 ACCIDENT. 275 
 
 Nos. 5, 6. — Fletcher v. Rylands, &-c. — Notes. 
 
 all his acts that disturb the original order of creation; or at least to all 
 things which he undertakes to possess or control anywhere, and which were 
 not used and enjoyed in what is called the natural or primitive condition of 
 mankind, whatever that may have been. This is going bacls a Long way for 
 -si standard of legal rights, and adopting an arbitrary test of responsibility 
 •that confounds all degrees of danger, pays no heed to the essential elements 
 of actual fault, puts a clog upon natural and reasonably necessary uses of 
 matter, and tends to embarrass and obstruct much of the work which it seems 
 to be man's duty carefully to do. The distinction made by Lord Cairns, 
 Jtylands v. Fletcher, L. R., 3 II. L. 330, between a natural and a non-natural 
 use of land, if he meant anything more than the difference between a 
 reasonable use and an unreasonable, one, is not established in the law. 
 Even if the arbitrary test were applied only to things which a man brings 
 in his land, it would still recognize the peculiar rights of savage life in the 
 -wilderness, ignore the rights glowing out of a civilized state of society, and 
 make a distinction not warranted by the enlightened spirit of the common 
 law : it w r ould impose a penalty upon efforts, made in a reasonable, skilful, 
 and careful manner, to rise above a condition of barbarism. It is impossible 
 that legal principle can throw so serious an obstacle in the way of progress 
 and improvement. Natural rights are, in general, legal rights; and the 
 arights of civilization are, in a legal sense, as natural as any others. 'Most 
 of the rights of property, as well as of person, in the social state, are not 
 absolute but relative. ' (Losee v. Buchanan, 51 New York, 485) ; and if men ever 
 -were in any other than the social state, it is neither necessary nor expedient 
 that they should now govern themselves on the theory that they ought to live 
 in some other state. The common law does not usually establish tests of 
 responsibility on any other basis than the propriety of their living in the 
 social state, and the relative and qualified character of the rights incident to 
 that state." 
 
 Fletcher v. Rylands is also disapproved (although distinguished) in Penn. 
 Coal Co. v. Sanderson, 113 Penn. St. 126; 50 Am. Rep. 89, note. The court 
 .■say: " A rule which casts upon an innocent person the responsibility of an 
 insurer is a hard one at the best, and will not be generally applied, unless 
 required by some public policy on the contract of the parties." It " has not 
 been generally received in this country." 
 
 Mr. Freeman, the editor of American Decisions, says in a note, 29 id. 149, 
 Hiat "the doctrine is not adopted in this country, and Judge Oliver AYex- 
 dell Holmes, Jr., condemns it in 14 American Law Review, p. 1. 
 
 Judge Cooley observes (Torts, 573), citing the principal cases : " A com- 
 parison of these cases seems to show the English rule to be as follows: 
 Whoever gathers water into a reservoir, where its escape would be injurious 
 to others, must at his peril make sure that the reservoir is sufficient to retain 
 the water which is gathered into it. But if thus sufficient in construction, 
 the liability for the subsequent escape of the water becomes a question of 
 negligence. The proprietor is not liable if the water escape because of the 
 •wrongful act of a third party, or from vis major, or from any other cause con- 
 sistent with the observance of due and reasonable care by him. Due care 
 must of course be a degree of care proportioned to the danger of injury from
 
 276 ACCIDENT. 
 
 No. 7. — Nitro-Phosphate, &c. Co. v. London and St. Katharine Docks Co. — Rule. 
 
 the escape ; but it is not very clear that the English rule, as thus explained, 
 differs from that of this country." But at p. 570 he says: "Of reservoirs 
 which cause injuries to the lower proprietors only as they break away, the 
 American cases seem to plant the liability on the ground of negligence." 
 
 The doctrine of Fletcher v. Rylands is carefully discussed by Mr. Bigelow 
 (Lead. Cases on Torts, 492). His conclusion is that the doctrine is in " a 
 confused state." 
 
 The question of liability for the collection and constant injurious discharge 
 of surface water is distinguishable from the question in Fletcher v. Rylands, 
 and it is uniformly held, we believe, that such injury forms a valid ground 
 of action ; and in respect to communication of fire it is uniformly held that 
 this affords no ground for recovery unless the fire is negligently set or 
 tended. 
 
 No. 7. — NITRO-PHOSPHATE, &c. CO. v. LONDON & ST. 
 KATHARINE DOCKS CO. 
 
 (c. a. from Fry, J., in Chancery Division, 1877.) 
 
 RULE. 
 
 Where a defendant charged with negligent damage has 
 been guilty of such negligence as would have produced 
 the damage complained of, he cannot excuse himself on 
 the ground of inevitable accident by showing that the 
 damage would have been incurred through an unavoidable 
 cause, although he had done his duty. But if he can show 
 that a substantial and fairly ascertainable portion of the 
 damage which actually happened is to be attributed solely 
 to that unavoidable cause, the liability for damage will be 
 apportioned. 
 
 Nitro-phosphate, &c. Co. v. London & St. Katharine Docks Co. 
 
 9 Ch. D. 503 (s. c. 39 L. T. 433 ; 27 W. R. 267). 
 
 This was an action to recover damages for an injury caused to 
 the plaintiffs' works and property by an overflow of water from the 
 defendants' dock, which, as the plaintiffs alleged, resulted from the 
 defendants' negligence in not having maintained the retaining wall 
 of their dock, called the Victoria Dock, at a sufficient height. 
 
 The plaintiffs were the owners of a manufactory for chemical 
 manures, situate at Plaistow, in Essex. The defendants were the
 
 ACCIDENT. 277 
 
 No. 7. — Nitro-Phosphate, &-c. Co. v. London and St. Katharine Docks Co. 
 
 owners of the Victoria Dock, which nearly adjoined the premises 
 of the plaintiffs. The dock was approached from the river by a 
 narrow artificial channel and an artificial tidal basin, through which 
 the water was admitted into the dock. The entrance gates of the 
 channel were so constructed as to admit and retain the water of the 
 river, and as the tide rose the water flowed from the river througn 
 the channel into the tidal basin. The natural level of the land on 
 which the plaintiffs' premises were situate and on which the defen- 
 dants' dock was constructed was some seven or eight feet below 
 Trinity high-water mark, and the water of the river was kept from 
 overflowing the whole of the district by means of a river wall. 
 The district was subject to the jurisdiction of the Dagenham and 
 Havering Commissioners, who, prior to November, 1875, required 
 the owners of land fronting the river to maintain the river wall at 
 a height of 4 ft. 2 in. above Trinity high-water mark. On the 
 20th of March, 1874, there was a very high tide in the river 
 Thames. The water then rose at London Bridge to a height of 
 4 ft. 3 1 in. above Trinity high-water mark. This was the highest 
 tide which had been up to that time recorded in the river. The 
 highest tide previously recorded since the year 1852 was in March, 
 1869, when the water rose 3 ft. 7 in. above Trinity high-water 
 mark at London Bridge. On the 20th of March, 1874, a small 
 quantity of water overflowed the retaining bank of the defendants' 
 entrance channel and basin and found its way into the plaintiffs' 
 .premises. The plaintiffs then gave notice to the defendants that 
 they should hold them liable for the damage thus caused. The 
 defendants, however, repudiated their liability, and no steps were 
 taken to enforce the claim. In April, 1874, when another high 
 tide was anticipated, the defendants placed some clay on the top of 
 their bank ; but this was only a temporary addition to its height, 
 and was not maintained afterwards. No tide of equal height oc- 
 curred again, and no further overflow of water from the defendants' 
 channel or basin took place before November, 1875. Early in the 
 morning (about 2.30 A. M.) of the 15th of November, 1875, there 
 was again an extraordinarily high tide in the Thames. The water 
 then rose at London Bridge to a height of 4 ft. 6 in. above Trinity 
 high- water mark. It rose to 4 ft. 5 in. at the Victoria Dock, and 
 there was a general overflow of the river in that district. A large 
 quantity of water found its way into the plaintiffs' premises and 
 caused considerable damage to their works and stock-in-trade. This
 
 278 ACCIDENT. 
 
 No. 7. — Nitro-Phosphate, &/C. Co. v. London and St. Katharine Docks Co. 
 
 water, as the plaintiffs alleged, was water which overflowed the bank 
 of the defendants' entrance channel and tidal basin at the same 
 place where the overflow had occurred in March, 1874. The plain- 
 tiffs alleged that the defendants were liable for negligence in not 
 keeping their bank at a proper height so as to prevent the over- 
 How of the water at high tides, and they claimed damages to the 
 amount of £7000, and an injunction to restrain the defendants 
 from permitting any further overflow of water into the plaintiffs'' 
 premises. 
 
 By their statement of defence the defendants denied that the 
 water which had caused the damage to the plaintiffs had come from 
 their premises. They also denied their liability if the water had 
 come from their premises. They asserted that they had not been 
 guilty of any negligence, and in particular that the high tide of the 
 loth of November, 1875, was an act of God, against which they 
 were not bound in any case to protect the plaintiffs. 
 
 The Victoria Dock was constructed by a company called the 
 Victoria (London) Dock Company, which was incorporated under 
 that name by an Act (13 & 14 "Vict, c, li.) passed in 1850. By 
 the Victoria (London) Docks Act, 1853 (10 & 17 Vict. c. exxxi.), 
 the Act of 1850 was repealed, but (by § 4) it was provided that, 
 notwithstanding the repeal, the company should for the purposes 
 of the Act remain as from the passing of the Act of 1850, and con- 
 tinue incorporated by the name of The Victoria (London) Dock 
 Company, " with power to make and maintain docks and works,, 
 with all proper works and conveniences connected therewith, and 
 to purchase, take, hold, and dispose of lands and other property for- 
 the purposes and within the restrictions of this Act and of the Acts 
 incorporated herewith." By § 3, the Companies Clauses Consoli- 
 dation Act, 1845, the Lands Clauses Consolidation Act, 1845, and 
 the Harbours, Docks, and Piers Clauses Act, 1847, were incorporated 
 with the special act. § 22 provided as follows: "And whereas a 
 plan and sections of the dock authorized to be made by the said 
 recited Act, and therein described as the intended dock, and of the 
 works connected therewith, showing the situation and levels thereof 
 'respectively, and the limits within which the same are to be con- 
 structed, and also a book of reference containing the names of the 
 owners, lessees, and occupiers of the lands upon or through which 
 the same are intended to be made, were previously to the passing 
 of the said Act, and in the month of November, 1849, deposited
 
 ACCIDENT. 279 
 
 No. 7. — Nitro-Phosphate, &*. Co. v. London and St. Katharine Docks Co. 
 
 with the respective clerks of the peace for the counties of Essex 
 and Kent: Be it enacted, that, subject to the provisions in this 
 and the said incorporated Acts contained, and to the powers of 
 deviation, alteration, and enlargement herein and in the said incor- 
 porated Acts contained, it shall be lawful for the said company to 
 continue, make, complete, and maintain the said dock and the 
 works which were authorized by the said Act hereby repealed in 
 the situation and upon the lands delineated upon the said plans 
 and contained in the said book of reference, and according to the 
 levels defined on the said sections." § 23 empowered the com- 
 pany, subject to the provisions of the special Act and of the Acts 
 incorporated therewith, to alter, vary, and enlarge the dock and 
 works authorized by the Act of 1S50, and to make and maintain 
 additional docks and other works connected therewith ; and § 24 
 provided : " Whereas plans and sections of the additional docks, 
 enlargements, alterations, and works herein authorized to be made, 
 and also books of reference to such plans, containing the names of 
 the owners or reputed owners, lessees or reputed lessees, and occu- 
 piers of the lands in, upon, or through which the same works are 
 intended to pass or be made, have been deposited with the clerks 
 of the peace for the counties of Essex and Kent : Therefore, subject 
 to the provisions in this and the said incorporated Acts, and to the 
 powers of deviation in this Act contained, it shall be lawful for the 
 company to make or maintain the said additional docks, enlarge- 
 ments, alterations, and other works upon the lands delineated on 
 the said plans and described in the said book of reference, and 
 according to the levels defined on the sections." 
 
 The deposited sections (though their effect was the subject of 
 conflicting evidence) showed, in the opinion of the court, the retain- 
 ing bank of the entrance channel and tidal basin at an uniform 
 level of four feet above Trinity high-water mark. The dock and 
 works were completed in 1855. 
 
 By the London and St. Katharine Docks Act, 1864 (27 & 28 Vict. 
 c. clxxviii.), the London Dock Company and the St. Katharine Dock 
 ( lompany were amalgamated into one company by the name of The 
 London and St. Katharine Docks Company, and the transfer to 
 that company and the N amalgamation with their undertaking and 
 docks of the undertaking and docks of the Victoria (London) Dock 
 Company were authorized. § 57 confirmed several agreements 
 for this transfer and amalgamation which had been previously
 
 280 ACCIDENT. 
 
 No. 7. — Nitro-Phosphate, &C. Co. v. London and St. Katharine Docks Co. 
 
 entered into between the Victoria Company and the London and 
 St. Katharine Companies. § 58 enacted that the transfer and amal- 
 gamation should take place in accordance with those agreements. 
 § 59 provided that "the Victoria Docks, by this Act transferred 
 to and vested in the amalgamated company, are so transferred 
 to and vested in them subject to the payment, satisfaction, or 
 discharge by the amalgamated company of the whole of the debts, 
 liabilities, and engagements of the Victoria Company as they 
 shall be and exist on the transfer and amalgamation taking effect, 
 and subject also to the several statutory obligations relating to the 
 Victoria Docks which appear by the several sections and provisions 
 of the recited Acts relating to the Victoria Dock Company, which 
 are set forth in part 3 of the 4th schedule to this Act annexed, and 
 the amalgamated company's obligations under this Act with respect 
 to the Victoria Docks." By § 60 : " From and after the transfer and 
 amalgamation, and except only as is by this Act otherwise provided, 
 the amalgamated company shall with respect to the Victoria Docks 
 and all matters connected therewith represent the Victoria Dock 
 Company as if that company and the amalgamated company had 
 originally been, and had continued without intermission to be, one 
 and the same body corporate." § 61 provided that, on the trans- 
 fer and amalgamation taking effect, the Victoria (London) Docks 
 Act, 1853, should be repealed, but § 62 provided that, notwith- 
 standing that repeal, the several sections and provisions of that 
 Act which were set forth in part 3 of the 4th schedule to the amal- 
 gamating Act should, so far as the same were at the time of the 
 transfer and amalgamation in force, remain in fall force. The 
 sections of the Act of 1853 which are above referred to were not 
 included in the 4th schedule to the amalgamating Act. § 64, 
 however, provided that, notwithstanding the repeal of the Act of 
 1853 and other Acts relating to the Victoria Dock Company, "every- 
 thing before the repeal thereof done, suffered, and confirmed under 
 or by any of those Acts shall be as valid as if the repeal thereof 
 had not happened, and the repeal thereof and the operation of this 
 Act respectively shall accordingly be subject and without prejudice 
 to any and every thing so done, suffered, and confirmed respectively, 
 and to all rights, liabilities, claims and demands, both present and 
 future, which, if the repeal had not happened, would be incident to 
 or consequent on any and every thing so done, suffered, and con- 
 firmed respectively ; and with respect to all such things so done,
 
 ACCIDENT. 281 
 
 No. 7. — Nitro-Phosphate, &■<:. Co. v. London and St. Katharine Docks Co. 
 
 suffered, and confirmed respectively, and all such rights, liabilities, 
 claims and demands, the amalgamated company shall to all intents 
 represent the Victoria Dock Company, provided that the generality 
 of this provision shall not be restricted by any of the other provi- 
 sions of this Act." And by § 67, " Notwithstanding the repeal of 
 those Acts, all plans and books of reference . . . respectively de- 
 posited for the purposes of any of those Acts with any clerk of the 
 peace, shall remain in his custody as if they were deposited for 
 the purposes of this Act." § 92 provided that "The amalgamated 
 company shall maintain, manage, regulate, work, and use the Lon- 
 don Docks and the St. Katharine Docks respectively, subject to all 
 statutory duties, obligations, and liabilities to which the London 
 Dock Company and the St. Katharine Dock Company and the 
 Victoria Dock Company, and their lessees respectively, immediately 
 before the passing of this Act were, or but for this Act would be, 
 subject in respect of the London and St. Katharine Docks and 
 Victoria Docks respectively." 
 
 The action came on for trial before Mr. Justice Fry on the 19th 
 of July, 1877. 
 
 The evidence proved, in the opinion of the court, that the water 
 which caused the damage to the plaintiffs came from the defen- 
 dants' dock, and that the defendants' retaining bank was, on the 
 15th of November, 1875, for some distance from six to ten inches 
 below the height of four feet above Trinity high-water mark. 
 
 It was also proved that, with the exception of the overflow in 
 March, 1874, the water had never overflowed the defendants' retain- 
 ing wall from the time when it was first constructed until Novem- 
 ber, 1875. Mr. C. J. More, the assistant engineer to the Thames 
 Conservancy Board, proved, from a register of tides kept by them 
 at London Bridge, that, commencing with the year 1868, the tides 
 there exceeding three feet above Trinity high-water mark were as 
 follows : — 
 
 8th February, 1868 3 ft. 5 in. 
 
 1st March, 1869 3 ft. 7 in. 
 
 3rd November, 1869 3 ft. H in. 
 
 27th February, 1873 3 ft. 6in. 
 
 20th March, 1874 4 ft. 31 in. 
 
 15th November, 1875 4 ft. 6 in. 
 
 2nd January, 1877 (morning) ... 3 ft. 8 in. 
 
 " " (evening) . . . 3 ft. Ill- i n . 
 
 31st January, 1877 3 ft. 4 in.
 
 282 ACCIDENT. 
 
 No. 7. — Nitro-Phosphate, &C. Co. v. London and St. Katharine Docks Co. 
 
 It was also proved that the tides at the Victoria Dock were gen- 
 erally from two to eight inches lower than those at London Bridge, 
 and that the rise of the water is much slower at the latter part 
 than at the earlier part of the rise. The openings in the walls of 
 the embankments on the north and south sides of the Thames, 
 constructed by the Metropolitan Board of Works, were originally 
 required to be constructed at a level of four feet above Trinity 
 high-water mark, but after the tide of November, 1875, sills six 
 inches high were placed in those openings. After that tide, also, 
 the Dagenhani and Havering Commissioners required the frontagers 
 in their district to raise the river wall to five feet above Trinity 
 high-water mark. 
 
 Argued for the plaintiffs: — The defendants were bound (over 
 and above their specific obligation under their private acts) to keep 
 their bank as high as four feet above Trinity high-water mark, 
 to take proper precautions to prevent any overflow which might 
 result from any tide which might reasonably have been expected. 
 The defendants brought the water there for their own purposes, 
 and must keep it in at their peril. Rylands v. Fletcher (p. 23G, 
 supra). They may be excused if mischief results from the act of 
 God. Nichols v. Marsland (p. 262, supra). But in the present 
 case there is no excuse. A tide three inches higher than a pre- 
 vious one cannot lie called the act of God. [Fry, J. referred to 
 Rex v. The Commissioners of Sewers for Jr. Somerset, 4 I!. R. 511, 
 8 T. E. 312.] Persons who have parliamentary powers must still 
 use ordinary precautions. Vaughan v. Taff By. Co. (1860), 5 H. & 
 N. 679; 29 L. J. Ex. 247. In Jones v. Festiniog Ry. Co. (1868). 
 L. R, 3 Q. B. 733 : 37 L. J. Q. B. 214, the defendants were held liable 
 for damage done by fire from their locomotive, because they had no 
 express statutory power to use it. In Lawrence v. G. N. Ry. Co. 
 ( 1 851), 16 Q. B. 643 ; 20 L. J. Q. B. 293, the defendant company were 
 held liable for not having done something more (making flood-open- 
 ings) than they were expressly required by their Act to do. In the 
 present case the defendants, not having done what the Act required 
 them to do, are thrown back on their common-law liability. 
 
 Argued for the defendants: — The precautions which have been 
 suggested would, by reason of an act of God, have been unavailing 
 to prevent the damage. The act of God begins at that point in the 
 operation of natural causes when that happens which goes beyond 
 what any reasonable or prudent man might have anticipated. Nichols
 
 ACCIDENT. 283 
 
 No. 7. — Nitro-Phosphate, &,c. Co. v. London and St. Katharine Docks Co. 
 
 ■v. Marsland (p. 262, supra). If we are liable at all, we are liable 
 only for so much of the damage as has been occasioned by our fault. 
 This distinction was made in Workman v. G. N. Uy. Go. (1863), 32 
 L. J. (Q. B.) 279. [Fey, J. In Keighley's Case, 10 Co. Rep. 139 a, 
 
 and in all the other reported cases, so far as I know, in which the 
 act of God has been admitted as an excuse, tlie defendant had him- 
 self done all that he was bound to do.] On the construction of our 
 Acts there is no such hard and fast level as four feet for the entire 
 extent of the dock. The doctrine of Eylands v. Fletcher does not 
 apply, because we are acting under parliamentary powers. 
 
 FRY, J., after stating the facts of the case, and his conclusion 
 ^ipon the evidence that the damage caused to the plaintiffs' prem- 
 ises was caused exclusively by water which came from the defen- 
 dants' docks, and that on the loth of November, 1875, the crown of 
 the defendants' retaining bank was to a very serious extent below 
 four feet above Trinity high-water mark, continued : — 
 
 Now, that being the state of things, this question arises, Was 
 there or was there not negligence on the part of the defendants ? 
 The facts which bear upon that question are shortly these : Before 
 -November, 1875, the Pagenham and Havering Commissioners re- 
 squired the river wall of the Thames to be maintained at a level 
 of 4 ft. 2 in. above Trinity high-water mark. The openings in 
 the walls of the Thames embankments were originally required 
 to be constructed at a height of four feet above Trinity high-water 
 mark. That would rather imply that the defendants were negli- 
 •gent in leaving their bank below four feet. But against that I am 
 -"bound to set this fact, that from the end of the year 1855, when 
 their docks were opened, down to March, 1874, not a drop of water 
 ■had ever passed over their bank. 1 should therefore have had 
 great difficulty in coming to the conclusion that there was any 
 -common-law liability for negligence on the part of the defendants, 
 subject, however, to the question whether the fact that water did 
 Slow over the bank in March, 1874, created such a liability. It 
 Isas been argued for the plaintiffs that that fact was in effect 
 notice to the defendants that they might expect a tide as high 
 as four feet to happen again, although such an event had never 
 been known to have happened in the history of the world before 
 March, 1874; and it is said that, after the tide had once reached 
 four feet, a tide which reached that height again could never be 
 -said to be so unusual or unexpected as to be deemed an act of
 
 284 ACCIDENT. 
 
 No. 7. — Nitro-Phosphate, &oc. Co. v. London and St. Katharine Docks Co. 
 
 God in the legal sense of the words. I do not think that view 
 is correct. I do not think that the mere fact that a phenome- 
 non has happened once, when it does not carry with it or import 
 any probability of a recurrence, — when, in other words, it does 
 not imply any law from which its recurrence can be inferred, — 
 places that phenomenon out of the operation of the rule of law 
 with regard to the act of God. In order that the phenomenon 
 should fall within that rule, it is not, in my opinion, necessary 
 that it should be unique, that it should happen for the first time ; 
 it is enough that it is extraordinary, and such as could not reason- 
 ably be anticipated. That appears to me to be the view which has 
 been taken in all the cases, and notably by Lord Justice Mellish 
 in the recent case of Nichols v. Marsland, 2 Ex. J). 5. He says, 
 speaking of the flood which had occurred there, " The jury have 
 distinctly found, not only that there was no negligence in the con- 
 struction or the maintenance of the reservoirs, but that the flood 
 was so great that it could not reasonably have been anticipated, 
 although, if it had been anticipated, the effect might have been 
 prevented; and this seems to us in substance a finding that the 
 escape of the water was owing to the act of God." Pausing there, 
 it may be observed that to say that a thing could not reasonably 
 have been anticipated is to say that it is the act of God. He then 
 proceeds : " However great the flood had been, if it had not been 
 greater than floods that had happened before and might be expected 
 to occur again, the defendant might not have made out that she was 
 free from fault." Therefore, I think that if the case had stood sim- 
 ply on the common-law liability of the defendants for negligence, I 
 should have had great difficulty in concluding that there was any 
 such liability, the flood of November, 1875, being, in my judgment, 
 what, in the contemplation of law, is called an act of God. 
 
 But I do not think that this case is to be determined upon the 
 defendants' common-law liability, and for this reason: The defen- 
 dants did not choose to rely on their common-law right to use their 
 land as they might think fit. They chose to go to Parliament for 
 powers to authorize them to some extent apparently to do what 
 they might have done without those powers. They take a power 
 to construct and to maintain a dock upon their land ; and, taking 
 that power and acting upon it, they must, in my judgment, subject 
 themselves to the conditions which Parliament has imposed upon 
 the exercise of that power. They cannot afterwards fall back upon
 
 ACCIDENT. 285 
 
 No. 7. — Nitro-Phosphate, &.c. Co. v. London and St. Katharine Docks Co. 
 
 the question of what was reasonable care, if Parliament have in any 
 
 particular respect laid down what they are to do. The question, 
 therefore, which I have to determine comes, in my opinion, to this : 
 Have Parliament laid down anything which takes the place of the 
 common-law liability to use reasonable care ? Have they, in short, 
 defined the height at which the bank of the dock is to be main- 
 tained ? If they have, I do not think that the defendants can say, 
 We will be judged by our own common-law liability or by our 
 statutory liability, as we may think fit. To allow them to do so 
 would obviously be unfair, for this reason, that if they perform 
 their statutory obligation they are harmless in all cases, even if 
 that liability is less than the common-law liability; whereas, if 
 they perform even less than the statutory obligation, they might 
 contend that, if the common-law obligation reached to a less ex- 
 tent, they would be harmless also. I think they must stand or 
 fall by their statutory liability. In some cases this will enure to 
 their benefit, in other cases it will enure to their injury. But 
 whether it be for or against them, it becomes, in my opinion, the 
 rule by which their negligence or care is to be tried. I therefore 
 turn to the Act of 1853. [His Lordship referred to the provi- 
 sions of the Act and to the deposited plans and sections, and 
 continued : — ] 
 
 I hold, therefore, that the statute imposed on the defendant 
 company an obligation to maintain the upper surface of the bank 
 which was to retain the water in their dock at a level of four feet 
 above Trinity high-water mark. It is conceded that they did not 
 so maintain it. The result, in my opinion, is, that there has been 
 negligence on their part in not fulfilling their statutory obligation, 
 and that they are responsible for that negligence. 
 
 But then it is said, " That may be so as to part of the overflow, 
 but on the morning of the loth of November the water rose five 
 inches above the four feet, and we claim the benefit of the pro- 
 visions of the statute, and say that we are not liable for that five 
 inches, and, for aught that appears, that five inches would have 
 done as much damage to the plaintiffs as the eight or ten inches 
 which flowed over by reason of our bank being below the level of 
 four feet." It must be borne in mind that I cannot ascertain pre- 
 cisely what the actual depth of the water which rose over the 
 defendants' bank was, though I have no doubt in my own mind, 
 from the evidence before me, that, of the entire depth of water
 
 286 ACCIDENT. 
 
 No. 7. — Nitro-Phosphate, &/C. Co. v. London and St. Katharine Docks Co. 
 
 which passed over the defendants' bank, by far the greater portion 
 passed over before the four feet was reached by the tidal water- 
 The defendants say, " We are exonerated from the five inches of 
 rise above the four feet." How do the plaintiffs meet that ? They 
 say, "You are relying upon the act of God; and no man who has a 
 duty cast upon him, and who does not perform that duty, can 
 rely upon the act of God as any excuse at all. It is a condition 
 precedent to pleading the act of God, or getting the benefit of the 
 act of God, that you who seek the benefit of it shall have done 
 everything which it is your duty to do." Now, there is, as it seems 
 to me, great force in that contention, and for this reason, that, if 
 the defendants had done their duty, the exact experiment would 
 have been tried which was requisite in order to see what damage 
 would have followed to the plaintiffs from the act of God. 
 Whereas the defendants, by not doing their duty, have, if they 
 are right, compelled the court to try a much more difficult ques- 
 tion, viz., what would have been the result of the experiment 
 which they did not choose to try. In the one case the question 
 would have been, What has actually happened ? in the other case 
 it is, What would have happened in a state of circumstances 
 different from that which actually existed ? and I need hardly say 
 that the second is a much more difficult question to answer than 
 the first. 
 
 Furthermore, there is, as it seems to me, much authority in 
 favour of the plaintiffs' view. Going back to Jfcighlei/s Case, 10 Co. 
 Rep. 139 a., where it was held that a rate might be made upon the 
 whole of a district for the purpose of repairing a sea-wall which 
 the frontager was liable to repair, it is put in this way, that " if 
 one who is bound by prescription to repair a wall contra Jluxum 
 maris, and he keeps the wall in good repair, and of such height, 
 and as sufficient as it was accustomed ; and by the sudden and 
 unusual increase of water, salt or fresh, the walls are broken, or 
 the water overflows the walls," then a rate may be made on the 
 whole district for the repair of the wall ; that is to say, that, if 
 the person who is under the obligation does his duty and there is 
 nevertheless an act of God which destroys the wall, he is not 
 liable. And again, in Nichols v. Marsland, 2 Ex. D. 1, the ques- 
 tion was put to the jury whether there had or had not in fact been 
 negligence on the part of the defendants. It seems to me that 
 that would have been an improper question to put to the jury if it
 
 ACCIDENT. 287 
 
 No. 7. — Nitro-Phosphate, &c. Co. v. London and St. Katharine Docks Co. 
 
 had been sufficient for the defendant to say, " Whether I did or did 
 not do my duty I can rely on the act of God." 
 
 However, it does not appear to me necessary to decide this 
 point, because I am clear that a defendant cannot avail himself of 
 the act of God as an excuse when he has not done his own duty, 
 except in cases in which he can make it apparent and plain to the 
 court that, if he had done his duty, damage would still have fol- 
 lowed to the plaintiffs. Now, that burthen the defendants have, in 
 my opinion, not discharged in the present case. I cannot tell what 
 the effect of the water was before the tide reached four feet, except 
 that I do know that it is in the nature of running water to make a 
 way for itself, and, beginning therefore to flow, it would cut its own 
 channel and keep that channel open as long as there was any supply 
 of water. I cannot, tell how far the means which were at the dis- 
 posal of the plaintiffs would have been sufficient to keep out the 
 five inches of water above four feet, if it had ever reached their 
 premises. I cannot tell whether it would have reached their pre- 
 mises. Furthermore, it is to be borne in mind that the evidence 
 before me is distinct that, during the last two or three inches of 
 rise of the tide, the rise would have been much more slow and 
 gradual than during the earlier portion of the flow. Moreover, the 
 flow would have begun at a much later period of the night, and 
 the gangs of men in the plaintiffs' service were coming in during 
 that time, so that the plaintiffs might have been in a much better 
 condition to meet the smaller influx of water. Therefore, having 
 attended to the best of my ability to the evidence, I cannot say 
 that the defendants have convinced me that, if they had done 
 their duty, any damage whatever would have accrued to the 
 plaintiffs. The case, therefore, is one in which, in my opinion, 
 negligence is brought home to the defendants, in which I cannot 
 tell whether any portion of the damage did or did not result from 
 the act of God, in which the defendants have prevented me from 
 telling what the effect of the act of God would have been if they 
 had done their duty, and in which I cannot distribute the total 
 amount of damage between their negligence and the act of God 
 further than by saying that they have not convinced me that any 
 portion of the damage which has accrued would have accrued if 
 they had done what they ought to have done. I hold, therefore, 
 that the plaintiffs are entitled to damages. 
 
 It is not disputed that the measure of damages will be such a
 
 288 ACCIDENT. 
 
 No. 7, — Nitro-Phosphate, &c. Co. v. London and St. Katharine Docks Co. 
 
 sum as is requisite to restore the property of the plaintiffs to the 
 condition in which it was immediately before the flood. There- 
 fore the judgment which I propose to give is this : To declare 
 that the defendants are liable to pay to the plaintiffs the damage 
 which resulted from the inundation of the plaintiffs' works on 
 the morning of the 15th of November, 1875, and that the amount 
 necessary to restore the buildings and property of the plaintiffs 
 to the condition in which they were immediately before the inun- 
 dation is the true measure of damages. Then to refer it to the 
 chief clerk, to ascertain the amount and to direct the defendants 
 to pay the amount certified within a fixed time after the ceitifi- 
 cate. Then there will be an injunction to restrain the defendants 
 from permitting the banks of their Victoria Dock, and the tidal 
 basin and entrance channel connected therewith, to remain at a 
 level lower than four feet above the Trinity high-water mark, so 
 as thereby to cause any future overflow of water from their dock, 
 basin, or channel, or any of them, into the lands and works of the 
 plaintiffs. And of course the defendants must pay the costs of 
 the action. 
 
 From this decision the defendants appealed to the Court of 
 Appeal. 
 
 On the argument of the appeal the following cases were cited : — 
 Rylands v. Fletcher, Law Rep. 3. H. L. 330 ; Nichols v. Marsland, 
 2 Ex. J). 1 ; Withers v. North Kent Railway Company, 27 L. J. 
 (Ex.) 417; Paradine v. Jane, Alleyn, 26; River Weir Commission- 
 ers v. Adamson, 1 Q. B. D. 546; 2 App. Cas. 743; Worhnan v. 
 Great Northern. Railway Company, 32 L. J. (Q. B.) 279; Smith v. 
 Fletcher, Law Rep. 9 Ex. 64; Hudson v. Tabor, 2 Q. B. D. 290; 
 Attorney-General v. Tewkesbury and Great Malvern Railway Com- 
 pany, 1 D. J. & S. 433 ; Reg. v. York and North Midland Railway 
 Company, 1 E. & B. 178; Davis v. Garrett, 6 Bing. 716; L'iscoe v. 
 Great Eastern Railway Company, Law Rep. 16 Eq. 636; Coc v. 
 Wise, Ibid. 1 Q. B. 711. 
 
 At the conclusion of the argument, 
 
 James, L. J., said : — 
 
 We are all of opinion that Mr. Justice Fry's judgment must be 
 affirmed, with a variation omitting the declaration that the whole 
 of the damage was due to the wrongful act of the defendants, and 
 that they were liable to make good the whole of it. But as some 
 important questions are involved, on which we wish to give an
 
 ACCIDENT. 289 
 
 No. 7. — Nitro-Phosphate, &c. Co. v. London and St. Katharine Docks Co. 
 
 opinion, we will take time before we state the grounds on which 
 we proceed. 
 
 On a subsequent day, James, L. J., delivered the judgment of the 
 Court (James, Brett, and Cotton, L. JJ.), as follows: — 
 
 We intimated at the close of the arguments that the judgment 
 of the learned Judge from whom this appeal is brought would be 
 affirmed with a variation not substantially affecting the merits of 
 the appeal, and not, therefore, affecting the rights of the respon- 
 dents to the costs of the appeal, which will be given to them. 
 
 The works of the plaintiffs were inundated by a high tide which 
 came over a low part of the retaining banks of a channel leading 
 to the docks of the defendants, and the learned Judge arrived at 
 the conclusion that the inundation of the plaintiffs' works was due 
 to the neglect and default of the defendants in not having main- 
 tained a proper and sufficient barrier against the influx of the tidal 
 flood. 
 
 A great deal of the argument before the court below and in this 
 court turned upon the cpuestion whether there was any statutory 
 obligation to make and maintain the banks at any prescribed 
 height. The Acts of Parliament under which the docks were con- 
 structed referred to certain deposited plans and sections showing 
 the position and levels of the works authorized to be made. The 
 first Act referred to them as the plans according to which it was in- 
 tended to construct the docks and other works, but did not contain 
 any express enactment that they should be made accordingly ; 
 but the company having occasion to go again to Parliament, the 
 omission (if it were practically an omission) w r as remedied by an 
 express enactment in the second Act (22nd section), that it should 
 be lawful for the company to continue, make, complete, and 
 maintain the dock and works in the situation and upon the 
 lands, &c, and according to the levels defined on the sections 
 so deposited. The contention before us was that no such levels 
 could be found so deposited, and two witnesses had in fact de- 
 posed that the plans were so inaccurate or defective that they 
 could not find any such levels. The learned Judge, however, found 
 no difficulty in discovering such levels; and upon a careful exami- 
 nation of the plans we agree with him that such levels are described 
 sufficiently and clearly for any person really desirous to find in 
 the plans what the Act of Parliament said was to be found there. 
 
 VOL. T. — ID
 
 290 ACCIDENT. 
 
 No. 7. — Nitro-Phosphate, .&/C. Co. v. London and St. Katharine Docks Co. 
 
 That is to say, there is on the plan a section running through the 
 centre of the proposed works, which shows a line said to be a 
 line corresponding with the upper surface of the banks, and which 
 shows that this line was to be four feet above Trinity high-water 
 mark ; and the cross sections show the banks of the dock at a level 
 really corresponding with this line. There was therefore a statu- 
 tory direction that the banks were to be four feet above the 
 Trinity high-water mark. It was not contended by the counsel 
 for the appellants that if that w r as so there was not a statutory 
 obligation to make and maintain retaining banks or walls of that 
 height. The words of the Act are that it should be lawful for the 
 company, to make their works according to those levels, and of 
 course it was optional with them to make or not to make their 
 works at all. But if they made them, and not to those levels, 
 they would be in this dilemma: Either from the neglect of that 
 provision or condition the whole works were illegal, or the pro- 
 vision as to levels, ought to be construed as imposing a distinct and 
 separate obligation to that effect, the breach of which would not 
 invalidate all their acts and proceedings, but would have to ba 
 remedied or punished like any other breach of statutory obligation. 
 Of course the company would prefer their liability under tin- 
 latter construction to their liability to capital punishment, which 
 would be the consequence of the former ; and we prefer that con- 
 struction. It was, however, with great energy and confidence, in- 
 sisted before us that the liability was destroyed by the repeal of 
 the Act which contained that section. That Act was repealed 
 under the following circumstances : There were three dock com- 
 panies, the Victoria, the London, and the St. Katharine, who applied 
 to Parliament to authorize the two latter to be amalgamated and 
 to absorb the first ; and to give effect to that arrangement, a new 
 Act was passed repealing the existing Acts of the three companies, 
 and providing for the creation of the powers and liabilities of the 
 new company, the present defendants. There was this peculiarity 
 in the composition of the new Act, that although it repealed all 
 the old Acts, it purported to continue in a schedule certain clauses, 
 and among those clauses was not the 22nd section of the Act of 
 1853; and it was very strongly urged upon us that this very 
 peculiar style of legislation operated as a very special and peculiar 
 repeal of everything in the 22nd section so as to preclude the effect 
 of the 92nd section of the amalgamating Act, which provides that
 
 ACCIDENT. 291 
 
 No. 7. — Nitro-Phosphate, &-c. Co. v. London and St. Katharine Docks Co. 
 
 the new company shall maintain, work, and use the three docks 
 respectively subject to all statutory duties, obligations, and liabili- 
 ties to which the three companies respectively immediately before 
 the commencement of the amalgamating Act were, or, but for it, 
 would become subject in respect of the three docks respectively. 
 That contention is wholly inadmissible. When companies come 
 to Parliament for an amalgamation for their own convenience, it 
 would require very clear words indeed to induce the court to 
 conclude that they had contrived to slip in anything to destroy 
 any existing liability in themselves or any existing right in any 
 one else. And the 92nd section is, in fact, what one always 
 expects to find and does find in all these Acts sanctioning private 
 arrangements between existing companies ; and there is really no 
 doubt whatever as to the construction of the provision repealing 
 the 22nd section of the old Act, and the 92nd section, taken 
 together. The 22nd section is repealed as to powers, because the 
 company itself is to go, and the powers of the amalgamated or new- 
 company are otherwise defined ; but it is continued as to liability, 
 except that such liability is transferred to such new company. 
 We agree with the Court below, therefore, that the company was 
 clearly under a statutory liability to maintain their banks up to 
 the four feet level. 
 
 But, although we have thought it right to go fully into the 
 whole of this case as to statutory liability, having regard to the 
 fact that it was made the foundation of the judgment appealed 
 from, and that it constituted by far the greater part of the case 
 argued before us. yet, in the view we take of the case, it is really 
 immaterial ; for if there were no such statutory liability, there is 
 another and more extensive liability on the defendants. There is 
 nothing in the Act, either expressly or by implication, to affect 
 the ordinary liability of the company as riverain proprietors who 
 intermeddle with an existing river wall. They were authorized 
 to take land and make works on the banks of the river, and what 
 they did was to excavate a great bell-mouthed bay in the channel 
 of the river, and to make a channel, or cut, from that bay into 
 their dock, which is some distance back from the river, and in the 
 execution of those works to destroy the existing river wall. They 
 became landowners frontagers on the river, interfering with the 
 wall rightfully insisted on by the Commissioners of Sewers, and as 
 such they were as much liable to have and maintain a proper
 
 292 ACCIDENT. 
 
 No. 7. — Nitro-Phosphate, &c. Co. v. London and St. Katharine Docks Co. 
 
 river wall as any other of the landowners frontagers there. If 
 they had merely made the bell-mouthed bay, no one could have 
 doubted that it was their duty to have and maintain a river wall 
 around the curve, just as it was to have and maintain one across 
 the chord of that curve. But they do not maintain such a wall 
 around the curve if there is any opening in it. An inclosure or 
 defence not continuous is no inclosure or defence at all. They 
 were bound to have a river wall, and that wall a continuous one ; 
 and, therefore, the whole wall or bank, from the extreme point at 
 one end of the bay, along one side of the defendants' works round 
 the docks, and back to the extreme point at the other end of the 
 bay, was and is the river wall which it is their duty to have and 
 maintain. If the gates which are across what is called the lock 
 had been closed to the inflowing tide, that would have completed 
 the wall at that place; but they were constructed so as to open 
 to such tide. In fact, the defendants' works, being all open to 
 the tide, and the water in them at high tide being part of the 
 same sheet or body of water as that of the mid-channel, the bell- 
 mouthed bay, the lock, the cut, the docks constitute, in fact, a bay 
 and creek of the river as much as any natural bay, creek, or other 
 widening or opening to be found along the course of it. The 
 whole of this wall or bank was, therefore, a river wall or bank 
 subject to the like liabilities and jurisdiction as any other part 
 of the river wall. The defendants themselves called the officer of 
 the proper commissioners to prove that the standard appointed 
 for the river wall had been, in November, 1875, and for thirty 
 years previously, to his certain knowledge, 4 ft. 2 in. above Trinity 
 hidi-water mark. And it was the plain duty of the defendants, 
 as riverain proprietors, to have and maintain a wall of that height. 
 But even if the defendants had succeeded in establishing that 
 they were not under any statutory or special liability, but only 
 under the common-law liability, to take, proper and sufficient pre- 
 cautions, it would not, in our opinion, make any substantial dis- 
 tinction in their favour. In judging the question of fact whether 
 they had taken proper and sufficient precautions, all the surround- 
 ing circumstances must be taken into consideration, and, in our 
 judgment, it would be far from sufficient for them to show that 
 they had taken the precautions sufficient according 'to a table of 
 tides for forty years. If there had been nothing else, that possibly 
 might have excused them ; but they ought to have set against
 
 ACCIDENT. 29! 
 
 No. 7. — Nitro-Phosphate, &,c. Co. v. London and St. Katharine Docks Co. 
 
 that the judgment of the commissioners, based on the experience 
 and tradition of centuries, which had fixed 4 ft. 2 in. as the height. 
 And we now know that, although up to 1874, for forty-one veins 
 there had been no tide higher than 3 ft. 9 in. at the Shadwell Dock 
 (which is said to be 3 inches higher than the Victoria), there were, 
 in 1S74, 1875, and 1877 tides of 4 ft. 3 in., 4 ft. 6^ in. (the one in 
 question), and 4 feet. The great probability is that the com- 
 missioners had previously experienced similar tides, and had fixed 
 4 ft. 2 in. accordingly ; and if in a matter connected with the 
 inundation of a whole district a landower prefers his own deduc- 
 tion from the experience of a few years (not even exhausting living 
 memory) to the deliberate judgment of the constituted authorities, 
 whose official experience and traditions must, as I have said, date 
 from centuries back, he does it at his peril, and he cannot, in my 
 judgment, be said to have taken and used every precaution and 
 care reasonably to be expected from him under the circumstances. 
 To what I have said is to be added that the company's own 
 engineer, before they began their works, had fixed 4 feet as the 
 limit. And, if there had been any shadow of excuse for them 
 before, it was, in my judgment, wholly and most culpably inex- 
 cusable in the defendants not to have accepted the warning of the 
 tide of 1874, as to which it is not suggested that it was due to 
 any earthquake or other convulsion of nature, or to anything else 
 than a peculiar combination of those causes which make some 
 tides higher than others, and which might, therefore, be expected 
 again to occur. It would be difficult, therefore, to fix even the 
 common-law liability at less than 4 feet. 
 
 The learned Judge was, therefore, clearly right in holding that 
 the defendants had been guilty of neglect and breach of duty, and 
 making the consequential decree against them. But there was 
 one matter which may possibly, and very probably, turn out to be 
 a mere matter of form, on which we intimated that we did not 
 agree with him. He made a declaration that the whole damages 
 sustained by the plaintiffs was due to the defendants' wrong. 
 And that arises in this way : Assuming the liability to be to 
 maintain the wall at 4 feet, as the Judge thought, or at 4 ft. 2 in., 
 as we think, the tide is said to be have been 4 ft. 5 in., although it is 
 not very easy to reconcile that with the height of 4 ft. 6| in. at 
 the Shadwell Dock. But it must, for the present purpose and on 
 the present occasion, be assumed to have been 4 ft. 5 in., and,
 
 294 ACCIDENT. 
 
 No. 7. — Nitro-Phosphate, &-c. Co. v. London and St. Katharine Docks Co. 
 
 therefore, there was a tide considerably higher than that which 
 would have been kept out by the walls of the defendants if they 
 had strictly and fully done all that was incumbent on them to do. 
 Upon this, it was contended by the defendants that, as they were 
 not bound to keep out a 4 ft. 5 in. tide, the plaintiffs would have 
 been equally flooded by that abnormal tide; and therefore no 
 damage really arose from the defendants' neglect. But this 
 argument does not seem to us to be correct. Suppose that the 
 same damage would have been' done bv the excess of height of 
 tide if the wall had been of due height, as has been done ; yet, if 
 the damage has been done by reason of the wall not being of due 
 height, the defendants are liable for that damage arising from 
 that cause, and are not excused because they would not have been 
 liable for similar damage if it had been the result solely of some 
 other cause. And, moreover, long before the tide rose even to 
 4 feet, it began to flow over towards and into the plaintiff's' works; 
 and, of course, the defendants cannot escape their liability for the 
 damage so occasioned because the tide afterwards went on swelling 
 and swelling, even if it could be shown that the same damage 
 would have been occasioned by that additional height of water if 
 the banks of the defendants had been in proper condition. They 
 had been guilty of neglect, and had done damage before that 
 extra height had been reached, and their liability to the plaintiffs 
 was complete when the damage was done. 
 
 But, however, it was further suggested that the whole damage, 
 was not due to the defendants' neglect, and that, as there was a 
 tide supposed to be 4 ft. 5 in., that tide might have occasioned, 
 and it is contended by the defendants that it did occasion, a sub- 
 stantial and ascertainable portion of the plaintiffs' damage. No 
 doubt, if the court can see on the whole evidence that there was a 
 substantial and ascertainable portion of the damage fairly to be 
 attributed solely to the excess of the tide above the proper height 
 which it was the duty of the defendants to maintain, occurring 
 niter the excess had occurred, and which would have happened if 
 the defendants had done their duty, then there ought to be a 
 proper deduction in that respect. If I were to judge upon the 
 evidence as it stands, supposing nothing to be shaken and nothing 
 to be altered or controverted by new evidence, I should have no 
 hesitation in agreeing with Mr. Justice Fry as to this. Having 
 regard to the time at which it is alleged that the water burst over
 
 ACCIDENT. 295 
 
 No. 7. — Nitro-Phosphate, &>c. Co. v. London and St. Katharine Docks Co. — Notes. 
 
 in a cataract and overcame the efforts of the plaintiffs to barri- 
 cade the openings into their works, and to what they did in 1874, 
 and what they might have done in 1875 if they had had more 
 time to prepare and only a few inches' height of water to deal 
 with, and the immense difference there is between the tide rising 
 equally over the whole length of the river wall and distributing 
 itself impartially over the whole district, and the tide finding a 
 very weak part, a great depression and opening, immediately over 
 the plain lift's' property, — I say, having regard to all those things, 
 the defendants have a very difficult task to show that any portion 
 of the da magi- was not due to their neglect. But the difficulty in 
 the way of sustaining the declaration on that subject is this : that 
 that question does not appear to have been sufficiently in issue qr 
 tried at the hearing of the cause. It was very early assumed that 
 the amount of damage would be a matter of reference; and it does 
 not appear that the question whether, on any ground or any 
 principle, some deduction ought or ought not to be made from the 
 damage, was really gone into. Indeed, until the question of 
 liability was ascertained, and the extent of that liability, — whether 
 the limit was 3 ft. 8 in., as the defendants have contended, and 
 whether they had failed even to satisfy that limit, as the plaintiffs 
 contended, or 4 feet, or more than 4 feet, — it was practically im- 
 possible for the defendants to direct their cross-examination or 
 examination in chief to the question whether any, and, if any, 
 what damage was due to the excess of the tide above that limit. 
 The judgment and decree of the Judge will, therefore, be affirmed 
 with a variation, — omitting the declaration to which I have 
 referred. The appellants must pay the costs of the appeal. 
 
 ENGLISH N( >TES. 
 
 In the action of Burt v. Victoria Graving I>n<-k Company (Ch. I). 
 1882), 47 L. T. 378, there was a flood from a .similar cause to that in 
 the principal case. There was no attempt to re-open the question de- 
 cided by the Court of Appeal. The only question argued was as to the 
 liability of the lessors, the St. Katherine Dock Company, who had 
 leased the premises for the express purpose of making the cutting 
 which was actually made in the natural riparian defences; and it was 
 held that they were liable, just as if they had employed a contractor 
 for the purpose. 
 
 Dixon v. Metropolitan B<>«nl of Works (1881), 7 Q. B. I>. 418, 50
 
 296 ACCIDENT. 
 
 No. 8. — Vaughan v. Taf f Vale Railway Co. — Eule. 
 
 L. J. Q. B. 772, was an action for damage caused by the rush of water on 
 the opening of the water-gates at Deptford Creek, — the outfall of the 
 defendants' sewage system. The sewer was properly constructed under 
 the powers of the Acts. It was the duty of the man in charge of the 
 water-gates to open them when the water immediately above rises to a 
 height showing a depth of eight feet, — a height attained only in heavy 
 rainfalls. This having been done, and the rain continuing with in- 
 creased volume, the rush of water became such as to do the mischief com- 
 plained of. It was held that the mischief was caused not by the act of 
 God, but by the opening of the gates; but that, the mischief being the 
 inevitable result of what Parliament had authorised the defendants to do, 
 they were not liable. It is clear from this decision, that, if the acts in 
 question had been done without statutory powers, the defendants would 
 have been liable for the damage done by the opening of the gates, even 
 if the rainfall had been so great as to constitute a case of vis major. 
 
 No. 8. —VAUGHAN v. TAFF VALE RY. CO. 
 (exch. ch. from exch. 1860.) 
 
 RULE. 
 
 Persons associated or incorporated for public purposes 
 with statutory powers, are, in the absence of statutory 
 provisions as to their liability, not responsible for acci- 
 dents occurring through the use of their statutory powers 
 in a manner necessary for carrying out the public pur- 
 poses, — provided they have taken every precaution, and 
 adopted every means in their power, to prevent damage. 
 
 Vaughan v. Taff Vale Ry. Co. 
 
 5 H. & N. 679 ; 29 L. J. Ex. 247. 
 
 This was an appeal in the Exchequer Chamber by the defendants 
 against the judgment of the Court of Exchequer in discharging a 
 rule for a new trial. 
 
 The case stated on appeal was as follows : The defendants are 
 a company, who, under their special Acts and the General Railway 
 Acts incorporated therewith, are proprietors of, and use and work, 
 the Taff Vale Eailway with locomotive engines as a passenger and
 
 ACCIDENT. 297 
 
 No. 8. — Vaughan v. Taff Vale Railway Co. 
 
 goods line!*" The plaintiff is the owner of a wood or plantation 
 adjoining the embankment of the railway. On the 14th March, 
 1856, the plaintiff's wood was discovered to be on fire, and eight 
 
 acres of it were burnt. The fire may be taken to have originated 
 from a spark or coal from one of the defendant's locomotive en- 
 gines in the ordinary course of its working. This action was 
 brought by the plaintiff for the damage he sustained by the fire. 
 
 From the evidence of the plaintiff' and his witnesses, it appeared 
 that the fire in the plaintiff's wood was first seen at a place fifty 
 yards from the railway ; that there were traces of fire extending 
 continuously all the way between the railway and the wood, and 
 that the railway bank was burning; that the grass on the bank 
 had been cat three or four months before, but that there was grass 
 of a very combustible nature growing on the bank just previous to 
 the fire, and that it was all burned ; that there was a great deal of 
 long grass growing in the wood, which was extremely combustible; 
 that the wood was also full of small dry branches, the remains of a 
 former cutting, and was described, by the plaintiff, to be in 'just 
 about as safe a state as an open barrel of gunpowder would be in 
 the Cyfarthfa rolling-mill. 
 
 The wood, however, was in an ordinary and natural condition, 
 and as it had been before and since the railway was made. 
 Whether the injury was caused by the grass on the embankment 
 being first set fire to, or whether by lighted matter being thrown 
 from the locomotive on to the plaintiff's land, was not left to or 
 determined by the jury. The defendant's counsel did not at the 
 trial make any objection on this ground. 
 
 On the part of the defendants it was sworn that everything 
 which was practicable had been clone to the locomotive to make 
 it safe : that a cap had been put to its chimney ; that its ash- 
 pan had been secured; that it travelled at the slowest pace con- 
 sistent with practical utility, and that if its funnel had been more 
 guarded or its ashpan less free, or its pace slower, it could not have 
 been advantageously used; and it must be taken to be the fact 
 that the defendants had taken every precaution and adopted even- 
 means in their power, and which science could suggest, to prevent 
 their engines from emitting sparks, but the witness added, -'we do 
 occasionally burn our own banks now." 
 
 The learned Judge left the question of negligence and improper 
 conduct by the defendants to tiie jury, saying there was evidence
 
 298 ACCIDENT. 
 
 No. 8. — Vaughan v. Taf f Vale Railway Co. 
 
 thereof, even though the jury believe the evidence that every- 
 thing which was practicable had been done to the locomotive to 
 render it safe, and though it travelled at the slowest pace consis- 
 tent with practical utility. He refused to leave to the jury any 
 question arising out of the combustible character of the plaintiff's 
 wood. The jury returned a general verdict for the plaintiff, the 
 damages being agreed upon at £27 10s. 
 
 The Judge did not direct the jury, as stated in the rule of the 
 Court of Exchequer, " that no care or skill used in preventing the 
 escape of fire from the engine would be an answer to the charge 
 of negligence, provided the defendants did not succeed in pre- 
 venting it," hut left the question of negligence and improper con- 
 duct as above. The question whether there was evidence as to 
 both or either count was entertained and dealt with by the Court 
 of Exchequer as though open to the defendants on the rule, and 
 without requiring any amendment thereof. 
 
 The question for the decision of the Court of Appeal is, 
 whefher or not the defendants are entitled to have a new trial on 
 the ground that there was no evidence of negligence to go to the 
 jury under the first count of the declaration, assuming it was true, 
 as sworn, that everything had been done, &c. ; the plaintiff con- 
 tending that there was such evidence, and also that, if not, the 
 question is not open to the defendants, and also that the Judge 
 was wrong in not leaving to the jury any question arising out of 
 the combustible character of the plaintiff's wood. 
 
 If the court shall be of opinion in the affirmative, then the ver- 
 dict for the plaintiff is to be set aside and a new trial had. If the 
 court shall be of opinion in the negative, then the verdict for the 
 plaintiff is to stand, and judgment to be entered for £27 10s. 
 damages. 
 
 The case having been argued, the court pronounced judgment as 
 follows : — 
 
 Cockburx, C. J. We are all of opinion that the decision of the 
 Court of Exchequer cannot be upheld, and that the case must go 
 down for a new trial. I collect, from the reasons given by my 
 brother Bramwell in delivering the judgment of the Court of 
 Exchequer, that the ground upon which that court discharged 
 the rule was this: Whereas accidents occasionally arise from 
 the use of fire as a means of propelling locomotive engines on 
 railways, the happening of such accidents must be taken to be a
 
 A.CCIDENT. 299 
 
 No. 8. — Vaughan v. Taff Vale Railway Co. 
 
 natural and- necessary incident to the use of fire for that purpose, 
 and, therefore, railway companies, by using fire, are responsible for 
 any accident which may result from its use, although they have 
 taken every precaution in their power. So far as I can gather from 
 the language of the judgment, that is the view taken by the court 
 of the law applicable to the first count. I cannot adopt that view : 
 it is at variance with the principle on which the Court of Queen's 
 Bench proceeded in the case of Rex, v. Pease, 4 B. & Ad. 30, which 
 we are prepared to uphold. Although it may be true, that if a per- 
 son keeps an animal of known dangerous propensities, or a danger- 
 ous instrument, lie will be responsible to those who are thereby 
 injured, independently of any negligence in the mode of dealing 
 with the animal or using the instrument ; yet, when the legislature 
 has sanctioned and authorised the use of a particular thing, and it is 
 used for the purpose for which it was authorized, and every pre- 
 caution has been observed to prevent injury, the sanction of the 
 legislature carries with it this consequence, that if damage results 
 from the use of such thing, independently of negligence, the party 
 using it is not responsible. It is consistent with policy and jus- 
 tice that it should be so; and for this reason, so far as regards the 
 first count, I think the judgment of the court below is wrong. It 
 is admitted that the defendants used fire for the purpose of pro- 
 pelling locomotive engines, and no doubt they were bound to take 
 proper precaution to prevent injury to persons through whose lands 
 they passed ; but the mere use of fire in such engines does not 
 make them liable for injury resulting from such use without any 
 negligence on their part. 
 
 As regards the second count, if the facts alleged in that count 
 had been established by the verdict of the jury, the defendants 
 would have been liable ; but in as much as the learned Judge, in 
 substance, told the jury that (independently of the facts alleged in 
 the second count) if they were satisfied that the accident arose 
 from the use of fire, the defendants were responsible, there is 
 nothing from which we may not suppose that the jury found their 
 verdict upon the first count only. Indeed, the questions raised for 
 our determination tend to show that in the opinion of the learned 
 Judge, the counsel, and all parties, the verdict proceeded on the first 
 count; and, therefore, the question of negligence under the second 
 count was improperly withdrawn from the jury. It may be that 
 the plaintiff is entitled to succeed on that count, or it may be that
 
 300 ACCIDENT. 
 
 No. 8. — Vaug-han v. Taff Vale Railway Co. 
 
 the mischief arose from the sparks not being carried to the bank, 
 but directly to the wood, which was of a combustible nature ; in 
 which case the defendants would not be liable. For these reasons 
 I am of opinion that there ought to be a new trial. 
 
 Williams, J. I am of the same opinion. We cannot confirm 
 the decision of the Court of Exchequer without affirming that the 
 defendants are liable for accidents caused by the use of locomotive 
 engines, although they were guilty of no negligence and took every 
 precaution to guard against accident. Bex v. Pease shows that 
 such is not the law. 
 
 Crompton, J. I am of the same opinion. It seems to me that 
 there was no evidence of negligence to support the first count. It 
 is found that the defendants took all practicable precautions that 
 science could suggest to prevent accident. That is substantially a 
 finding that there was no negligence as regards the first count. 
 The jury may have thought that there was no negligence to sup- 
 port the second count, and may have proceeded upon the ground 
 that the defendants were liable under the first count without 
 actual negligence. Rex v. Pcei.se decides this matter, for it shows 
 that although the use of a locomotive engine must have been ac- 
 counted a nuisance unless authorised by the legislature, yet, being 
 so authorised, the use of it is lawful, and the defendants are not 
 liable for an accident caused by such use without any negligence 
 on their part. It is said that where a person keeps an animal of a 
 ferocious nature, it is not necessary to allege a scienter ; but that 
 is very properly the law, because the negligence is the unlawful 
 act of keeping such an animal. If the animal be tame it is not 
 unlawful to keep it, unless it is known to be of dangerous habits. 
 My judgment proceeds upon the ground that the legislature has 
 made the use of locomotive engines not an unlawful act ; and, 
 therefore, it is lawful for the defendants to use them so long as 
 they do so without negligence. 
 
 Willes, J. I am entirely of the same opinion, though I have 
 had considerable reluctance in coming to that conclusion, because 
 looking at the report of this case in 3 Hurlstone and Norman, 743, 
 I feel that we are obliged to reverse the judgment of the court 
 below, although we do not, in point of law, differ in opinion from 
 that court. There was evidence that the defendants had taken 
 every precaution, and adopted every means in their power, and 
 which science could suggest, to prevent injury. It would have
 
 ACCIDENT. 301 
 
 No. 8. — Vaughan v. Taff Vale Railway Co. 
 
 been a question for the jury whether they believed that evidence ; 
 but the question submitted to them was not upon the whole evi- 
 dence, but, taking it as a fact that the defendants had used every 
 precaution which they could consistently with the working of the 
 line, whether the jury did not think that they were guilty of negli- 
 gence. Now. the definition of negligence is the absence of care, 
 according to the circumstances. But it is found, as a fact, that the 
 defendants took all the care which they could under the circum- 
 stances. Therefore upon that — taken as a fact and not merely as 
 evidence of the fact — there is a finding that the defendants only 
 did that which the Act of Parliament allowed them to do, and took 
 all possible care to prevent injury. I therefore think that the 
 judgment ought to be reversed. 
 
 Byles, J. I am of the same opinion. It is difficult to distin- 
 guish this case from Rex v. Pease. The case states that the engine 
 travelled at the slowest pace consistent with practical utility, which, 
 is tantamount to saying that it travelled at the proper pace. That 
 being so, this case cannot be distinguished from that of a station- 
 ary chimney which the legislature has not only authorised, but 
 required to be kept with proper care ; and who would say that in 
 such case if an accident occurred without any negligence on the 
 part of the persons using the chimney, they would be responsible ? 
 
 Blackburn, J. At first it would seem that there was evidence 
 of negligence in the use of the engine, for the fact of sparks coming 
 from it would be some evidence of negligence ; but then the case 
 says, that it is to be taken as a fact that the defendants adopted 
 every precaution that science could suggest to prevent injury. 
 That reduces the question to whether the defendants are respon- 
 sible for an accident arising from the use of fire when they are 
 guilty of no negligence in using it. That might have been a diffi- 
 cult question, but Bex v. Pease has settled that when the legisla- 
 ture has sanctioned the use of a locomotive engine, there is no 
 liability for injury caused by using it, so long as every precaution 
 is taken consistent with its use. Here it is found, as a fact, that 
 the defendants were guilty of no negligence except in using a loco- 
 motive engine as they were authorised to do. Upon the rest of 
 the case it is not necessary to say anything. 
 
 Judgment re ve rsed.
 
 302 ACCIDENT. 
 
 No. 8. — Vaughan v. Taff Vale Railway Co. — Notes. 
 
 ENGLISH NOTES. 
 
 The rule in this case, though not received into the law without ad- 
 verse comments, . has heen finally established by the decision of the 
 House of Lords in the case of Brand v. Hammersmith Ry.Co., which 
 will be itself given as a ruling case under the topic " Action" No. 9. 
 
 In Bbjth v. Birmingham Waterworks Commissioners (1856), 25 L. 
 J. Ex. 212 (cited in the argument in the principal case), a water- 
 company who had properly laid down pipes under their statutory 
 powers, were held not liable for the consequences of an escape of water, 
 owing to an extraordinary frost having forced out a fire plug which 
 had withstood any such effect of frost for twenty-five years. Alderson, 
 1). (p. 213), said the question was whether there had been negligence 
 on the part of the company, and the company were not liable for the 
 consequence of a frost of exceptional severity, which they could not 
 foresee. 
 
 In a case where there was a conflict of evidence whether the steam 
 locomotive engine used by the company was of the best known con- 
 struction for preventing the emission of sparks, the judge at the 
 trial (Williams J.,), having left it to the jury to decide on the con- 
 flict of evidence, and the jury having found for the plaintiff, it was 
 held by Eble, J., that the direction was right, and he refused a rule 
 for a new trial. Freemantle v. L. & X. IV. Ey. Go. (1861), 31 L. J. 
 C. P. 12. 
 
 It may here be observed that the section (86) of the Railways 
 Clauses Consolidation Act, 1845, does not expressly authorise the use 
 of steam locomotive engines; and it may become a question if by ad- 
 vancing science the use of other and safer engines should be found 
 practicable, whether the use of steam locomotives is authorised at all. 
 
 The observations of E RLE, C. J., in Clothier v. Webster (1862), 12 
 C. B. 796 ; 31 L. J. C. P. 316, are important upon the question of 
 negligence in the construction of public works. He says: "The law 
 requires that the execution of public works by a public body shall be 
 conducted with a reasonable degree of care and skill: and if they, or 
 those who are employed by them, ace guilty of negligence in the per- 
 formance of the works entrusted to them, they are responsible to the 
 party injured." In support of this proposition he cites Lawrence v. 
 G. N. By. Co. (1851), 16 Q. B. I). 643 ; 20 L. J. Q. B. 293, where the 
 plaintiff's lands were flooded, owing to the Railway Company having 
 made an embankment without proper culverts; and the plaintiff re- 
 covered in an action, although he had previously got compensation as 
 a landowner whose land (at another part of the line) had been taken. 
 For the Court considered that it was not within the scope of the
 
 ACCIDENT. 303 
 
 No. 8. — Vaughan v. Taf f Vale Railway Co. — Notes. 
 
 arbitration for that compensation, to estimate a chance of damage 
 being done in the future, owing to faulty plans in a different part 
 of the line. 
 
 In Cracknellv. Mayor &c. of Thetford {1869), L. R., 4 C. 1*. 629; 38 
 L. J. C. I*. 343, the defendants were empowered by statute to erect 
 .staunches and to deepen the river and do all other things necessary for 
 the purposes of the navigation. As a consequence of the staunches, the 
 river overrlo wed its bank, and flooded the plaintiff's land, hie suggested 
 that this might have been avoided by the defendants' cutting the weeds 
 and dredging the accumulated silt. But the Court held that, as the 
 defendants had no power to do either of these things unless necessary 
 for the purposes of the navigation, the plaintiff had no remedy In- 
 action, though he might perhaps have compensation under the Act. 
 
 It will be observed, that in Smith v. L. & S. W. My. Co., cited under 
 No. 2, p. 214, supra, the negligence imputed was the leaving of the in- 
 flammable dry trimmings by the side of the railway, and not the 
 emission of sparks, which was assumed to be an unavoidable conse- 
 quence of their working under statutory powers. 
 
 In Boughton v. Midland G. W. By. of Ireland Co. (1872), 7 Ir. 
 Rep. C. L. 169. the defendants, while making some necessary repairs, 
 turned the water of their canal into a drain through which it ought to 
 have flowed into a sewer of the Corporation of Dublin; but owing to 
 an obstruction in the sewer it was diverted and flooded the plaintiff's 
 land. Hie court held that the defendants, not having been guilty of 
 negligence, were not liable. 
 
 In Smith v. Midland By. Co. (V. C. Bacon, 1877), 37 L. T. 224, it 
 was held that a nuisance by smoke and noxious vapours is not a neces- 
 sary evil authorised by the ordinary statutory power to run locomotives. 
 And this appears to be one of the elements considered in some of the 
 judgments delivered in the House of Lords in the Scotch case of City 
 of Glasgow By. Co. v. Hunter (1870). L. R. 2 Sc. App. 78. See this 
 case further noted under ACTION No. 9, post. 
 
 In Thomas v. Birmingham Coital Co. (1879), 4'.) L. J. Q. B. 850, 
 the plaintiff, owner of a colliery, sued the defendants, proprietors of a 
 canal constructed under Act of Parliament, for damage caused to 
 plaintiff's mine by water which overflowed from the canal into a brook, 
 and thence into the mine. It was found by the Official Referee, that 
 on the occasion of an extraordinary rainfall the defendants had opened 
 a sluice, discharging the water which did the damage; but, if they had 
 not done so, the canal bank would have probably burst, the whole 
 country have been flooded, and damage done to many other persons, 
 with more damage to the plaintiff. The Queen's Bench Division 
 {Cockbukn, C. J., Lush, J., and Maxisty, J.,) held, on these find-
 
 304 ACCIDENT. 
 
 No. 8. — Vaughan v. Taf f Vale Railway Co. — Notes. 
 
 ings, that there was no case for compensation under the Act for doing 
 that which was the only thing under the circumstances to he done to 
 avert a catastrophe. Dixon v. Metr. Board of Works, cited under 
 No. 7, p. 295, ante, was a case of a very similar character. 
 
 In SimJein v. L. & N. W. By. Co. (1888), 21 Q. B. D. 453, the 
 actiun was brought by the plaintiff for damage in consequence of liis 
 horse being frightened by the noise and sight of the steam of an engine 
 near a railway station. The jury had found that the defendants were 
 guilty of negligence in not properly and sufficiently screening the rail- 
 was' from the road. The Court of Appeal, Lords Justices Cottox and 
 Lopes, with the hesitating assent of Lord Justice Fry, held the ver- 
 dict unsupported by evidence. There was a wooden open paling five 
 feet high between the roadway and the railway: there was a distance 
 of 40 feet between the metals of the railway and the paling; and 
 this state of things had existed for more than twenty years without 
 accident. 
 
 In the following cases the question has been whether the plaintiff — ■ 
 as regards the defendant — is bound to exercise all the powers of his 
 Acts to prevent damage. 
 
 In Dunn v. Birmingham Canal Co. (1872), L. E,, 7 Q. B. 244; 41 
 L. J. Q. B. 121, and (in Exch. Ch.) 8 Q. B. 42; 42 L. J. Q. B. 137, 
 the question arose as to the liability of a canal company to the owner 
 of the mines under it, — the canal company having, under their Acts, 
 the option, which they did not exercise, to purchase the minerals, after 
 notice of the intention of the mine-owner to work them. The plaintiff 
 (the mine-owner) had then worked his mine in the ordinary way, and 
 withoul taking any special precautions against letting down the surface. 
 The consequence was that the strata became dislocated; and the water 
 from the canal flooded the mine. The Exchequer Chamber, affirming the 
 judgment of the Court of Exchequer, decided that the plaintiff could not 
 maintain an action against the canal company for the damage done by 
 flooding his mine. The company's option to purchase the minerals did 
 not (as between them and the mine-owner), oblige them to purchase; 
 and no other kind of negligence in the exercise of their statutory powers 
 was suggested. 
 
 In Gecldes v. Proprietors of Bann Reservoir (H. L. Appeal from 
 Ireland, 1878), 3 App. Cas. 430, the respondents (defendants) were 
 incorporated by statute to make and maintain, by means of a reser- 
 voir, a constant water-supply for owners of mills situated on the river 
 Bann. To do this they had powers to collect waters into a reservoir, 
 from which water was from time to time to be sent down to the river 
 Bann through the channel of a stream called the Muddock; and they
 
 ACCIDENT. 305 
 
 No. 8. — Vaughan v. Taff Vale Railway Co. — Notes. 
 
 had powers to maintain, widen, deepen, cleanse, &c., proper channels 
 and watercourses, &c. The appellant was the plaintiff in an action 
 for damages done to his land by flooding; and it appeared that the 
 result of the defendants' operations was at times to pour down through 
 the channel of the Muddock more water than it would hold, and this 
 was the cause of the flooding. The House, reversing the order of the 
 Court of Exchequer Chamber in Ireland, and restoring that of the 
 Queen's Bench in Ireland, gave judgment in favour of the plaintiffs, 
 on the ground that, the defendants having power to widen and deepen 
 the channel of the Muddock sufficiently to contain the water, were 
 bound to do so before sending the water down. Lord Blackbukx (3 
 App. Cas. 455) states the principle thus: "It is now thoroughly 
 well established that no action will lie for doing that which the legis- 
 lature has authorised if it can be done without negligence, although it 
 does occasion damage to any one; but an action does lie for doing that 
 which the legislature has authorised, if it be done negligently. And L 
 think that, if by a reasonable exercise of the powers either given by 
 statute to the promoters, or which they have at common law, the 
 damage could be prevented, it is, within this rule, ' negligence ' not to 
 make such reasonable exercise of their powers." 
 
 It seems questionable whether, having regard to the decision of the 
 House of Lords in Geddes v. Proprietors of Bann Reservoir, the deci- 
 sion of the Exchequer Chamber in Dunn v. Birmingham Canal Co. can 
 be supported otherwise than on the ground of the special relations be- 
 tween the canal company and the mine-owner, under the various Acts 
 of Parliament. Had the mining operations under the canal resulted 
 in the flooding of the land of a stranger, it would appear, on the prin- 
 ciple laid down by Lord Blackburx, that the company might be 
 charged, in an action by the stranger, with their neglect to avert the 
 damage by exercising their power to purchase the mines. 
 
 The decision in Geddes v. Proprietors of Bann Reservoir was ap- 
 plied by Stephen, J., to an action against a corporation having power 
 to make and repair sewers, for damage caused by a defect in a sewer, 
 which (according to the evidence) the} 7 had not used reasonable means 
 t<> discover, — the duty to use such means being, in the opinion of the 
 Judge, implied by the power to repair. Fleming v. Mayor &c. of 
 Manchester (1881), 44 L. T. 517. 
 
 The empowering Acts have been construed as none the less author- 
 ising a nuisance, although a certain latitude within well defined limits 
 was allowed in choice of the locality. So in the case of Truman v. 
 L. B. & S. C. By. Co. {London B. & S. C. Eg. Co. v. Truman, H. L. 
 1885), 11 App. Cas. 52; 55 L. J. Ch. 354, — where the company was 
 vol. i. — 20
 
 ;06 ACCIDENT. 
 
 No. 8. — Vaughan v. Taff Vale Kailway Co. — Notes. 
 
 empowered to purchase land not exceeding 50 acres for station-yards 
 for cattle, —the House of Lords (reversing the judgment of the Court 
 of Appeal) held that the company were entitled to select the site, just 
 as, in making the original railway, they were entitled to select a line 
 within the limits of deviation; and that the use for the purposes of the 
 Act of the site so selected, although necessarily a nuisance, did not 
 make them liable to an action. 
 
 In contrast to the last mentioned case is the case of Hill v. Metr. 
 Asylum Board (H. L. 1881), 6 App. Cas. 201; 50 L. J. Q. B. 353. 
 The defendants were a corporation constituted under the Metropolitan 
 Poor Act 18G7 (30 & 31 Vict. c. 6), which authorises the formation of 
 districts and district asylums for the care and cure of sick and infirm 
 poor, and enables the corporations constituted under the Act to accpiire 
 hinds by voluntary purchase, and to erect buildings, for the purposes of 
 the Act. The House of Lords held that the Act did not authorise these 
 things to be done so as to create a nuisance to the neighbourhood of any 
 land purchased or used. And the defendants, having erected buildings 
 at Hampstead which they used as a small-pox hospital, and this having 
 been found in fact to be a nuisance to the neighbourhood, the House 
 decided that an injunction had been rightly granted by the Court of 
 first instance. Lord Selbornk observed that in granting the general 
 powers of the Act, the legislature may be assumed to have thought it 
 possible that they might be exercised somewhere, without creating a 
 nuisance; and he distinguished the case from one where the legis- 
 lature granted specific powers, to he exercised within well defined 
 limits. And Lord Blackbubn (0 App. Cas. p. 203) observes, re- 
 ferring to an expression of Lord Cairx.s in the Hammersmith Bailvjay 
 Case (L. R. 4 H. L. 215): "It is a reductio ad absurdum to suppose 
 it left in the power of the person who had the cause of complaint, to 
 obtain an injunction, and so prevent the doing of that which the 
 legislature intended to be done at all events. The legislature has 
 wry often interfered with the rights of private persons, but in modern 
 times it has generally given compensation to those injured; and, if no 
 compensation is given, it affords a reason, though not a conclusive 
 reason, for thinking that the intention of the legislature was, not 
 that the thing should be done at all events, but only that it should be 
 done, if it could lie done, without injury to others. What was the 
 intention in any particular Act is a question of the construction of the 
 Act." 
 
 Intermediate in its circumstances, between the two last cited cases, 
 is the older one of Beg. v. Bradford Canal JS T ar. Co. (1865), B. & 
 S. (331; 34 L. J. Q. B. 191, where the canal company having been 
 empowered by their Acts, to supply their canal from two sources, both
 
 AC< llH'.XT. 3<»7 
 
 No. 8. — Vaughan v. Taff Vale Railway Co. Notes. 
 
 of which were unpolluted at the time of the Acts, were held not to lie 
 justified in creating a nuisance by continuing to supply their canal 
 from one of the sources which had since become polluted. 
 
 AMERICAN NOTES. 
 
 'Hi'- rule of tin- principal case is universally recognized here, discarding the 
 earlier rule of some other eases in England. 
 
 " We have not in this State adopted the rule of the English courts, which 
 in substance holds that proof that the fire was communicated from the 
 engines of the company throws upon the defendant the burden of showing 
 that there was no want of care, diligence, or skill in their construction or 
 management. Piggot v. E. C. R. Co., 51 Eng. Com. Eaw. 228. Our rule 
 holds that the use of locomotive engines in the business of railroads being 
 lawful, no presumption of negligence arises from tin- mere fact that fire 
 lias been communicated from them." Field v. N. Y. Cent. R. Co., 32 
 New York, 319. 
 
 " It seems to have been assumed in this country that the business of rail- 
 ways being lawful, no presumption of negligence arises from the fact of tire 
 heing communicated by their engines." Redfield on Railways. § 12-") (5); 
 Pierce on Railroads, 131 ; Lyman v. Boston, cSv. Ry., -1 dishing (Mass.). 
 288; Burroughs v. Housatonic Ry. Co., 15 Connecticut, 121; Morris. Sfc. R. 
 Co. v. State, 36 New Jersey Eaw. 55:5. In the last case, in the court of 
 errors and appeals, the principal case was cited and followed. In Burroughs 
 v. Housatonic R. Co., supra, the court say: -'It was indeed estimated that 
 the legislature could not authorize the company to do the act they have 
 done. If by this is meant that they could not authorize them to burn 
 this building without making compensation, it will not be denied. But to 
 say that they can pass no Act which, in its remote consequences, and in 
 connection with other causes, may affect private property, is a refinement 
 which has never been recognised." The court further hold that there is no 
 difference between original and derivative rights, and conclude that "where 
 there is neither negligence nor folly in doing a lawful act, the party cannot 
 be chargeable with the consequences." 
 
 The same principle is laid down in Chapman v. Atlantic, 8fc. R. Co., 37 
 Maine. 92; Phila , frc. R. Co. v. Hendrickson^ 80 Penn. St. 182: 21 Am. 
 Hep. 97; Chicago, frc. R. Co. v. Pennell, 94 Illinois. -118; Candy v. Chicago, 
 $c.R. Co., 30 Iowa, 120; Am. Rep. 082: Louisville, See. R. Co. v. Richard- 
 son. 66 Indiana, 43; 32 Am. Rep. 91; Leavemcorth, §'c. R. Co. v. Coot. 18 
 Kansas. 261; Baltimore, S-c. R. Co. v. Woodruff: 1 Maryland, 212; Bur- 
 roughs x. Housatonic R. Co.. 15 Connecticut, 131. 
 
 The principal case is cited in Cogswell v. N. Y.,8fc. R. Co., 103 New York. 
 10; 50 Am. Rep. 0. note, but only incidentally and illustratively; and so in 
 Sawyer x. Davis. 136 Massachusetts, 239'; 1!> Am. Rep. 27. In the latter the 
 court observe : "The legislative sanction makes the business lawful, and 
 defines what must be accepted as a reasonable use of property and exercise 
 of rights on the part of the railroad company, subject always to the qualifica- 
 tion that the business must be carried on without negligence or unnecessary 
 disturbance of the rights of others."
 
 308 ACCIDENT. 
 
 No. 9. -River Wear Commissioners v. Adamson. — Rule. 
 
 No. 9. — EIVER WEAR COMMISSIONERS v. ADAMSON. 
 
 (H. l. 1877.) 
 
 RULE. 
 
 Where a statute imposes upon persons of a general de- 
 scription a liability in respect of a matter for which a 
 common-law liability would attach, the court will, if pos- 
 sible, read into the statute the common-law exception of 
 inevitable accident. 
 
 So that where by a Harbour Act it was enacted that the 
 owner of every vessel or float of timber should' be answer- 
 able to the Harbour Commissioners for any damage done 
 by such vessel &c, it was held by the House of Lords, 
 affirming the judgment of the Court of Appeal, that in a 
 case where damage to the pier had been occasioned bv a 
 vessel, through the violence of the winds and wave- at 
 a time when the master and crew had been compelled to 
 escape from the vessel, and had consequently no control 
 over it, the owners were not liable. 
 
 River Wear Commissioners v. Adamson. 
 
 47 L. J. Q. B. 193 ; 2 App Cas. 437. 
 
 This was an appeal against a decision of the Court of Appeal, 
 reversing a decision of the Court of Queen's Bench. 
 
 The appellants were the Commissioners appointed under the 
 Harbours, "Dock, and Piers Act, 1847 (10 Vict, c. 27), for construct- 
 ing and maintaining a pier at the mouth of the river Wear. 
 
 The respondents were the owners of the steamship Natalian, 
 which, on the 17th of December, 1872, was caught by a violent storm 
 while on a voyage from London to Newcastle. While endeavour- 
 ing to enter Sunderland harbour she was driven aground near the 
 appellants' pier, and the master and crew were compelled to save 
 their lives by abandoning the ship. As the tide rose, the aban- 
 doned ship floated, and was driven by the storm against the ap- 
 pellants' pier, causing injury to the amount of £2825 13s.
 
 ACCIDENT. 309 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 This action was brought by the appellants to recover damages 
 for the injury from the respondents as owners of the vessel. 
 Allegations of negligence were mutually made by both parties, 
 but withdrawn at the trial. 
 
 The case was tried before Qi'ain, J., at the Durham Summer 
 Assizes, 1873, when a verdict was entered for the plaintiffs, the 
 appellants, with leave to move to enter a nonsuit or a verdict for 
 the defendants. 
 
 The Court of Queen's Bench refused the rule, but their decision 
 was reversed by the Court of Appeal. This appeal was brought 
 to the House of Lords. 
 
 The section of the Act on which the case turned, is as follows 
 (10 Vict. c. 27. s. 74): — " The owner of every vessel or float of tim- 
 ber shall be answerable to the undertakers for any damage done by 
 such vessel or float of timber, or by any person employed about 
 the same, to the harbour, dock, or pier, or the quays or works con- 
 nected therewith ; and the master or person having the charge of 
 such vessel or float of timber, through whose wilful act or negli- 
 gence any such damage is done, shall also be liable to make good 
 the same ; and the undertakers may detain any such vessel or float 
 of timber until sufficient security has been given for the amount 
 of damages done by the same ; provided always that nothing 
 herein contained shall extend to impose any liability for any such 
 damage upon the owner of any vessel where such vessel shall, at 
 the time when such damage is caused, be in charge of a duly 
 licensed pilot, whom such owner or master is bound by law to 
 employ and put his vessel in charge of." 
 
 Argued for the appellants : — The object of the legislature was 
 to protect the undertakers of these' works ; and the words of the 
 74th section show clearly that the protection was to be without 
 restriction, and beyond that afforded by the common law. The 
 circumstance of the persons in charge of the vessel not being on 
 board cannot deprive the pier constructors of this protection. 
 Eglington v. Nonnan,A& L. J. (Ex.) 557. The meaning of this sec- 
 tion of the statute was considered in Dennisv. Tovell, L. R.,8. Q. B. 
 10. There, it is true, the master and crew were on board, but it 
 was distinctly found that the mischief was "inevitable." The 
 principle of Eylands v. Fletcher (p. 235, ante) is an authority for 
 establishing tin:' liability of the shipowner; for he brought to the 
 pier something which would be mischievous if not kept under
 
 110 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 proper control. In E. v. Leigh (1839), 10 A. & E. 398, it was held 
 that a landowner may be liable by prescription to repair sea-walls,, 
 though destroyed by extremely tempestuous weather. In Nichols v. 
 Marsland (p. 262, ante) the obligation was created by a mere impli- 
 cation of law, and cannot be compared to that imposed by the 
 unequivocal words of a statute. In The Merle (1874), 31 L. T. 
 447, it was held in similar circumstances that the shipowner was 
 under this (74th) section prevented from setting up the defence 
 of inevitable accident. There was not here any evidence of such 
 an overwhelming power of storm as to excuse the defendants from 
 not doing something else: but even if there had been, that would 
 not take them out of the operation of the express words of the 
 statute. 
 
 Argued for the respondents: — The object of the statute was 
 to regulate procedure, not to create a new liability ; so that where- 
 there was a proper title to indemnify, the pier undertakers should 
 have somebody to resort to without being embarrassed by legal 
 technicalities. There was no proper cause for compensation here. 
 The damage was occasioned by the storm, after the men had been 
 with difficulty saved from the wreck, and when no human power 
 had any control over the vessel. The cases of liability under a 
 covenant to pay rent, although the premises have been destroyed 
 by tire I Paradine v. Jane, Aleyn, 26; Brewster v. KUchell, 1 Salk. 
 198), have no analogy to the question under a legislative provision 
 like the present. The case of 7?. v. Commissioners of Sewers for 
 Jl r . Somerset (1799. 4 R. R. 659 ; 8 T. R. 312) showed that al- 
 though the adjoining owners were bound to repair a sea-wall, if 
 that wall was destroyed by tempest, the expense fell not upon 
 them but upon the owners generally of the level. In Nugent v. 
 Smith (1876), 1 C. 1'. I>. 423, a common carrier was held not to- 
 be an insurer against the death of an animal which during tem- 
 pestuous weather struggled violently and in the end died. 
 
 The Lord Chancellor (Lord Cairns). The steamship Natalian 
 was attempting, under stress of water, to enter the Sunderland 
 Docks, belonging to the appellants. While she was still in the 
 open sea, about forty or fifty yards from the pier, she struck the 
 ground, canted with her head to the south, and drifted bodily 
 ashore. The crew were rescued from the ship by the rocket 
 apparatus. The tide was low at the time, and, as the tide rose, 
 the flood and the storm drifted the ship against the pier, and
 
 ACCIDENT. 311 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 caused damage to the amount of £2825 1 3s. The respondents 
 are the owners of the ship; and the question is whether they are 
 liable to pay this damage to the appellants. The Court of Queen's 
 Bench have held that the owners are liable. The Court of Appeal 
 have been unanimously of opinion that they are not. 
 
 The question depends upon the true meaning of the Harbours, 
 Docks, and Piers Clauses Act, which enacts that the owner of 
 every vessel or float of timber shall be answerable to the under- 
 takers (that is, in this case, to the appellants) for any damage dune 
 by such vessel or float of timber, or by any person employed about 
 the same, to the harbour, dock, or pier, with certain further provi- 
 sions which I need not at present mention. The Court of Appeal 
 have been of opinion, and I think rightly, that the injury was not 
 in this case occasioned by the voluntary act or the negligence of 
 the respondents, or, indeed, of any person on board of or connected 
 with" the ship ; that it could not have been prevented by any 
 human instrumentality; but that it was occasioned by a vis major, 
 — naniely, by the act of Cod in the violence of the tempest. 
 Founding himself on this, the Master of the Polls states that it is 
 a familiar maxim of law that, where there is a duty imposed or 
 liability incurred, as a general rule there is no such duty required 
 to be performed, and no such liability required to be made good, 
 where the event happens through the act of Cod or the Queen's 
 enemies, and that the court may well come to the conclusion that 
 the act of Cod and the Queen's enemies were not meant to be 
 comprised within the first words of the section. The Lord Chief 
 Baron states that no man can be answerable, unless by express 
 contract, for any mischief or injury occasioned to another by the 
 act of God. Lord Justice Mellish states that the act of God does 
 not impose any liability on anybody. Mr. Justice DENMAN states 
 that in every act of Parliament words are not to be construed to 
 impose a liability for an act done if the act is substantially caused 
 by a superior power, such as the law calls the act of God. 
 
 In my opinion these expressions are broader than is warranted 
 by any authorities of which I am aware. If a duty is cast upon 
 an individual by common law, the act of God will excuse him from 
 the performance of that duty. No man is compelled to do that 
 which is impossible. It is the duty of a carrier to deliver safely the 
 goods intrusted to his care; but if in carrying them with proper 
 care they are destroyed by lightning or swept away by a flood,
 
 ol2 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 lie is excused, because the safe delivery has by the act of God 
 become impossible. If, however, a man contracts that he will be 
 liable for the damage occasioned by a particular state of circum- 
 stances, or if an act of Parliament declares that a man shall be 
 liable for the damage occasioned by a particular state of circum- 
 stances, 1 know of no reason why a man should not be liable for 
 the damage occasioned by that state of circumstances, whether the 
 state of circumstances is brought about by the act of man or by 
 the act of God. There is nothing impossible in that which, on 
 such an hypothesis, he has contracted to do, or which he is by the 
 statute ordered to do, — namely, to be liable for the damages. If, 
 therefore, by the section to which I have referred, it is meant that 
 the owner of every vessel shall, irrespective of whether anything 
 lias happened which would at common law give a right of action 
 against any one, pay to the undertakers the damage done by a ship 
 to the pier, I should be unable to see any reason why the payment 
 should not be made in the manner required by the statute. I can- 
 not, however, look upon this section of the statute as intended to 
 create a right to recover, damages in cases where before the Act 
 there was not a right to recover damages from some one. The 
 section and those which follow it are in an Act which collects 
 together the common and ordinary clauses which it was the habit 
 of Parliament to insert in private bills authorising the construction 
 of piers and docks. There was no special legislation intended on 
 this head for any particular place or any particular state of cir- 
 cumstances; and it would be difficult to suppose that, by means of 
 ordinary and routine clauses inserted in private or local Acts, the 
 legislature, although it might well provide a ready and simple pro- 
 cedure for recovering damages where a right to damages existed by 
 common law, could intend to create a new right and a new liability 
 to damages unknown to the common law. By the common law, if 
 a pier were injured by a ship sailing against it, the owner might be 
 liable if he was on board and directing the navigation of the ship, 
 or if the ship was navigated by persons for whose negligence he 
 was liable ; but the owner would not be liable merely because he 
 was the owner, or without showing that those navigating the 
 vessel were his servants. 
 
 In my opinion it was to meet this state of the law that this sec- 
 tion was introduced. It proceeds, as it seems to me, on the 
 assumption that damage has been done of the kind for which
 
 ACCIDENT, 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 compensation can be recovered at common law against some per- 
 son, — that is to say, damage occasioned by negligence or wilful 
 misconduct, and not by the act of God. The section relieves the 
 undertakers from the investigation (always a difficult one for them 
 to pursue) whether the fault has been the fault of the owner, or of 
 the charterer, or of the persons in charge. It takes the owner as 
 the person who is always discoverable by means of the register, 
 and it declares that he shall be the person answerable, — that is 
 to say, the person who is to answer, or is to be sued, for the dam- 
 age done. It does not absolve the master or crew if there has been 
 wilful fault or negligence on their part. They in that case may 
 be sued as well as the owner. But if the owner is thus in the first 
 instance made to pay the damage, where there has been wilful or 
 negligent conduct on the part of the master or crew, the owner 
 may (under subsequent sections) recover over against the master or 
 crew; and if the damage has occurred by reason of the act or omis- 
 sion of any other person, — if, for example, some one who had hired 
 the ship sent her to sea insufficiently manned, and the accident oc- 
 curred in consequence, — the owner might apparently recover from 
 the hirer by reason of this act or omission. The clause appears to 
 me to be one of procedure only, dealing with the mode in which a 
 right of action for damages already existing shall be asserted, and 
 not creating a right of action for damages where no right of action 
 against anyone existed before. This makes the^part of the section 
 relating to the employment of a pilot intelligible and consistent 
 with the rest of the enactment. If a licensed pilot is in charge, 
 the owner is not discharged from a possible liability, but every- 
 thing is left as it would be at common law. If a pilot was in 
 charge of a ship, and the owner was at the same time the master 
 navigating the ship, and did an act which caused damage, he 
 would be liable at common law, and the Act leaves him so; but 
 in the same case if, while the pilot was in charge and the owner 
 navigating the^ship, the ship became unmanageable by tempest, 
 the owner would not be liable. I therefore think, although I do 
 not concur in the reasoning of the learned Judges of the Court of 
 Appeal, that their conclusion was right, and that the appeal ought 
 to be dismissed w r ith costs. 
 
 Lord Hatherley. I must candidly say that this case has 
 given me much anxiety, and I have felt very great doubt and 
 difficulty as to the proper interpretation to be given to this clause,
 
 !14 ACCIDENT. 
 
 No. 9. — Kiver Wear Commissioners v. Adamson. 
 
 which is, as it appears to me, somewhat inartistically framed. I 
 cannot concur in the views expressed in the Court below by some 
 of the learned Judges, on the one hand, that the damage which 
 was done in this case having been caused by what is commonly 
 said to be an accident, but is called in tin: language technically 
 used in the law courts "the act of Clod," — namely, a storm, — the 
 owner of the vessel would be excused by the section of the Act of 
 Parliament, however construed, from the consequences of that mis- 
 chief. Neither can I think, on the other hand, that, as has been 
 hold by others of the learned Judges in the Court below, the clause 
 in question refers only to cases where a vessel is in charge of 
 somebody. I do not think, in the first place, that the grammati- 
 cal construction of the clause will admit of that solution of our 
 difficulties. 
 
 When we look at the whole construction of the clause, it appears 
 to me that it speaks, in the first place, of damage done by a vessel, 
 without regard to any one being on board or not; then it speaks, 
 in the second place, of damage done by any person employed about 
 the vessel ; and then it says that the master or person in charge of 
 a vessel is to be liable if damage is done through his wilful act or 
 negligence. And then the excepted case occurs of the pilot, 
 because he had been compulsorily and against any power of resist- 
 ance of the owner, placed on board and in charge. 
 
 Now we have to see whether or not damage arising from the 
 ''act of God" — that is to say, in this particular case, a tempest — 
 should be held to be excepted. There might be other cases which 
 would be similar to this of a tempest; the vessel might have been 
 driven on the pier in some other way, or have been injured and 
 become unmanageable by lightning, or the like. However it 
 occurred, if the pier was damaged by the vessel in the way which 
 was called by the learned Judges in the Court below "the act of 
 Cod," is there anything in the Act of Parliament to say that the 
 owner of the vessel shall not be responsible for the damage, but 
 that there shall be an exception in respect of damage so caused ? 
 One can easily conceive that the Legislature might think it desir- 
 able that those who provide this great accommodation for the 
 navigation of the country — those who provide harbours of refuge 
 and the like, which are greatly wanted in many parts of the coasts 
 of the United Kingdom — should lie indemnified against the pos- 
 sible damage which may accru ; to their docks or other works,
 
 ACCIDENT. 31i 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 which they construct in discharge of the duties in question, and 
 in the exercise of those powers which they have for making docks 
 •and other works. Those promoters might say. " We offer protec- 
 tion to the public at all times ; only protect us from having our 
 works damaged, in consideration of the benevolent hospitality 
 which we so afford." 
 
 There is nothing, as it appears to me, utterly unreasonable in 
 such a proposition carried out. It is quite true that many cases 
 put by the learned Judges in the Court below are cases in which 
 it would seem to be a very rigid enactment, indeed, that damage to 
 a very large and extensive amount, exceeding the value of the ves- 
 sel itself, should be compensated by the persons whose vessel has 
 done this damage being made answerable to make it good to the 
 full amount of the damage done, which might even go to the 
 destruction of the principal works, and might therefore result in 
 the ruin of those persons whose vessel had been so forced against 
 them. But, on the other hand, if there was any intention at all 
 of giving a relief of this kind, which must be sought, of course, in 
 the words of the Act, then I apprehend that the exception of a 
 storm or tempest would be a very singular one, because it is a 
 probable case to happen. There are, no doubt, many other ways in 
 which damage might be done ; but it is amongst the very probable 
 causes that a storm or tempest should be the thing which would 
 occasion the damage through the medium of the ship, which 
 directly produced that damage. I do not think, therefore, that 
 I can say, at all satisfactorily to my own mind, that provided that 
 tin; Act is clear and specific in its clauses, the party who caused 
 the damage could be exempted, because the damage was the result 
 of a tempest, and not of what is ordinarily called his fault. 
 Neither, as 1 have already said, by the grammatical construction of 
 the clause, do I think that the clause is only to be applied in 
 cases where some master or other person is in charge of the vessel. 
 
 Possibly the expression of Hellish, L. J., may come nearer to the 
 mind of the Legislature. His notion of the general intent of the 
 ■clause is this: that it points to something in which man is con- 
 cerned (I think that is his expression), — that is to say, in which 
 human agency intervenes; and it was on that ground that he coin- 
 cided with the views taken by the other learned Judges. His idea 
 of the whole intent and purpose of the clause was, not that the 
 "act of God" was wholly to excuse the person liable under the
 
 316 ACCIDENT. 
 
 No, 9. River Wear Commissioners v. Adamson. 
 
 enactment, if that liability once existed ; but that the clause 
 pointed to some act of man which was to take place, and not to a 
 mere casualty occasioned by the tossing and driving about of the 
 vessel from the effect of a storm upon the sea. 
 
 Finding that I cannot concur in the reasons given in the Court 
 below, of course one has to consider the construction of the clause. 
 I think that, taking the view which was taken by the appellants in 
 this case, the clause has been framed with probably extraordinary 
 pressure and severity against the persons by whose vessels this 
 damage would be created. No one can possibly deny that ; and 
 that severity seems to have induced some of the Judges before 
 whom the case has come, to think that it is impossible to attribute 
 such an intention to the Legislature. Now, I am afraid that it 
 does sometimes occur that an act of the legislature cannot be 
 carried out without very great inconvenience and hardship; but 
 that is not because the legislature intended it, but because the 
 possibility of its occurrence had been forgotten. I think that such 
 a circumstance may have occurred here, and produced the enact- 
 ment that we have before us. 
 
 However, it is the opinion, I believe, of the majority of your 
 Lordships, that, on the whole case being considered, this is not a 
 case that we can regard as struck at by this clause. "Whether the 
 ground to be assigned for that is the view which has been ex- 
 pressed by the Lord Chancellor, or whether any view may be 
 adopted by any of your Lordships, similar to that taken in the 
 Court below, leading to the conclusion that the damage which 
 here occurred is not brought within the meaning or purview of this 
 Act, I shall not pause to inquire. There being this doubtfulness of 
 opinion, I shall not do what I might probably under other circum- 
 stances have thought it my duty to do in this case. I am unwill- 
 ing to do anything further than say that I cannot concur in the 
 opinion expressed by my noble and learned friend on the woolsack, 
 otherwise than with extreme doubt and hesitation. 
 
 Lord O'Hacan. — I need scarcely say that this is a difficult and 
 embarrassing case. The various views which have been adopted 
 by able Judges make this very plain, and \ do not think that any 
 conclusion at which we can arrive will be completely satisfactory. 
 
 The difficulty arises from the form of the short clause we are 
 required to interpret. Your Lordships, exercising your appellate 
 jurisdiction, act as a court of construction. You do not legislate,
 
 ACCIDENT. 317 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 but you ascertain the purpose of the Legislature; and if you can 
 
 discover what that purpose was, you arc. hound to enforce it, 
 although you may not approve the motives from which it springs, 
 or the object which it aims to accomplish. Our daily experience 
 
 demonstrates that the task of construction, so understood, is nol an 
 easy one. It sometimes involves the necessity of harmonising appar- 
 ently inconsistent clauses, and making out homogeneous provisions, 
 cast together haphazard by various minds differently constituted, 
 and looking t'o different and special objects, without regard to the 
 harmony of the whole. Undoubtedly, if the first division of the 
 74th section of the Harbours, Docks, and Piers Clauses Act, 1847, 
 stood alone, it would seem to cast upon the owner under all pos- 
 sible circumstances liability to the undertakers for any damage 
 done by his vessel. That was the view reluctantly adopted by the 
 Court of Queen's Bench, which we are asked to affirm in opposition 
 to the judgment of the Court of Appeal; and if your Lordships, 
 on a full consideration of the whole clause, are satisfied that that 
 was the view intended to be carried out, you have no alternative 
 but to act upon it. No speculation as to the inconvenience or 
 even the injustice which it may accomplish, no consideration of 
 the admitted innocence of the owner of the vessel, or of the inev- 
 itable nature of the accident which wrought the injury, would 
 justify a refusal to interpret the statute according to the design 
 of the makers of it; and if you clearly see that they meant the 
 liability to be unqualified and universal, you are not at liberty, on 
 such grounds, to defeat that design and say that the appellants 
 shall not have the benefit of it. If the law as it stands is oppres- 
 sive or inequitable, the Legislature which devised it can alone 
 reform it ; and certainly in my judgment, should your Lordships 
 feel yourselves obliged to reverse the ruling of the Court of Appeal, 
 such a reform will be needful, and should be promptly made, for 
 the results of such a reversal seem very serious. It would in- 
 volve the obligation of the owner to make good damage done by his 
 ship, although, as in this case, he might be free from blame, for any 
 imaginable injury by himself, or his servants, or in any other way. 
 If necessarily abandoned on the high seas a thousand miles away, 
 she drifts ashore, after long wandering, and does an injury; or, if 
 taken out of his hands absolutely by a pirate or an enemy, she is 
 brought in his absence, and against his will, to attack the coast of 
 England ; or if, as was put by the Judges of the Appeal Court, the
 
 318 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 undertakers themselves shall have got hold of tho vessel, and em- 
 ployed it so as to injure their own pier ; in all these cases, and in 
 others easily to be conceived, he would be responsible for results to 
 which he had not contributed. 
 
 Now, no doubt, it is possible that the Legislature may have con- 
 templated for the protection of harbours, docks, and piers, an enact- 
 ment fraught with consequences of this description ; but before 
 we attribute to it so strange a purpose, we are bound, I think, to 
 see whether the phraseology it has used, taken together, does not 
 enable us to reconcile its action with common sense and common 
 justice ; and to say that although it has spoken obscurely, it has 
 not made unavoidable such a very startling construction of its 
 words. The case before us is not perhaps quite so shocking as 
 those which have been supposed to test the effects of this piece of 
 legislation ; but certainly it does seem hard that the respondents, 
 having had their ship so injured by the winds and waves on the 
 high seas that the crew abandoned her to save their lives, and she- 
 was derelict, and was forced by the storm against the pier, should 
 not only have lost her value (£10,000), save in so far as she was 
 insured, but, in addition, nearly £3000 for mischief done, — admit- 
 tedly without fault of theirs, and by the " act of God." We must 
 take care that a hard case shall not make bad law; but we must 
 also take care that we do not .attribute to Parliament the intention 
 of injustice so very flagrant without coercive necessity. 
 
 Now, I have come to the conclusion, though not without serious 
 hesitation and misgiving, that there is no such necessity, and that 
 the Statute, well considered, is not applicable in the peculiar cir- 
 cumstances before us. I do not propose that your Lordships should 
 act on any very large application of the old maxim, "Qui hceret in 
 litem hceret in cortice," or refuse, from any assumption of error in 
 policy on the part of the Legislature, to give effect to the literal 
 meaning of the Act, But when we. pass from the first clause of 
 the section, and find it dealing with ' : the master or person having 
 the charge of such vessel," I think it is indicated that " such vessel " 
 may be taken to limit the description of " every vessel " in the 
 preceding phrase, and to confine the liability of the owner to- 
 vessels " in charge " of a master or somebody else. I do not see 
 how we are to give effect to the word " such " otherwise than by- 
 qualifying the generality of the preceding language, and holding 
 with MELLISH, L. J., that the section points to something done by 
 the act of man, or to the act of the person in charge.
 
 ACCIDENT. 310 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 The terms of the Statute appear to me fairly to hear this inter- 
 pretation ; and if they do, it is manifestly mure in accordance with 
 reason and probability than that which is opposed to it. In any 
 view the provision is hard upon the owner, and puts him in a 
 worse position than he would have held at common law. But 
 there is something comparatively tolerable in the notion that he 
 shall he responsible if an accident occurs when his captain or some 
 one else employed by him, acting for him and under his control, 
 has at least the chance of avoiding it. When this chance is gone, 
 because the employes cease to be in charge, and his ship heroines 
 an ungoverned log, irresistibly borne against a pier without the 
 possibility of check or guidance, the hard measure of liability for 
 an act which is not his nor his agent's, should not be imputed to 
 him if there is fair ground for thinking that the section did not 
 contemplate such a state of circumstances. In the one case it may 
 be just that the owner should answer, if the injury arises from the 
 actual or presumed default of his servants, and it may lie politic 
 to make him careful in the selection of them from an apprehen- 
 sion of the consequences of such an actual or presumed default. 
 In the other, his utter and necessary powerlessness to avert the 
 mischief should make us slow to say that he was meant to answer 
 for it. 
 
 Then as to the proviso, it appears to be reasonably applicable on 
 the one construction and not on the- other. If it was meant that 
 the owner should lie universally liable whether or no any control 
 remained with him or with his crew, how can we account for the 
 exception as to the presence of the pilot ? The injury is the 
 same, the instrument of the injury is the same, and why, if the 
 liability is to arise without any regard to circumstances in all other 
 cases, although every possibility of control or default is absent, 
 why should the pilot's compulsory employment exonerate the 
 owner? On the other hand, if the true construction makes him 
 only liable when a master or some other person freely chosen by 
 himself, and on his own responsibility, is in charge, we can see 
 good reason for the exoneration as soon as the pilot, whose retainer 
 is not optional, as in the case of his own people, assumes the 
 care of a ship, and so disables him from meddling with her directly 
 or indirectly. In the one case there is some control remaining 
 with him; in the other there is none. The law displaces the per- 
 son he had chosen to guide his vessel, and he is made irresponsible.
 
 320 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 Why should lie not be so when the stress of the storm has the 
 same effect, and forces his captain and his crew to abandon the 
 trust he had committed to them ? The proviso appears to me per- 
 suasively to sustain the argument of the respondents. 
 
 It has been said that unless the appellants prevail the statute- 
 must have failed of its object, which was manifestly the greater 
 protection of the pier owners, because it gives them nothing which 
 they had not at common law. I think that this is a great fallacy. 
 At common law there were serious questions continually arising, 
 which, on either construction of the statute, can arise no more. 
 Often it was doubtful on whom liabilities were charged, or by 
 what evidence the charge of it could be made successfully. We 
 can well conceive that the undertakers might have found difficulty 
 in properly selecting a defendant amid the varying circumstances 
 which affect the direction and management of merchant vessels, 
 and the proof establishing a responsibility must often have been 
 hard to find and inadequate to satisfy a jury. I do not know the 
 exact history of the legislation, but in this state of things the 
 undertakers may perhaps have reasonably complained that, having 
 performed great public service in forming a harbour, a dock, or a 
 pier, they found themselves unable to recover for injuries confess- 
 edly done to works accomplished with much expense and labour, 
 and of the utmost importance to the commerce of the country. 
 And the Legislature may have fairly said that greater protection 
 was due to them than they derived from the law, which had grown 
 up before that commerce and those works had been created, involv- 
 ing the necessity of safeguards theretofore uncalled for and un- 
 known. Accordingly they made the owner, a person easily and 
 always to be found, " answerable " as owner; and they dispensed 
 with the proof of negligence or any other proof, save of the injury 
 by the vessel, in all cases contemplated by the Act. This was a 
 great change, and a great addition to any security which the un- 
 dertakers enjoyed at common law ; and it was so whether we give 
 the clauses the universal force for which the appellants contend, 
 or the more restricted application which, with the Court of Appeal, 
 T think your Lordships should attribute to them. And in addition, 
 a further material advantage, unknown to the antecedent law, is 
 afforded to the undertakers, who are empowered to detain the 
 vessel or float of timber until sufficient security has been given for 
 the amount of damage done by the same. These most important
 
 ACCIDENT. 321 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 provisions supply the raison d'etre for the legislation, whatever be 
 the issue of the controversy as to the extent of its action ; and 1 
 think it is vain to allege that we cannot suggest for it a. sufficient 
 motive without straining its effect to work confessed injustice. 
 
 I do not stay to consider the argument that this construction, 
 approved by the Court of Appeal, should be rejected because a float 
 of timber is not usually " in charge " of any one as a vessel is, and 
 that Parliament cannot therefore be supposed to have restricted 
 its view to cases in which the instrument of injury is derelict. 
 The first answer is that floats may be, and are often, "in 
 charge," — not perhaps of such a " master" as governs a vessel, but 
 of other persons such as the statute takes care to mention. And 
 next, the statute deals with the vessel and the float of timber, 
 quoad the "charge" of them, precisely in the same way; and the 
 observations I have made as to the first will, if they have force, 
 be equally applicable to the second. 
 
 My reasoning has not been precisely that of the Court of Appeal, 
 and I have not based it altogether upon the legal doctrine as to 
 the " act of God." That doctrine is founded on the view, which 
 commends itself alike to equity and reason, that liability should 
 not be imposed, unless in special circumstances, or where public 
 interests imperatively require it, for consequences which are not 
 wrought by human will or act, and for which no human being is 
 morally responsible. There are exceptions to its application, as 
 when a man voluntarily contracts, with full opportunity of antici- 
 pating possible results, to do that from doing which he is disabled 
 by inevitable accident ; or when, as is said, the repairing of sea- 
 walls is imperative by prescription, and is made impossible by such 
 accident ; and in various other cases. And I am not at all pre- 
 pared to say that the legislature has not full power, if it be so 
 minded, to declare that a proceeding it forbids, or a proceeding it 
 commands, shall not be justified, in the commission of the one, 
 or the omission of the other, because the result was caused by the 
 "act of God." A law so providing we should be bound to enforce ; 
 and if in the case before us the Statute was universally applicable, 
 as the appellants contend, the unhappy shipowner must have sub- 
 mitted to its hard infliction. As I have said, I think that it is not 
 so applicable, and that in these circumstances it does not apply; 
 and it seems proper to suggest that we should not, upon any phra- 
 seology of a doubtful character, or without the clearest and most 
 vol. r. — 21
 
 322 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 unequivocal expression of legislative intention, or if we may any- 
 wise reasonably interpret that intention in another sense, assume 
 that a maxim so ancient, so well established, and so accordant with 
 the common sense of mankind has been set at nought by the 
 Statute before us. 
 
 In the view I have presented to your Lordships the only case 
 cited as touching the present has no application to it. There the 
 vessel was not derelict, and the owner may properly have been 
 held liable. Here, on the other hand, in the words of Pollock, B., 
 "out on the high seas she met with certain risks and injuries 
 which compelled the crew to leave her, and she became derelict." 
 And in my judgment she should be dealt with as if she- had been 
 abandoned at the Antipodes, and had been ploughing the ocean 
 without a crew for years before .she was driven against the pier at 
 Sunderland. 
 
 On the whole, I think that the'judgment of the Court of Appeal 
 should be affirmed, and this appeal dismissed. 
 
 Lord Blackbukn. — I have had very great doubt and hesitation 
 in this case, and have, while considering it, changed the opinion 1 
 at first held. 
 
 The question raised depends upon the true construction of three 
 sections of the Harbours, Docks, and Piers Clauses Act, 1847, 10 
 Vict, c. 27, — namely, the 74th, 75th, and 76th sections. These are 
 part of a set of clauses gathered together under one head, — namely, 
 "Protection of the Harbour, Dock, and Pier, and the vessels lying 
 therein, from fire or other injury." I do not think any other clause 
 in the Act throws light on the construction of those sections, nor 
 do T think that the construction put upon those sections will have 
 any legitimate bearing on the construction of sections in other 
 parts of the Act, though no doubt the principles of construction 
 of statutes laid down by this House in the present case must 
 have, an important effect on those who have to construe that or 
 any other enactment. It is of great importance that those prin- 
 ciples should be ascertained, and I shall therefore state as precisely 
 as I can what I understand from the decided cases to be the prin- 
 ciples on which the courts of law act in construing instruments in 
 writing ; and a statute is an instrument in writing. 
 
 In all cases the object is to see what is the intention expressed 
 by the words used. But from the imperfection of language it is 
 impossible to know what that intention is without inquiring
 
 ACCIDENT. 323 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 further, and seeing what the circumstances were with reference to 
 which the words were used, and what was the object appearing 
 from those circumstances which the person using them had in 
 view; for the meaning of words varies according to the circum- 
 stances with respect to which they were used. I do not know that 
 I can make my meaning plainer than by referring to the old rules 
 of pleading as to innuendoes in cases of defamation. Those rules, 
 though highly technical, were very logical. Xo innuendo could 
 enlarge the sense of the words beyond that which they prima, 
 facie bore, unless it was supported by an inducement or preliminary 
 averment of facts, and an averment that the libel was published 
 or the words spoken of and concerning those facts, and of and con- 
 cerning the plaintiff as connected with the facts. If these prelim- 
 inary averments were proved, words which prima facie bore a very 
 innocent meaning might convey a very injurious one, and it was 
 for the court to say whether, when used of and concerning the 
 inducement, they bore the meaning imputed by the innuendo. 
 See the notes to Craft v. Boite, 1 Wins. Saund. 24(>. The legisla- 
 ture has rendered it no longer necessary to set out in the record 
 the facts and the colloquium necessary to support an innuendo; 
 th ey are now only matter of proof at the trial, but the principle 
 remains. 
 
 In construing written instruments I think the same principle 
 applies. In the cases of wills the testator is speaking of and 
 concerning all his affairs, and, therefore, evidence is admissible to 
 show all that he knew, and the court has to say what is the in- 
 tention indicated by the words when used with reference to those 
 extrinsic facts ; for the same words used in two wills may express 
 one intention when used with reference to the state of one testa- 
 tor's affairs and family, and quite a different one when used with 
 reference to the state of another testator's affairs and family. 
 
 In the case of a contract the two parties are speaking of certain 
 things only, and, therefore, the admissible evidence is limited to 
 those circumstances of and concerning which they use those 
 words. See Graves v. Legg, 9 Exch. Eep. 642; 23 Law J. Rep. 
 Exch. 228. In neither case does the court make a will or a 
 contract such as it thinks the testator or the parties wished to 
 make, but declares what the intention indicated by the words used 
 under such circumstances really is. 
 
 And this, as applied to the construction of statutes, is no new
 
 524 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 doctrine. As long ago as Heydon's Case, 3 Co. Eep. 7. Lord Coke 
 says that it was resolved, "That for the sure and true interpreta- 
 tion of all statutes in general, be they penal or beneficial, restric- 
 tive or enlarging of the common law, four things are to be 
 discerned and considered : First, what was the common law 
 before the Act ? Secondly, what was the mischief and defect for 
 which the common law did not provide ? Thirdly, what remedy 
 the Parliament hath resolved and appointed to cure the disease of 
 the commonwealth ? And, fourthly, the true reason of the remedy. 
 And then the office of all the Judges is always to make such con- 
 struction as shall suppress the mischief and advance the remedy." 
 But it is to be borne in mind that the office of the Judges is not to 
 legislate, but to declare the expressed intention of the legislature, 
 even if that intention appears to the court to be injudicious; and I 
 believe that it is not disputed that what Lord Wensleydale used to 
 call "the golden rule" is right, — namely, that we are to take the 
 whole statute together and construe it all together, giving the 
 words their ordinary signification, unless when so applied they 
 produce an inconsistency or an absurdity or inconvenience ,so 
 great as to convince the court that the intention could not have 
 been to use them in their ordinary signification, and to justify the 
 court in putting on them some other signification which, though 
 less proper, is one which the court thinks the words will bear. In 
 Allgood v. Blake (L. R, 8 Exch. 160 ; 42 Law J. Eep. Exch. 101), in 
 the judgment of the Exchequer Chamber, which I had the honour 
 to deliver, as to the construction of a will it is said : " The great 
 difficulty in all cases is in applying these rules to the particular 
 case ; for to one mind it may appear that an effect produced by 
 construing the words literally is so inconsistent with the rest of 
 the will, or produces so absurd a result or inconvenience so great, 
 as to justify the court in putting on them another signification 
 which to that mind seems a not improper signification of the words, 
 whilst to another mind the effect produced may appear not so 
 inconsistent, absurd, or inconvenient as to justify putting any other 
 signification on the words than their proper one ; and the proposed 
 signification may appear a violent construction. We apprehend 
 that no precise line can be drawn, but that the court must in each 
 case apply the admitted rules to the case in hand, not deviating 
 from the literal sense of the words without sufficient reason, or 
 more than is justified, yet not adhering slavishly to them when to
 
 ACCIDENT. 325 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 do so would obviously defeat the intention which may be collected 
 from the whole will." Mutatis mutandis, I think this is applicable 
 to the construction of statutes as much as of wills ; and 1 think it 
 is correct. 
 
 In local and personal Acts there was found to be great incon- 
 venience from the clauses being framed according to the views of 
 the promoter's counsel, and, consequently, being very differently 
 worded.; and to remedy this a practice arose of obliging the pro- 
 moters to submit their bills to the revision of the Chairman of 
 Committees, who required them to make their clauses in the form 
 he had approved of, unless some good reason was shown for deviat- 
 ing from it. These forms of clauses were well known, and the 
 research which my noble and learned friend opposite (Lord Gor- 
 don) has made, shows that in the Harbour Acts, passed in 1846, the 
 common form of the clause used was in the words of what is now 
 section 74 of the Harbours, Docks, and Piers Clauses Act, 1847, but, 
 except in one instance, without a proviso similar to that at the 
 end of it. That shows, what the frame of the section would have 
 led one to guess, that the proviso was an after-thought, added to 
 the enactment after it had been adopted. The preamble of the 
 Harbours, Docks, and Piers Clauses Act declares that it is passed 
 for the purpose of comprising in one Act the clauses usually con- 
 tained in Harbour and Pier Acts for the purpose of avoiding pro- 
 lixity and producing uniformity ; ami the clause in question is 
 one of a series for the "protection of the harbour, docks, and pier, 
 and the vessels lying therein, from fire or other injury." 
 
 The first inquiry for your Lordships is, Are we justified in putting 
 a different construction on the words of an Act passed at the 
 instance of particular promoters from that which would be put 
 on similar words in a general Act? To some extent I think we 
 are. If in a local and personal Act we found words that seemed 
 to express an intention to enact something quite unconnected with 
 the purpose of the promoters, and which the Committee would not, 
 if they did their duty, have allowed to be introduced into such an 
 Act, I think the Judges would be justified in putting almost any 
 construction on the words that would prevent them from having 
 that effect. But I do not think it impossible that the legislature 
 can have intended in such an Act to create a new liability to dam- 
 ages unknown at common law. The creation of such a liability 
 would be in direct furtherance of the declared object of the enact-
 
 326 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 merit, — the protection of the piers from injury. And in every 
 construction of the enactment in question which I have heard 
 suggested the legislature does impose on the owners a liability 
 for damages occasioned by persons for whom they would not be 
 liable at common law. At present I cannot see my way to limit- 
 ing the words of this Act, more than in a general Act ; but I think 
 that neither in a general Act nor in a special Act could the legis- 
 lature have meant to shift the burden of a misfortune befalling the 
 owner of a pier from the owner of a pier, who at common law would 
 bear it, to the owner of a ship wholly free from blame, and involved 
 without fault of his in a common misfortune. It may have been 
 said, but it can hardly have been intended to be said. 
 
 The common law is, I think, as follows: Property adjoining a 
 spot in which the public have a right to carry on traffic is liable to 
 be injured by that traffic. In this respect there is no difference 
 between a shop, the railings or windows of which may be broken 
 by a carriage on the road, and a pier adjoining a harbour, or a navi- 
 gable river, or the sea, which is liable to be injured by a ship. In 
 either case the owner of the injured property must bear his own 
 loss, unless he can establish that some person is liable to make it 
 good; and he does not establish this against a person merely by 
 showing that he is owner of the carriage or ship which did the 
 mischief, for that owner incurs no liability merely as owner; but 
 he does establish such a liability against any person who either 
 wilfully did the damage or neglected that duty which the law 
 casts upon those in charge of a carriage on land and a ship or a 
 float of timber on water to take reasonable care and use reasona- 
 ble skill to prevent it from doing injury; and that this neglect 
 caused the damage. And if he can prove that the person who has 
 been guilty of this negligence stood in the relation of servant to 
 another, and that the negligence was in the course of his employ- 
 ment, he establishes a liability against the master also. In the 
 great majority of cases the servant actually guilty of the negli- 
 gence is poor and unable to make good the damage if it is con- 
 siderable, and the master is at least comparatively rich, and 
 consequently it is generally better to fix the master with liability; 
 but there is also concurrent liability in the servant, who is not dis- 
 charged from liability because his master also is liable. And in a 
 very large number of cases the owner of the carriage, or ship, or 
 float of timber, is, or at least is supposed to be, the master of those
 
 ACCIDENT. 32' 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 who were negligent; and consequently the action is most frequently 
 brought against the owner, and is very often successful. But the 
 plaintiff succeeds, not because the defendant is owner of the car- 
 riage, or ship, or Moat of timber, hut because those who were guilty 
 of the negligence were his servants. 
 
 1 have stated the law with particularity, because I think it 
 important to have it clearly before us. What 1 have said is really 
 a statement of the law as laid down by PARKE, B., in delivering the 
 judgment of the Exchequer in Quantum v. Burnett (9 Law .1. Rep. 
 Exch. 308; 6 Mec. & W. 499), where the plaintiff was nonsuited 
 because the defendants, though owners of the carriage and actually 
 seated in it at the time of the accident, were not the mistresses of 
 the coachman whose negligence caused the accident. I have al- 
 ready said that in the ordinary course of things those employed 
 about a ship are the servants of the owners; and in Hibbs v. Boss 
 (Law Eep. 1 Q. B. 534; 35 Law J. Eep. Q. B. 193), the majority of 
 the Court of Queen's Bench thought this was so much the case that 
 proof of ownership in the defendant was ■prima facie that they 
 were his servants, calling on him to prove an exceptional state of 
 things in which they were not his servants. A case very likely to 
 occur in a harbour in which this would be disproved would be where 
 the ship was put in the hands of a shipwright to be repaired, and 
 the shipwright's servants, in moving her into a graving dock, neg- 
 ligently did mischief. The owner would not there be liable at 
 common law. Where the owner of a ship is compelled to take 
 a pilot on board, that pilot is not the servant of the owner, and he 
 is not liable for the negligence of that pilot ; but the captain and 
 crew remain his servants, and he is liable for their negligence 
 though a pilot is on board. Where no one is to blame, — as where 
 the damage is occasioned by inevitable accident, — the loss, at com- 
 mon law, was borne by the owner of the property injured. And 
 lastly, the person injured has at common law no lien on the ship, 
 but only a right of action against the person to blame; and also, 
 if he was a servant, against his employer. 
 
 Beading the words of the enactment, and bearing in mind what 
 was the state of the law at the time when it was passed, it seems 
 to me that the object of the legislature was to give the owners of 
 harbours, docks, and piers more protection than they had. It seems 
 to have occurred to those who framed the statute that in most 
 cases where an accident occurs it is from the fault of those who
 
 328 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 were managing the ship, and in most cases those are the servants 
 of the owners ; but that these were matters which in every case 
 must be proved, and that consequently there was a great deal of 
 litigation incurred before the owner, though he really was liable, 
 could be fixed. And with a view to meet this, the remedy proposed 
 was that the owner, who was generally really liable, — though it 
 was difficult and expensive to prove it, — should be liable, without 
 proof, either that there w T as negligence, or that the person guilty 
 of neglect was the owner's servant, or proving how the mischief 
 happened ; and this is expressed by saying that the owner " shall 
 be answerable for any damage done by the vessel or by any person 
 employed about the same " to the harbour. It seems to have been 
 suggested that where a compulsory pilot was on board the mischief 
 might very well be by his fault, and the presumption on which 
 they acted — that mischief was generally due to the fault of the 
 owner's servants — did not arise. This case, therefore, was by the 
 proviso taken out of the enactment of the common law. As to 
 the possible case of the mischief being occasioned by the servants 
 of a shipwright or some other substantial person, it seems to have 
 been thought enough to give the owner the remedy over provided 
 by section 76. As to the cases in which the fault was that of 
 some person not able to make compensation, for whom the ship- 
 owner was not at common law responsible, it may have been 
 thought that the cases would occur so seldom, or when they oc- 
 curred would probably be of such small amount, that the shifting 
 of the loss from the owner of the property to the owner of the 
 ship was not too high a price to pay for the saving of litigation 
 and expense. The cases of a common misfortune befalling both 
 ship and pier, without fault of either, seems not to have been 
 thought of. At all events, no exemption or proviso to take these 
 cases out of the general enactment is given in express words. 
 
 On reading the words of the enactment I am brought to the 
 conclusion that such was the scheme of legislation adopted by 
 Parliament, — the mischief being the expense of litigation ; the 
 remedy, that the owners should be liable without proof of how 
 the accident occurred. And if it had been confined to cases in 
 which the damages were under .£50, and might be recovered before 
 two justices under section 75, I think It would be a scheme of 
 legislation against which no very serious objection could be raised. 
 Dennis v. Tovell (L. R., 8 Q. B. 10; 42 L. J., M. C. 33) was a ease
 
 ACCIDENT. 329 
 
 No. 9. — Kiver Wear Commissioners v. Adamson. 
 
 under £50 raised in the County Court, and brought by appeal 
 before the Court of Queen's Bench. Without bestowing so much 
 consideration on the ease as I have now done, 1 joined in the judg- 
 ment of the court, which I have for a long time thought right, and 
 now dissent from with great trouble and hesitation. It is impossi- 
 ble, however, to put any limit on the amount. The shipowner, 
 if liable at all under this statute, is personally liable to his last 
 farthing for the whole damage, however great and however small 
 may be the value of the ship. In the present case the amount is 
 £2825, and if the statute transfers the liability for so large a sum 
 from the plaintiffs to the defendants, who have done nothing wrong, 
 there is no doubt it is a hard ease on the defendants. There is a 
 legal proverb that hard eases make bad law; but I think there is 
 truth in the retort that it is a bad law which makes hard eases. 
 And I think that before deciding that the construction of the statute 
 is such as to make this hardship, we ought to be sure that such is 
 the construction, — more especially when the hardship affects not 
 only one individual, but a whole class. 
 
 I have therefore examined the reasons given by the various 
 Judges in the Court of Appeal, with a wish to find that some of 
 them would in my mind justify the conclusion to which they have 
 come in favour of the defendants. And I have tried to find some 
 ground which had escaped their notice in which I could advise your 
 Lordships to uphold that decision, but for a long time without 
 success. It is quite true that where a duty is imposed by law, if 
 the performance of the duty is rendered impossible by the " act 
 of God or the King's enemies," the non-performance of the duty is 
 excused. Paradine v. Jane, Aleyn, 26, which is the case generally 
 cited for that position, is one in which the point did not arise. 
 That case was one in which it was attempted to argue that the 
 duty imposed by the contract to pay rent was subject to a condition 
 that the tenant was not evicted by the "act of God," or other vis 
 major, and the really important part of the decision is, that where 
 a contract is made which does not either expressly or implicitly 
 except the " act of God," the courts could not introduce that excep- 
 tion by intendment of law; and that makes strongly against the 
 supposition that in construing a statute where the legislature 
 might have expressed, but did not express, such an exception, the 
 court should introduce it. And there is no case cited, and, as far 
 as I can find, no case exists in which such a doctrine is laid down.
 
 330 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 In Latless v. Holmes, 4 Term Eep. 660, where an Act, which re- 
 ceived the Royal assent in May, by fiction of law related back to the 
 first day of the session in October, it was held to apply to a trans- 
 action occurring between October and May. This was contrary 
 to two legal maxims, — that a fiction of law should never be used 
 to work injustice, and that the law compels no one to do an impos- 
 sibility ; but the words of the enactment were too plain, and the 
 court was obliged not only to work great hardship, but, in the par- 
 ticular case, great injustice. And in the present case, if the object 
 of the statute be, as Pollock, B. says, and as I think it is, with a 
 view to avoid expense and delay, that the owners of the docks are 
 not to be put to the proof of negligence, or to the proof of how 
 the injury was occasioned, that object would be to some extent 
 less effectually carried out by importing such an exception, which 
 is certainly not expressed in terms. 
 
 Still there remains the question whether the hardship produced, 
 and the injustice worked, is so great as to justify the court in 
 putting any meaning on the words which they will bear, in order 
 to avoid it. Both Mellish, L. J., and, as I understand him, the 
 Lord Chancellor, have thought that the words maybe construed 
 so as to make the owner of the ship answerable only for damages 
 occasioned by the act of man, — damages for which someone is 
 answerable at common law. I have already said that the question 
 whether words can bear a secondary sense different from the usual 
 one, is one on which different minds differ. I a the present case, I 
 feel no doubt that the bardship is great enough to justify putting 
 a considerable strain on the words to avoid it; for I feel certain 
 that if the enactment has the effect of shifting the burthen of a 
 misfortune to the piers from the owners of the property, who at 
 common law would have borne it, to the owners of the ship, who 
 are free from all blame, it is an unforeseen consequence of the 
 words used, — which words, if the consequence had been foreseen, 
 would not have been used in the enactment, 
 
 I cannot see anything in the language of the Act to justify what 
 was the opinion of some of the Judges of Appeal, and is, I think, 
 adopted by Lord 0'Haga.n, that it is confined to cases in which 
 some one is in charge of the ship, even if that exception could 
 save the defendants, which I do not think it would. The defen- 
 dants were by their servants in possession of the ship when it 
 drove on the bank. It did not strike the pier till the rising tide
 
 ACCIDENT. 331 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 floated it in, but it was all one transaction ; and when it struck, it 
 was still a ship, and the defendants were still its owners. It is 
 not necessary to inquire when and under what circumstances that 
 which was once a ship becomes a mere congeries of planks, to 
 which the statute would not apply, further than to say this ship 
 cannot be treated as having become such, nor was it in my opinion 
 in any sense a derelict. 
 
 After much hesitation and doubt, I am not prepared to say that 
 this judgment should be reversed. I am not prepared to say that 
 the words "damage done by the ship," as used in this enactment, 
 necessarily include all expenses occasioned by misfortune in which 
 the ship was involved in common with the piers. Mellish, L. J., 
 seems to have thought that these words might bear the more 
 restricted sense of injuria cum damno. The declared object of 
 the enactment is the protection of the piers, &c, from " injury," 
 which renders this construction a little less violent than if the 
 object had been expressed to be to protect the harbour authorities 
 from " loss." If they can bear that sense, we ought so to construe 
 them ; and though I have had and have great doubt whether this 
 is not too violent a construction, I am not prepared to reverse the 
 judgment based on it; and consequently I agree that the appeal 
 should be dismissed with costs. 
 
 Lord Gordon. The opinion which I have formed in this case 
 differs from that at which the majority of your Lordships and the 
 Lords Justices of Appeal have arrived. 1 incline to the opinion of 
 the Court of Queen's Bench. Having regard to the great weight 
 due to the opinions which have been expressed by your Lordships, 
 and also to the great weight due to the opinions of the Lords 
 Justices of Appeal, both in their collective and in their individual 
 capacity, I feel great distrust in my own opinion. But I have con- 
 sidered the case with great anxiety, not only in consequence of 
 the views entertained by your Lordships, but also in consequence 
 of the case involving the construction to be put upon a section of 
 an act of Parliament, — a matter which it is of importance should 
 not be subject to conflicting views, founded upon supposed expedi- 
 ency ; and I feel that it is my duty to explain more fully than i 
 should otherwise do the grounds upon which I venture to dissent 
 from the opinions which have been expressed by your Lordships, 
 although I am aware that my doing so will have no practical effect 
 upon the decision of this case.
 
 332 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 The question relates to the application of the provisions of an 
 Act passed fur consolidating certain provisions usually contained 
 in special Acts authorising the making and improving of harbours, 
 docks, and piers. It is a British statute, applicable to Scotland as 
 well as England, and its provisions are of much importance. The 
 question in this appeal arises out of the leading enactment of the 
 74th section, which [his Lordship then read the section and con- 
 tinued]. The enactment is general and express, that the owner of 
 every vessel causing damage to harbours, &c, shall be answerable 
 for such damage, except in the single case where the vessel is in 
 charge of a pilot; and the question which your Lordships have to 
 consider is, whether the words of the section are to lie read and 
 applied in their ordinary common sense meaning, or whether there 
 is to be imported into the statute another exception than the 
 express exception it contains, relieving the owner of a ship which 
 at the time the damage occurred was in charge of a duly licensed 
 pilot, an exception, namely, from liability in cases where the dam- 
 age was caused by the vessel through the " act of God," or, as it is 
 sometimes expressed, vis major. 
 
 It may be mentioned that this section was the subject of con- 
 sideration in the case of Dennis v. Tovell, cit. p. 309, ante. That 
 case, having involved a sum under £50, was decided in the County 
 Court, but was taken on appeal before the Court of Queen's Bench, 
 who dismissed the appeal. That previous decision of the Queen's 
 Bench prevented that court from reconsidering the section in the 
 present case, and leave was granted by the court to appeal to the 
 Lords Justices, which led to their Lordships' judgment, — the sub- 
 ject of the present appeal to your Lordships' House. 
 
 The exemption from liability on the part of the owner when his 
 vessel is under the charge of a licensed pilot may, it appears to 
 me, be regarded as strengthening the express words of the leading 
 enactment of the 74th section, in accordance with the maxim, 
 exceptio probat regulam. The first consideration to be attended to 
 in reading the clause judicially is whether the words are express, 
 intelligible, grammatical, and unambiguous. I submit for your 
 Lordships' judgment that they have all these characteristics. In 
 my humble opinion the word "answerable" is merely an equiva- 
 lent for "liable;" and I observe that their Lordships in the Court 
 of Appeal deal with the expression as having that meaning, and 
 no argument was addressed to your Lordships from the bar, on the
 
 ACCIDENT. 333 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 part of the respondents, to show that the word was capable of any 
 other construction. I think the section in question itself shows 
 that the words are synonymous. For while it enacts that the 
 owner shall be "answerable," it likewise enacts that the owner or 
 person in charge shall, " also in cases of negligence, be liable ; " 
 and then it provides that " nothing herein contained shall extend 
 to impose any liability for any such damage upon the owner " 
 where the vessel shall be in charge of a pilot. 
 
 The next matter for consideration is, what are the duty and 
 province of a court of law, when ascertaining what effect is to be 
 given to the section, which in my opinion is of the express and 
 unambiguous character already stated; and in expressing an opin- 
 ion upon this question, your Lordships are at present officiating, 
 "not in your legislative character, but as the Supreme Court of 
 Appeal, in a judicial capacity. Blackstone, the highest constitu- 
 tional and legal authority with reference to the law of England, 
 when treating of statute law states (vol. i. p. 89): "Where the 
 common law and statute differ, the common law gives place to the 
 statute ; " and again (p. 91), " If the Parliament will positively enact 
 a thing to be done which is unreasonable, I know of no power in 
 the ordinary forms of the constitution that is vested with authority 
 to control ; and the examples usually alleged in support of this 
 sense of the rule do none of them prove that wdrere the main 
 object of a statute is unreasonable, the Judges are at liberty to 
 reject it, for that were to set the judicial power above that of 
 the legislature, which would be subversive of all government." 
 
 In the case of Birhs v. Allison (13 Com. B. Eep. N. S. 23; 32 
 Law J. Eep. C. P. 51), Byles, J., stated that the general rule for the 
 construction of acts of Parliament is, that the words are to be 
 read in that popular, natural, and ordinary sense giving them a 
 meaning to their full extent and capacity, unless there is reason 
 upon their face to believe that they were not intended to bear that 
 construction, because of some inconvenience which could not have 
 been absent from the mind of the framers of the Act, which must 
 arise from the giving them such a large sense. Jervis, C. J., in the 
 case of Abley v. Dale, 11 Com. B. Rep. 391 ; 21 Law J. Rep. C. P. 
 104, stated: "If the precise words used are plain and unambigu- 
 ous, in our judgment we are bound to construe them in their ordi- 
 nary sense, even though it do lead, in our view of the case, to an 
 absurdity or manifest injustice. Words may be modified or varied
 
 534 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 where their import is doubtful or obscure, but we assume the 
 function of legislators when we depart from the ordinary meaning 
 of the precise words used, merely because we see, or fancy we 
 see, an absurdity or manifest injustice from an adherence to their 
 literal meaning." Ckesswell, J., in the case of Biffin v. York, 6 
 Scott (N. S.), 235; 12 Law J. Eep. C. P. 162, states: "It is a 
 good rule in the construction of acts of Parliament that the 
 Judges are not to make the law what they may think reasonable, 
 but to expound it according to the common sense of its words." 
 In a recent case before your Lordships' House, Hutton v. Harper, 
 L. P., 1 App. Cas. 4G4, where the construction of a statute inci- 
 dentally arose, Lord 0'Ha.GAN said, " The argument from inconve- 
 nience is not to be lightly entertained, and never for the purpose 
 of construing a statute which is clear in its terms, and indicates' 
 unmistakably the, purpose of the legislature. When the words 
 are obscure, and the purpose therefore more or less doubtful, it 
 may help to a right understanding of them." 
 
 The Lords Justices of Appeal, without stating that the leading 
 enactment of section 74 is not express, or is even ambiguous, gave 
 effect to the present respondent's contention, that the statute must- 
 be read as if it contained an express provision that the liability for 
 damage should not attach to the. owner where the damage had 
 been caused by what is called the " act of God," which, in the 
 present case, means stress of weather. Their Lordships proceeded 
 upon the ground that such an exception applies to all cases where 
 a duty is imposed, unless expressly included, and they held that 
 the same rule was applicable to acts of Parliament, and, further, 
 that it could not have been the intention of the legislature, with 
 reference to the statute in question, to impose what their Lordships 
 regard as an unjust liability upon owners guilty of no fault or neg- 
 ligence. But no authority has been referred to, either by their 
 Lordships or in argument from the bar, warranting the introduc- 
 tion of such a qualification ; and, after a careful search, I have been 
 unable to find any either in the law of England or of Scotland. It 
 has been argued by the respondents that the introduction of such 
 an extension of the owner's liability must be qualified by the 
 implied condition freeing them from such liability where the dam- 
 age was occasioned by the " act of God," in order to give what is 
 called a " reasonable construction " tp the statute itself. With 
 regard to the supposed intention of the legislature to express the
 
 ACCIDENT. 335 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 terms of the Act, subject to the implied condition, I may observe 
 that MelliSH, L. J., said, " I think, taking' the language of the sec- 
 tion, it was clearly the intention of the legislature to extend the 
 liability of the owners of vessels in favour of the owners of piers 
 and harbours, beyond the liability which is imposed on them by 
 common law, because, if that is not the intention, it is not easy to 
 see the object of the section at all." This is very high authority 
 for presuming, in so far as it may be relevant or competent to do 
 so, what was the intention of the legislature in passing the Act, 
 although I submit that, where the terms of an Act are clear and 
 unambiguous in the language of the enacting clause, these terms 
 cannot be controlled by any supposed intention which may be pre- 
 sumed to have influenced the legislature, or by consideration of 
 the injustice of the result of the express terms used in the enact- 
 ing clause. 
 
 In the Sussex Peerage 0<(sc, 11 CI. & F. 143, the Committee for 
 Privileges of this House desired the opinion of the Judges, which 
 was given and was unanimous. The opinion was delivered by 
 Tixdal, C. J. ; in the course of it he said, " The only rule for the 
 construction of acts of Parliament is that they should be construed 
 according to the intent of the Parliament which passed the Act. If 
 the words of the statute are in themselves precise and unambigu- 
 ous, then no more can be necessary than to expound those words 
 in their natural and ordinary sense. The words themselves alone 
 do in such case best declare the intention of the lawgiver." The 
 opinion delivered by the Lord Chief Justice was approved of by 
 theLord Chancellor (Lyndhurst), and by Lords Brougham, Cotten- 
 ham, Dexmax, and Campbell. And in the case of Fordyce v. 
 Bridges, 1 II. L. Cas. 1, in this House, with reference to the con- 
 struction of the Apportionment Act, the provisions of which it 
 was argued were quite inapplicable to the law of Scotland, Lord 
 BROUGHAM stated : " We must construe this statute by what appears 
 to have been the intention of the legislature. But we must ascer- 
 tain that intention from the words of the statute, and not from any 
 general inferences to be drawn from the nature of the objects dealt 
 with by the statute." 
 
 I think, in accordance with these authorities, that in such a case 
 as the present, where the words are clear and distinct, we must 
 judge of the intention of the legislature from the words of the Act 
 itself. But, if it were relevant or competent to speculate as to
 
 336 ACCIDENT. 
 
 No. 9. — River Wear Commissioners v. Adamson. 
 
 what truly may have been the intention of the legislature in pass- 
 ing the 74th section, apart from the words of the statute, it appears 
 to me, with great deference, that it may have been, amongst others, 
 to give that amount of protection to the owners of piers, &c, which 
 the words of the section clearly imply, and so relieve them from the 
 often difficult questions of evidence as to whether the damage was 
 caused by the fault or negligence of owners of vessels, or their ser- 
 vants, in which cases there would be no doubt of their liability 
 apart from the words of the statute. 
 
 It seems to me to be not unimportant, in considering the inten- 
 tion, to consider the course of legislation with reference to the Acts 
 for the construction of piers and harbours, prior to the passing of 
 the Consolidating Act, with which your Lordships are now dealing. 
 That Act was passed, as the preamble states, because it was expedi- 
 ent to comprise in one Act sundry provisions usually contained in 
 acts of Parliament authorising the construction or improvement of 
 harbours, docks, and piers, and that as well for avoiding the neces- 
 sity of repeating such provisions in each of the several Acts relat- 
 ing t<> such undertakings as for insuring greater uniformity in the 
 provisions themselves. 
 
 In accordance with a suggestion made in the course of the argu- 
 ment, I have looked into the private Acts which were passed for 
 the construction of piers and harbours during the session imme- 
 diately preceding that in which the Consolidating Act was 
 passed, and I find that there were twelve Acts passed in that 
 session, each of which contained a clause imposing liability for 
 injury done to harbour works in the same general terms as those 
 of section 74 of the Consolidating Act; and I presume, from the 
 apparently stereotyped form of the clauses in these Acts, that 
 the Acts passed in previous sessions had contained clauses to the 
 like effect. 1 observe that the Wear Commissioners obtained a 
 special Act in that session, and it contains the clause to which [ 
 have referred, making an exception when a pilot is on board. 
 The provision for imposing liability for damage to pier and har- 
 bour works, must, therefore, I think, have been familiar to the 
 legislature; and that appears to me to strengthen the presumption 
 that the legislature did intend by the clause your Lordships are 
 considering to impose the liability in the general terms it has done. 
 And as the Act affected so great interests as the piers and harbours 
 of the United Kingdom, it is to be presumed that its terms would 
 be thoroughly canvassed and carefully considered in its passage
 
 ACCIDENT. 337 
 
 No. 9. — River Wear Commissioners v. Adamson. — Notes. 
 
 through Parliament, especially with the view of preventing any 
 limitation in the case of future piers and harbours of rights which 
 had bee'n conferred on owners of piers by previous legislation. 
 
 The risk of causing damage to piers or harbours is, I apprehend, 
 a risk which it would be competent to owners of vessels to insure 
 against, although it might require an alteration of the existing form 
 of policy, by an express provision against the risk of such damage. 
 The supposed injustice of the section thus resolves itself into a 
 question of payment of money to cover the premium to secure 
 against the risk of such damage. 
 
 Applying the authorities to which I have referred to the present 
 case, I am humbly of the opinion, which 1 entertain with very 
 great hesitation after the opinions which have been expressed by 
 your Lordships, that the statute ought not to be construed as if it 
 contained an exemption from liability for damage where it occurs 
 by the " act of God." The words appear to me to be express and 
 unambiguous, and being so, I think they should be read according 
 to their ordinary construction. 
 
 Judgment appealed against affirmed ; and appeal dismissed 
 with costs. 
 
 ENGLISH NOTES. 
 
 Eglinton v. Norman (C. A. 1877), 36 L. T. 888 ; 46 L. J. Exch. 
 557, was an action brought by the harbour-master, under section 74 of 
 the same Act as that referred to in the principal case, against a ship- 
 owner for the expense of removing a wreck. Under this 74th section 
 the owner of a wreck is to repay the harbour-master the expense of 
 removing it, if it becomes an obstruction to the harbour. The defen- 
 dant (besides trying to shift the burden on the underwriters, to whom 
 the slop had been abandoned) relied on the principal case as an author- 
 ity for contending that he was exempt from liability by reason that 
 the damage was caused by the act of God. But the Court distin- 
 guished the case, on the ground that the liability under this section of 
 the Statute is grounded, not on the original catastrophe, but on the 
 continuing damage caused by the obstruction. 
 
 The principal Case is cited in the judgment of the Judicial Com- 
 mittee in Western Counties Ry. Co. v. Windsor, &c. Ry. Co. (1882), 7 
 App. Cas. 178, 188; 51 L. J. P. C. 43, as an authority for the general 
 proposition that a statute is not to be construed as extinguishing any 
 private right, unless it appears by express words or by plain implica- 
 tion that it was intended to do so; a proposition for which the primary 
 authority is J>arri?igton's Case, 8 Co. Pep. 138 a. 
 vol. i. — '22
 
 338 ACCIDENT, 
 
 No. 10. — Jacobs v. Credit Lyonnais. — Rule. 
 
 No. 10. —JACOBS v, CEEDIT LYONNAIS. 
 
 (C. A. FROM Q. B. 1884.) 
 RULE. 
 
 A person who expressly contracts absolutely to do a thing 
 not naturally impossible, is not excused from non-perform- 
 ance by reason of vis major, or inevitable accident, by 
 which he becomes in fact unable to perform it. 
 
 Jacobs v. Credit Lyonnais. 
 
 12 Q. B. D. 589 (s. c. 53 L. J. Q. B. 150). 
 
 This action was brought for breach of a contract made in Lon- 
 don for the sale and shipment by the defendants to the plaintiffs 
 of esparto grass, — with a claim for special damage, by reason of the 
 plaintiffs having to purchase esparto at enhanced prices to fulfil 
 their own contracts. 
 
 The statement of claim set forth the contract, the terms of which 
 were contained in a letter signed by the defendant's agents, and 
 which, so far as material for the purposes of this report, was as 
 follows : — 
 
 To Messrs. Jacobs, Marcus, & Co., London. 
 
 We have this day sold to you by order and for account of the 
 Credit Lyonnais, London Agency, twenty thousand (20,000) tons 
 Algerian esparto in hydraulieally pressed iron-hooped bales, with 
 a fair proportion of loose, if necessary, for stowage, to be shipped 
 by the Compagnie Franco-Algdrienne or their agents from Arzew 
 3n - any other port with safe anchorage and where steamers can 
 load afloat, by sailing ships ^ steamers, during the year beginning 
 1st January, 1881, and ending 31st December, 1881, as much as 
 possible in about equal proportions in each month. 
 
 (1.) The price to be £5 4-s. if equal to "fair average;" £5 14s. if 
 equal to "good average," and £4 14.s. if equal to "inferior;" such 
 price being per ton of 1015 kilogrammes Arzew shipping weight, 
 less a draft of 2 per mille allowed in the invoice, taken free on 
 board Algeria, without discount. 
 
 (2.) The quality of each classification to be established by stan- 
 dard samples made up for the purpose conjointly by yourselves 
 and the Compagnie Franeo-Algerienne on or before ^>lst December.
 
 ACCIDENT. 339 
 
 No. 10. Jacobs v. Credit Lyonnais. 
 
 ( r 3.) The quality of esparto tendered against this contract to be 
 finally approved of by you or your representatives at the works of 
 the Corapagnie Franco-Algerienne at Ain-el-Hadjar before being 
 
 baled, and no claim respecting quality will be allowed after deliv- 
 ery of the bales at Arzew. You undertake in your name and in 
 the names of your representatives that, with the exception of ap- 
 proving the quality tendered as above, no interference of any kind 
 as regards the company's business will be allowed. 
 
 The statement of claim further stated the breaches by non- 
 delivery (which were, in effect, admitted) and the special damage. 
 
 The statement of defence, amongst other things, alleged that the 
 acts, the non-performance of which was sued for, were to be done 
 in Algeria, and that the question of damages for non-performance 
 was governed by the French Civil Code ; and they relied upon Art. 
 1 148 of that Code, which is as follows : — 
 
 II n'y a lieu a aucuns dommages et interests, lorsque, par suite 
 d'une force majeure on d'an cas fortuit, le ddbiteur a etd empeche' 
 <le donner on de faire ce a quoi il dtait oblige - , on a fait ce qui lui 
 <3tait interdit. 
 
 The statement of defence then stated as follows : — 
 
 7. During the time when the contract sued on should have 
 been performed there was an insurrection in Algeria, and military 
 operations were going on, and commands were issued by persons 
 in authority preventing the collection and transport of esparto. 
 Some of the esparto of the Compagnie Franeo-Alge'rienne intended 
 for delivery to the plaintiffs was burnt, and the servants or agents 
 employed in carrying on works towards fulfilling the contract 
 sued on were in some cases killed, in other cases maltreated, 
 driven away from their work, and prevented working. By the 
 said matters so happening in Algeria, and by other matters 
 arising out of the said insurrection, and all of which amount to 
 force majeure within the law of Algeria, the Compagnie Franeo- 
 Alge'rienne was prevented from procuring for shipment to the 
 plaintiffs and from shipping to them any more esparto than was 
 in fact shipped to them, and the defendants were prevented from 
 performing their contract with the plaintiffs any further than 
 they did perform it. 
 
 The plaintiff demurred to these statements on the ground that 
 the contract was governed by English law, and not by the law of 
 Algeria, and replied further, as to para. 7., that the defendants or
 
 540 ACCIDENT. 
 
 No. 10. — Jacobs v. Credit Lyonnais. 
 
 their agents could have procured in other parts of Algeria, where 
 force majeure did not exist, Algerian esparto of the qualities men- 
 tioned in the contract, and could have shipped the same in per- 
 formance of the contract. 
 
 There was a rejoinder by the defendants as follows : — 
 
 That, if the defendants or their agents had procured in parts of 
 Algeria where force majeure did not exist Algerian esparto of the 
 qualities mentioned in the contract, the transport of any such 
 esparto so procured elsewhere to the works of the Compagnie 
 Franco-Algdrienne at Ain-el-Hadjar, for the purpose of being- 
 there approved according to clause 3 of the contract before being 
 baled, and also the transport thereof to Arzew for shipment 
 (though, as the defendants admit, not the transport from the 
 places where such esparto might have been procured to all other 
 ports in Algeria) would have been and in fact was rendered wholly 
 impossible by reason of the force majeure existing at and in the 
 neighbourhood of Ain-el-Hadjar and over a large port of Algeria, 
 by which force majeure the transport of esparto both to and irom 
 Ain-el-Hadjar and to Arzew was during all the time material in 
 this action prevented. 
 
 The plaintiff demurred to this rejoinder, on the ground that the 
 impossibility of transporting the esparto to Ain-el-Hadjar, and of 
 getting the same approved there before being baled, and also of 
 transporting the same to Arzew for shipment, did not exonerate 
 the defendants from the performance of the contracts. 
 
 There was a joinder in this demurrer, and on these pleadings 
 the case was argued in the Queen's Bench Division before Mr. 
 Justice DENMAN, who gave judgment for the plaintiff's. The 
 defendants appealed to the Court of Appeal, and on the argument 
 of the appeal the following authorities were referred to : Kouquette 
 v. Overmann, L. R, 10 Q. B. 525 ; 44 L. J. Q. B. 321 ; Mcdeiror v. 
 Hill, 8 Bing. 231; 1 L. J. C. P. 77; Chamberlain v. Napier, 15 
 Ch. D. 614; 49 L. J. Ch. 628 ; Greer v. Poole, 5 Q. B. D. 272 ; 49 
 L. J. Q. B. 463. The Halle?/, L. R, 2 P. C. 193 ; 37 L. J. Adm. 33. 
 
 The judgment of the court (Brett, M. R, and Bowen, L. J.) 
 was. on a subsequent day, delivered by 
 
 Bowen, L. J. The plaintiffs in this case are esparto merchants, 
 carrying on business in the city of London ; and the defendants 
 are a banking firm, also carrying on business in the city. 
 
 By a contract made in London on the 6th of October, 1880, the
 
 ACCIDENT. 341 
 
 No. 10. — Jacob3 v. Credit Lyonnais. 
 
 defendants agreed to sell to the plaintiffs 20.000 tons of Algerian 
 esparto, to be shipped from Algeria during the year 1881 by 
 monthly deliveries on board ships or steamers to be provided by 
 the plaintiffs; payment to be made by cash on arrival of the ship 
 or steamer at her port of destination. The defendants delivered 
 a portion of the esparto under the contract, but failed to deliver 
 the remainder; and this action was brought by the plaintiffs for 
 its non-delivery. The defendants in their statement of defence 
 admitted the non-delivery complained of, but alleged that the 
 insurrection in Algeria, and the military operations connected 
 with it. had rendered the performance, of the contract impossible; 
 and that by the French Civil Code, which prevails throughout 
 Algeria, force majeure is an excuse for non-performance. The 
 plaintiff's demurred to this defence on the ground that the con- 
 tracts were governed by English law and not by the law of 
 Algeria, and further alleged that the defendants or their agents 
 could have procured and shipped esparto from other ports of 
 Algeria, where force majeure did not exist. The defendants to 
 the latter allegation rejoined that the insurrection and military 
 operations rendered it impossible to transport such esparto as last 
 mentioned to the place fixed in the contract for approval by the 
 plaintiffs of its quality before shipment, or to transport the same 
 to the place fixed in the contract for shipment. To this rejoinder 
 there was a further demurrer upon similar grounds The Court 
 of Queen's Bench having given judgment upon both demurrers 
 for the plaintiffs, the case now comes before us upon appeal. The 
 question which we have in substance to consider is, whether non- 
 performance of their agreement by the defendants can be excused 
 on the ground that military operations in Algeria and the Algerian 
 insurrection had rendered its performance impossible, and that 
 such an excuse would have been recognised by the French Civil 
 Code, which prevails in Algeria, in conformity with the following 
 section, as translated from the French: "There is no ground for 
 any damages when by means of a superior force or an accident the 
 obligor has been prevented from giving or doing that which he 
 was bound to give or do, or has done that which he was not 
 bound to do." 
 
 The first matter we have to determine is, whether this contract 
 is to be construed according to English law or according to French. 
 To decide this point we must turn to the contract itself; for it
 
 342 ACCIDENT. 
 
 No. 10. — Jacobs v. Credit Lyonnais. 
 
 is open in all cases for parties to make such agreement as they 
 please as to incorporating the provisions of any foreign law with 
 their contracts. What is to be the law by which a contract or 
 any part of it is to be governed or applied must be always a 
 matter of construction of the contract itself, as read by the light 
 of the subject-matter and of the surrounding circumstances. Cer- 
 tain presumptions or rules in this respect have been laid down 
 by juridical writers of different countries and accepted by the 
 courts, based upon common sense, upon business convenience, and 
 upon the comity of nations ; but these are only presumptions or 
 prima facie rules that are^ capable of being displaced wherever 
 the clear intention of the parties can be gathered from the docu- 
 ment itself and from the nature of the transaction. The broad 
 rule is that the law of a country where a contract is made pre- 
 sumably governs the nature, the obligation, and the interpretation 
 of it, unless the contrary appears to be the express intention of 
 the parties. " The general rule," says Lord Mansfield, " estab- 
 lished ex comitate d jure gentium, is that the place where the 
 contract is made, and not where the action is brought, is to be- 
 considered in expounding and enforcing the contract, But this 
 rule admits of an exception where the parties at the time of mak- 
 ing the contract had a view to a different kingdom." Robinson 
 v. Bland, 2 Burr. 1077; 1 W. Black. 258; and see The Penin- 
 sular ami Oriental Steam Navigation Company v. Shand,Z Moore, 
 P. C. x. s. 272. 
 
 This principle was explained by the Exchequer Chamber in the 
 case of Lloyd v. Guibert, L. II., 1 Q. B. 115 ; 35 L. J. Q. B. 74, as- 
 follows: "It is generally agreed that the law of the place where 
 the contract is made is prim a facie that which the parties intended, 
 or ought to be presumed to have adopted, as the footing upon which 
 they dealt, and that such law ought therefore to prevail in the 
 absence of circumstances indicating a different intention ; as, for 
 instance, that the contract is to be entirely performed elseAvhere, or 
 that the subject-matter is immovable property situate in another 
 country, and so forth, — which latter, though sometimes treated as 
 distinct rules, appear more properly to be classed as exceptions to- 
 the more general one, by reason of the circumstances indicating am 
 intention to be bound by a law different from that of the place 
 where the contract is made, which intention is inferred from the 
 subject-matter and from the surrounding circumstances so far as
 
 ACCIDENT. .'14-". 
 
 No. 10. — Jacobs v. Credit Lyonnais. 
 
 they are relevant to construe and determine the character of the 
 contract." 
 
 It is obvious, however, that the subject-matter of each contract 
 must be looked at as well as the residence of the contracting parties 
 or the place where the contract is made. The place of performance 
 is necessarily in many cases the place where the obligations of the 
 contract will have to be enforced, and hence, as well as for other 
 reasons, has been introduced another canon of construction to the 
 effect that the law of the place of fulfilment of a contract deter- 
 mines its obligations. But this maxim as well as the former must 
 of course give way to any inference that can legitimately be drawn 
 from the character of the contract and the nature of the transaction. 
 In most cases, no doubt, where a contract has to be wholly performed 
 abroad, the reasonable presumption maybe that it is intended to be 
 a foreign contract, determined by foreign law; but this primd falie 
 view is in its turn capable of being rebutted by the expressed 
 or implied intention of the parties, as deduced from other 
 circumstances. 
 
 Again, it may be that the contract is partly to be performed in 
 one place and partly in another. In such a case the only certain 
 guide is to be found in applying sound ideas of business conveni- 
 ence and sense to the language of the contract itself, with a view 
 to discovering from it the true intention of the parties. Even in 
 respect of any performance that is to take place abroad, the parties 
 may still have desired that their liabilities and obligations shall be 
 governed by English law; or it may be that they have intended to 
 incorporate the foreign law to regulate the method and manner of 
 performance abroad, without altering any of the incidents which 
 attach to the contract according to English law. Stereotyped rules 
 laid down by juridical writers cannot therefore be accepted as 
 infallible canons of interpretation in these days when commercial 
 transactions have altered in character and increased in complexity ; 
 and there can be no hard and fast rule by which to construe the 
 multiform commercial agreements with which in modern times we 
 have to deal. 
 
 In the present case the contract was made in London between 
 merchants carrying on their business in the city of London, and 
 payment was to be made in London. Presumably, therefore, we 
 should infer that this was an English contract, and intended to be 
 governed by English law ; but it still remains to be considered
 
 344 ACCIDENT. 
 
 No. 10. — Jacobs v Credit Lyonnais. 
 
 whether anything in the contract itself or the nature of its stipu- 
 lations, displaces this primd facie view either wholly or in part. 
 
 Now, it cannot be contended that the parties have in express 
 terms provided that any portion of this contract is to be construed 
 or applied otherwise than according to English law; but it was 
 suggested by the appellants that such an intention ought to be 
 inferred from certain provisions as to the collection of the esparto 
 in Algeria and as to its shipment thence. The esparto was to be 
 .shipped by the Compagnie Franco Algerienne or their agents from 
 Arzew, or any other port with safe anchorage, by sailing ships or 
 steamers during the year 1881. The quality of the esparto was to 
 lie finally approved by the plaintiffs' representatives at the works 
 of the Compagnie Franco-Algerienne at Ain-el-Hadjar in Algeria, 
 before being baled, and no claim respecting quality was to be al- 
 lowed after the delivery of the bales at Arzew. The necessary 
 ships or steamers were to be supplied by the plaintiffs ; otherwise 
 the esparto w r as to be warehoused by the Compagnie Franco-Alge- 
 rienne at the plaintiffs' peril and risk. Insurance was to be effected 
 by the defendants for the invoice amount at selling price and two 
 per cent, over in the United Kingdom, on the usual conditions ; 
 payment to be made by cash on arrival of the ship or steamer at 
 port of destination. Finally, the contract contained an arbitration 
 clause, with a provision that it should be made a rule of the High 
 Court of Judicature on the application of either of the contracting 
 parties. 
 
 There is absolutely nothing in any part of this contract, as it 
 appears to us, which can amount to an indication that it is in any 
 way or in any part of it to be treated as anything except an Eng- 
 lish contract, unless it be the mere fact that the esparto is to be 
 collected in Algeria, approved at the works of a French company 
 in Algeria before shipment, and to be delivered on board ships of 
 the plaintiffs at an Algerian port, after which it is to be at plain- 
 tiffs' risk. To hold that on this ground only the ordinary pre- 
 sumption is to be displaced, and that the parties must have meant 
 some law other than the English to govern the construction of any 
 portion of the contract as regards the liabilities of the contracting 
 parties, would be to introduce a serious element of uncertainty 
 into mercantile contracts. The mere fact that a contract of this 
 description — made in England between English resident houses, 
 and under which payment is to he made in England upon delivery
 
 ACCIDENT. 
 
 No. 10. — Jacobs v. Credit Lyonnais. 
 
 of goods from up country in an Algerian port — is partly to be per- 
 formed in Algeria, does not put an end to the inference that the con- 
 tract remains an English contract between English merchants, to be 
 construed according to English law, and with all the incidents which 
 English law attaches to the non-performance of such contracts. 
 
 Now, one of the incidents which the English law attaches to a 
 contract is that (except in certain excepted cases, as that of com- 
 mon carriers and bailees, of which this is not one) a person who 
 expressly contracts absolutely to do a thing not naturally impossi- 
 ble is not excused for non-performance because of being prevented 
 by vis major. " The rule laid down in the case of Paradine v. 
 Jane, Aleyn, 26, has often," says Lord Ellen borough in the case of 
 Atkinson v. Ritchie, 10 East, 530, 533, "been recognised in courts 
 of law as a sound one, — that is, that when the party by his own 
 contract creates a duty or charge upon himself, he is bound to 
 make it good if he may, — notwithstanding any accident by inevi- 
 table necessity : because he might have provided against it by his 
 contract." See also Sjjencc v. Chad wick, 10 Q. B. Rep. at p. 530 ; 
 16 Law J. Rep. Q. B. at p. 319 ; and Lloyd v. Guibert (1865) L. R, 
 1 Q. B. 115 ; 35 L. J. Q. B. 74. If inevitable necessity occurring 
 in this country would not excuse non-performance, why should 
 non-performance be excused on account of inevitable necessity 
 arising abroad ? So to hold would be to alter the liability which 
 English law attaches to contracts, and would, in the absence of an 
 express or implied intention to that effect, be contrary to authority 
 as well as principle. See Barker v. Hodgson, 3 M. & S. 267, and 
 Sjoerds v. Luscombe, 16 East, 201. 
 
 The Solicitor-General in his argument admitted that he was 
 driven to contend that the law of the place of fulfilment not 
 merely governed the mode of performance of this particular con- 
 tract, but governed also the obligations in respect of performance 
 and the liabilities in respect of non-performance of it. It seems to us, 
 however, that the true principles of construction to be applied do 
 not admit of this interpretation of this contract. To what extent 
 foreign law is to be incorporated in any contract must be, as wo 
 have said, a question of construction of the contract itself read by 
 the light of the surrounding circumstances. If a contract made 
 in England by English subjects or residents, and upon which pay- 
 ment is to be made in England, has to be performed in part abroad, 
 it might not be unreasonable to assume that the mode in which any
 
 346 ACCIDENT. 
 
 No. 10. — Jacobs v. Credit Lyonnais. — Notes. 
 
 part of it has to be performed abroad was intended to be in accor- 
 dance with the law of the foreign country, and to construe the 
 contract as incorporating silently to that extent all provisions of 
 a foreign law which would regulate the method of performance and 
 which were not inconsistent with the English contract. But it 
 cannot be gathered from such a contract as the present that the 
 parties desired to go further, and to discharge the defendants from 
 performance wherever circumstances arose which would, according 
 to foreign law, excuse them. The contract has absolutely provided 
 that delivery of the esparto shall be duly made ; not that the bar- 
 gain as to such delivery need only be observed when the foreign 
 law would insist upon such observance. The contract being an 
 English contract, only such portions of the French Civil Code can 
 be applied to its provisions as to performance in Algeria as are not 
 inconsistent with the express language of the contract as inter- 
 preted according to English law. If the parties had wished in 
 addition to this to incorporate a provision of French law which in 
 the event of vis major would operate to excuse the contracting 
 parties for non-performance, and thus to vary the natural construc- 
 tion of the instrument according to English law, they should have 
 done so in express terms. Read by English law, the contract is not 
 susceptible of such an interpretation, and there is nothing to show 
 that in this respect the parties desired the contract to be governed 
 by the French. For these reasons we are of opinion that the judg- 
 ment of the court below was right and must be affirmed with 
 costs. Appeal dismissed. 
 
 ENGLISH NOTES. 
 
 The principal case has been selected as an authoritative and recent 
 application of the rule, which itself is too well settled in English law 
 to require any lengthy comment. It will suffice to refer to the follow- 
 ing cases: Kearon v. Pearson (1801). 7 H. & N. 386; 31 L. J. Ex. 1, 
 where charterer of a ship was prevented from bringing his cargo along- 
 side by an unusual frost; Jones v. St. John's College (1870), L. E., 
 6 Q. B. llo; 40 L. J. Q. B. SO. where the plaintiff (a contractor) 
 had undertaken to do certain works with such alterations as should 
 be ordered by the defendants within a certain time, and was held not 
 entitled to plead that the defendants had ordered alterations impossible 
 to complete within the time; Grant & Co. v. Coverdale, Todd & Co. 
 (11. L. 1884), 9 App. Cas. 470; 53 L. J. Q. B. 462, a charter-party case 
 in which there was an exception of "frosts, &c, preventing the load-
 
 ACCIDENT. 347 
 
 No. 10. — Jacobs v. Credit Lyonnais. — Notes. 
 
 ing," where the House considered the only question to be whether the 
 ••use came within the exception, and they decided that it was not. 
 (The facts were that the intended cargo was intercepted by the frost 
 on a canal; but the dock was not frozen, nor was there anything to 
 prevent the cargo being loaded if it bad been ready at the dock); 
 In re Arthurs Estate, Arthur v. Wynn (1880), 14 Ch. D. 603; 49 
 L. J. Ch. 556, where a husband by marriage settlement contracted within 
 a certain time to effect a policy of insurance, but before the expiry of the 
 time his life became uninsurable, and the Master of the Rolls (Jessel), 
 decided that his estate was liable. 
 
 So a person is not excused if he is prevented from performing his 
 contract by the law or order of a foreign government, Barker v. Hodg- 
 son (1814), 3JV1. ,v S. 267; Kirk v. Gibbs (1857), 1 H.-&N. 810; 
 26 L. J. Exch. 200; unless the act prohibited is one in which both 
 parties should concur under the contract. Ford v. Cotesworth (1868), 
 L. R., 4 Q. B. L27; 38 L. J. Q. 15. 52; Cunningham v. Dunn (C. A. 
 1878), 3 C. P. I). 44:; ; 48 L. J. C. P. 62. 
 
 AMERICAN NOTES 
 
 The doctrine of the principal case universally prevails in this country, in 
 respect to contracts of sale, building, leasing, and the like. Thus, one who 
 agrees to build a house on another's land is not released by the destruction of 
 the house by tire when nearly completed. Adams v. Nichols, 1!) Pickering 
 (Mass.), 275; 31 Am. Dec. 137, citing Bullock v Dommill, 6 T. R. 650, and 
 Walton v. Waterhouse, 2 Wins. Saunders. 826, note. Followed in Tompkins v. 
 Dudley, 25 New York, 272: 82 Am. Dec. 349 (citing Mucklowv. Mangles, 1 
 Taunt. 318) ; School District v. Dauchy, 25 Connecticut, 530 : lis Am. Dec. 371. 
 So of a contract to repair a ship. Seguin v. Debon, 3 Martin (Louisiana), 
 6; 5 Am. Dec. 735. See also Doster v. Brown, 25 Georgia, 24; 71 Am. Dec. 
 153; Superintendent v. Bennett,^ Dutcher (Xew Jersey), 51:!: 72 Am. Dec. 
 373; Fildew v. Besley, 42 Michigan. 100; 3(5 Am. Rep. 4:5:; : Steele v. Buck, 
 01 Illinois, 343 ; 14 Am. Rep. GO, a case of covenant (citing Paradine v. Jane, 
 Aleyn. 27); Brumby v. Smith, 3 Alabama ( Xew Series), 123; Ratidall v. Johnson. 
 59 Mississippi, 317 ; 42 Am. Rep. 305. A public-school teacher may recover 
 wages for his stipulated term, although the school was suspended on account 
 of small-pox. Dewey v. Alpena School District, 43 Michigan. 480; 38 Am. 
 Rep. 206, ami note. 208, citing Menetone v. Athaices, '■> Biut 1502: Shubrick v. 
 Salmond, 3 Burr. 1637 : Barker v. Hodgson, 3 M. & S. 267; Bealson v. School,-. 
 ■\ East, 232. See also Dermott v. Jones, 2 Wallace (U. S. Sup. Ct.). I : Hodgdon 
 v. Railroad Co., 46 Connecticut. 276; '•>'■'> Am. Rep. 21. So in Oakley v. Mor- 
 ton, 1 Kernan (Xew York). 25. where one agreed to keep twenty cows and 
 deliver the butter thereof, he was held not excused by the drying of part 
 of the cows. So where one contracted to deliver a specified quantity of 
 corn and fodder, " unavoidable accidents only excepted," he was not excused 
 by failure of crops from drought. McGehee v. Hill, 4 Porter (Alabama), 170 ; 
 29 Am. Dec. 277 (citing Raioson v. Johnson. 1 East, 203) j Anderson v. May
 
 348 ACCIDENT. 
 
 No. 10. - - Jacobs v. Credit Lyonnais. — Notes. 
 
 (Minnesota), 52 X. W. Reporter. 530. So of death. Mactiefs Adni'rs v. Frith, 
 6 Wendell (New York). 103 ; 21 Am. Dec. 202; Hawkins v. Ball's Adm'r, 18 
 B. Monroe (Kentucky), 810 ; 08 Am. Dec. 755. A carrier's failure to deliver 
 within a specified agreed time is not excused by inevitable accident. Har- 
 mony v. Bingham, 12 New York, 99 ; 02 Am. Dec. 1-42, and note, 151. And 
 failure to perform a contract to manufacture goods is not excused by the de- 
 struction of the mill by fire. Booth v. Spuyten Duyvil R. M. Co., 0(1 New York, 
 487. See generally in support of this rule, Welh V. Calnan, 107 Massachusetts, 
 517; Dist. Township v. Smith, 39 Iowa, 11; Bacon v. Cobb, 45 Illinois, 53 ; 
 Cassady v. Clarke, 7 Arkansas, 131. 
 
 A distinction is made in respect to contracts of sale of certain specified 
 articles of personal property, and if they are destroyed by accident, no action 
 for damages for non-delivery lies. Dexter v. Norton, 47 New York, 02; 7 Am. 
 Rep. 415, citing Taylor v. Caldwell, 113 Eng. Com. Law, 824. (Two judges 
 dissented.) See also Wells v. Calnan, 107 Massachusetts, 514 ; 9 Am. Rep. 05 ; 
 Goldman v. Rosenberg, 110 New York, 78; Stewart v. Stone, 127 New York. 
 500, and note, 14 Lawyers' Rep. Annotated, 215. 
 
 But some cases hold that where a contract for labour and materials in alter- 
 ing or repairing a structure, with no provision as to time of payment, is 
 rendered impossible by fire, there may be a recovery quantum meruit. Haynes 
 v. Church, 88 Missouri, 285; ~>7 Am. Hep. 413. distinguishing the case from a 
 contract to build. Weis v. Devlin, 07 Texas, 507; 60 Am. Rep. 38, citing 
 Appleby v. Myers, L. H., 2 C. 1'. 651 : Lord v. Wheeler, 1 Gray (Mass.), 282; 
 Gilbert, Sfc. Co. v. Butler, 140 Massachusetts, 82. This distinction is clearly 
 set forth in a late case, Butterfield v. Byron, 153 Massachusetts, 517; 25 Am. 
 St. Rep. 054. For a certain sum defendant agreed to confribute certain 
 labour and materials towards the erection of a house on land of plaintiff. 
 Defendant's work was to be done at a certain time. Shortly before com- 
 pletion it was destroyed by fire. Held, that the agreement was on an 
 implied condition that the building should continue in existence, and that 
 having been destroyed by inevitable accident, he was not bound to build 
 another, or to do any thing further under his contract. In such case, 
 defendant can recover for work and material done and furnished on an 
 implied assumpsit at the contract rate, plaintiff to be allowed for all 
 payments made. The court said, "What are the rights of the parties in 
 regard to what has been done in part performance of a contract in which 
 there is an implied condition that the subject to which the contract re- 
 lates shall continue in existence, and where the contemplated work cannot 
 be completed by reason of the destruction of the property without fault of 
 either of the parties, is in dispute upon the authorities. The decisions of 
 England differ from those of Massachusetts and of most of the other States 
 of this country. There the general rule stated broadly seems to be that the 
 loss must remain where it first falls, and that neither of the parties can 
 recover of the other for any thing done under the contract. In England, on 
 authority, and upon original grounds, not very satisfactory to the judges of 
 recent times, it is held that freight advanced for the transportation of goods 
 subsequently lost by the perils of the sea cannot be recovered back. A llison 
 v. Insurance Co., L. R., 1 App. 209, 220: Byrne v. Schiller. L. R., Exch. 319.
 
 ACCIDENT. 349 
 
 No. 10. — Jacobs v. Credit Lyonnais. — Notes. 
 
 In tin 1 United Slates and in continental Europe the rule is different. Griggs 
 v. Austin, -'5 Tick. 20,22; Brown v. Harris, 2 Gray, 359. In England it is 
 held that one who has partly performed a contrad on property of another, 
 which is destroyed withoul the fault of either party, can recover nothing; 
 and, on the other hand, that one who has advanced payments on account of 
 Labour and materials furnished under such circumstances cannot recover back 
 the money. Appleby v. Myers, I/. It.. 2 ('. 1*. 652; Navigation Co. v. Rennie, 
 L. R., 10 id. 271. One who has advanced money for the instruction of his son 
 in a trade cannot recover it hack if he who receives it dies without giving the 
 instruction. Whincup v. Hughes, L. lv., (J C. P. 78. But where one dies and 
 leaves unperformed a contract which is entire, his administrator may recover 
 any instalments which were due on it before his death. Stubbs v. Railway ( '«., 
 L. 1!., 2 Exch. 311. In this country, where one is to make repairs on the 
 house of another under a special contract, or is to furnish a part of the work 
 and materials used in the erection of a house, and his contract becomes im- 
 possible of performance on account of the destruction of the house, the rule is 
 uniform, so far as the authorities have come to our attention, that he may re- 
 cover for what he has done or furnished. In Clear// v. Sohier, 120 Masschusetts, 
 210, the plaintiff made a contract to lath and plaster a certain building for 
 forty cents per square yard. The building was destroyed by a tire which was 
 an unavoidable casualty. The plaintiff had lathed the building and put 
 on the first coat of plaster, and would have put on the second coat, according 
 to his contract, if the building had not been burned. He sued on an implied 
 assumpsit for work done and materials found. It was agreed that, if he was en- 
 titled to recover anything, the judgment should be for the price charged. It 
 was held that he could recover. See also Lord v. Wheeler, 1 Gray, 282 ; Wells v. 
 Calnan, 107 Massachusetts. 514, ol7. In Cook v. McCdbe, 53 Wisconsin, 250, the 
 plaintiff recovered pro rata under his contract; that is, as we understand, he 
 recovered on an implied assumpsit at the contract rate. In Hollis v. Chapman, 
 36 Texas, 1, and in Clark v. Franklin, 7 Leigh, 1, the recovery was a propor- 
 tional part of the contract-price. To the same effect are Schwartz v. Saunders, 
 46 Illinois, 18 ; Rawson v. Clark, 70 id. 056 ; and Clark v. Busse, 82 id. 515. The 
 same principle is applied to different facts in Jones v. Judd, 4 Xew York 111, 
 and in Hargrace v. Conroy, 19 N. J. Eq. 281. If the owner in such a case has 
 paid in advance, he may recover back his money, or so much of it as was an 
 over-payment. The principle seems to be that when, under an implied condi- 
 tion of the contract, the parties are to be excused from performance if a certain 
 event happens, and by reason of the happening of the event it becomes impos- 
 sible to do that which was contemplated by the contract, there is an implied 
 assumpsit for what has properly been done by either of them; the law deal- 
 ing with it as done at the request of the other, and creating a liability to pay 
 for it its value, to be determined by the price stipulated in the contract, or in 
 some other way if the contract-price cannot be made applicable. Where 
 there is a bilateral contract for an entire consideration moving from each 
 party, and the contract cannot be performed, it may lie held that the consider- 
 ation on each side is the performance of the contract by the other, and that 
 a failure completely to perform it is a failure of the entire consideration,
 
 350 ACCIDENT. 
 
 No. 10. — Jacobs v. Credit Lyonnais. — Notes. 
 
 leaving each party, if there has been no breach nor fault on either side, to his 
 implied assumpsit for what he has done." 
 
 The same rule prevails in respect to covenants to pay rent or rebuild. Ross 
 v. Overton, 3 Call (Virginia), 309 ; 2 Am. Dec. 552, where the buildings were 
 carried away by ice ; Hallett v. Wylie, 3 Johnson (New York), 44 ; 3 Am. Dec. 
 •457, where the buildings were destroyed by fire ; Whilaker v. Haioley, 25 
 Kansas, 674; 37 Am. Rep. 277. But otherwise of a lease of apartments 
 in a building. Stock-well v. Hunter, 11 Metcalf (Mass.). 148; 45 Am. Dec. 
 220; Wintonv. Cornish, 5 Ohio, 477 ; Womack v. Me Quarry, 28 Indiana, 103 : 
 92 Am. Dec. 306; Alexander v. Dorse//. 12 Georgia, 12; 56 Am. Dec. 443. 
 The lessee of a slave, covenanting to return him at the end of a year, is 
 excused by the slave's running away. Singleton v. Carroll, 6 J. J. Marshall 
 (Kentucky), 527 ; 22 Am. Dec. 95. 
 
 But .in Pollard v. Shaaffer. 1 Dallas (Penn.), 210; 1 Am. Dec. 239, a 
 covenant to repair was held released by the seizure and destruction of the 
 building by an alien enemy, — namely, the British army under General Howe, 
 in 1777. This is opposed to the entire current of the American decisions. 
 
 The same rule prevails in respect to express contracts by carriers, as to de- 
 liver within a certain time. Hand v. Baynes, 4 Wharton (Penn.), 204 ; 33 
 Am. Dec. 51; Harmony v. Bingham, 12 Xew York, 99; 62 Am. Dec. 142: 
 Deming v. Grand Trunk R. Co., 48 Xew Hampshire. 455 ; Harrison v. Mis- 
 souri Pac. R. Co., 74 Missouri. 364 ; Van Buskirk. v. Roberts, 31 Xew York. 661. 
 Even when performance is prevented by a mob. White v. Missouri, Sfc. R. Co.. 
 Ill Missouri Appeals, 400. Or to furnish a full cargo. Nelson v. Odiorne, 45 New- 
 York, 489. But the destruction of a vessel relieves from a contract to carry a 
 passenger thereon. Bonsteel v. Vanderbilt. 21 Barbour (Xew York Sup. ( 't. ), 26. 
 In respect to contracts for personal service, it is generally held that where 
 entire performance has been prevented by sickness or death, a recovery may 
 be had quantum meruit. Dickey v. Linscott, 211 Maine. 453: 37 Am. Dec. (it; : 
 Greene v. Linton, 7 Porter (Alabama), 133; 31 Am. Dec. 707; Spalding v. 
 Rosa, 71 Xew York, 40; 27 Am. Pep. 7. the case of a singer; Leopold v. 
 Salkey, 89 Illinois. 112 ; 31 Am. Pep. 93, and note, id. 100 ; Wolfe v. Howes, 20- 
 Xow York, 197 ; Johnson v. Walker, 155 Massachusetts, 253 ; Doster v. Brown, 25- 
 Georgia, 24; 71 Am. Dec. 153; Cleary v. Sohier, 120 Massachusetts, 210 ; Cook 
 v. Mc.Ca.be, 53 Wisconsin, 250; 40 Am. Rep. 765 ; Lakeman v. Pollard, 43 Maine, 
 463, where one, contracting to work, left on account of cholera in the neigh- 
 bourhood; Clark v. Franklin, 7 Leigh (Tennessee), 1, where husband and wife 
 agreed to perform services, and performed till the death of the wife, the hus- 
 band recovered quantum meruit. Parkerv. Macomber, 17 Rhode Island, 674 ; 46 
 Albany Law Journal, 109. distinguishing Cutter v. Poioell, 6 T. R. 320. 
 
 An obligor is excused from the performance of a disjunctive condition if 
 one of the alternatives becomes impossible by the act of God. Smith v. Dwell, 
 16 Xew Hampshire, 344; 41 Am. Dec. 732. 
 
 Performance of the condition of a recognisance becoming impossible by act 
 of God, as sickness, is excused. People v. Manning, 8 Cowen (Xew York), 297 ; 
 is Am. Dec. 451 ; People v. Tubbs, 37 Xew York, 588. 
 
 As to whether a surety on a replevin bond or a bond for the release of
 
 ACCIDENT. 351 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. — Rule. 
 
 animals attached is released by the death, before judgment, of the property 
 replevied or attached, the decisions are conflicting. Thai he is released is 
 held in Bubo v. Patton, 6 lleiskell (Tennessee). 172; Ide v. Fassett, 57 Ver- 
 mont, 68; Walker v. Osgood, 53 Maine, 422; Carpenter v. Stevens, 12 Wendell 
 (New York), 589. To the contrary: Wilkerson v. McDougal, 48 Alabama. 
 .">17 : Drake v. White, 117 Massachusetts, b>; Suydam v. Jenkins, 3 Sandford 
 (New York Super. Ct.), 644. 
 
 No 11. — ROTHES (Countess of) y. KIRKCALDY WATER- 
 WORKS COMMISSIONERS. 
 
 (H. L. APPEAL FROM SCOTLAND 1882.) 
 RULE. 
 
 Where the Special Act of a Statutory Undertaking con- 
 •tains a provision binding the undertakers to make good 
 to a certain person damage of a certain description, they 
 are bound to make it good at all events, and without 
 any exception of inevitable accident, just as if they had 
 entered into an express contract of insurance with the 
 persons suffering the damage. 
 
 Rothes (Countess of) v. Kirkcaldy Waterworks Commissioners. 
 
 (7 App. Cas. 694.) 
 
 Appeal from the Court of Session in Scotland. 
 
 By a special act of Parliament known as the Kirkcaldy and 
 Dysart Waterworks Act, 1867, the respondents (under the name 
 of water commissioners) had been authorised to make reservoirs 
 on the Lomond Hills, and to carry out the necessary works for the 
 supply of water to these two places, and for a compensation supply 
 to mill-owners on the streams, the water of which was impounded. 
 Under the powers of this Act a reservoir had been constructed 
 (-ailed the Ballo reservoir, so as to impound the water of the 
 Lothrie Burn (the course of which ran through appellant's estate), 
 and so that the overflow of the reservoir is directed into the Loth- 
 rie water course by means of a by-wash. In the month of Aug- 
 ust, 1877, there was an extraordinary rainfall over the supply area 
 of the Lothrie Burn, so that the water flowing over the by-wash 
 into the channel of the burn came down in greatly increased vol- 
 umes, and did damage to the appellant's property.
 
 352 ACCIDENT. 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 The action was brought by the appellant to have this damage 
 made good and the amount settled by arbitration according to the 
 Act. The clauses of the Act relied upon by her were as follows: — 
 
 Sect. 43. The commissioners shall be bound to make good to the 
 said Countess of Rothes, and her heirs and successors, from time to 
 time, all damages which may be occasioned to her or them by rea- 
 son or in consequence of any bursting, or flood, or escape of water 
 from any reservoir, aqueduct, or pipe, or other work connected 
 therewith, which may be constructed or laid by the commission- 
 ers ; and the right to claim payment of such damages and expenses 
 shall not be lessened by the powers conferred by this Act as re- 
 gards inspection and seeing to the sufficiency of the works, either 
 during the construction or at the completion thereof, or by any- 
 thing that shall have been done under or in consequence of these 
 powers. 
 
 Sect. 49. All claims of compensation for land taken or used, 
 and for laying pipes or constructing works within or upon the 
 estate of the said Countess of Rothes, and all claims of her, or her 
 heirs or successors, for compensation or damages through flood or 
 escape of water, or flooding or bursting of any of the reservoirs 
 authorised by this Act, or works connected therewith, or for alter- 
 ing, enlarging, or increasing the number of pipes, or inspecting 
 and repairing pipes to be laid by the commissioners, which shall 
 from time to time be made by the said Countess of Rothes, or her 
 heirs and successors, against the commissioners, and all questions 
 which may arise in relation thereto, shall be settled by arbitration 
 in manner provided by the Lands Clauses Consolidation (Scot- 
 land) Act, 1845. 
 
 The parties having gone into evidence, the action w T as heard 
 before the Lord Ordinary (Rutherford Clark) on the 3rd of Dec, 
 1878, and he pronounced a decree, in effect dismissing the action 
 with costs. The appellant brought up this decree by way of review 
 to the Judges of the Inner House of the Court <>f Session ; and the 
 case was heard by a court consisting of the Lord Justice Clerk 
 (Moncreiff, President of the second Division of the Court) and 
 Lords ORMIDALE and (tTFFORD. 
 
 This court affirmed the decree of the Lord Ordinary ; the 
 majority of the court being of opinion that, the reservoir having 
 been in no way proved to be insufficient, the Water Commissioners 
 were not liable. The Lord Justice Clerk dissented, and gave his 
 opinion upon the principle applying to the case as follows : —
 
 ACCIDENT. 
 No. 11. — Kothes v. Kirkcaldy Waterworks Commissioners. 
 
 My opinion is, that the clause in the statute on which this case 
 turns, constitutes an obligation upon the commissioners as part of 
 the consideration for obtaining the statutory powers which they 
 had not, and could not have had otherwise, — constitutes an obli- 
 gation of absolute protection against the things mentioned in that 
 clause. Now, it bein« assumed that there was a flood, the Lord 
 Ordinary has found that this case is not within the clause I have 
 referred to; and the ground upon which he has proceeded is that 
 it does not appear that if the reservoir had not been there this 
 damage would not have been caused. The only question, in the 
 first instance, is whether the contingency expressed in the clause 
 has occurred, — that is, whether the pursuers have suffered injury by 
 reason of the discharge from this reservoir, whether by bursting, or 
 escape, or flood. On this question there can be no doubt whatever, 
 so far as the circumstances are concerned. It is proved that on 
 the 18th, 19th, and 20th of August, 1S77, a large body of water 
 was continuously discharged from this reservoir at a height of 
 sixty feet above the bed of the stream, tearing up the solid ma- 
 sonry of the by-wash (a structure about one hundred yards in 
 length), and spreading over the banks of the stream below, where 
 it inflicted the damage now complained of on the property of the 
 pursuers. Now, in my opinion, that is quite sufficient to found 
 this action, and I do not think any further inquiry either neces- 
 sary or relevant. It is said, however, to be immaterial that the 
 water was so discharged from the reservoir unless it can be also 
 proved that if the reservoir had never been there the same amount 
 of water, at the same height and under the same conditions, would 
 not have flowed down the same channel and inflicted the same in- 
 jury. It is needless to say that there is not a word in the statute 
 to this effect. I see no reason for applying this singular condition 
 to the right to recover damage done by flood any more than to 
 injury done by bursting or escape. But if, from some unavoidable 
 cause, the reservoir had been burst through, — from lightning, or a 
 waterspout, or any other singular cause, — it might quite as reason- 
 ably have been contended, had a flood existed at the time, that the 
 same or a greater amount of water would have come down had the 
 reservoir not been there. But this view of the case, in my opinion, 
 is entirely fallacious, first, because it places on the pursuers the 
 burden of proving a fact which never can be proved; and secondly, 
 because whatever the result might have been if the reservoir had 
 vol. r. — 23
 
 354 ACCIDENT. 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 never been made, it is quite certain, on the simplest natural laws, 
 that the result must have been different from what actually oc- 
 curred. To foretell before the event, or to assume in the absence 
 of the event, the effects which might be produced by an unusual 
 rainfall on a given stream is a problem wholly beyond the range 
 of calculation. Water in flood is one of the most capricious of 
 natural agents. . . . The only thing that to me appears certain 
 is that the result with the reservoir there must have been differ- 
 ent from what it would have been if the reservoir had not been 
 there. 
 
 On the whole matter, I thought it right to express that opinion, 
 because I think this inquiry into what might have happened if 
 the reservoir had not been there is wholly irrelevant, and, more- 
 over, is inconsistent with the true construction of the 43rd section 
 of the statute, which, in my opinion, makes it an absolute condi- 
 tion of the right to make the reservoir that damage arising from 
 it shall lie paid without inquiry as to the contingencies of which 
 your Lordships speak. 
 
 The appellant appealed to the House of Lords. 
 
 On the hearing of the appeal, the parties concurred in stating 
 that they desired to have the dispute between them settled by the 
 Court of Session rather than by an arbitrator. , 
 
 In the argument for the appellant, Fletcher v. Rylands (ante, 
 p. 238), and Nichols v. Marsland (ante, p. 262) were cited. 
 
 For the respondent (besides the eases referred to in the judg- 
 ments below given), New River Co. v. Johnson (29 L. J. M. C. 93), 
 Read v. Victoria Station & Piinlico Ry. Co. (32 L. J. Ex. 167), and 
 Barber v. Nottingham & Grantham Ry. Co. were cited. 
 
 The House took time for consideration, and on July 26 the fol- 
 lowing judgments were delivered. 
 
 Lord Blackburn. My Lords, the question in this case de- 
 pends entirely on the construction of two lines in the 43rd section 
 of the Kirkcaldy and Dysart Waterworks Act, 1867; but though it 
 lies in so small a compass, it is one on which there has been a 
 difference of opinion in the court below, and there is also one in 
 this House. 
 
 The Act in question authorised the commissioners to impound 
 the waters of an affluent of the Lothrie Burn in a reservoir, and 
 thence by aqueducts and pipes and filtering works to carry a 
 supply of water to the towns of Kirkcaldy and Dysart. Tt re-
 
 ACCIDENT. oOt> 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 quired them also to make a compensation pond called the Ballo 
 reservoir, on the upper part of Lothrie Burn, and store up the 
 water in it for the purpose of supplying compensation water to 
 those interested in the lower part of the Lothrie Burn. The posi- 
 tion and size of this Ballo reservoir is fixed with precision in the 
 Act; and it is required that the works shall he securely made, and 
 that a waste weir fifty feet wide shall he provided for the Ballo 
 reservoir. So that the commissioners were left no discretion as to 
 how they were to make and maintain this reservoir. If there 
 came a fall of rain so great as to do more than fill the reservoir, 
 the surplus water must flow over the waste weir, and thence flow 
 down into the Lothrie Burn. To do anything to hinder this 
 would have been a breach of the duty imposed by the Act upon 
 the commissioners. What happened was, that there was a very 
 unusual fall of rain (as much as six inches in three days), and the 
 water flowed over the waste weir in a body eighteen inches deep ; 
 and this quantity of water raised the Lothrie and produced a 
 flood, flowing from the reservoir certainly, though the works of 
 the reservoir stood firm, and the water did not rise so high as to 
 flow over the embankments. 
 
 The appellants are owners of the lands on both sides of the 
 Lothrie Burn, up to a point .">60 yards below the point where the 
 water flowing from the Ballo reservoir joins the burn. The 43rd 
 section of the Act is in these terms : " The commissioners shall be 
 hound to make good to the said Countess of Rothes, and her heirs 
 and successors, from time to time, all damages which may be occa- 
 sioned to her or them by reason of or in consequence of any 
 bursting, or flood, or escape of water from, any reservoir, aqueduct, 
 or pipe, or other work connected therewith, which may be con- 
 structed or laid by the commissioners ; and the right to claim 
 payment of such damages and expenses shall not be lessened by the 
 powers conferred by this Act as regards inspection and seeing to 
 the sufficiency of the works, either during the construction or at 
 the completion thereof, or by anything that shall have been done 
 under or in consequence of these powers." I quite agree with the 
 Lord Justice Clerk below, when he says : " Now, my Lords, my 
 opinion is, that the clause in the statute on which this case turns 
 constitutes an obligation upon the commissioners as part of the 
 consideration for obtaining the statutory powers which they had 
 not, and could not have had otherwise, — constitutes an obligation
 
 356 ACCIDENT. 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 of absolute protection against the things mentioned in that clause." 
 The whole question in my mind is, What are we to understand as 
 being the things mentioned in that clause ? If the word " flood" as 
 there used means any flood whatsoever flowing from the reservoir, 
 it is beside the question to inquire if this was not more protection 
 than Lady Rothes could reasonably ask for ; she has in that view 
 got it from the legislature, and the decision of the court below is 
 wrong. But the words "bursting or escape of water from any 
 reservoir, aqueduct or pipe," &c, are things which can only occur 
 when the works have in some way proved not sufficient, and the 
 commissioners have failed in doing what they were directed to 
 do. And if the word " flood " is to be understood as limited, in 
 the same way as the things which go before or come after, to flood 
 occasioned by the works proving defective, and is not to extend 
 to a flood the damage from which would have had to be borne by 
 the appellants if there had been no works, and which flowed as 
 it did from the works being made and maintained in the very way 
 in which the legislature intended, and indeed compelled the com- 
 missioners to make and maintain them, then the decision of the 
 majority of the court below was right. 
 
 I quite agree that no court is entitled to depart from the inten- 
 tion of the legislature as appearing from the words of the Act, 
 because it is thought unreasonable ; but when two constructions 
 are open, the court may adopt the more reasonable of the two. 
 I do not think it is possible to add much to the mere statement 
 of the case ; it will strike one mind in one way and another in 
 a different one. And knowing, as I do, that my two noble and 
 learned friends who heard the case differ from me, I should have 
 said that they and the Lord Justice Clerk, whose opinion they 
 adopt, were probably right ; but as three of the Scotch judges who 
 heard the case below took the same view as I do, I am confirmed 
 in my opinion, and think it due to them to state what it is. The 
 decision of this House will, of course, be in conformity with the 
 opinion of my two noble and learned friends. 
 
 Lord Watson. My Lords; the only question which it is neces- 
 sary that your Lordships should decide in this appeal depends 
 upon the just construction of a single clause in a local and 
 personal statute, entitled " The Kirkcaldy and Dysart Waterworks 
 Act, 1867." 
 
 The respondents, who are the commissioners incorporated for the
 
 ACCIDENT. 357 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 purpose of executing the Act, are thereby empowered, inter alia, to 
 
 impound and store up the waters of a small stream, called the 
 "Lothrie Burn," and some of its tributaries; and with that view- 
 to construct two ponds or reservoirs, the one named the Drumaiu 
 and the other the Ballo reservoir. The Drumain reservoir, which 
 is upon a tributary of the Lothrie, is intended for the supply of 
 water to the burghs of Kirkcaldy and Dysart. The Ballo reser- 
 voir, which has been formed by damming up the Lothrie Burn 
 itself, is intended to compensate the owners and occupiers of 
 lands, mills, and manufactories, and all other persons interested 
 in the waters of the burn, and its tributaries and affluents, and 
 the streams into which they flow, for the water abstracted by 
 means of the Drumain reservoir, and the pipes which connect it 
 with Kirkcaldy and Dysart. The statutory obligation of the re- 
 spondents is, to cause to be discharged from the Ballo reservoir 
 into the channel of the burn 750 gallons, or 120 cubic feet, of 
 water per minute during each of the twenty-four hours of every 
 day of the year. 
 
 The Lothrie Burn, at a point in its course from half to three- 
 quarters of a mile below the Ballo reservoir, enters the Leslie 
 estate, belonging to the appellant, the Countess of Ptothes, and 
 runs through it for about three miles. There are no materials in 
 the present case for determining whether the appellant, as an 
 inferior heritor, could have objected to the construction of the 
 Ballo reservoir by the proprietor of the solum, provided he had 
 merely filled it in time of flood, and had thereafter permitted the 
 natural flow of the burn to descend undiminished in volume. I 
 see no reason, however, to suppose that the works which the re- 
 spondents are authorised to construct could, of themselves, and 
 apart from the uses made of them by the respondents, cause any 
 alteration of the natural flow of the Lothrie Burn within the 
 Leslie estate. But the appellants had an undoubted legal right to 
 prohibit the abstraction of a single drop of w T ater for the use of 
 Kirkcaldy and Dysart, as well as any interference with the natural 
 flow of the burn through or over the Ballo reservoir. Lady Rothes 
 accordingly appeared, and procured the insertion of various clauses 
 in the Act, designed for the protection of her interests, to the terms 
 of which it is necessary to advert. 
 
 First of all, provision is made (sect. 40) for the construction of 
 the works in a solid, substantial, secure, and workmanlike manner;
 
 358 ACCIDENT. 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 and the appellant, and her heirs and successors, are authorised to 
 insist on an inspection of the works, not only during their execution, 
 but at any time after their completion, by an engineer mutually 
 agreed upon, or, failing agreement, to be appointed by the sheriff 
 of the county. On the other hand, the respondents are laid under 
 an obligation to execute the works as such engineer shall direct, 
 •• so as to secure safety," and specially to provide a waste weir fifty 
 feet wide for the Ballo reservoir. The purpose of these enactments 
 obviously is to protect the appellants against the possibility of the 
 embankments or sluices giving way, the function of the waste 
 .weir, or by-wash, as it is also called in these proceedings, being to 
 relieve the embankments from water pressure which might en- 
 danger their stability. Then follows the clause (sect. 43) with 
 which we are immediately concerned. It provides that the respon- 
 dents shall be bound to make good to the appellant, and her heirs 
 and successors, from time to time, " all damages which may be 
 occasioned to her or them, by reason or in consequence of any 
 bursting, or flood, or escape of water from any reservoir, aqueduct, 
 or pipe, or other work connected therewith, which may be con- 
 structed or laid by the commissioners." By another clause (sect 
 40), the terms of which I shall have to notice hereafter, it is 
 enacted that the compensation payable under sect. 43 shall be set- 
 tled by arbitration in manner provided by " the Lands Clauses 
 Consolidation (Scotland) Act, 1845." 
 
 On the night of the 20th, or morning of the 21st of August. 
 1877, there occurred what the respondents on record describe as 
 " a spate of extraordinary violence " in the upper part of the 
 Lothrie Burn, which entered the Ballo reservoir, and thence 
 Mowed, by means of the by-wash and compensation sluice, down 
 the channel of the Lothrie Burn. The action in which this appeal 
 is taken was instituted by the appellant on the allegation that the 
 spate in question occasioned great damage to her property, and 
 concludes (1st) to have it found and declared that the respondents 
 arc liable to make good such damage, and (2nd) to have them 
 ordained either to enter into a statutory arbitration in order to fix- 
 its amount, or to pay the amount as ascertained in the course of 
 the action. It appears from the judgment delivered by Lord Oumi- 
 dale, and it is not disputed, that, in the court below, or at all events 
 in the Inner House, "both parties concurred in stating that it was 
 their desire to have the dispute between them settled in this court,
 
 ACCIDENT. 359 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 under and in terms of the second alternative conclusion of the 
 summons, in place of an arbitration under the Land Clauses Act." 
 Upon that agreement of parties I have only this observation to 
 make, that it amounts, in ni) T opinion, to nothing more than, a waiver 
 of their right to demand a statutory reference ; and that tin,' effect 
 of the waiver is to confer upon the appellants the right to recover 
 these damages by ordinary legal process. The respondents' con- 
 tention that the effect of the waiver was to »*»t the case as regards 
 damages extra cursum cicrioe, and make a reference to the Court of 
 Session, appears to me to be groundless ; but that is a matter of 
 little consequence in the view which I take of this case. 
 
 The appellant in the court below maintained that the respon- 
 dents were liable for the damage occasioned to her property by the 
 spate or flood in question, upon these three grounds : (1) that 
 the respondents are, by sect. 43 of the statute, made liable for 
 damage occasioned by a flood coming from the Ballo reservoir, 
 whether such flood be due to the existence of the reservoir and its 
 works or not; (2) that, assuming no such statutory liability to 
 exist, the flood was materially increased, and its injurious effects 
 aggravated by the respondents' works; and (3) that the whole or 
 a material part of the damage was due to the failure or neglect of 
 the respondents to regulate properly the quantity of water in the 
 reservoir, and its outflow from the compensation sluices. The Lord 
 Ordinary, whose judgment was adhered to by Lords ORMIDALE and 
 Gifford, the majority of the Second Division (the Lord Justice 
 Clerk dissenting from their conclusion as to the first) rejected all 
 these contentions, and assoilzied the respondents. The appellant, 
 at your Lordships' bar, did not insist on the third proposition 
 maintained by her in the court below; and I am of opinion, with 
 your Lordships, that the second, which involves a pure question of 
 fact, was rightly negatived by the Judges of the Court of Session. 
 That leaves for consideration only the first proposition, which 
 raises a question of law, upon the construction of the 43rd section 
 of the Act of 1867. 
 
 The Lord Ordinary and the Judges who agreed with him were 
 of opinion that the provisions of the clause did nothing more than 
 protect Lady Rothes from injuries which she would not have 
 suffered if the reservoir had not been made. That result, as it 
 appears to me, can only be reached by reading the word " flood," 
 as it occurs in the clause, in a restricted sense. In my opinion,
 
 360 ACCIDENT. 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 " flood " or " flood of water" from any reservoir, aqueduct, &c, are 
 terms which, according to their primary and natural meaning, 
 include a flood coming from the reservoir, although it had its 
 origin in a stream or streams by which the. reservoir is fed, and 
 will therefore, if they are to be taken in that sense, apply to the 
 flood of August, 1877, in respect of which the appellant claims 
 compensation. No doubt the words may have a narrower mean- 
 ing imposed upon them, either by the immediate context, or by 
 its appearing that to give effect to them in their wider sense 
 would lead to results so unreasonable or inconvenient as to be 
 presumably inconsistent with the main objects of the Act. It 
 was argued for the respondents that there are considerations to 
 lie found in the present case which tend, on both these grounds, 
 to limit the general meaning of the expression " flood " occurring 
 in § 43. First of a!" ;t is said that the meaning of the word 
 must be determined by the company in which it is found ; and 
 that being associated with bursting or escape of water from a 
 reservoir, aqueduct, or pipe, it must be taken to signify a flood 
 ejusdem generis with that occasioned by the bursting of a reservoir, 
 or the escape from a reservoir of water which ought to have been 
 retained in it. To that reasoning I cannot assent. The clause 
 in question, so far as regards the causes of damage which the 
 respondents are to make good, is framed on the principle of 
 enumeration ; the three causes enumerated being, " bursting of 
 water," "flood of water," and "escape of water." It is only by 
 so reading the enumeration that the grammatical connection of 
 the sentence can be preserved. Now, what I understand to be the 
 object of enumeration is, to set forth in detail things which are 
 in themselves so distinct that they cannot conveniently be com- 
 prehended under one or more general terms ; and there is, in my 
 opinion, no a priori presumption that the things enumerated are 
 all of them of the same kind. When a specific enumeration con- 
 cludes with a general term, that term is, by a well-known canon 
 of construction, held to be limited to alia similia. The respon- 
 dents' argument would have been of great force if the enumeration 
 had been of bursting of water, escape of water, or " other floods " 
 from the reservoir ; but as it stands, the word " flood " is an inde- 
 pendent member of the enumeration, and I can find nothing in the 
 language of the section which fairly leads to the implication that 
 thr ordinary meaning of the word is to be limited by reference to 
 the expressions, "bursting " and " escape of water."
 
 ACCIDENT. 361 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 Again, it is said that by their Act the respondents are not only 
 bound to give a constant supply of compensation water, which 
 
 implies the necessity of storage, but are also hound to construct 
 and maintain a waste weir, and to allow all surplus water to escape 
 by it into the Lothrie Burn ; and, moreover, that very large powers 
 are conferred upon the proprietors of the Leslie estate, with tin- 
 view of enabling them to enforce these obligations. These statu- 
 tory provisions, it is argued, are inconsistent with the idea that 
 the legislature intended the respondents to exercise any control 
 over floods arising in the Lothrie Burn and its affluents, above the 
 Ballo reservoir. To my mind that is not a self-evident proposition. 
 A waste weir is necessary in order to relieve the embankments of 
 the reservoir from a pressure of water which they were not con- 
 structed to bear, and to guard against the serious consequences 
 which might result from their giving way under that pressure. 
 But, notwithstanding the existence of the waste weir, or by-wash, 
 the respondents have unquestionably the means at their command 
 of very largely regulating and controlling the flow of water in the 
 channel of the burn below the reservoir ; and, for aught that 
 appears to the contrary in this case, they may be able practically 
 to prevent flooding, unless on the occasion of rainfall so excep- 
 tional as to amount almost if not altogether to a damnum Jut/tie. 
 I am unable, therefore, to assume that the legislature, in giving 
 the respondents such powers of regulation and control, cannot 
 have intended to make them liable for all kinds of flood coming 
 from the reservoir, though such is the natural import of the 
 language employed, simply because the legislature has also taken 
 precautions to secure the stability of the respondents' works. 
 
 Last of all, it is contended by the respondents that to give the 
 word "flood" its ordinary meaning would lead to results so unrea- 
 sonable, that the legislature cannot be supposed to have used it 
 in that general sense. The argument might be of some weight if 
 your Lordships were in a position to hold that it has a foundation 
 in fact. But such statutory provisions as those of sect. 43, occur- 
 ring in a local and personal Act, must be regarded as a contract 
 between the parties, whether made by their mutual agreement 
 or forced upon them by the legislature; and, viewing them as a 
 contract, 1 am quite unable to say that the advantages which the 
 appellants obtain under sect. 43, according to their construction of 
 it, as well as under the other clauses of the Act, constitute an
 
 162 ACCIDENT. 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 excessive and unreasonable consideration for the benefits which 
 the commissioners have derived from their being able to acquire 
 by compulsion the appellants' right and interest in the water now- 
 taken from the Drumain reservoir to Kirkcaldy, and for the 
 interference with the natural flow of the Lothrie Burn occasioned 
 by the use made of the Ballo reservoir. 
 
 The language of sect. 49, which provides for the assessment 
 of the damages for which the respondents are by sect. 43 made 
 liable, appears to me to favour the construction for which the 
 appellants contend. In sect, 49 these damages are described as 
 " damages through flood or escape of water, or flooding or bursting 
 of any of the reservoirs authorised by this Act, or works connected 
 therewith." 1 do not think the " flooding of a reservoir " can arise 
 from causes ejusdem generis with the bursting of a reservoir, or the 
 escape of water which ought to be detained in the reservoir. The 
 effect of these causes is to drain or empty the reservoir ; whereas 
 the " flooding of a reservoir " must be due to some cause which 
 fills it beyond its capacity, so that it overflows. 
 
 I am, therefore, of opinion that the interlocutors appealed from 
 ought to be reversed, and the cause remitted to the court below 
 with a declaration that the appellants are entitled, by virtue of 
 the provisions of " The Kirkcaldy and Dysart Waterworks Act, 
 1867/' to compensation for any damage occasioned to the property 
 of the appellant, the Countess of Rothes, by reason of the flood in 
 question from the Ballo reservoir. I am also of opinion that the 
 appellants ought to have their expenses of process in the Court 
 of Session from and after the date of the interlocutor of the Lord 
 Ordinary appealed against, as well as the costs of this appeal ; and 
 I move accordingly. 
 
 Lord Fitzgerald. My Lords, the argument on this appeal 
 finally eventuated in a single question, viz., what was the true 
 construction of the 43rd section of the special Act in reference to 
 the extent of the liability of the defenders. For the pursuer it 
 was contended that on the true interpretation of that section the 
 defenders were bound to indemnify her from damages caused by a 
 flood of water coming from the reservoir, however that flood of 
 water may have been occasioned. The defenders, on the other 
 hand, insisted that there having been no failure or insufficiency in 
 their works, and no negligence or default on their part, they were 
 not responsible for damages occasioned by a flood of water wholly
 
 ACCIDENT. 363 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 attributable to natural causes, unless that Mood had been in some 
 way augmented by the reservoir. The Lord Ordinary was of that 
 opinion, and the question is whether he was correct in his view of 
 the 43rd section. If he was not, his interlocutor of the 3rd of 
 December, 1878, cannot be maintained. 
 
 We have now, therefore, to interpret the 43rd section of this Act. 
 There can be little difficulty in the plain, literal, and grammatical 
 construction of the section, and I would read it thus, that tin- 
 defenders " shall be bound " to indemnify the pursuer, Lady Rothes, 
 from all damages occasioned by reason or in consequence of any 
 bursting of any reservoir, aqueduct, pipe, or other works connected 
 therewith, or by reason of or in consequence of any flood or escape 
 of water from any reservoir, &c. The language is clear and simple ; 
 and if, on looking at the whole scope and subject of the enactment, 
 we find nothing to indicate a contrary intention, we are coerced to 
 come to the conclusion that the pursuer's contention was well 
 founded. 
 
 The terms of sect. 49 seem to me rather to support that view of 
 the statute. The compensation for damages through flood or 
 escape of water in sect. 49 obviously refers to the claims which 
 may arise under sect. 43 ; and its language may be used to throw 
 light on or to interpret sect. 43. The collocation of the words in 
 sect. 49 is different, and its import is that the pursuer would be 
 entitled to compensation for injury through any flood or any escape 
 of water from, or any flooding of, any of the reservoirs. 
 
 It was alleged for the defenders that such a construction would 
 be unreasonable, and that it ought to be limited to those cases of 
 flood-water in which the reservoir or works by their existence 
 there increased or aggravated the flood; but it seems to me thai 
 to arrive at that conclusion we must interpolate words in sect. 4.". 
 which are not to be found in that section. 
 
 It was urged also that we should apply the rule "ejusdem gene- 
 ris," or "noscitur a sociis;" but that maxim is properly resorted to 
 where otherwise there might be some opening for ambiguity, it 
 would not, as it seems to me, aid us on the present occasion. If 
 the language of that section is not clear, then the rule of inter- 
 pretation "contra proferentem" seems to me to be specially appli- 
 cable. The language of the section must be taken as that of the 
 promoters of the Act. They ask the legislature to grant them 
 large powers and privileges, and they propose to give in return to
 
 364 ACCIDENT. 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 the individuals who may be affected certain rights and protection. 
 They should have taken care to define with accuracy the limits of 
 their liability, so that the parties whose rights they interfere with 
 should not be misled. We are bound to put a construction on the 
 section as favourable to the pursuer as the words of the section 
 will fairly and reasonably bear; fur the words are not hers but the 
 promoters'. 
 
 It is obvious from the judgments in the court below that the 
 majority of the Judges were influenced by the supposed unreasona- 
 bleness of the pursuer's contention. Thus Lord Ormidale describes 
 the " result " as one " so unreasonable and extravagant as not for a 
 moment to be entertained." Lord GrlFFORD describes it as "both 
 unreasonable and uniust," and, again, that "it would be against all 
 equity," so that " it could not have been the intention of the legis- 
 lature to make the defenders liable for an injury with which they 
 had nothing whatever to do." If the result would be unjust, 
 unreasonable, and inequitable, then we ought not to adopt the 
 interpretation unless the language of the promoters is so clear as 
 to be coercive. I propose to apply the test of unreasonableness, 
 having regard to the surrounding circumstances at the time of the 
 passing of the Act, to be collected from the Act itself. I do not 
 propose for a moment to refer to the evidence; but I will take the 
 surrounding circumstances as they appear from the Act itself, and 
 from the plans, sections, levels, and elevations there referred to. 
 
 Now, first, this is "an Act for the better supplying with water 
 the parliamentary burghs of Kirkcaldy and Dysarfc, and suburbs 
 and places adjacent, and for other purposes;" and it is not con- 
 fined to providing water for the population merely, but it is also 
 for trade and manufactures. In order to carry out those objects 
 the commissioners are first incorporated. Then, under sect. 35, we 
 have an insight into the plans, levels, and elevations of the works 
 to be constructed; and under sect. 36 the description of the works 
 themselves leaves no doubt as to what is to be done. By sect. 38 
 the incorporated commissioners receive power from Parliament "to 
 take, collect, and divert" the waters of the burn into their reser- 
 voirs, and there "to impound and store up the waters of the burn 
 with its tributaries and affluents, and by means of their works to 
 convey, appropriate, and use the said waters for the purposes of this 
 Act." Their powers, therefore, are very extensive. 
 
 My Lords, those powers had in some respects to be guarded
 
 ACCIDENT. 3G5 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. 
 
 against. For instance, I presume from the insight given us by 
 the plans here that the Lothrie Burn was an ordinary mountain 
 stream subject to sudden and considerable tioodings, quickly pass- 
 ing away. But I presume that it had also the ordinary character- 
 istics of such a stream ; that it had the means of relieving itself 
 from the pressure of flood waters, either by lateral cuts or by the 
 natural elevation of the banks enabling it, when the upper waters 
 of the burn became flooded, to give itself a lateral discharge. But 
 under the powers of this Act the character of that stream is to be 
 totally altered; it is to be converted in fact into a canal, in which 
 all the upper waters are to be collected, none are to be wasted or 
 lost, but all are to be stored up in the Ballo reservoir. If the 
 incorporated commissioners duly carried out their powers and 
 works they would require every drop of that water, in the first 
 instance, for compensation purposes, and afterwards for the larger 
 purposes of the act of Parliament ; and I assume that they took 
 proper means to secure every drop of water coming into the upper 
 channel of this small river, so that none should be lost but that 
 all should be retained in the reservoir. It may be said in fact that 
 the character of the upper river was entirely changed, — it ceased 
 to exist as a mere mountain stream, and it became a river entirely 
 in the hands of the commissioners, who by virtue of their works 
 were enabled to collect and store up the entire water coming into 
 the upper burn. 
 
 My Lords, when we look again below, the consequences are still 
 more formidable ; because you will find as part of the works to be 
 established, and for the protection of the embankment, that there 
 was to be a by-wash or waste weir. That waste weir was to be 
 at least fifty feet wide, and at an elevation of sixty feet above the 
 channel, the by-wash discharging through it, in flood times espe- 
 cially, a considerable amount of water. At a little more than one 
 hundred yards below it meets the ordinary channel of the Lothrie 
 Burn. But it is obvious from the description of the stream, and 
 contrasting it with the discharging power of the by-wash, that the 
 lower stream in its natural state would be quite insufficient for 
 the discharge of the waters which would be brought down by this 
 large and formidable aqueduct, The natural result from that (and 
 I may call in aid a very large experience in arterial drainage cases) 
 would be that the lower channel in its natural state being unequal 
 to the discharge of the upper waters which are suddenly thrown
 
 366 ACCIDENT. 
 
 No. 11. -Rothes v. Kirkcaldy Waterworks Commissioners. — Notes. 
 
 upon it, the waters are piled up and are forced to discharge them- 
 selves, causing ruin on either side. Such would probably be the 
 anticipated result of the works to be formed by the commissioners. 
 
 My Lords, under such circumstances, trying the question by 
 the test whether it is reasonable or not, I should say that in the 
 presence of such a probable state of facts indicated by the sur- 
 rounding circumstances and by the terms of the Act, in the 
 presence of a danger so formidable, it was not unjust or unrea- 
 sonable for the pursuer to stipulate for a full and complete indem- 
 nity. She was to be deprived of all control and of all means of 
 self-protection, and might reasonably insist that the promoters 
 should accept the whole responsibility and indemnify her from 
 damage" by flood-waters from the reservoir, no matter how caused. 
 
 The promoters in reply presented the 43rd section, — that is the in- 
 demnity which they offered. It has been sanctioned by Parliament, 
 and I see nothing inequitable in it or in its interpretation. My 
 Lords, such was practically the view of my noble and learned 
 friend the Lord Justice Clerk in the Inner House, and I entirely 
 concur in his view. 
 
 The judgment and decree of the Court of Session were accord- 
 ingly reversed, and the cause remitted to the Court of Session 
 with a declaration that the appellant was entitled, under the Act, 
 to compensation for any damage occasioned to her property by 
 reasons of the flood in question from the Ballo reservoir; and a 
 direction as to costs in accordance with the opinion above given by 
 Lord Watson. 
 
 ENGLISH NOTES. 
 
 The above case, though only an application to a local Act of the well- 
 known doctrine as to contract embodied in the preceding rule, appears 
 sufficiently important to stand by itself as a ruling case. 
 
 That a local and personal Act, embodying terms specially relating to 
 a person whose interests are affected, is to be treated as a contract, is a 
 familiar proposition. Where the obligation of a contract is especially 
 stringent, this is in harmony with the general principle that, in the 
 construction of such a statute, every presumption is to be made against 
 the company and in favour of private property; per Best C. J.. 
 in Scales v. Pickering (1828), 4 Bing. 448, 452; 6 L. J. C. P. 53. So 
 Tini>al C. J., in Parks y. G. W. Ey. Co. (1844), 7 Scott N. R. 835, 
 870; 13 L. J. C. P. 105, observes that the language of these Acts is to 
 be treated as the language of their promoters; and the Act should there-
 
 OCCIDENT. 
 
 No. 11. — Rothes v. Kirkcaldy Waterworks Commissioners. — Notes. 
 
 fore be construed strictly against the promoters, bul liberally in favour 
 of the public. The same principle is embodied in I he judgment of Lord 
 EliLENBO ROUGH in Gildart v. Gladstone (1809), 11 East, 675; and in 
 the judgment of the Lords Justices of Appeal in Cloice* v. Staffordshire 
 Potteries Co. (1873), 8 Ch. 125; 42 L. J. Ch. L07. 
 
 AMERICAN NOTES. 
 
 The nearest approach to the doctrine of the principal case in this country 
 seems to be in the instance of statutes authorising the construction of rail- 
 roads, and binding the companies to make good certain damages. 
 
 In Dodge v. Commissioners, 3 Metcalf (Mass.), 380, there was an application 
 for a mandamus requiring the defendants to assess damages for the petitioners 
 against a railroad company for injury to their dwelling-house by blasting in 
 the construction of the railway. None of the petitioners' land or materials 
 had been taken. The statute provided that "every railroad corporation shall 
 be liable to pay all damages that shall be occasioned by laving out, and mak- 
 ing and maintaining their road, or by taking any land or materials." There 
 was no charge of negligence in the work. Shaw, C. J., said : " An authority 
 to construct any public work carries with it an authority to use the appro- 
 priate means. An authority to make a railroad is an authority to reduce the 
 line of the road to a level, and for that purpose to make cuts as well through 
 ledges of rock as through banks of earth. In a remote and detached place, 
 where due precautions can be taken to prevent danger to persons, blasting by 
 gunpowder is a reasonable and appropriate mode of executing such a work, 
 and if due precautions are taken to prevent unnecessary damage, is a justifi- 
 able mode. It follows that the necessary damage occasioned thereby to a 
 dwelling-house or other building, which cannot be removed out of the way of 
 such danger, is one of the natural and unavoidable consequences of executing 
 the work, and within the provisions of the statute. Of course, this reasoning 
 will not apply to damages occasioned by carelessness or negligence in executing 
 such a work." Mandamus was issued as prayed. This was followed in 
 Brown v. Railroad Co., 5 Gray, 35, and the same doctrine is found in Sabin v. 
 17. Cent. R. Co., 25 Vermont, 303; Whitehouse v. Androscoggin R. Co.. 52 
 Maine, 208. In the Vermont case it was held that an action would lie for 
 failure to remove the stones thrown on tin 1 land by blasting, but that the 
 action must be case and not trespass. In Carman v. Railroad Co.. I Ohio St.. 
 399, an action was sustained against the company for injury done to lands not 
 taken, by blasting by a contractor in the construction of the road: and the 
 same was held of an injury by blasting by the company's own employees, in 
 Georgetown, Sfc. Jig. Co. v. Eagles, 9 Colorado, 544, there being no taking of 
 land and no negligence, but a direction by the defendant to excavate by blast- 
 ing. The like was held in Stone v. Cheshire R. Corp.. Y.) New Hampshire, 
 427, case for a corporeal injury to the plaintiff by the contractor's blasting. 
 In the last three cases the principal question was of the defendant's liability 
 for the act of the contractor.
 
 168 ACCORD AND SATISFACTION. 
 
 No. 1. — Pinnel's Case. — Rule. 
 
 ACCORD AND SATISFACTION. 
 
 No. 1. — PINNEL'S CASE. 
 
 (c. p. 1602.) 
 
 No. 2. — FOAKES v. BEER. 
 (h. l. 1884.) 
 
 RULES. 
 
 An agreement, not under seal, to accept in discharge of a 
 liquid debt, a smaller sum in satisfaction, and the payment 
 of such smaller sum, cannot be satisfaction of the whole. 
 
 The payment of the smaller sum, whether made at the 
 time of or subsequently to and in pursuance of the agree- 
 ment, merely extinguishes the debt pro 1anto, and the 
 promise to forego the residue is without consideration. 
 
 But the gift of a horse, hawk, &c, in satisfaction, is 
 good. For it is to be presumed that the horse, &c, might 
 be more beneficial to the plaintiff than the money. 
 
 Payment before the day., or at a place different from the 
 place of payment named in a bond, may be more bene- 
 ficial to the plaintiff, and therefore may be made and 
 accepted in satisfaction 
 
 An acknowledgment of satisfaction by deed is a good 
 acquittance, without any payment. 
 
 Pinnel's Case. 
 
 Co. Eep. V., 117 a. 
 
 Pinnel brought an action of debt on a bond against Cole, of £16 
 for payment of £8 10s., the 11th day of November, 1600. The 
 defendant pleaded that he, at the instance of the plaintiff, before 
 the said day, soil. 1 October, anno 44, apud W. solvit querenti
 
 ACCORD AND SATISFACTION. 369 
 
 No. 1. — Pinnel's Case. 
 
 £5 2s. 2d. quas quidem £5 2s. 2d, the plaintiff accepted in full 
 satisfaction of the £8 10*. And it was resolved by the whole 
 court that payment of a lesser sum on the day in satisfaction of 
 a greater cannot be any satisfaction for the who],', because it 
 appears to the Judges, that by no possibility, a lesser sum can be a 
 satisfaction to the plaintiff for a greater sum ; but the gift of a 
 horse, hawk, or robe, &c, in satisfaction, is good. For it shall be 
 intended that a horse, hawk, or robe, &c, might be more beneficial 
 to the plaintiff than the money, in respect of some circumstance, 
 or otherwise the plaintiff would not have accepted of it in satis- 
 faction. But when the whole sum is due, by no intendment the 
 acceptance of parcel can be a satisfaction to the plaintiff; but in 
 the case at bar it was resolved that the payment and acceptance of 
 parcel before the day in satisfaction of the whole would be a good 
 satisfaction in regard of circumstance of time ; for peradventure 
 parcel of it before the day would be more beneficial to him than 
 the whole at the day, and the value of the satisfaction is not 
 material. So if I am bound in £20 to pay you £10 at West- 
 minster, and you request me to pay you £5 at the day at York, 
 and you will accept it in full satisfaction of the whole £10, it is a 
 good satisfaction for the whole ; for the expenses to pay it at 
 York is sufficient satisfaction. But in this case the plaintiff had 
 judgment for the insufficient pleading ; for he did not plead that 
 he had paid the £5 2s. 2d. in full satisfaction (as by the law he 
 ought), but pleaded the payment of part generally, and that the 
 plaintiff accepted it in full satisfaction. And always the manner 
 of the tender and of the payment shall be directed by him who 
 made the tender or payment, and not by him who accepts it. 
 And for this cause judgment was given for the plaintiff. 
 
 See reader 26 H. 6, Barre 37, in debt on a bond of £10 the 
 defendant pleaded that one F. was bound by the said deed with 
 him, and each in the whole, and that the plaintiff had made an 
 acquittance to F. bearing date before the obligation, and deliv- 
 ered after, by which acquittance he did acknowledge himself to be 
 paid 20.s. in full satisfaction of the £10. And it was adjudged a 
 good bar; for if a man acknowledges himself to be satisfied by 
 deed, it is a good bar, without anything received. Vide 12 E. 2, 
 Barre 243, 26 H. 6, Barre 37, and 10 H. 7, &c. 
 vol. i. — 24
 
 370 ACCORD AND SATISFACTION. 
 
 No. 2. — Foakes v. Beer. 
 
 Foakes v. Beer. 
 
 54 L. J. Q. B. 130 (s. c. 9 App. Cas. 605). 
 
 This was an appeal to the House of Lords from a decision of 
 the Court of Appeal which reversed one of the Queen's Bench 
 Division. 
 
 The respondent having recovered judgment for £2090 from the 
 appellant, agreed with the appellant in writing not under seal to 
 accept payment by instalments of £500 down and £150 half yearly 
 till the whole sum should be paid. The appellant fully performed 
 his part of the agreement, and the respondent then claimed to issue 
 execution on the judgment for interest on the judgment debt. 
 
 An issue was directed to be tried, when the above facts were 
 found by a jury. Cave, J., ruled that the respondent was not 
 entitled to issue execution for any sum on the judgment. 
 
 His decision was affirmed by a divisional court, but reversed by 
 the Court of Appeal upon the authority of Cumber v. Wane, 1 
 Str. 426 ; 1 8m. L. C. (8th ed.) .".57. 
 
 Holl, Q. C, and Winch, for the appellant. There is nothing in 
 reason or — except the case of Camber v. Wane, supra — in law 
 to make this agreement invalid. There is consideration for it, for 
 by not enforcing his claim against the debtor and driving him 
 into bankruptcy, the creditor might expect to be paid in full in- 
 stead of merely getting a dividend. If the creditor thinks the 
 agreement is for his benefit, why should the court say it is not? 
 ('umber v. Wane, supra, has been assailed frequently, — e. //., in 
 Couldery v. Bartrum, Law Rep. 19 Ch. I). 394, per Jessel, M. R., 
 and in notes to Smith's Leading Cases, 1 Sm. L. C. (4th ed.) 253; 
 (8th ed.) 3G7, by Smith, with the tacit approval of all his editors, 
 including Sir Henry Keating and the late Mr. Justice Willes. The 
 reasoning in Cumher v. Wane, supra, would not be regarded as 
 sound now, — namely, that the satisfaction must lie held reasonable 
 by the court. In Reynolds v. Pinhoioe, Cro. Eliz. 429, which was 
 not cited in Cumber v. Wane, supra, it was held that the saving 
 of trouble was a sufficient consideration ; and see Wilkinson v. 
 Byers, 1 Ad. & E. 106 ; 3 Law J. Rep. K. B. 144, observations of 
 Littledale, 4. In PinneVs Case, 5 Co. Rep. 117, the question of 
 convenience was overlooked. But the convenience is well under- 
 stood in business, as is shown by the constant practice of trades-
 
 ACCORD AMi SATISFACTION. 371 
 
 No. 2. Foakes v. Beer. 
 
 men to allow discount for prompt payment where there is no 
 agreement to give credit. In fact the decision in Cumber v. Wane, 
 supra, has never been acted upon in practicej and the courts have 
 confined its application within such narrow limits that there is no 
 longer any principle involved in it. The following oases are really 
 inconsistent with Cumber v. Wane, supra; Heathcote v. Crook- 
 shanks, 2 Term Rep. 24: Thomas v. Heathom, 2 B. & C. 477; 
 Sibree v. Tripp, 15 M. & W. 23; 15 Law J. Rep. Exch. 318; 
 Curlewisv. Clark, 3 Exch. Rep. 375; 18 Law J. Rep. Exch. 144; 
 Fitch v. Sutton, 5 East, 230, in which it was held that payment of 
 a less sum by cheque was not a satisfaction, is (dearly wrong: 
 Goddard v. (J Brim, Law Rep., 9 Q. B. 1). 37. If Cumber v. Wane, 
 supra, is to be maintained, the result of the cases is that there 
 may be satisfaction by acceptance of a less sum if it be secured by 
 cheque, bill, or promissory note, not if it be paid in gold or bank- 
 notes. In the present case the agreement was not to take a less 
 sum, but merely to give time. 
 
 Bompas, Q..C, and A. I). P. Gaskell, for the respondent. Part 
 payment is no consideration for giving up the residue of a debt, 
 .-dnce the performance of what the law imposes as a duty cannot 
 be a consideration. Cumber v. Wane, supra, is supported by a 
 series of authorities, — -Dixon v. Adams, Cro. Eliz. 538; Richards 
 v. Bartlets, 1 Leon. 19; Goring v. Goring, Yelv. 10: Geang v. 
 Sir a! nc, 1 Lutw. 464 ; McManus v. Burl-, 39 Law J. Rep. Exch. 65 ; 
 Law Rep. 5 Exch. 65; Fitch v. Sutton, supra; Co. Lit, 212b; 
 Adams v. Tapling, 4 Mod. 88 ; Down v. Hatcher, 10 Ad. & E. 121; 
 8 Law J. Rep. Q. B. 190, and Evans v. Powis, 1 Exch. Rep. 601. 
 All the cases in which Cumber v. Wane, supra, has been more or 
 less departed from, treat it as law that the payment of a smaller 
 .sum than is due is not sufficient. It is a matter of public policy 
 that a man should not be allowed to refuse to pay debts, and 
 then make his refusal to pay a consideration for extorting more 
 favourable terms from his creditor. This has been laid down as 
 to seamen's wages in Stilk v. Myrick, 2 Camp. 317; Harris v. 
 Watson, Peake, 72 ; Newman v. Walters, 8 Bos. & P. 612 ; Clutter- 
 buck v. Collin, 4 Sc. N. R. 509 ; 11 Law J. Rep. C. P. 65, and Harris 
 v. Carter, 3 E. & B. 559 ; 23 Law J. Rep. Q. B. 295. 
 
 [Lord Blackburn. The doctrine of Cumber v. Wane, supra, 
 has never been laid down in this House, nor (except in Dixon v. 
 Adams, supra, which went t< io far) in a Court of Error.]
 
 372 ACCORD AXD SATISFACTION. 
 
 No. 2. — Foakes v. Beer. 
 
 It was too firmly established ever to be the subject of appeal. 
 The House will not treat it with less respect on that account. 
 Danford v. McAnulty, 52 Law J. Eep. Q. B. 652 ; Law Eep., 8 App. 
 Cas. 456. 
 
 [Lord Blackburn. It has not been acted upon in mercantile 
 practice, and not often in the courts.] 
 
 It has been always recognised as law, and cannot now be over- 
 ruled. Lovelace v. Cocket, 1 Brownl. 47, and ffawes v. Birch, ib. 
 71, carried ihe rule still further. 
 
 Holl, Q. C, in reply. The decisions as to seamen's wages are 
 put upon special grounds of public policy applicable to such cases. 
 
 Car. adv. vult. 
 
 The Lord Chancellor (Earl of Selborne) (on May 16). Upon 
 the construction of the agreement of the 21st of December, 1876, 
 I cannot differ from the conclusion in which both the courts 
 below were agreed. If the operative part could properly be con- 
 trolled by the recitals, 1 think there would be much. reason to say 
 that the only thing contemplated by the recitals was giving time 
 for payment, without any relinquishment on the part of the judg- 
 ment creditor of any portion of the amount recoverable (whether 
 for principal or for interest) under the judgment. But the agree- 
 ment of the judgment creditor, which follows the recitals, is that 
 she "will not take any proceedings whatever on the judgment," if 
 a certain condition is fulfilled. What is that condition ? Payment 
 of the sum of £150 in every half year, " until the whole of the said 
 sum of £2,090 19s." (the aggregate amount of the principal debt 
 and costs, for which judgment had been entered) "shall have been 
 fully paid and satisfied." A particular "sum" is here mentioned, 
 which does not include the interest then due, or future interest. 
 Whatever was meant to be payable at all, under this agreement, 
 was clearly to be payable by half-yearly instalments of £150 each ; 
 any other construction must necessarily make the conditional 
 promise nugatory. But to say that the half-yearly payments 
 were to continue till the whole sum of £2,090 19s., "and interest 
 thereon," should have been fully paid and satisfied, would be to 
 introduce very important words into the agreement, which are not 
 there, and of which I cannot say that they are necessarily implied. 
 Although, therefore, I may (as indeed I do) very much doubt, 
 whether the effect of the agreement, as a conditional waiver of the
 
 ACCOHD AND SATISFACTION. 373 
 
 No. 2. — Foake3 v. Beer. 
 
 interest to which she was by law entitled under the judgment, was 
 really present to the mind of the judgment creditor, still I cannot 
 deny that it might have that effect, if capable of being legally 
 
 enforced. 
 
 But the question remains whether the agreement is capable of 
 being legally enforced. Not being under seal, it cannot he 
 legally enforced against the respondent unless she received consid- 
 eration for it from the appellant, or unless, though without con- 
 sideration, it operates by way of accord and satisfaction so as to 
 extinguish the claim for interest. What is the consideration '. On 
 the face of the agreement none is expressed except a present pay- 
 ment of £500 on account and in part of the larger debt then due 
 and payable by law under the judgment. The appellant did not 
 contract to pay the future instalments of £150 each at the times 
 therein mentioned ; much less did he give any new security in the 
 shape of negotiable paper or in any other form. The promise de 
 futuro was only that of the respondent that, if the half-yearly 
 payments of £150 each were regularly paid, she would " take no 
 proceedings whatever on the judgment." Xo doubt, if the appel- 
 lant had been under no antecedent obligation to pay the whole 
 debt, his fulfilment of the condition might have imported some 
 consideration on his part for that promise. But he was under that 
 antecedent obligation ; and payment at those deferred dates, by the 
 forbearance and indulgence of the creditor, of the residue of the 
 principal debt and costs, could not, in my opinion, be a considera- 
 tion for the relinquishment of interest and discharge of the judg- 
 ment, unless the payment of the £500 at the time of signing the 
 agreement was such a consideration. As to accord and satisfac- 
 tion, in point of fact there could he no complete satisfaction so 
 long as any future instalment remained payable ; and I do not see 
 how any mere payments on account could operate in law as a satis- 
 faction ail interim conditionally upon other payments being after- 
 wards duly made, unless there was a consideration sufficient to 
 support the agreement while still unexecuted. Nor was anything, 
 in fact, done by the respondent in this case, on the receipt of the 
 last payment, which could be tantamount to an acquittance if the 
 agreement did not previously bind her. 
 
 The question, therefore, is nakedly raised by this appeal whether 
 your Lordships are now prepared not only to overrule, as contrary 
 to law, the doctrine stated by Sir Edward Coke to have been laid
 
 374 ACCORD AND SATISFACTION. 
 
 No. 2. — Foakes v. Beer. 
 
 down by all the Judges of the Common Pleas in Pinnel's Case, 5 
 Co. Rep. 117, in 1602, and repeated in his note to Littleton, section 
 344, Co. Lit. 212 b, but to treat a prospective agreement not under 
 seal for satisfaction of a debt, by a series of payments on account 
 to a total amount less than the whole debt, as binding in law, pro- 
 vided those payments are regularly made, — the case not being one- 
 of a composition with a common debtor, agreed to inter se by sev- 
 eral creditors. I prefer so to state the question, instead of treating; 
 it (as it was put at the Bar) as depending on the authority of the 
 case of Cumber v. Wane, 1 Str. 426 ; 1 Sin. L. C. (8th ed.) 357, 
 decided in 1718. It may well be that distinctions which in later 
 cases have been held sufficient to exclude the application of that 
 doctrine existed and were improperly disregarded in Camber v. 
 Wane, supra, and yet that the doctrine itself may be law, rightly 
 recognised in Cumber v. Wane, supra, and not really contradicted 
 by any later authorities. And this appears to me to be the true- 
 state of the case. The doctrine itself, as laid down by Sir Edward 
 Coke, may have been criticised as questionable in principle by 
 some persons whose opinions are entitled to respect, but it has 
 never been judicially overruled ; on the contrary, 1 think it has 
 always, since the sixteenth century, been accepted as law. If so, 
 I cannot think that your Lordships would do right if you were 
 now to reverse as erroneous a judgment of the Court of Appeal 
 proceeding upon a doctrine which has been accepted as part of the 
 law of England for 280 years. 
 
 The doctrine, as stated in Pinnel's Case, -supra, is, "that pay- 
 ment of a lesser sum on the day" (it would of course be the same 
 after the day) "in satisfaction of a greater, cannot be any satis- 
 faction for the whole, because it appears to the Judges that by no 
 possibility a lesser sum can be a satisfaction to the plaintiff for a 
 greater sum." As stated in Coke on Littleton (212 h), it is, " where 
 the condition is fur payment of £20, the obligor or feoffor cannot 
 at the time appointed pay a lesser sum in satisfaction of the whole, 
 because it is apparent that a lesser sum of money cannot be a 
 satisfaction of a greater;" adding (what is beyond controversy) 
 that an acquittance under seal in full satisfaction of the whole 
 would (under like circumstances) be valid and binding. 
 
 The distinction between the effect of a deed under seal and that 
 of an agreement by parol, or by writing not under seal, may seem 
 arbitrary, but it is established in our law ; nor is it really unrea-
 
 ACCORD AND SATISFACTION. o / L> 
 
 No. 2. — Foakes v. Beer. 
 
 sonable or practically inconvenient that the law should require 
 particular solemnities to give to a gratuitous contract the force 
 of a binding obligation. If the question be (as, in the actual state 
 of the law, I think it is) whether consideration is or is not given 
 in a case of this kind by the debtor who pays down part of the 
 debt presently due from him for a promise by the creditor to relin- 
 quish, after certain further payments on account, the residue of the 
 debt, I cannot say that I think consideration is given in the sense 
 in which I have always understood that word as used in our law. 
 It might be (and indeed I think it would be) an improvement in 
 our law if a release or acquittance of the whole debt on payment 
 of any sum which the creditor might be content to receive by way 
 of accord and satisfaction (though less than the whole) were held 
 to be generally binding, though not under seal ; nor should I be 
 unwilling to see equal force given to a prospective agreement, like 
 the present, in Writing, though not under seal; but I think it im- 
 possible, without refinements which practically alter the sense of 
 the word, to treat such a release or acquittance as supported by 
 any new consideration proceeding from the debtor. All the authori- 
 ties subsequent to Cumber v. Wane, supra, which were relied upon 
 by the appellant at your Lordship's bar — such as Sibree v. Tripp, 
 supra, Gurlewis v. Clark, supra, and Goddard v. O'Brien, supra, 
 — have proceeded upon the distinction that, by giving negotiable 
 paper or otherwise, there had been some new consideration for a 
 new agreement, distinct from mere money payments in or towards 
 discharge of the original liability. I think it unnecessary to go 
 through those cases or to examine the particular grounds on which 
 each of them was decided. There are no such facts in the case now 
 before your Lordships. What is called " any benefit, or even any 
 legal possibility of benefit," in Mr. Smith's notes to Cumber v. 
 Wane, supra, is not, as I conceive, that sort of benefit which a 
 creditor may derive from getting payment of part of the money due 
 to him from a debtor who might otherwise keep him at arm's length 
 or possibly become insolvent, but is some independent benefit, actual 
 or contingent, of a kind which might in law be a good and valu- 
 able consideration for any other sort of agreement not under seal. 
 
 My conclusion is that the order appealed from should be af- 
 firmed and the appeal dismissed with costs, and I so move your 
 Lordships.
 
 376 ACCORD AND SATISFACTION. 
 
 No. 2. — Foakes v. Beer. 
 
 Lord Blackburn. The first question raised is as to what was 
 the true construction of the memorandum of agreement made on 
 the 21st of December, 1876. What was it that the parties by 
 that writing agreed to? 
 
 The appellant contends that they meant that on payment down 
 of £500, and payment within a month after the 1st of July and the 
 1st of January in each ensuing year of £150 until the sum of 
 £2090 19s. was paid, the judgment for that sum and interest 
 should be satisfied; for an agreement to take no proceedings on the 
 judgment is equivalent to treating it as satisfied. This construc- 
 tion of the memorandum requires that after the tenth payment of 
 <£ 150 there should be a further payment of £90 19s. made within 
 the next six months. 
 
 This is the construction which all three courts below have put 
 upon the memorandum. 
 
 The respondent contends that the true construction of the memo- 
 randum was that time was to be given on those conditions for five 
 years, the judgment being, on default of any one payment, enforce- 
 able for whatever was still unpaid, with interest from the date the 
 judgment was signed, but that the interest was not intended to ln- 
 forgiven at all. 
 
 If this is the true construction of the agreement, the judgment 
 appealed against is right and should be affirmed, whether the reason 
 on which the Court of Appeal founded its judgment was right or 
 not. 1 am, however, of opinion that the courts below, who on this 
 point were unanimous, put the true construction on the memoran- 
 dum. I do not think the question free from difficulty. It would 
 have been easy to have expressed, in unmistakable words, that on 
 payment down of £500, and punctual payment at the rate of 
 £300 a year till £2090 19s. was paid, the judgment should not 
 be enforced either for principal or interest ; or language might 
 have been used which should equally clearly have expressed that. 
 though time was to be given, interest was to be paid in addition to 
 tin; instalments. The w r ords actually used are such that I think 
 it is quite possible that the two parties put a different construction 
 <m the words at the time; but I think the words " till the said 
 sum of £2090 19s. shall have been fully paid and satisfied " cannot 
 be construed as meaning "till that sum, with interest from the 
 day judgment was signed, shall have been fully paid and satisfied," 
 nor can the promise "not to take any proceedings whatever on the
 
 ACCORD AND SATISFACTION. 377 
 
 No. 2. — Foakes v. Beer. 
 
 judgment" be cut down to meaning any proceedings except those 
 necessary to enforce payment of interest. 
 
 I think, therefore, that it is necessary to consider the ground on 
 which the Court of Appeal did base their judgment, and to say 
 whether the agreement can be enforced. I construe it as accepting 
 and taking £500 in satisfaction of the whole £2090 19s., subject 
 to the condition that unless the balance of the. principal debt was 
 paid by the instalments, the whole might be enforced with interest. 
 If instead of £500 in money it had been a horse valued at £500, 
 or a promissory note for £500, the authorities are that it would 
 have been a good satisfaction ; but it is said to be otherwise as it 
 was money. 
 
 This is a question, I think, of difficulty. 
 
 In Co. Lit 212 b, Lord Coke says: "Where the condition is for 
 payment of £20, the obligor or feoffor cannot at the time appointed 
 pay a lesser sum in satisfaction of the whole, because it is apparent 
 that a lesser sum of money cannot be a satisfaction of a greater. 
 ... If the obligor or feoffor pay a lesser sum either before the 
 day or at another place than is limited by the condition, and the 
 obligee or feoffee receiveth it, this is a good satisfaction." For this 
 he cites Pinners Case. That was an action on a bond for £1G con- 
 ditioned for the payment of £8 10s. on the 11th of November, 
 1600. Plea, that defendant, at plaintiffs request, before the said 
 day, — to wit, on the 1st of October, — paid to the plaintiff 
 £5 2s. 2d. which the plaintiff accepted in full satisfaction of the 
 £8 10s. The plaintiff had judgment for the insufficient pleading. 
 But though this was so, Lord Coke reports that it was resolved 
 by the whole Court of Common Pleas " that payment of a lesser 
 sum on the day in satisfaction of a greater cannot be any satis- 
 faction for the whole, because it appears to the Judges that by uo 
 possibility a lesser sum can be a satisfaction to the plaintiff for a 
 greater sum ; but the gift of a horse, hawk, or robe, &c, in satis- 
 faction, is good. For it shall be intended that a horse, hawk, or 
 robe, &c, might be more beneficial to the plaintiff than the money 
 in respect of some circumstance, or otherwise the plaintiff would 
 not have accepted of it in satisfaction. But when the whole 
 sum is due, by no intendment the acceptance of parcel can be 
 a satisfaction to the plaintiff; but in the case at bar it was 
 resolved that the payment and acceptance of parcel before the 
 clay in satisfaction of the whole would be a good satisfaction in
 
 378 ACCOUD AND SATISFACTION. 
 
 No. 2. — Foakes v. Beer. 
 
 regard of circumstance of time ; for peradventure parcel of it 
 before the day would be more beneficial to him than the whole at 
 the day, and the value of the satisfaction is not material. So if I 
 am bound in £20 to pay you £10 at Westminster, and you request 
 me to pay you £5 at the day at York, and you will accept it in full 
 satisfaction for the whole £10, it is a good satisfaction for the whole, 
 for the expenses to pay it at York is sufficient satisfaction." 
 
 There are two tilings here resolved. First, that where a matter 
 paid and accepted in satisfaction of a debt certain might by any pos- 
 sibility be more beneficial to the creditor than his debt, the court will 
 not inquire into the adequacy of the consideration. If the creditor, 
 without any fraud, accepted it in satisfaction when it was not a 
 sufficient satisfaction, it was his own fault; and that payment before 
 the day might be more beneficial, and consequently that the plea 
 was in substance good, and this must have been decided in the case. 
 
 There is a second point stated to have been resolved, — namely, 
 " That payment of a lesser sum on the day cannot be any satis- 
 faction of the whole, because it appears to the Judges that by no 
 possibility a lesser sum can be a satisfaction to the plaintiff for a 
 greater sum." This was certainly not necessary for the decision 
 of the case ; but though the resolution of the Court of Common 
 Pleas was only a dictum, it seems to me clear that Lord Cork 
 deliberately adopted the dictum, and the great weight of his 
 authority makes it necessary to be cautious before saying that 
 what he deliberately adopted as law was a mistake. And though 
 T cannot find that in any subsequent case this dictum has been 
 made the ground of the decision, — except in Fitch v. Sutton, supra, 
 as to which I shall make some remarks later, and in Down v. 
 Hatcher, supra, as to which Mr. Baron Pabke in Cooper v. Parker, 
 15 Com. B Rep. 828; 24 Law J. Rep. C. P. 6S, said, "Whenever 
 tin- question may arise as to whether Down v. Hotelier, supra, is 
 good law, 1 should have a great deal to say against it," — yet there 
 certainly are cases in which great Judges have treated the dictum 
 in PinneVs Case, supra, as good law. 
 
 For instance, in Sibree v. Tripp, sup, -a, Mr. Baron Parke says, 
 " It is clear if the claim be a liquidated and ascertained sum, pay- 
 ment of part cannot be satisfaction of the whole, although it 
 may under certain circumstances be evidence of a gift of the 
 remainder." And Mr. Baron Alderson, in the same case, says, 
 " It is undoubtedly true that payment of a portion of a liquidated
 
 ACCORD AND SATISFACTION. 379 
 
 No. 2. — Foakes v. Beer. 
 
 ■demand in the same manner as the whole liquidated demand which 
 ought to be paid is payment only in part, because it is uot one 
 bargain but two, — namely, payment of part, and an agreement 
 without consideration to give up the residue. The courts might 
 very well have held the contrary and have left the matter to the 
 ■agreement of the parties, but undoubtedly the law is so settled." 
 After such strong expressions of opinion, I doubt much whether 
 any Judge sitting in a court of first instance would be justified in 
 treating the question as open. But as this has very seldom, if at 
 all, been the ground of the decision even in a court of first in- 
 stance, and certainly never been the ground of a decision in the 
 Court of Exchequer Chamber, still less in this House, 1 did think 
 it open in your Lordships' House to reconsider this question. 
 And, notwithstanding the very high authority of Lord Coke, 1 
 think it is not the fact that to accept prompt payment of a part 
 only of a liquidated demand can never be more beneficial than 
 to insist on payment of the whole. And if it be not the fact, it 
 cannot be apparent to the Judges. 
 
 1 will first examine the authorities. If a defendant pleaded 
 the general issue, the plaintiff could join issue at once, and, if the 
 case was not defended, get his verdict at the next assizes. But by 
 pleading a special plea the plaintiff was obliged to reply; and the 
 defendant often caused the plaintiff, merely by the delay occa- 
 sioned by replying, to lose an assize. If the replication was one 
 to which he could demur, he made this sure. Strangely enough, 
 it seems long to have been thought that if the defendant kept 
 "within reasonable bounds, neither he nor his lawyers were to blame 
 in getting time in this way by a sham plea that a chattel was 
 given and accepted in satisfaction of the debt. The recognised 
 forms were giving and accepting in satisfaction a beaver hat, 
 ■{Youny v. Rudd, 5 Mod. 86), or a pipe of wine, 3 Chit. Plead. (7th 
 ed.) 92. All this is now antiquated. But whilst it continued to 
 be the practice, the pleas founded on the first part of the resolu- 
 tion in Pinnel's ('use, supra, were very common; and that law was 
 perfectly trite. No one for a moment supposed that a beaver hat 
 was really given and accepted ; but every one knew that the law was 
 that if it was really given and accepted, it was a good satisfaction. 
 
 But special pleas founded on the other resolution in J'iniiiTs 
 Case, supra, on what I have ventured to call the dictum, were 
 certainly not common. I doubt if a real defence of this sort was
 
 380 ACCORD AND SATISFACTION. 
 
 No. 2. — Foakes v. Beer. 
 
 ever specially pleaded. When there really was a question as to 
 whether a debt was satisfied by a payment of a smaller sum, the 
 defendant pleaded the general issue ; and if it was proved to the 
 satisfaction of the jury that a smaller sum had been paid and 
 accepted in satisfaction of a greater, if objection was raised, the 
 jury might perhaps, as suggested by Mr. Justice Holroyd in Thomas 
 v. Heat/torn, supra, find that the circumstances were such that the 
 legal effect was to be as if the whole was paid clown and a portion 
 thrown back as a God's-penny. This, however, seems to me to be 
 an unsatisfactory and artificial way of avoiding the effect of the 
 dictum, and it could not be applied to such an agreement as that 
 now before this House. 
 
 For whatever reason it was, I know of no case in which the 
 question was raised whether a payment of a lesser sum could be 
 satisfaction of a liquidated demand, from Pinnel's Case, supra, down 
 to Cumber v. Wane, supra, — a period of 115 years. 
 
 In Adams v. Tapling, supra, where the plea was bad for many 
 other reasons, it is reported to have been said by the court that, 
 " in covenant where the damages are uncertain, and to be recov- 
 ered, as in this case, a lesser thing maybe done in satisfaction; 
 and there accord and satisfaction is a good plea." No doubt this 
 was one of the cases which Mr. Baron Parke would have cited in 
 support of his opinion that Down v. Hatcher, supra, was not good 
 law. The court are said to have gone on to recognise the dictum 
 in Pinners Case, supra, or at least not to dissent from it; but it 
 was not the ground of their decision. In every other reported 
 case which I have seen the question arose on a demurrer to a 
 replication to what was obviously a sham or dilatory plea. 
 
 Some doubt has been made as to what the pleadings in Cumber 
 v. Wane, supra, really were. I have obtained the record. The 
 plea is that after the promises aforesaid, and before the issuing of 
 the writ, it was agreed between the said George and Edward 
 Cumber that he, the said George, " da ret eidem Edwardo Cumber 
 quandam notam in script, vocatam 'a promissory note,' manu pro- 
 pria ipsius Georgii subscript, pr. solucbn eidem Edwardo Cumber ret 
 ordini quinque libra rum," fourteen days after date, in full satisfac- 
 tion and exoneration of the premises and promises, which said note 
 in writing the said George then gave to the said Edward Cumber; 
 and the said Edward Cumber then and there received from the 
 said George the said note in full satisfaction and discharge of the 
 premises and promises.
 
 A.CC0U1J ANH SATISFACTION. 3S1 
 
 No. 2. — Foakes v. Beer. 
 
 The replication is that "the said George did not give to him, 
 Edward, any note in writing called a promissory note with the 
 hand of him, George, subscribed for the payment to him, Edward, 
 
 or his order, £5, fourteen days after date, in full satisfaction and 
 discharge of the premises and promises." To this there is a demur- 
 rer and judgment in the Common Pleas for the plaintiff " that the 
 replication was good in law." 
 
 The reporter, oddly enough, says there was an immaterial repli- 
 cation. The effect of the replication is to put in issue the sub- 
 stance of the defence, — namely, the giving in satisfaction ( Youny 
 v. Rudd, swpra)\ and certainly that was not immaterial. But for 
 some reason — I do not stop to inquire what — Chief Justice 
 Pratt prefers to base the judgment, affirming that of the Common 
 Pleas, on the supposed badness of the plea rather than on the 
 sufficiency of the replication. It is impossible to doubt that the 
 note, which it is averred in the plea was given as satisfaction, was 
 a negotiable note. And therefore this case is in direct conflict 
 with Sibree v. Trip}), supra. 
 
 Two cases require to be carefully considered. The first is Heath- 
 cote v. Crookshanks, supra. The plea there pleaded would, I think, 
 now be held perfectly good, — see Norman v. Thompson, 4 Exch. 
 Rep. 755; 19 Law J. Rep. Exch. 193; but Mr. Justice Puller 
 seems to have thought otherwise. He says, " Thirdly, it was said 
 that all the creditors were bound by this agreement to forbear; but 
 that is not stated by the plea. It is only alleged that they agreed 
 to take a certain proportion ; but that is a nudum pactum, unless 
 they had afterwards accepted it. In the case in which Cumber 
 v. Wane, supra, was denied to be law, — Hani castle v. Howard, — 
 the party actually accepted. But as the plaintiff in the present 
 case refused to take less than the whole demand, the plea is clearly 
 bad.'' 
 
 That decision goes entirely on the ground that accord without 
 satisfaction is not a plea. I do not think it can fairly lie said that 
 Mr. Justice Buller meant, by saying "that is a malum pactum. 
 unless they had afterwards accepted it," to express an opinion that 
 if the dividend had been accepted, it would have been a good 
 satisfaction. But he certainly expresses no opinion the other 
 way. 
 
 In Fitch v. Sutton, 5 East, 230, not only did the plaintiff not 
 accept the payment of the dividend in satisfaction, but he refused
 
 382 ACCORD AND SATISFACTION. 
 
 No. 2. — Foakes v. Beer. 
 
 to accept it at all unless the defendant promised to pay him the 
 balance when of ability, and the defendant assented and made the 
 promise required ; so that but for the fact that other creditors- 
 were parties to the composition, there could have been no defence. 
 There was no point of pleading in that case, the whole being open 
 under the general issue. And in Steinman v. Magnus, 11 East, 390, it 
 was pretty well admitted by Lord Ellexborough that the decision 
 in Fitch v. Sutton, supra, would have been the other way if they 
 had understood the evidence as the reporter did. But though 
 the misapprehension of the Judges as to the facts, and the absence 
 of any acceptance of the dividend, greatly weaken the weight of 
 Fitch v. Sutton, supra, still it remains that Lord Ellenborough — 
 a very great Judge indeed — did, however hasty or unnecessary it 
 may have been to express such an opinion, say, " It is impossible 
 to contend that acceptance of £17 10s. is an extinguishment of 
 a debt of £50. There must be some consideration for the relin- 
 quishment of the residue, — something collateral to show a possi- 
 bility of benefit to the party relinquishing his further claim, — 
 otherwise the agreement is nudum pactum. But the mere promise 
 to pay the rest when of ability put the plaintiff in no better con- 
 dition than he was before. It was expressly determined in Cumber 
 v. Wane, supra, that acceptance of a security for a lesser sum can- 
 not be pleaded in satisfaction of a similar security for a greater. 
 And though that case was said by me in argument in Heathcote 
 v. Crookshanks, supra, to have been denied to be law, and in con- 
 firmation of that Mr. Justice Buller afterwards referred to a case 
 (stated to be that of Hardcastle v. Howard, Hilary Term, 26- 
 Geo. III.), yet I cannot find any case of that sort, and none has 
 been now referred to ; on the contrary, the decision in Cumber v. 
 Wane, supra, is directly supported by the authority of Pirmel'& 
 Case, supra, which never appears to have been questioned." 
 
 I must observe that, whether Cumber v. Wane, supra, was or 
 was not denied to be law in Hardcastle v. Howard, it certainly 
 was denied to be law in Sibree v. Tripp, supra ; and that, though. 
 it is quite true that FinneVs Case, supra, as far as regards the 
 points actually raised in the case, has not only never been ques- 
 tioned, but is often assented to, I am not aware that in any case 
 before Fitch v. Sutton, supra, unless it be Cumber v. Wane, supra r 
 has that part of it which I venture to call the dictum ever been 
 acted upon ; and, as I have pointed out, had it not been for the
 
 ACCORD AND SATISFACTION. 383 
 
 No. 2. Foakes v. Beer. 
 
 composition with other creditors, there could have been no defence 
 in Fitch v. Sutton, supra, whether the dictum in Pinners Case, 
 supra, was right or wrong. 
 
 Still, this is an authority, and T have no doubt that it was on the 
 ground of this authority, and the adhesion of Mr. Justice Bayley 
 to it in Thomas v. Heatlurrn, supra, that Barons PARKE and 
 Alderson expressed themselves as they did in the passages I 
 have cited from Sibree v. Tripp, supra ; and I think that their 
 expressions justify Mr. John William Smith in laying it down 
 as he does in his note to Cumber v. Wane, supra, in the second 
 edition of his Leading Cases, that "a liquidated and undisputed 
 money demand, of which the day of payment is past (not founded 
 upon a bill of exchange or promissory note), cannot even with 
 the consent of the creditor be discharged by mere payment by the 
 debtor of a smaller amount of money in the same manner as he 
 was bound to pay the whole." I am inclined to think that this 
 was settled in a court of first instance. I think, however, that it 
 was originally a mistake. 
 
 What principally weighs with me in thinking that Lord COKE 
 made a mistake of fact is my conviction that all men of business, 
 whether merchants or tradesmen, do every day recognise and act 
 on the ground that prompt payment of a part of their demand may 
 be more beneficial to them than it would be to insist on their 
 rights and enforce payment of the whole. Even where the debtor 
 is perfectly solvent, and sure to pay at last, this often is s<>. 
 Where the credit of the debtor is doubtful, it must be more so. 
 1 had persuaded myself that there was no such long-continued 
 action on this dictum as to render it improper in this House to 
 reconsider the question. I had written my reasons for so think- 
 ing; but as they were not satisfactory to the other noble and 
 learned Lords who heard the case, 1 do nut now repeat them nor 
 persist in them. 
 
 I assent to the judgment proposed, though it is not that which I 
 had originally thought proper. 
 
 Lord Watson. I am of opinion that the judgment of the Court 
 of Appeal ought to be affirmed. 
 
 I regret that I have been unable to adopt that construction of 
 the memorandum of agreement which has commended itself to 
 your Lordships who have already spoken, as well as to the Judges 
 of the Court of Appeal. It humbly appears to me that the
 
 384 ACCORD AND SATISFACTION. 
 
 No. 2. — Foakes v. Beer. 
 
 respondent did not intend to pass, and did not pass from her legal 
 claim for interest on the judgment debt due to her by the appellant. 
 She undertakes not to take proceedings on the judgment, provided 
 the stipulated termly instalments are regularly paid, " until the 
 whole of the said sum of £2090 19s. shall have been fully paid and 
 satisfied." But these words, "the said sum," ought, in my opinion, 
 to be construed as referring to the sum of £2090 19s. previously 
 described as being contained in a judgment of Her Majesty's High 
 Court of Justice, and therefore bearing interest ex lege. The whole 
 context of the memorandum appears to me to be consistent with 
 this view, and to point strongly to the inference that there was no 
 agreement, or even proposal, that the respondent should make any 
 abatement of her legal claims, or do more than give her debtor 
 time on the conditions expressed, " to pay such judgment." 
 
 I must assume, however, that I have wrongly construed the 
 memorandum of agreement, and that its language" imports that the 
 respondent was to abstain from taking proceedings upon the judg- 
 ment, if and when instalments to the amount of £2090 19s. had 
 been duly and regularly paid. Upon that assumption I am still 
 of opinion that the respondent ought to prevail, on the simple 
 ground that, in that view of the memorandum, her agreement to 
 abate part of her claim was nudum pactum, for which the appel- 
 lant gave no legal consideration. 
 
 I do not think it necessary to consider whether it would still be 
 open to this House, if so advised, to overrule the doctrine of 
 Cumber v. Wane, supra, and Pinners Case, supra, because I am 
 not prepared to disturb that doctrine. Nor do I think it necessary 
 to occupy the time of the House with a detailed explanation of the 
 considerations which have led me to that result, seeing that I con- 
 cur in the judgment of the LORD CHANCELLOR and of my noble 
 and learned friend opposite. 
 
 Lord FitzGerald. The first question is as to the true construc- 
 tion of the memorandum of agreement of the 21st of December, 
 1 S 7 6 , and I express my opinion on it with the greatest diffidence. 
 My excuse for expressing any opinion upon it is that 1 feel rather 
 strongly on the point. The memorandum is, it may be observed, 
 unilateral ; for Dr. Foakes by it assumes no obligation. 
 
 The first recital is that Mrs. Beer had obtained a judgment 
 against Dr. Foakes for a sum of £2090 19s. The judgment would 
 not per se, at common law, entitle the plaintiff to interest ; but
 
 ACCORD AND SATISFACTION. 385 
 
 No. 2. — Foakes v. Beer. 
 
 the statute of 1 & 2 Vict. c. 110, § 17, provides " that every judg- 
 ment debt shall carry interest at the rate of four pounds per 
 centum per annum from the time of entering up the judgment . . . 
 until the same shall be satisfied, and such interest may be levied 
 under a writ of execution on such judgment." 
 
 This right to interest is different from interest arising on con- 
 tract, or which a jury may give as damages or may withhold. It 
 is a clear statutory right, arising immediately on entering 'up the 
 judgment, and continuing until the judgment debt is fully paid. 
 The position of the parties at the date of the agreement, then, was 
 that Dr. Foakes owed Mrs. Beer the principal sum of £2090 19s., 
 recovered by a judgment which carried interest at four per cent., 
 arising de die in diem as a statutory right, and then (that is, at 
 the time of the agreement) amounted to £113 16s. 2d. 
 
 The agreement then contains this recital : " And whereas the 
 said J. W. Foakes has requested the said Julia Beer to give him 
 time in which to pay such judgment, which she has agreed to do 
 on the following conditions." He does not ask for any remission 
 of any portion of his obligation ; he solicits only time for pay- 
 ment, and she agrees to give him that time and no more. 
 
 It seems to me clear and free from doubt that "such judgment" 
 in this recital would, if there was no more to guide us, mean the 
 judgment debt with its statutable interest at four per cent. The 
 language of the recital and of the whole agreement seems to 
 be that of Mr. Smith, the defendant's solicitor, as we find in 
 Mackreth's evidence this statement: "The agreement was pre- 
 pared by Smith and sent to me, and I approved of it on behalf of 
 Mrs. Beer." 
 
 Returning to the language of the agreement, it is remarkable 
 that Dr. Foakes undertakes by it no obligation whatever ; he does 
 not bind himself to pay any instalment to her or to her "nominee," 
 and it was not necessary that he should; fur I can entertain no 
 doubt that if what is called the "condition" for payment of the 
 instalments had not been fulfilled, then Mrs. Beer could have 
 enforced the whole residue of her demand for principal and the 
 interest that accrued, by execution on the judgment. Dr. Foakes 
 enters into no obligation to pay to her " nominee ; " and this 
 seems to displace, in fact, the foundation of the judgment of 
 the Divisional Court, where Mr. Justice Williams is reported 
 to have said, "The doctrine is that an agreement to pay a less 
 vol. i. — 25
 
 386 ACCORD AND SATISFACTION. 
 
 No. 2. — Foakes v. Beer. 
 
 sum in satisfaction of a debt is without consideration. The 
 English law forbids such an agreement. That is the law in its 
 naked simplicity. But I think a very little departure from the 
 mere agreement to pay a less sum will make the agreement good. 
 If the creditor says, ' You owe me a large sum of money ; I am 
 willing to accede to your request for time, but you must enter 
 into an agreement in writing, at your expense (as it would be), 
 and you shall pay the money to me or to any person I may name 
 at my election.' That, I think, is enough to make this agreement 
 not a nudum, 'pactum." There is no such thing in the agreement 
 here. And Air. Justice Matiiew adds, "It is noticeable that the 
 agreement is framed so that it casts an obligation which would 
 not otherwise have existed. The agreement to pay the creditor's 
 nominee renders it a document available as a security." It would 
 seem, to me, at least, that the terms of the agreement had never 
 been properly conveyed to the minds of the Judges ; for, in fact. 
 Dr. Foakes assumed no greater obligation than the law imposed 
 on him in respect of the judgment. 
 
 The expressed consideration is the payment to Airs. Beer " of the 
 sum of £500 in part satisfaction of the said judgment debt of 
 £2090 19s. ;" and again, I should repeat here that the last words 
 would mean the debt, and the right to interest which it carried, if 
 there is nothing subsequent to impose a different meaning. The 
 term "satisfaction" is specially applicable to a judgment. You 
 could not in former times plead payment simply to a scire facias 
 on a judgment. The plea should show satisfaction. The judgment 
 would not be satisfied on payment of the £2090 19s., but only by 
 payment of that sum and the interest. The agreement then pro- 
 vides, as a condition, for the payment of the instalments of £150 
 "until the whole of the said sum of £2090 19s. shall have been 
 fully paid and satisfied." The whole difficulty arises on this pas- 
 sage. If in place of using the word "sum" it had used "judg- 
 ment" or "judgment debt," in my opinion there could have been 
 but one construction, — namely, that "judgment" or "judgment 
 debt" meant the principal sum of £2090 19s., with "interest at 
 four per cent." Now, having regard to what the parties were at, 
 why should we not read "the said sum of £2090 19s." by the 
 light of the antecedent parts of the same agreement as meaning 
 "the said judgment for £2090 19s.," and thus do full and complete 
 justice, and not deprive Mrs. Beer of about £350 as justly due to
 
 ACCORD AND SATISFACTION. 387 
 
 No. 2. — Foakes v. Beer. 
 
 her as the £2090 19s., and which, it is to ine manifest, she never 
 intended and was never asked to relinquish I There is a special 
 recital indicating what the parties intended, — namely, "time on 
 certain conditions," — but without a word as to relinquishing any 
 part of the plaintiffs demand; and if the subsequent words are 
 more general, we should limit and qualify them by the special lan- 
 guage of the recital. 
 
 Dr. Foakes did not ask for any remission : he asked for time, and 
 for time alone ; and we ought to assume that when his solicitor pre- 
 pared and furnished the memorandum of agreement he did not 
 intend by its language that any part of Mrs. Beer's demand was t<> 
 be released. Mackreth says that in the course of the negotiation 
 "interest was never mentioned at all in reference to that agree- 
 ment." She adopted the language of the memorandum, and it 
 became hers ; but was it such as to lead Dr. Foakes to understand 
 that Mrs. Beer agreed, on performance of the condition, to give up 
 her claim to interest? 
 
 I think that we ought not to adopt such a conclusion. 
 
 There are many authorities for the proposition that you may 
 limit the general words of release by the antecedent recitals so as to 
 effectuate that alone which was within the intention of the parties. 
 I might refer to a number of cases, — for example, Thorpe v. Thorpe,. 
 1 Ld. Ray in. 235, where it is said per cur.: " Where there are gen- 
 eral words only in a release, they shall be taken most strongly 
 against the releasor; . . . but where there is a particular recital, 
 and then general words follow, the general words shall be qualified 
 by the. special words." 
 
 Applying that rule to the present case, you may limit the gen- 
 eral words at the conclusion of the memorandum to the giving of 
 time alone ; that is to say, if "judgment debt of £2090 19s." means 
 the sum of £2090 19s. and nothing more, then that Mrs. Beer 
 agrees to give time for payment of the principal debt of £2090 19s. 
 by the instalments, and at the times indicated, and that, pending 
 that arrangement, she " would not take any proceedings whatever 
 on the said judgment." This would give effect to every word and 
 leave the " interest " untouched, which, if the principal is to be 
 paid by instalments, could not well be ascertained until the time 
 had been reached for the payment of the last instalment. There 
 is nothing in the memorandum, it should be observed, to prevent 
 Dr. Foakes from coming in at any time and discharging the whole
 
 388 ACCORD AND SATISFACTION. 
 
 No. 2. — Foakes v. Beer. 
 
 principal before the instalments became payable. Upon the con- 
 struction of the memorandum, 1 am of opinion that the decision of 
 the Court of Appeal should be affirmed. 
 
 The second question now presents itself; but with my view on 
 the first it is not actually necessary for me to express any opinion 
 on it, but it seems more satisfactory that I should do so. Assum- 
 ing that I have fallen into error in interpreting the agreement, and 
 that it is to be read that if Dr. Foakes should pay the actual sum 
 of £2090 19s. by instalments according to the condition, she would 
 relinquish her statutable claim for interest and not issue execution 
 on the judgment to recover it, is such an agreement nudum pac- 
 tum, and therefore incapable of being enforced? 
 
 I have listened with much interest, and, I may add, with no 
 small instruction, to the judgment of my noble and learned friend 
 Lord Blackburn. He has as usual gone to the very foundation, 
 and I regret that I have been unable to assist him in overturning 
 the resolution of the Court of Common Pleas as reported by Lord 
 Coke in Pinnel's Case, supra, or in expunging from the books the 
 infinitesimal remains of Cumber v. Wane, supra. It seems to me 
 somewhat doubtful whether the question arises which my noble 
 and learned friend has presented, — namely, whether payment of a 
 part of a debt ascertained by judgment can be a satisfaction of the 
 whole. In the case before us the whole of the £2090 19s., the 
 principal of the judgment, has been paid to the last farthing. 
 
 The interpretation put by the Judges of the courts below, and 
 adopted by the Lord Chancellor and my noble and learned friend 
 Lord BLACKBURN, on the memorandum, seems to me to divide it, in 
 effect, into two stipulations, the first being that, if Dr. Foakes 
 should pay down £500 and the remainder of the actual sum of 
 £2090 19s. in the manner prescribed, Mrs. Beer would so accept 
 it, and, pending the payments, would take no proceeding on the 
 judgment; and the second being that if the £2090 19s. should be 
 paid iir the manner indicated, she would relinquish her claim for 
 interest, and would not take any proceedings whatever on the judg- 
 ment to enforce that interest. The question is, whether there is 
 any sufficient legal consideration for the relinquishment of the debt 
 for interest. I am clearly of opinion that there is not. 
 
 My noble and learned friend Lord Blackburn has shown us very 
 clearly that the resolution in Pinnel's Case, supra, was not necessary 
 for the decision of that case, and that the principle on which it
 
 ACCORD AND SATISFACTION. 389 
 
 No. 2. — Foakes v. Beer. 
 
 seems to rest does not appear to have been made the foundation of 
 any subsequent decision of the Exchequer Chamber or of this 
 House, and, further, that some of the distinctions which have been 
 engrafted on it make the rule itself absurd. But it seems to me 
 that it is not the rule which is absurd, but some of those distinc- 
 tions emanating from the anxiety of Judges to limit the operation 
 of a rule which they considered often worked injustice. That 
 resolution in PinneVs Case, supra, has never been overruled. For 282 
 years it seems to have been adopted by our Judges. During that 
 whole period it seems to have been understood and taken to be 
 part of our law that the payment of a part of a debt then due and 
 payable cannot alone be the foundation of a parol satisfaction and 
 discharge of the residue, as it brings no advantage to the creditor, 
 and there is no consideration moving from the debtor, who has done 
 no more than partially to perforin his obligation. Though it may 
 not have been made the subject of actual decision, yet we find that 
 every Judge in this country who has had occasion to deal with the 
 proposition states the law to be so. And in the sister country it 
 has always been so received ; and in the case of The Corporation of 
 Drogheda v. Fairtlough, 8 Ir. C. L. Rep. 98, 110, 114, Chief Justice 
 Lefkoy thus expresses himself. (I may say that his language is 
 entitled to very considerable weight ; he was a Judge who had sat 
 at the feet of Lord Kenyon, and he was the well-known reporter of 
 the decisions of Lord Redesdale.) That very learned Judge thus 
 states the law : " There is also a failure of evidence of consideration 
 for the contract to remove the rule of the common law that pay- 
 ment of a less sum cannot be a satisfaction of a greater liquidated 
 sum unless there is some further advantage accompanying the pay- 
 ment." And in another part of his judgment he puts the proposi- 
 tion thus: "The payment merely of a less sum, not being in 
 pursuance of any contract by deed, cannot by the common law be 
 deemed to be a satisfaction of a greater liquidated sum; but the 
 law will allow the payment of a smaller sum to be a satisfaction of 
 a greater liquidated sum if there be any collateral advantage, how- 
 ever small, to the creditor attending the transaction." The ques- 
 tion did arise directly in that case, but the plea failed in other 
 points, and it was therefore not necessary actually to decide it. 1 
 refer to it as showing how a Judge of great experience considered 
 the law to stand. 
 
 I am not aware of any decision that controverts this position.
 
 390 ACCORD AND SATISFACTION. 
 
 Nos. 1, 2. — Pinners Case, &,c. — Notes. 
 
 and the text-books uniformly present it thus: that "the payment 
 of part of a liquidated and ascertained sum is in law no satisfaction 
 of the whole." The proposition itself is but a part of a rule of our 
 law which affects and governs many of the daily relations of life, 
 Nuda pactio obligationem non parit. And again the law says that 
 nudum pactum est uhi nulla subest causa prceter conventionem. 
 
 I should hesitate before coming to a decision which might be a 
 serious inroad on that rule, but I concur with my noble and learned 
 friend that it would have been wiser and better if the resolution in 
 J'iiinel's Case, supra, had never been come to, and there had been no 
 occasion for the long list of decisions supporting composition with 
 a creditor on the rather artificial consideration of the mutual con- 
 sent of the other creditors. We find the law t<> have been accepted 
 as stated for a great length of time, and I apprehend that it is not 
 now within our province to overturn it. 
 
 The short question then is in relation to a judgment debt pay- 
 able immediately, and on which the creditor is entitled to have 
 execution: Is the payment by the debtor of a part a sufficient con- 
 sideration to support a parol agreement by the judgment creditor 
 not to take any proceedings whatever on the judgment for the resi- 
 due ? In my opinion it is not; and 1 think, therefore, that the 
 judgment of the Court of Appeal should be affirmed. 
 
 Order appealed from ajjirmed ; and appeal dismissed with 
 costs. 
 
 ENGLISH NOTES. 
 
 By the decision in Foakes v. Beer it appears that all the rules in 
 PlnneVs Case are confirmed as existing law by the highest authority. 
 It is therefore unnecessary to go in detail through the intermediate cases. 
 It is sufficient to remark that it has been clearly established on the au- 
 thority of Sibree v. Tripp (1846), 15 M. & W. 23; 15 L. J. Exch. 318, that 
 a negotiable security is within the rule of a horse. &c, under the 3rd para. 
 cf the rule; and therefore a negotiable security, such as a promissory 
 note, for a smaller amount may be given and accepted in satisfaction 
 of a debt of greater amount; and for this purpose it is not necessary 
 that the note should be paid at maturity. This was followed by the 
 Queen's Bench Division in Goddard v. O'Brien (1882), 9 Q. B. D. 37, 
 where the plaintiff had given a receipt for a cheque for £100 in settle- 
 ment for an account of a larger sum " on the cheque being honoured.'" 
 The cheque having been honoured, there was held to be a good accord 
 and satisfaction. Both these cases are referred to, and not in any way 
 impugned, in the judgment of Lord Selrorxe in Foakes v. Beer 
 ({>. 375, suprt,
 
 ACCORD AND SATISFACTION. 391 
 
 Nos. 1, 2. — Pinnel's Case, &-c. — Notes. 
 
 The accord is a question of fact. In Day v. M'Lea (G. A. 1889), 
 22 Q. B. 1). 610; 58 L. J. G. B. 293, the defendant, against whom the 
 plaintiff had an unliquidated claim, had sent the plaintiff a cheque " in 
 full of all demands," and the plaintiff had kept the cheque, stating that 
 he did so " on account," and asking a cheque for the balance of his claim. 
 The defendant had written back stating that the payment had been made 
 in full of all demands, and asking for a receipt in full. ChAKLES, J., 
 who tried the case, held, that whether there was or was not an accord 
 was a question of fact; and he drew the inference that there was not, 
 and gave judgment for the plaintiff. The Court of Appeal affirmed 
 this judgment. 
 
 AMERICAN NOTES. 
 
 1. It is the universal rule of the American cases that a parol promise to 
 accept a smaller sum, or payment of a smaller sum, where a certain amount 
 is due, although accepted in full, is no satisfaction. Harrison v. Close, 2 
 Johnson (New York), 448; •"> Am. Dec. 445; Twitchcll v. Shaw, 10 dishing 
 (Mass.), 40; 57 Am. Dec. 80; Rose v. Hall. 26 Connecticut, 392; 08 Am. 
 Dec. 402; Weber v. Coach. 134 Massachusetts, 26; 4."i Am. Rep. 274 (release 
 of judgment) ; Seymour v. Minturn, 17 Johnson (New York), 169 ; 8 Am. Dec. 
 38l * ; Bunge v. Koop, 48 New York, 225 ; 8 Am. Rep. 546 ; Pearson v. Thomason, 
 15 Alabama, 700; 50 Am. Dec. 159 ; Daniels v. Hatch, 1 Zabriskie (Xew Jersey), 
 391 ; 47 Am. Dec. 169; Deland v Hiett, 27 California, 611 ; 87 Am. Dec. 102; 
 Bird v. Smith. 34 Maine. 63 ; 50 Am. Dec. 035; Martin v. Frantz, 127 Peun. St. 
 389; 14 Am. St. Rep. 859 ; Oberndorfx. Union Bank, 31 Maryland. 120; 1 Am. 
 Rep. 31. See note, 04 Am. Dec. 138. 
 
 2. The receipt of $100 and a cow in full of a judgment for $200 discharges 
 the judgment. (Citing Pinnel's Case); Nealx. Handle)/. 110 Illinois, 418; 56 
 Am. Rep. 784. Same principle, Jones v. Bullitt. 2 Littell (Kentucky), 49 ; Savage 
 v. Everman, 70 Penn. St. 315 ; Bull v. Bull, 43 Connecticut, 455 ; Strang v. 
 Holmes, 7 Cowen (New York), 224. So of an agreement to accept a smaller sum 
 if the debtor would pay the costs of a pending suit, which he did. Mitchell v. 
 Wheaton, 46 Connecticut, 315 ; 33 Am. Rep. 24. The court said : ' ; We have 
 here a consideration additional to the payment of the $150 by the defendant." 
 " The costs of the pending suit the defendant did not at the time owe the plain- 
 tiff, and it was not certain that he ever would. That would depend upon the 
 result of the suit. At all events, the plaintiffs had no claim against him for 
 the costs of the suit when the settlement was made, and this brings the case 
 within the doctrine of the cases referred to." So where a house and lot was 
 accepted. Savage v. Everman, 70 Penn. St. 315; 10 Am. Rep. 676. So where 
 the creditor accepted the debtor's note for half a book account, secured by 
 mortgage. Jaffray v. Davis, 124 New York, 164, citing both the principal 
 cases. The court say, after citing Pinnel's Case, " This simple question " (the 
 simple acceptance of a less sum) "has since arisen in the English courts and 
 in the courts of this country in almost numberless instances, and has received 
 the same solution, notwithstanding the courts, while so ruling, have rarely 
 failed, upon any recurrence of the question, to criticise and condemn its
 
 392 ACCORD AND SATISFACTION. 
 
 Nos. 1, 2. — Piiniel's Case, &/C. — Notes. 
 
 reasonable justice, fairness, or honesty. No respectable authority that I 
 have been able to find, has, after such unanimous disapproval by all the 
 courts, held otherwise than was held in PinnePs Case," &c. " But . . . they 
 have seemed to seize with avidity upon any consideration to support the 
 agreement to accept the lesser sum in satisfaction of the larger," &c. This 
 case gives a very learned review of the authorities. So of the acceptance of 
 the debtor's own note for a less sum, on account of "the increased facilities 
 of recovering upon it, the presumption of a consideration for it, the ease of 
 disposing of it in the market," &c. Mechanics'' Bank v. Huston (Penn.) 11 
 Weekly Notes of Cases, 389. 
 
 3. Payment of smaller sums before maturity, or payment at a different 
 place from that appointed, works satisfaction. The reason assigned is that 
 the general rule "is entirely technical and not very well supported by reasons," 
 "and it requires but very slight consideration to support such contracts." 
 Jones v. Perkins, 29 Mississippi, 139; 64 Am. Dec. 136; Jones v. Bullitt, 2 
 Littell (Kentucky), 49; Smith v. Brown, 3 Hawks (No. Carolina), 580; Fen- 
 wick v. Phillips, 3 Metcalfe (Ky.), 87 ; Rising v. Patterson, 5 Wharton (Penn.). 
 316 ; McKenzie v. Culbreth, 66 North Carolina, 534 ; Eve v. Mosely, 2 Strobhart 
 Law (So. Carolina), 203 ; Bowker v. Childs, 3 Allen (Mass.), 134 ; Brooks v. 
 White, 2 Metcalf (Mass.), 283 ; 37 Am. Dec. 95. 
 
 But mere tender of a smaller sum a little before the whole is due is no sat- 
 isfaction. Heam v. Kiehl, 38 Penn. St. 147 ; 80 Am. Dec. 472. 
 
 Acceptance of a smaller sum than the claim in suit, and execution of a 
 receipt in full of claim and costs satisfies the claim. Gales v. Steele, 58 Con- 
 necticut, 316 ; 18 Am. St. Rep. 268. 
 
 The acceptance of a new note for a smaller amount, and the simultaneous 
 surrender of the old note, has the effect of a release. Draper v. Ilitt, 43 Vermont, 
 439 ; 5 Am. Rep. 292. So of the acceptance of the debtor's note for a smaller 
 amount in the first instance. Ellsworth v. Fogg, 35 Vermont, 355 ; Kent v. Reti- 
 noids, 8 Hun (New York Sup. Ct.), 559 ; Mechanics' Bank v. Huston (Penn.) 
 1 1 AVeekly Notes of Cases, 389. 
 
 A creditor's acceptance of a smaller sum in satisfaction of the debt, accom- 
 panied by the execution of a formal and absolute release, under seal, is valid 
 and irrevocable. Gordon v. Moore, 44 Arkansas, 349; 51 Am. Rep. 606. 
 
 A composition agreement in writing is binding, whether under seal or not, 
 the consideration being the mutual promises. Millikcn v. Brown, 1 Rawle 
 (Penn), 391 ; Pierce v. Jones, 8 South Carolina, 273 ; 28 Am. Rep. 288, citing 
 Good v. Cheesman, 2 B. & Ad. 328 ; Russell v. Rogers, 10 Wendell (New York), 
 473 ; 25 Am. Dec. 574 ; White v. Kunlz, 107 New York, 518 ; 1 Am. St. Rep. 886. 
 
 But the promise of the other creditors must exist, and an oral promise to 
 accept a smaller sum, provided no other shall receive a larger rate, is void. 
 Perkins v. Lockwood, 100 Massachusetts, 249 ; 1 Am. Rep. 103. But such oral 
 promise is binding if the others have signed the agreement. Mellen v. Gold- 
 smith, 47 Wisconsin, 573 ; 32 Am. Rep. 781. 
 
 Plaintiff had an account of above $800 against the defendant, and with the 
 intention of making a gift thereof, received from him one dollar, and balanced 
 the account by the entry, " Gift to balance accounts," and gave him a receipt 
 in full Held, a satisfaction. Gray v. Barton, 55 New York, 68; 1-1 Am. Rep. 
 181, followed in Ferry v. Stephens, 66 New York, 321.
 
 ACCORD AND SATISFACTION. 39( 
 
 No. 3. — Bidder v. Bridges. — Rule. 
 
 No. 3. —BIDDER v. BRIDGES. 
 
 (c. a. 1887.) 
 
 RULE. 
 
 The obligation of a third person for a smaller amount may 
 be given by the debtor and accepted by the creditors in sat- 
 isfaction of a debt due by the debtor of larger amount. 
 
 Bidder v. Bridges. 
 
 37 Ch. D. 406 (s. c. 57 L. J. Cli 300). 
 
 The points decided by Mr. Justice Stirling and by the Court 
 of Appeal in this case, so far as relates to the above rule, appear 
 from the following judgments: — 
 
 Mr. Justice Stirling. ... A. accepted in full satisfaction of 
 B.'s liability for costs, the cheque of B.'s solicitors, payable to 
 order, and that cheque was duly honoured. What in law is the 
 effect of that? The state of the law is very peculiar in regard to 
 the acceptance of a smaller sum in satisfaction of a larger debt. 
 The law has been recently discussed in the case of Foakes v. Beer, 
 9 App. Cas. 605 ; 54 L. J. Q. B. 130, ante p. 370, the head-note of 
 which states that "an agreement between judgment debtor and 
 creditor, that in consideration of the debtor paying down part of 
 the judgment debt and costs and on condition of his paying to 
 the creditor or his nominee the residue by instalments the creditor 
 will not take any proceedings on the judgment, is nudum pactum, 
 being without consideration, and does not prevent the creditor after 
 payment of the whole and costs from proceeding to enforce pay- 
 ment of the interest upon the judgment." That decision was 
 founded upon the doctrine laid down so long ago as Pinnel's 
 Case, 5 Co. Rep. 117 a, ante p. 36S ; Co. Litt. 212 b, and it will be 
 sufficient for my purpose here if I refer to what Lord Blackburn 
 said in his speech as to that case, 9 App. Cas. 615: "That was an 
 action on a bond for £16 conditioned for the payment of £8 10s. 
 on the 11th of November, 1600. Plea, that defendant, at plaintiff's 
 request, before the said day, — to wit, on the 1st of October, — paid 
 to the plaintiff £5 2s. 2d., which the plaintiff accepted in full satis- 
 faction of the £8 10s. The plaintiff had judgment for the insuf- 
 ficient pleading," and his Lordship went on to state that Lord
 
 394 ACCORD AND SATISFACTION. 
 
 No. 3. — Bidder v. Bridges. 
 
 Coke reports that the court resolved " that payment of a lesser 
 sum on the day in satisfaction- of a greater cannot be any satis- 
 faction for the whole ; . . . . but the gift of a horse, hawk, or robe, 
 &c, in satisfaction, is good. For it shall be intended that" either 
 " might be more beneficial to the plaintiff than the money ; " and 
 after referring further to that case Lord Blackburn said : "There 
 are two things here resolved. First, that where a matter paid and 
 accepted in satisfaction of a debt certain might by any possibility 
 be more beneficial to the creditor than his debt, the court will not 
 inquire into the adequacy of the consideration." And secondly, 
 " that payment of a lesser sum on the day cannot be any satis- 
 faction of the whole." There were, therefore, two resolutions in 
 PinneVs Case, and the decision of the House of Lords affirmed the 
 second; but, as I understand that decision, it did not in any way 
 disaffirm the other. Therefore the first resolution referred to by 
 Lord BLACKBURN is just as much binding on me as the second. 
 Then comes the question here. Is a negotiable instrument such a. 
 matter as may be " paid and accepted in satisfaction of a debt cer- 
 tain ? " The applicant accepted not a negotiable instrument of 
 his debtors, but that of their solicitors. He took the cheque of 
 different persons. Was that an accord and satisfaction accord- 
 ing to the authorities ? No doubt the case of Cumber v. Wane, 1 
 Str. 426 ; 1 Sm. L. C. (8th ed.) p. 357, was one in reference to a 
 promissory note. In Foakes v. Beer, 9 App. Cas. 605 ; 54 L. J. Q. B. 
 130, ante p. 370, the record of Cumber v. Wane is fully stated at 
 page 619. The decision was that giving a promissory note for 
 £5 cannot be pleaded as a satisfaction for £15, but this has been 
 denied by a series of authorities to be law. Thus in Sibree v. 
 Tripp, 15 M. & W. 23, it was held that a promissory note taken 
 for a less sum than the demand was a good satisfaction, — that a 
 negotiable instrument for a smaller sum may be given in satisfac- 
 tion of a larger debt. Then there is the case of Curlewis v. Clark, 
 3 Ex. 375, and also that of Goddard v. O'Brien, 9 Q. B. D. 37, 
 which goes even further than I am required to go in this case. 
 It was contended that these three authorities went upon the view 
 that Cumber v. Wane, 1 Str. 426 ; 1 Sm. L. C. (8th ed.) p. 357, was 
 bad law, and that this was inconsistent with the decision in Foakes 
 v. Beer, 9 App. Cas. 605; 54 L. J. Q. B. 130. I do not, however, 
 understand the House of Lords to approve of the application made 
 in Cumber v. Wane of the doctrine laid down in Pinnel's Case, 5
 
 ACCORD AND SATISFACTION. 395 
 
 No. 3. — Bidder v. Bridges. 
 
 Co. Hep. 117 «, ante p. 368; Co. Lit. 212 &. In that case there 
 was a qualification added that if a thing of a different kind be 
 given that is a good satisfaction. That qualification was disre- 
 garded in Cumber v. Wane ; and in Foakesv. lifer this circumstance 
 is commented upon by both Earl Selborne and Lord BLACKBURN. 
 If further authority is required, I may refer to the notes of the late 
 Mr. Justice Willes and of Mr. Justice Keating to the case of 
 Cumber v. Wane in Smith's Leading Cases, where they state the 
 law to be that a demand may be discharged by payment of a thing 
 different from that contracted to be paid though of less pecuniary 
 value, and they give as an instance a negotiable instrument binding 
 the debtor or a third person to pay a smaller sum. Under these 
 circumstances, having regard to the current of authorities, which 
 appear to me to be unaffected by the decision of the House of 
 Lords, I hold that the cheque of a third party given as this cheque 
 was, was a satisfaction of the debt and was a good payment. 
 
 The defendant appealed from this judgment; and after argu- 
 ment, judgments were delivered which, so far as relates to the 
 above rule, were as follows : — 
 
 Cotton, L. J. ... If in fact B. was entitle to interest on these 
 certificates at the date of the judgment, and gave up all his claim 
 under the certificates, then, in my opinion, he gave up, if there was 
 good consideration, all those matters which he could, without any- 
 thing further, obtain on those certificates, even though he did not 
 know the law which would give him interest. Of course, igno- 
 rance of general law will not excuse any man when he enters into 
 an agreement. 
 
 But it is said that our decision to that effect would be a contra- 
 diction of Foakes v. Beer, 9 App. Cas. 605 ; 54 L. J. Q. B. 130, ante 
 p. 370. If so, that is a decision of the House of Lords, and we 
 must follow it, though I must say for myself that where the 
 House of Lords has come to a particular construction on an instru- 
 ment, I should not feel myself bound to follow their decision In- 
 putting a construction on a different instrument which I did not 
 think the correct construction of that instrument. We must fol- 
 low of course the rules which they lay down in order to decide 
 what is to be the principle of construction. All that Earl Sel- 
 borne decided there (and none of the other Lords who delivered 
 their opinions differed from it) was that, looking at the words of the 
 agreement, which was reduced into writing in that case, one could
 
 396 ACCORD AND SATISFACTION. 
 
 No. 3. — Bidder v. Bridges. 
 
 only take it as an agreement to receive the sum of money and 
 the instalments therein mentioned, in consideration of the prin- 
 cipal sum which was due, and nothing more ; and that to give it a 
 different construction would be to add to that written agreement, 
 which apparently fully expressed the intention of the parties, words 
 which were not there, — namely, " interest on those sums." That 
 is an entirely different matter. What is the agreement between the 
 parties as shown by their acts ? In my opinion the agreement was 
 here to give up all claim in respect to the matters mentioned in 
 the certificates, — that is, in respect of those certificates. 
 
 But then we come to another point which was entered into very 
 fully by Mr. Justice Stirling. Was there a consideration ? Now, 
 I think the law is generally reasonable; but whether Cumber v. 
 Wane, 1 Str. 426, was reasonable, we have not to consider. There 
 is a qualification of the rule there laid down, by Judges (whose 
 decisions we ought not to disregard here), by making exceptions 
 which will reduce that case to something like principle. They 
 lay down this : that though the payment of a smaller sum cannot 
 be a good consideration for accord and satisfaction of a claim for 
 a larger one, yet if there is anything which can be a new considera- 
 tion and a new benefit to the person entitled to the larger sum, 
 that will do ; and the only thing w T e have to consider is whether 
 here in this case there was anything which could be a new con- 
 sideration, — that is, some new and different benefit to the person 
 entitled to the larger sum of money. Those cases which I have 
 mentioned go particularly to this: that if there is a promissory 
 note, a negotiable instrument, for a smaller sum, that may do. 
 The first of those cases relied upon on this point goes to this: 
 that even if it is a promissory note signed by the person who is 
 liable for the larger sum that will do. But here that is not the 
 case. Here the solicitor himself gives his cheque for this amount. 
 It is very true he was paying it on behalf of his client, but not pay- 
 ing it so as to make his act in signing that cheque the act of his 
 client. He gave the cheque and became personally responsible for 
 it, though, undoubtedly, he had a right of indemnity as against his 
 client to be paid by him whatever he might pay on that promis- 
 sory note. That being so, in my opinion, having regard to the 
 cases which have qualified Cumber v. Wane, supra, and not incon- 
 sistently with FoaJces v. Beer, supra, we are justified in holding 
 that there was sufficient consideration for the agreement between
 
 ACCORD AND SATISFACTION. 397 
 
 No. 3. Bidder v. Bridges. -Notes. 
 
 the solicitor of the defendant and the solicitor of the plaintiffs to 
 support the contract to which I have referred. In my opinion the 
 appeal fails. 
 
 Lindley, L.J. ... I am not going to spend time in discussing 
 Pinners Case and Cumber v. Wane, and that class of cases. It 
 appears to me that for the reasons given by Lord Justice COTTON, 
 we are outside those cases. 
 
 Lopes, L. J. I take it the law is quite clear that the payment 
 of a smaller sum cannot be pleaded as accord and satisfaction to a 
 claim for a larger sum; it is only a payment pro tanto. In Cam- 
 ber v. Wane it was laid down that giving a promissory note for 
 £5 could not be pleaded as accord and satisfaction where the claim 
 was for a debt of £15 ; but that decision was modified by the case of 
 Sib ire v. Tripp, 15 M. & W. 23, where it was held that a negotia- 
 ble security may operate, if so given and taken, in satisfaction of 
 a debt of greater amount; the circumstance of negotiability mak- 
 ing it, in fact, a different thing, and more advantageous than the 
 original debt, which was not negotiable. 
 
 Now, it is also law that the giving of a negotiable instrument for 
 a smaller sum by a third party would support accord and satisfac- 
 tion. The principle which runs through all the cases is this, that 
 there is a possibility of a benefit accruing to the creditor which 
 is the consideration for the relinquishment of the residue of 
 the debt. 
 
 ENGLISH NOTES. 
 
 The case of Curlewls v. Clark (1849), 3 Ex. 475, which was referred 
 to in Lord Selborne's judgment in Foakes v. Beer(\). 375, ante), and in 
 the argument of the principal case (p. 371, ante), is an illustration of 
 the above rule. The plea was that a stamped blank acceptance of a third 
 party (the Earl of Mexborough) for £25 had been agreed to be given 
 by the defendant and had been accepted by the plaintiff in satisfaction 
 of £60 4s. 6d., part of the debt. The Court of Exchequer held that it 
 was. It does not appear, however, that the Court in this case dis- 
 tinguished between a negotiable instrument containing an obligation 
 of a third person from one of the defendant himself. Parke, B., cites 
 the ruling in PhineVs Case, relating to the gift of a horse, &c. ; 
 and Aldersox, B., observes: "We cannot value the signature of 
 the Earl of Mexborough; possibly it may be worth something as an 
 autograph." 
 
 The rule is also supported by the earlier case of Steinman v. Magnus 
 (1809), 11 East, 390, which is not cited in the report of the principal
 
 398 ACCORD AND SATISFACTION. 
 
 No. 4. — Richards and Bartlet's Case. — Rule. 
 
 case. There the debtor entered into an agreement with creditors that 
 they agreed to receive 20 percent, of their debts and to release the 
 remainder, in consideration of a security to be given by a third person 
 for half of the composition. This security was given and paid on 
 maturity. The release though not under seal was held to be good. 
 Lord Ellexbokough, C. J., observed (11 East, p. 393): "it is true 
 that if a creditor simply agrees to accept less from his debtor than his 
 just demand, that will not bind him; but if upon the faith of such an 
 agreement a third person be lured in to become surety for any part of 
 the debts, on the ground that the party will be thereby discharged of 
 the- remainder of his debts, and still more when, in addition to that, 
 other creditors have been lured in by the agreement to relinquish 
 their further demands upon the same supposition, that makes all the 
 difference in the ease, and the agreement will be binding." 
 
 AMERICAN NOTES. 
 
 Acceptance of accord from a stranger is a satisfaction. Leavitl v. Aforrnic,ti 
 ( )hio St. 71 ; 67 Am. Dec. 334, disapproving the early English rule of Grymes v. 
 Blofield, Cro. Eliz. 541, and Edgecomb v. Kudd,b East. 294: soBoyd v. Hitch- 
 cock, 20 Johnson (New York). 70; 11 Am. Dec. 247 ; Le Page v. McCrea, 1 
 Wendell (New York), 104; 19 Am. Dec. 169; Brooks v. While, 2 Metealf 
 (Mass.), 283; 37 Am. Dec. 95; Clark v. Abbott (Minnesota). 55 N. W. Rep. 
 542; Varney v. Conery, 77 Maine, 527; Fowler v. Smith (Penn.), 25 Atlantic 
 Reporter, 744. 
 
 But payment of a less sum by a stranger on a note, with a promise by the 
 holder not to sue the maker, and no surrender of the note, is no satisfaction. 
 Marston v. Bigelow, 154 Massachusetts, 45. 
 
 No. 4. — RICHARDS AND BARTLET'S CASE. 
 
 (K. b. 1583.) 
 
 RULE. 
 
 An accord not executed is no satisfaction of a liquid debt. 
 Richards and Bartlet's Case. 
 
 1 Leonard. 19 (case 23). 
 
 Dorothy Richards, executrix of A., her former husband, brought 
 an action upon the case upon a promise against Humfrey Bartlet, 
 and declared that in consideration of two weighs of corn, delivered 
 by the testator to the defendant, he did promise to pay to the 
 plaintiff ten pounds, to which the defendant said, that after the 
 assumpsit, the plaintiff, in consideration that the said two weighs
 
 ACCORD AND SATISFACTION. 399 
 
 No. 4. -Richards and Bartlet's Case. — Notes. 
 
 were drowned by tempest, and in consideration that the defendant 
 would pay to the plaintiff for every twenty shillings of the said 
 ten pounds three shillings four pence scil. in l<>t'> thirty-three 
 shillings four pence, did discharge the said defendant of the said 
 promise, and averred further that he hath been always ready to 
 pay the said sum newly agreed, upon which there was a demurrer. 
 And the opinion of the whole Court was clearly with the plaintiff: 
 first, because that here is not any consideration set forth in tin- 
 bar, by reason whereof the plaintiff should discharge the defendant 
 of this matter, for no profit but damage comes to the plaintiff by 
 this new agreement, and the defendant is not put to any labour or 
 charge by it ; therefore, here is not any agreement to bind the 
 plaintiff. § 19 H. 6, Accord 1, 9 E. 4, 13, 12 H. 7, 15. See also 
 Onlies Case, 19 Eliz. — Dyer then admitting that the agreement had 
 been sufficient, yet, because it is not executed, it is not any bar; 
 and afterwards judgment was given for the plaintiff. 
 
 ENGLISH NOTES. 
 
 It will be observed that the decision was upon two points: first, that 
 there was no consideration for the agreement; and. secondly, that the 
 agreement, such as it was, was not executed. Where there is no con- 
 sideration for the agreement, the defence fails, whether the so-called 
 agreement had been executed or not, and whether the claim is for a 
 liquidated debt or for unliquidated damages. This is the ground of 
 the decision of the King's Bench in Willoiighby v. Backhouse (1824), 
 4 1). & K. 539; 2 L. J. K. B. 174. It was an action for an excessive 
 distress. To avoid a sale taking place at a loss, the plaintiff had by an 
 agreement authorised the defendant to sell the goods distrained, which 
 had been done accordingly. The defendant set up this agreement as a 
 bar to the action. The Judge at the trial had left it to the jury whether 
 the agreement amounted to an acquiescence in the distress, and directed 
 them that if it was an acquiescence, there was a good defence to the 
 action. On motion for a new trial, the Court held that the agreement 
 did not operate as a bar to the action. It was pointed out by Bailey, 
 J., that the defendant (the landlord) gave up nothing, and the plain- 
 tiff gained nothing, b3 r the agreement. Littledale, J., observed: 
 " When a right of action is once vested in a man, it cannot be divested 
 by any parol declaration, or by any agreement not under seal. Where 
 such a defence is set up, the defendant must show either an agreement 
 by deed to waive the action, or a satisfaction in law rendered to the 
 plaintiff. Here there is no deed; is there any satisfaction ? Clearly 
 not; no benefit or advantage is conferred upon the plaintiff; and
 
 400 ACCOKD AND SATISFACTION. 
 
 No. 5. — Adams v. Tapling. — Kule. 
 
 therefore lie lias not released his original right to a remedy for the 
 injury he has sustained." 
 
 In Davenport v. Rylands, a patent suit (1865), L. R. 1 Eq. 302; 35 
 L. J. Cli. L'04, it was alleged that after the defendant had been charged 
 with infringement, an arrangement had been come to by which the de- 
 fendants, in consideration of the plaintiff's refraining from taking pro- 
 ceedings, would buy only from the plaintiff. Sir W. Page Wood, 
 V. C, in his judgment, observed that the alleged agreement had not 
 been proved; and that, if it had been, the promise of the defendants to 
 buy only from the plaintiff could not amount to an accord and satisfac- 
 tion for the injury already done by the infringement. 
 
 In the case of Barclay v. Bank of New South Wales (an appeal 
 from New South Wales 1880), 5 App. Cas. .*>74, the question arose 
 upon a demurrer to a plea. The action was for breach of an agreement. 
 The plea set forth another agreement come to between the plaintiff and 
 defendant after disputes had arisen. The plea did not in terms state 
 that the agreement was accepted by the parties in accord and satisfac- 
 tion of the causes of action. Nor did that appear to be the necessary 
 effect of the terms of the agreement set forth. The Judicial Com- 
 mittee held the plea to be bad. 
 
 AMERICAN NOTES. 
 Unexecuted accord is no satisfaction. McKean v. Reed, Littell (Kentucky), 
 39.1; )2 Am. Dec. 318; Russell v. Lytle, 6 Wendell (New York), 390; 22 Am. 
 Dec. 537 ; Geiser v. Kershner, 1 Gill & Johnson (Maryland), 305 ; 23 Am. Dec. 
 566 ; Brooklyn Bank v. De Grauw, 23 Wendell (New York). 312 ; 35 Am. Dec. 
 569 : Dille.r v. Brubaker, 52 Penn. St. 498 ; 91 Am. Dec. 177 ; Young v. Jones, 
 01 Maine. 563 ; 18 Am. Rep. 279 (case of sealed executory agreement); Kramer 
 v. Heini, 75 New York, 574, citing many early English cases ; Hancock v. Yai/en, 
 121 Indiana, 366 ; 16 Am. (St. Rep. 396. 
 
 No. 5.— ADAMS v. TAPLTNG. 
 
 (K. B. 1691.) 
 RULE. 
 
 Where a claim is for unliquidated damages, or is uncertain, 
 a less sum may be paid and accepted in satisfaction. 
 
 Adams v. Tapling. 
 
 4 Mod. 88 (case 32). 
 
 Covenant. The breaches assigned were that the houses were 
 not in repair; that the locks were taken away; and that the
 
 ACCORD AND SATISFACTION. 401 
 
 No. 5. — Adams v. Tapling. — Notes. 
 
 hedges were broken down, and the ditches unseoured. The de- 
 fendant pleads an agreement made between the plaintiff and him, 
 that he should employ a workman three or four days in and about 
 the repairing of the house, which should be a sufficient satisfac- 
 tion, and that he had employed a .workman, etc. Upon this plea 
 they were at issue, and there was a verdict for the defendant. 
 
 It was now moved in arrest of judgment; and the exceptions- 
 taken were : — 
 
 First, Where an " accord and satisfaction " is pleaded it must be 
 real; but in this case it was no more than the defendant was 
 obliged to do. 
 
 Secondly. There are several breaches assigned, and the defen- 
 dant has only answered to the repairs of the house, and so it is a 
 discontinuance in pleading, which is not aided by a verdict. 
 
 Thirdly. The satisfaction is uncertain, — viz., to employ a man 
 to work three or four days. 
 
 And for these reasons judgment was stayed. 
 
 Curia. In covenant where the damages are uncertain and to be 
 recovered, as in this case, a lesser thing may be done in satisfaction, 
 and there " accord and satisfaction " is a good plea. But in an 
 action of debt upon a bond, where the sum to be paid is certain, 
 there a lesser sum cannot be paid in satisfaction of a greater. 
 
 ENGLISH NOTES. 
 
 This case is set forth chiefly for the ruling of the court at the con- 
 clusion of the case. What was the precise ground on which the 
 decision was rested is not made very clear by the report. But there is 
 room for a clear distinction, that where the obligation is to pay 
 damages of an uncertain amount, there is a consideration on both sides 
 for the agreement to pay and accept a sum certain; for the sura 
 payable might have been found to be less or more. But in the actual 
 case, what the defendant agreed to do in the way of repair was clearly 
 not more than he was bound to do under the covenant, though it may 
 have been much less. 
 
 In Ibberson v. Neck (1885), 2 Times Rep. 427, the claim was for 
 the amount of a solicitor's bill of costs. The plaintiff set up in answer 
 an oral agreement, and payments made by him of amounts less than 
 the claim, which he alleged had been made and accepted in satisfaction 
 of certain charges contained in the bill of costs. Mr. Baron Hud- 
 dleston ruled that, the bill being untaxed, the charges must be taken 
 1o have been uncertain and unascertained sums, and that for that 
 v<-i,. i. <2<\
 
 402 ACCORD AND SATISFACTION. 
 
 No. 5. — Adams v. Tapling. — Notes. 
 
 reason the rase of Foakes v. Beer, 9 App. Cas. 605; 54 L. J. Q. B. 130, 
 ante p. 370, did not apply. He therefore treated the sums so paid as 
 having satisfied the amounts which under the agreements they had 
 been intended to satisfy. 
 
 AMERICAN NOTES. 
 
 Where damages are unliquidated, the payment and acceptance of a sum of 
 money is a satisfaction and bar. Stockton v. Frey, 1 Gill (Maryland), 400; 
 45 Am. Dec. 138; McDaniels v. Bank of Rutland, 29 Vermont, 230; 70 Am. 
 Dec. 406; Warren v. Skinner, '20 Connecticut, 559; Donahue v. Woodbury, 
 6* dishing (Mass.), 148; 52 Am. Dec. 777. by Shaw, C. J. 
 
 So of the acceptance of a dead body, for loss of which a carrier is sued. 
 Benihan v. Wright, 125 Indiana, 5:50; 21 Am. St. Rep. 249. Even in an action 
 on a sealed instrument, sounding in damages, though secured by a penalty. 
 Cole v. Jameson, 10 Iredell Law (No. Carolina), 19:5 ; .">1 Am. Dec. 380 ; Mitch- 
 ell v.Hawley, 4 Denio (New York). 414; 47 Am. Dec. 200. 
 
 An authoritative and very recent case is Fuller v. Kemp, 138 New York, 
 231 The plaintiff sent a bill of *070 to defendant for medical services, 
 and defendant, while not disputing the services, objected to the amount 
 and declined to pay the bill rendered, but sent a cheque for $400, stating 
 that it was to be in full satisfaction of plaintiff's claim. Plaintiff retained the 
 cheque, but sent another Kill lor the same amount, on which he credited the 
 amount of the cheque as part payment. Defendant at once notified plaintiff 
 that he had sent the cheque on condition that it should be received in full 
 payment of his hill, and that plaintiff must either keep it on that condition 
 or immediately return it. It was held that the debt, which was unliquidated, 
 was satisfied by the retention of the cheque, since its acceptance involved the 
 acceptance of the condition also. 
 
 The court observed : -Where the demand is liquidated, and the liability of 
 the debtor is not in good faith disputed, a different rule has been applied. In 
 such cases the acceptance of a less sum than is the creditor's due will not, of 
 itself, discharge the debt, even if a receipt in full is given. 44ie element of a 
 consideration is lacking, and the obligation of the debtor to pay the entire 
 debt is not satisfied. There are many authorities which enforce this propo- 
 sition, but they have no relevancy to a case like the present, where the debt 
 was unliquidated, and there was a bona fide disagreement in regard to the 
 extent of the debtor's liability. The law favours the adjustment of such con- 
 troversies without judicial intervention, and will not permit the creditor to 
 accept and retain money which has been tendered by way of compromise, and 
 then successfully litigate with his debtor for the recovery of a greater sum. 
 There have been some cases in our. own courts where this principle has been 
 applied, but in none that we have examined has the question arisen in the 
 exact form here presented. Palmerton v. Huxford, 4 Denio, 106; Looby v. 
 Village of West Troy, 24 Hun, 78; Hills v. Sommer, 53 Hun, 392, N. Y. Supp. 
 469. In other States there are many decisions directly in point, where the 
 facts were not distinguishable from those appearing in this record. McDaniels 
 v. Lapham, 21 A T ermont, 222 ; Preston v. Grant, 34 Vermont, 201 ; Towslee v.
 
 ACCORD AND SATISFACTION. 403 
 
 No. 6. — Case v Barber. Rule. 
 
 l/ealey, 39 Vermont, 522 ; Boston Rubber Co. v. Peerless Wringer Co., 58 Ver- 
 mont, 559 ; Bull v. LV/, 13 Connecticut, 455 ; Potter \ . Douglass, WConnecti 
 out, 541 ; Reed v. Boa rthnan, 20 Pickering (Mass.), Ill; Dohohue v. Woodbury, 
 6 dishing (Mass.), 1 18 ; Hilliard v. Noyes, 58 New Hampshire, 312 ; Z>7u7, v. 
 Plymouth Co., 63 Iowa, -tt>2 ; Hinkle v. Railroad Co., M .Minnesota, 434. In 
 Preston v. Grant, supra, the Supreme Court of Vermont very sharply, and. as 
 we think, correctly, denned the line of discrimination which separates this 
 class of cases from those where the defence fails. Judge Pierpoint, deliver- 
 ing the opinion of the court, says: • To constitute an accord and satisfaction, 
 it is necessary that the money should be ottered in satisfaction of the claim, 
 and the offer accompanied with such acts and declarations as amount to a 
 condition that if the money is accepted, it is accepted in satisfaction, and 
 .such that the party to whom it is offered is bound to understand therefrom 
 that if he takes it, he takes it subject to such condition When a tender or 
 offer is thus made, the party to whom it is made has no alternative but 
 to refuse it or accept it upon such condition. If he takes it, his claim is can- 
 celled, and no protest, declaration, or denial of his, so long as the condition is 
 insisted on, can vary the result The principle is too well settled in this 
 •State to require either argument or the citation of authorities to support it.' 
 To make out the defence, the proof must be clear and unequivocal that the 
 observance of the condition was insisted upon, and must not admit of the 
 inference that the debtor intended that his creditor might keep the money 
 tendered in case he did not assent to the condition upon which it was offered. 
 The defendant here has brought his case clearly within the rule,*' &c. 
 
 No. 6. — CASE v. BARBER 
 (k. b. 1681.) 
 
 RULE. 
 
 Accord by mutual promises with reciprocal rights may, 
 although unexecuted, be sood in law as satisfaction. 
 
 Case v. Barber. 
 
 Sir T. Raymond, p. 450. 
 
 Tne plaintiff declares, in an indebitatus assumpsit, for £20 for 
 meat, drink, washing, and lodging for the defendant's wife, pro- 
 vided for her at the request of the defendant, and la}\s it two 
 ■other ways. The defendant pleads that after the making the said 
 promise, &c., and before the exhibiting the said bill, viz., such a 
 day, it was agreed between the plaintiff and the defendant, and 
 •one Jacob Barber, his son, that the plaintiff should deliver to 
 the defendant divers clothes of the defendant's wife then in her 
 •custody, and that the plaintiff should accept the said Jacob, the
 
 404 ACCORD AND SATISFACTION. 
 
 No. 6. Case v. Barber. 
 
 son, for her debtor for £9, to be paid as soon as the said Jacob 
 should receive his pay due from his Majesty, as lieutenant of the 
 ship called the Happy Return, in full satisfaction and discharge 
 of the premises in the declaration mentioned ; and avers that the 
 plaintiff the same time did deliver to the defendant the said 
 clothes, and that she accepted the said Jacob, the son, her debtor 
 for the said £9, and that the said son agreed to pay the same to 
 the plaintiff accordingly ; and that the said Jacob afterwards, and 
 as soon as he received his pay as aforesaid, — viz., 27 April (32 
 Car. 2), — was ready and offered to pay the said £9, and the plain- 
 tiff refused to receive it; and that the said Jacob hath always 
 since been, and still is, ready to pay the same, if the said plain- 
 tiff will receive it. Et hoc paratus, &c The plaintiff demurs. 
 And it was alleged by the defendant's counsel that the plea is 
 good ; for though in Peyto's Case, and formerly, it hath been held 
 that an accord cannot be pleaded unless it appears to be executed 
 (9 Co. 79, b. 3 Cro. 46, pi. 2), yet of late it hath been held that upon 
 mutual promises an action lies, and consequently, there being equal 
 remedy on both sides, an accord may be pleaded without execution 
 as well as an arbitrement, and by the same reason that an arbitre- 
 ment is a good plea without performance: to which the Court 
 agreed; for the reason of the law being changed, the law is thereby 
 changed; and anciently remedy was not given for mutual promises, 
 which now is given; and for this reason, Mich. 18 Car. B. 11., 
 Palmer v. Lawson. In indebitatus assumpsit against an execu- 
 tor upon a contract made by the testator, the defendant pleads 
 judgment in debt upon simple contract against him for the debt 
 of the testator, and after argument resolved a good plea ; be- 
 cause though in debt against an executor upon a simple contract 
 the defendant may demur, yet when he admits the demand, and 
 executors are now liable to pay such debts in action upon the case, 
 the judgment so obtained was pleadable ; so Vaughan Rep., Dee v. 
 Edgcomb. 
 
 But in this case at bar judgment was given for the plaintiff for 
 two reasons : — ■ 
 
 1. Because it doth not appear that there is any consideration 
 that the son should pay the £9, but only an agreement without 
 any consideration. 
 
 2. Admit the agreement would bind, yet now by the Statute of 
 Frauds and Perjuries, 29 Car. 2, this agreement ought to be in
 
 ACCOUD AND SATISFACTION. 40 fj 
 
 No. 6. — Case v. Barber. — Notes. 
 
 writing, or else the plaintiff could have no remedy thereon ; and 
 though upon such an agreement the plaintiff need not set forth the 
 
 agreement to he in writing, yet when the defendant pleads such an 
 agreement in bar, he must plead it so as it may appear to the court 
 that an action will lie upon it, for he shall not take away the 
 plaintiff's present action, and not give him another upon the agree- 
 ment pleaded. 
 
 AMERICAN NOTES. 
 
 An oral agreement by the maker of a note to pay before maturity, and by 
 the holder to accept, a smaller sum in satisfaction is valid. Schweider v. 
 Long, 29 Minnesota, 254 ; 43 Am. Rep. 202, "a case of mutual promises, one of 
 which is the. consideration of the other." So the taking of the debtor's own 
 note for a less sum in full. See cases ante, p. 392. 
 
 An instance of a substitution in satisfaction maybe found in Thurber v. 
 Sprague, 17 Rhode Island, 634 (a. d. 1802). A father, as trustee for his minor 
 son, had made a deposit of |500 in a savings bank. The son, coming of age, 
 demanded the deposit, and the father replied : "I never want to hear of lliis 
 matter again. I made the change of investment supposing it was for the best, 
 but it was not. 1 have made it up to you many times over. If you are not 
 satisfied, and want the $500, take it and go; but if you remain here, I don't 
 want to hear of it again." The son after this remained at home and was 
 supported by his father. Held, a valid accord and satisfaction. 
 
 Debt on a judgment cannot be barred at common law by an accord and 
 satisfaction by parol. Mitchell v. Hawley, 4 Deuio (New York), 414. 
 
 But the contrary is held in Saoaye v. Everman, 70 Penn. St. 315; 10 Am. 
 Rep. 076, Sharswood, J., observing that this doctrine is maintained by "the 
 American authorities, without a single exception that T can find," citing 
 Evans v. Wells, 22 Wendell (New York), 341; Harden v. Campbell, 4 Gill 
 (Maryland), 20; Reid v Hibbard, 6 AVisconsin, 175; Jones v. Ransom, 3 Indi- 
 ana, 327; Bankx. Groves, 12 Howard (U. S. Sup. Ct.), 51.
 
 406 ACCOUNT. 
 
 No. 1. — Taff Vale Railway Co. v. Nixon. — Rule. 
 
 ACCOUNT. 
 
 Section I. Jurisdiction of Court of Equity. 
 
 Section II. What may he recovered on a Stated Account. 
 
 Section III. Settled Accounts, how far Conclusive. 
 
 Section IV. Accounts between Tenants in Common. 
 
 Section I. — Jurisdiction of Court of Equity. 
 
 Note. Although questions as to the exclusive jurisdiction of Courts of Law and 
 Equity are now obsolete in England, a few cases under this head are retained for use 
 in relation to States where the old line of demarcation is kept up. 
 
 No. 1.— TAFF VALE RAILWAY CO. r. NIXON. 
 
 (li. l. 1847.) 
 
 RULE. 
 
 Where an account has become so complicated that a 
 Court of Law would be incompetent to examine it upon a 
 trial at nisi prkis, it is matter proper for the cognisance of 
 a Court of Equity. 
 
 Taff Vale Railway Co. v. Nixon. 
 
 1 H. L. C. 111. 
 
 This was an appeal from a decree of the Vice Chancellor of 
 England, directing certain accounts to be taken, as hereinafter 
 mentioned; and the question in substance was, whether an action 
 at law was not a more appropriate course of proceeding than a 
 bill in equity. 
 
 The appellants were a railway company, incorporated by act of 
 Parliament. The respondent Nixon was a railway contractor ; and 
 by an indenture dated the 6th of April, 183S, and made between 
 him and the appellants, being a railway contract in the ordinary 
 form, he contracted to do certain works mentioned in the specifica- 
 tion annexed thereto, for the sum of £7395 1 5s., subject to deduc- 
 tion or increase as in the contract stated, and with a provision for
 
 SECT. I. — JURISDICTION. 4<>7 
 
 No. 1. — Taff Vale Kailway Co. v. Nixon. 
 
 payment for extra works, at prices particularly specified. Nixon 
 having to some extent proceeded with the execution of the works,, 
 was under the necessity of procuring advances of money, and for 
 that purpose applied to David Storm, who was also a railway con- 
 tractor, to advance him sufficient money to complete the works, 
 which Storm agreed to do; and accordingly an agreement was en- 
 tered into, 1 and a power of attorney, dated 8th December, 1838, was 
 given by Nixon, which, after reciting the said contract and applica- 
 tion to Storm for the advance of money, constituted him the lawful 
 attorney of Nixon, to direct and carry on, in his name, the works 
 comprised in the contract, and to demand, sue for, and receive from 
 the company all sums of money which from time to time might 
 become due from them to Nixon under the contract, and to give 
 them discharges, and to compromise or refer to arbitration all dis- 
 putes that might arise respecting the performance of the works, 
 and also to pay for Nixon, out of the moneys to be received from 
 the company, all debts and just demands which might accrue to 
 Storm or others, against Nixon during the progress, and until the 
 completion, of the said works, and generally to do and perform all 
 acts which Storm should judge necessary in and about the prem- 
 ises, and to retain to himself, out of the moneys to be received from 
 the company, £5 per cent, for interest on all his advances and £300 
 at the completion of the contract, for his care and attention in 
 directing and carrying on the works. 
 
 Notice of the agreement and power of attorney was sent to the 
 appellants, together with a letter from Nixon, requesting them to 
 pay to Storm all moneys becoming due to Nixon on account of the 
 contract. 
 
 In March, 1839. an arrangement was come to by Nixon and 
 Storm and the appellants, by which a new contract between the 
 appellants and them, as joint contractors, was substituted for the 
 first contract with Nixon; and he and Storm, by the new contract, 
 jointly and severally covenanted for the performance of the con- 
 tract ; and the appellants covenanted to pay them as well for the 
 works then done and not paid for, as also for the works to be done 
 by them jointly. 
 
 The works were proceeded with under this contract, Nixon hav- 
 
 1 The agreement was a separate mem- should not be acted on as regarded the 
 orandum, explanatory and restrictive of managing and conducting of the works 
 the power of attorney, — viz., that the same by Storm without Nixon's consent.
 
 408 ACCOUNT. 
 
 No. 1. — Taff Vale Railway Co. v. Nixon. 
 
 ing the management of the working part, but the appellants trans- 
 acting all money matters connected with the contract with Storm. 
 
 In December, 1840, a fiat in bankruptcy was issued against 
 Storm, under which he was declared a bankrupt, and one Nicholas 
 and two others were appointed creditors' assignees. There was 
 also an official assignee. 
 
 In May, 1842, Nixon filed his bill against the appellants and 
 the said assignees, and thereby, after stating the instruments before 
 stated, he made the following case, viz. : That notwithstanding 
 the last-mentioned contract, the works were carried on by Nixon 
 in the same manner as before ; and he continued to carry on and 
 execute the same from that time until both the specified works 
 and the extra works were completed ; that in January, 1841, all 
 the works were completed pursuant to the contract, and the extra 
 works so performed amounted to the sum of £9133 26'. Id., accord- 
 ing to the schedule of prices annexed to the contract, and the 
 .specified works amounted to the sum of £7395 15s., making to- 
 gether the sum of £16,528 17s. Id. ; that during the progress of 
 the works, and at the completion thereof, and before the 16th of 
 December, 1840, Nixon and Storm had received various sums of 
 money on account of the contract and extra works, amounting in 
 the whole to £9204 12s. 6d., and no more, so that there remained 
 a balance of £7324 4s. Id. due from the company to Nixon; that 
 in the month of December, 1840, Nixon had reason to believe that 
 Storm was in embarrassed circumstances, and he requested his 
 solicitor to give notice to the company not to pay Storm any move 
 money in respect of the contract, and the solicitor wrote and sent 
 a letter to the then secretary of the company, stating that Nixon 
 had consulted him upon the situation of his affairs with Storm 
 and the company, and his inability to obtain from tin- company an 
 account of the moneys paid by them upon the contract since the 
 11th of April last; that the consideration for the power of attor- 
 ney from Nixon to Storm was Storm's engagement to advance 
 Nixon all sums of money he might require, and inasmuch as Storm 
 had not fulfilled his part of the engagement, Nixon requested that 
 the company would not pay him any further sums on account of 
 the contract, and also that they would furnish forthwith an 
 account of the moneys paid by them in respect of the contract 
 since the 11th of April, 1840. 
 
 The bill next set forth a letter sent to Nixon bv the solicitors of
 
 SECT. I. — JURISDICTION. 409 
 
 No. 1. — Taff Vale Railway Co. v. Nixon. 
 
 Storm's assignees, dated in May, 1841, applying for authority to 
 use his name as plaintiff in an action to be brought against the 
 company, to recover balances due to Storm's estate in respect of 
 works, money, and materials provided by him in execution of the 
 contract and extra work thereon, up to the time of his bankruptcy ; 
 that Nixon declined to comply with that request; that after the 
 works were completed, he sent to the company the particulars of 
 his demand on them, and requested payment of the balance of 
 £7324 4s. Id., and the company then, and ever since, admitted that 
 the whole of the work amounted to the sum of £16,528 17s. Id. ; 
 and that Nixon alone, or he and Storm, were entitled to receive 
 that sum, but they alleged that a much larger sum than £9204 
 12s. 6d. had been paid by them to Nixon, and to Storm and his 
 assignees, and a very small sum only remained due, or that the 
 said balance, or the greater part thereof, had been in some manner 
 settled or accounted for with Storm or his assignees, whereas he, 
 Nixon, charged the contrary ; and that if any further or other 
 sum than £9204 12s. Qd., before mentioned, was paid by the com- 
 pany to Storm, the same was paid since the company received the 
 notice of December, 1840, or in respect of some other work done 
 for the company, with which Nixon had nothing to do, and which 
 was not connected with the said contract. 
 
 The bill further stated, that, in April, 1842, Nixon's solicitor 
 sent a letter to the company's secretary, demanding payment of 
 the said balance, £7324 4s. Id., and intimating that, unless some 
 immediate arrangement was made for its payment, they would 
 institute proceedings for its recovery ; that the secretary to the 
 company sent an answer by letter, which, after stating the effects 
 of the first and substituted contracts, the power of attorney to 
 Storm, and his bankruptcy, &c, concluded by saying the settle- 
 ment of the accounts was to be submitted to the arbitration of 
 Mr. Robert Stephenson, and if Nixon had any claim on the com- 
 pany in common with Storm, the whole affair would be settled by 
 the arbitrator ; that after receipt of this letter, Nixon's solicitors 
 inquired, and discovered that the company and the assignees of 
 Storm had agreed to refer all the matters of the said contracts, and 
 many questions of account between the company and Nixon and 
 the assignees, and other questions between the assignees and the 
 company, to Mr. Stephenson, who was in fact proceeding to arbi- 
 trate thereupon, without the authority or consent of Nixon, and
 
 410 ACCOUNT. 
 
 No. 1. — Taff Vale Railway Co. v. Nixon. 
 
 that it was the intention of the company to pay to the assignees 
 whatever balance the arbitrator should find due ; that all the money 
 that was due from Nixon to Storm, in respect of his advances, had 
 been paid to him or his assignees. 
 
 The bill prayed that accounts might be taken of all sums paid 
 by the appellants to Nixon and to Storm and his assignees, in dis- 
 charge of the said sums of £7395 15s. and £9133 2s. Id ; and of 
 all moneys advanced and properly laid out by Storm, on account of 
 the works ; and that the sums so received by him and his assignees 
 misht be set off against the sums so laid out by him, and the bal- 
 ance ascertained, &c ; and that the company might lie restrained 
 from paying any sums to the said assignees; and that they, the 
 assignees, might be restrained from instituting any action or other 
 proceeding against Nixon in respect of the matters aforesaid. 
 
 The appellants, by their answer, submitted that the suit was im- 
 properly framed; that they had no connection or privity with the 
 dealings and accounts between Nixon and Storm, and ought not to 
 be parties to any suit in respect thereof; that Nixon was not en- 
 titled to any account or relief against the appellants in respect of 
 the said contract and extra works, and the mixing up of such 
 account with the pecuniary transactions between Nixon and Storm 
 was multifarious, and they claimed the same benefit of such objec- 
 tion as if they hod demurred to the. bill ; and they further said, 
 that they and the assignees had agreed to refer all the matters of 
 the contract to Mr. Stephenson, and he had made his award thereon. 
 The other defendants to the bill having also put in their answers, 
 the cause came to be heard before the Vice Chancellor of England, 
 who, in civiii" his judgment, observed that " he did not see in the 
 case anything to distinguish it from the ordinary case of a person 
 making a mortgage of his debt; and, that being so, it followed as 
 a matter of right that Nixon ought to be a party to the settlement 
 of that sort of double account, which would, first of all, have to 
 ascertain what was due from him to his mortgagee, and then what 
 was due from his debtors to him, in order that it might be seen 
 what was the true state of the accounts between the parties." His 
 Honour, accordingly, pronounced a decree, referring it to the Mas- 
 ter to take the following accounts, viz. : — 
 
 An account of all extra works performed by Nixon for the Taff 
 Yale Eailway Company, under the said contract. An account of 
 all sums of money paid by them to Nixon and to Storm, or either
 
 SECT. I. — JURISDICTION. 411 
 
 No. 1. — Taff Vale Railway Co. v. Nixon. 
 
 of them, on account of such extra works. Whether anything, and 
 what, then remained due from the appellants in respect of the said 
 ■extra works, having regard to the said payments. An account of 
 all sums of money paid and advanced by Storm, to or on account 
 of Nixon, to carry on the said works, as well extra as specified. An 
 account of the corn, hay, and all other materials supplied by 
 •Storm, to or on account of Nixon, in carrying on such works. An 
 account of all sums of money paid by the company to Storm on 
 account of the contract. And whether any, and what sum of 
 money then remained due from Nixon to the defendants, the 
 assignees, in respect of such advances and supplies of hay, corn, 
 and other materials made by Storm on account of Nixon, and in 
 respect of interest on such advances and moneys chargeable for 
 such supplies. 
 
 The appeal was against that decree. 
 
 Argued for the appellants: — 
 
 All the matters in dispute in this cause might have been easily 
 •disposed of at law, if Nixon had allowed his name to be used in 
 the action proposed, by the assignees of Storm, to be brought 
 against the appellants. 
 
 [Lord Chancellor (Cottenham). It may be a question 
 -whether matters so complicated as these accounts appear to be 
 were not fitter for a suit in equity than for an action.] 
 
 The state of the case was this : Nixon and Storm contracted 
 to do certain works for the company at specified prices, amounting 
 to £16,000 odd. They admitted that the company paid £9000 
 odd, and the bill was filed for the alleged balance. Was not that 
 a proper case for an action to recover the balance? If a suit in 
 chancery be held to be a more appropriate course of proceeding in 
 this case, then every builder's bill of charges may be fit for a suit 
 in equity. 
 
 [Lord Chancellor. And properly so, if there be complicated 
 accounts. It is here admitted that there are accounts between 
 Nixon and Storm proper for a suit in equity, and that the money 
 to answer these accounts, when taken, is in the hands of the com- 
 pany. Are they not in the position of stake-holders?] 
 
 The distinction between cases proper to an action at law and for 
 a suit in equity is shown by Dhegetoff v. London Assurance Co., 
 Closely, S3 ; s. c. s. n., Ma rim rfe Ghettoff, 4 Brown P. C. 436, and 
 Fall v. Chambers, Moselv, 193.
 
 412 ACCOUNT. 
 
 No. 1. — Taff Vale Railway Co. v. Nixon. 
 
 The Lord Chancellor (Lord Cottenham). My Lords, having 
 fully considered the arguments urged on behalf of the appellants 
 in this case, it appears to me to be unnecessary to hear the counsel 
 on the other side, and that, according to all the authorities, the 
 decree is fully justified by the facts as they appeared before the Vice 
 Chancellor. 
 
 There were some cases cited in order to show that there are 
 instances in which a Court of Equity refuses to exercise any 
 jurisdiction upon any matter of law. I have no doubt that is so ; 
 but the question is whether this is one of those cases. 
 
 Now, I think the rule is very well laid down by Lord Kedesdale 
 in the case of O'Connor v. Sjwight, in which he says (1 Sch. & 
 Lef. 309) : " The ground on which 1 think that this is a proper case 
 for equity, is, that the account has become so complicated that a 
 court of law would be incompetent to examine it, upon a trial at 
 Nisi Prias, with all necessary accuracy, and it could appear only 
 from the result of the account that the rent was not due. This 
 is a principle on which courts of equity constantly act, by taking 
 cognisance of matters which, though cognisable at law, are yet 
 so involved with a complex account that it cannot properly be 
 taken at law; and until the result of the account,- the justice of 
 the case cannot appear. Matter of account may indeed be made- 
 the subject of an action ; but an account of this sort is not a 
 proper subject for this mode of proceeding. The old mode of 
 proceeding upon the writ of account shows it. The only judg- 
 ment was that the party 'should account,' and then the account 
 was taken by the auditor. The court never went into it," 
 
 That, my Lords, is the rule applicable to questions of this sort ; 
 and it is quite obvious from the rule so laid down, that each case 
 must be decided according to the peculiar circumstances belong- 
 ing to it. It is, therefore, nothing to the purpose to show that 
 there are cases where the court will not entertain jurisdiction, 
 because it is a matter of law. Each case must be investigated, 
 in order to see whether it comes within the rule laid down as 
 that upon which a Court of Equity exercises its jurisdiction. 
 
 A very short reference to the facts of this case will show, be- 
 yond all controversy, that this is one of those cases. Here a 
 contract was originally made by William Nixon with the railway 
 company. A specification of the works to be done was appended 
 to the contract. That certainly is complicated enough, as indeed
 
 SECT. I. — JURISDICTION. 413 
 
 No 1. — Taff Vale Railway Co. v. Nixon. 
 
 all specifications of contracts are. It appears that lie wanted 
 money to carry into effect the contract which he had entered into, 
 
 and he then applied to the other party, Storm, to assist him with 
 money, and he assigned to him, as security for repayment of the 
 money so advanced, the payments which he might have to receive 
 under his contract. 
 
 This went on for some time, and afterwards a new scheme was 
 adopted for the purpose of giving to the party who so advanced 
 the money the security of the payments which might become due 
 from the company in respect of the original contract with Nixon. 
 To this contract all three were parties. It was made in the shape 
 of a joint contract, by which both the liabilities and the rights 
 arising out of the former contract were given up. The company 
 on the one hand gave up their claim against the parties, and the 
 parties gave up their claim against the company. The whole re- 
 sulted in a new contract between the company on the one hand 
 and these two parties on the other, by which they became joint 
 contractors for the works which were to be performed under 
 the contract originally entered into by Nixon with the railway 
 company. 
 
 Now, although that is in the form of a joint contract, and there- 
 fore gives to each party a right, independently of the other, to deal 
 with the railway company, yet it is admitted on all hands that it 
 was adopted for the purpose of adding to the security which Nixon 
 was to give for the money to become due under the contract. But 
 it appears that the other party was not only himself a party to the 
 joint contract with Nixon, but that he himself executed work in- 
 dependently of Nixon. By this means there was an account 
 between him and Nixon and the company, on account of the con- 
 tract in which Nixon was a joint contractor; and there was also an 
 account of payments that became due in respect of the contract 
 which he had formerly entered into. The company, however, as 
 they admit in their answer, dealt with these as payments on 
 account generally ; and they say that they are unable to say whether 
 those payments are to be referred to the one account or to the 
 other. The payments were made by them as the moneys became 
 due, without reference to the particular works in respect of which 
 they were made. 
 
 Then, not only is the account of this complicated nature between 
 Nixon and the company, but as between the three there is the
 
 414 ACCOUNT. 
 
 No. 1. — Taff Vale Railway Co. v. Nixon. 
 
 duty of ascertaining to what contract and to what works the pay- 
 ments made are to be referred ; a question of account utterly 
 impossible to be investigated at Nisi Prius, not only from the 
 complicated nature of the original account of receipts and pay- 
 ments, but from the mode in which the appellants, the company 
 themselves, have dealt with the several contracts, not keeping 
 distinct those payments in which Nixon was interested, but mak- 
 ing them as payments on account generally, some of which might 
 be referred to one account and some to another, but which they 
 have not distinguished. 
 
 Under these circumstances Nixon files his bill, and asks for an 
 account to be taken of what is due from this company in respect 
 of the contract in which he was originally interested ; and also 
 for an account to be taken as between himself and the other party 
 who had become interested in the account as security for the 
 money advanced. 
 
 Looking at the rule laid down by Lord Redesdale, and looking 
 at the facts of this case as they are developed in these papers, it 
 appears to me clear that if ever there was a case which was quite 
 unfit for a trial at law, and which necessarily became the subject 
 of investigation in a Court of Equity, the facts of this case come 
 within that rule; and that is the point for our consideration here. 
 The appellants say, " You have no right to direct this account to 
 be taken in equity ; it is entirely a matter of law. Let us go to law 
 to try the question between us." I think that the Vice Chancellor 
 was entirely right in the course that he took, and that the case- 
 ought to be investigated at equity. 
 
 I have therefore to move your Lordships that the decree ap- 
 pealed from be affirmed. 
 
 Lord Brougham. I have no desire to take any part iu this de- 
 liberation, for this reason, that I did not hear the whole of the 
 arguments for the appellants ; but what I did hear, and my exami- 
 nation of the printed cases, have led me to the conclusion at which 
 my noble and learned friend has arrived, that this is clearly a case 
 for a court of equity, and one that is not fit to be sent to trial at 
 law. At the same time, as T did not take any active part during 
 the argument, I shall decline entering further upon the case except 
 to say that I entirely concur, as far as I have heard the case, lit 
 the observations which my noble, and learned friend has made. 
 
 Lord Campbell. My Lords, having heard the whole of the argur-
 
 SECT. I. — JURISDICTION. 4 1 5 
 
 No. 1. — Taff Vale Railway Co. v. Nixon. 
 
 ment for the appellants in this case, and having considered it very 
 carefully, I have come to a clear conclusion that this decree ought 
 to be affirmed. I have great satisfaction in doing so, because if 
 there really had been any technical rule whereby a bill in equity 
 could not have been filed in this case, it would have amounted to 
 a very great defect. For if an action at law were the only remedy 
 in such a case, it really would amount, in my opinion, to a denial 
 of justice. 
 
 I do not proceed merely upon the ground which is stated in the 
 case as having been taken by his Honour the Vice Chancellor; I 
 proceed upon this ground, that here is a complicated account that 
 could not by possibility be taken by a jury. The facts of the case, 
 as stated by my noble and learned friend on the Woolsack, very 
 clearly show that it would be a mere mockery to bring such an 
 action before a jury. What would be done if such an action were 
 brought at Nisi Print ? I know that within five minutes from 
 the opening of the case by the leading counsel for the plaintiffs, 
 the Judge would say, "If we sit here for a fortnight we cannot try 
 this sort of case, and therefore it is indispensably necessary for the 
 sake of justice — not to save us from the trouble of trying the case, 
 which we are perfectly willing to take, but for the sake of jus- 
 tice — that there should be a reference to an arbitrator who will 
 take accounts between the parties." 
 
 My Lords, in ninety-nine cases out of a hundred, that recommen- 
 dation would at once be acceded to. Sometimes there is a wron"- 
 headed client, who is fool enough to resist such a recommendation, 
 and to whom, according to a well-known saying that we have 
 in Westminster Hall, it is necessary to use "strong language"' to. 
 induce him to listen to the recommendation of my Lord the Judge. 
 
 But, my Lords, it is quite clear that trial by jury never was 
 meant for such a case, and it is wholly incapable of doing justice 
 in such a case. Although a demand may resolve itself into a legal 
 demand, still if there is such a complication of accounts that it is 
 not a fit case for a trial at law, then according to the rule laid 
 down by that most eminent judge, Lord Eedesdale, a bill in 
 equity is the remedy. That, if properly pursued, will be effectual, 
 because that is followed by a reference to the Master, and the 
 Master takes the account, and he does justice between the parties ; 
 he at once doing properly what, after great expense incurred by an 
 action at law in bringing the case before a jury, would at last have 
 to be attempted by arbitration.
 
 416 ACCOUNT. 
 
 No. 1. — Taff Vale Railway Co. v. Nixon. 
 
 My Lords, I may be allowed at this point to say that I think 
 some important improvement might be made even with reference 
 to this remedy of a bill in equity in a case of this sort; because 
 1 think it is an enormous hardship upon parties coining into the 
 Master's Office, taking out warrant after warrant for months and 
 years, and sitting an hour a day in a very complicated account. 
 But if there were to be means taken, which I hope we may see 
 taken in cases of this sort, first of accelerating the proceedings for 
 bringing it into the Master's Office, and then, when it is in the 
 Master's Office, going on continuously until the account is taken, 
 speedy and ample justice would be done. This decision, to which 
 your Lordships are prepared to come, certainly will tend to facili- 
 tate these further improvements ; and I only hope that after it 
 is fully established that a bill in equity will lie in cases of this 
 sort, the practice of bringing an action at law and incurring enor- 
 mous expense, and then referring the matter to arbitration, will 
 fall into disuse, and that at once, in a case of this sort, the remedy 
 which is afforded by a bill in equity will be resorted to, and that 
 then, by some improvement in the mode of taking the account in 
 the Master's Office, speedy and effectual justice may be done. 
 
 Under the circumstances of this case, it is quite clear that the 
 account is of a very complicated nature, which could not by pos- 
 sibility be taken before a jury ; and therefore I am very glad to find 
 that according to the authorities and the established doctrine of a 
 Court of Equity, a bill in equity may be brought in such a case, and 
 on this ground T entirely concur in the motion of my noble and 
 learned friend, that the decree of the Vice Chancellor be affirmed. 
 
 Lord Brougham. My Lords, I rise only to mention a circum- 
 stance which my noble and learned friend reminds me of, that it 
 was formerly so much a matter of course, when cases of this sort 
 came before us at Nisi Prim upon the Northern Circuit, to refer 
 them to arbitration, tlwt we invented a phrase for it at consulta- 
 tion, the meaning of which was, that it could not be tried, and 
 that the leading counsel for the plaintiff would, what is commonly 
 called, "open a reference." Now, the coin\se ought to be a bill in 
 equity, — that is clearly the best remedy. And with my noble and 
 learned friend I entirely concur, in the hope that we may live to 
 see such an improvement in the practice as would eradicate all 
 the abuse and stop all complaints against the Master's Office, and 
 almost against the Court of Chancery, — that of parties being
 
 SECT. I. — JURISDICTION. 417 
 
 No. 1. — Taff Vale Railway Co. v. Nixon. — Notes. 
 
 obliged to go on, not de die in diem merely, but de hora in horam, 
 as they do at Nisi Prius after due notice. 
 
 Lord Campbell. I may remind your Lordships that the inade- 
 quacy of a jury to try such a case was felt so strongly by the Com- 
 mon Law Commissioners, appointed some years ago, that, to meet 
 the case of an obstinate party who stood out against the recom- 
 mendation of a reference, they recommended that an act of Parlia- 
 ment should be passed giving the Judge power to force a reference ; 
 and such a bill was brought in, but it was opposed by high au- 
 thority. There was, however, a great improvement made in the 
 most preposterous rule of the common law as to revoking the 
 appointment of an arbitrator. That improvement was introduced, 
 but it was thought that it would be improper to give the power of 
 compulsory reference. The bill, therefore, after a good deal of de- 
 liberation in both Houses of Parliament, was dropped. 1 only 
 mention that, in order to show the opinion that was then enter- 
 tained of the extreme impossibility of a jury trying a case of this 
 description. But if it could be taken speedily to the Master's 
 Office, and the Master were then to sit continuously to dispose of 
 it, I am sure that it would be a very great improvement in the 
 administration of justice in such cases. 
 
 The decree was then affirmed, with costs. 
 
 ENGLISH NOTES. 
 
 Questions as to the exclusive jurisdiction of courts of law and equity 
 are, under the judicature Acts, obsolete for English purposes. The 
 power of compulsory reference in questions of account, suggested by the 
 above remarks of Lord Campbell, was first introduced by legislative 
 enactment by the C. L. P. Act of 1854, s. 3. It was afterwards sub- 
 stantially embodied in the Rules of Court under the Judicature Acts; 
 and is now contained, in a more general and simple form, in the Arbi- 
 tration Act. 1889, s. 14. (See notes to "Arbitration," ISTo. 3, post.) 
 
 In the earlier case of the Corporation of Carlisle v. Wilson (1807), 
 13 Ves. 276, the question was argued on demurrer whether a bill in 
 Chancery would lie by the corporation against a stage-coach proprietor 
 for an account of tolls. The Lord Chancellor (Lord Erskine) over- 
 ruled the demurrer, and laid down the principle that a court of equity has 
 concurrent jurisdiction with a court of law on the subject of accounts; 
 and will decree an account in cases where an action at law would not 
 be tried without great difficulty, and where the verdict could not from 
 the nature of the case be satisfactory. 
 vol. i. — 27
 
 418 ACCOUNT. 
 
 No. 1. — Taff Vale Railway Co. v. Nixon. — Notes. 
 
 AMERICAN NOTES. 
 
 The doctrine of the principal case is of comparatively little practical import- 
 ance in this country, because in most States the distinction between courts of 
 law and of equity has been abolished, and under the Code system long 
 accounts are always sent to a referee for trial and determination. The prin- 
 cipal case is cited by the two latest text-writers on equity jurisprudence in 
 this country, Messrs. Pomeroy and Beach, and both of them recognise its 
 applicability in those States where separate courts of equity still exist, or 
 where there is a distinct course of practice in the same court in respect 
 to equity jurisdiction. Mr. Pomeroy (3 Eq. Jur. p. 2194), cites Mitchell v. 
 Gt. Works, fyc. Co., 2 Story (U. S. Circ), 648; Governor v. McEwen, 5 
 Humphrey (Tennessee), 241 ; Watt v. Conger, 13 Smedes & Marshall (Missis- 
 sippi), 412; Kirkman v. Vanlier, 7 Alabama, 217; Printup v. Mitchell, 17 
 Georgia, 558 ; 63 Am. Dec. 258 ; Wilson v. Riddle, 48 Georgia, 609 ; La/ever 
 v. Billmyer, 5 West Virginia, 33; Blood v. Blood, 110 Massachusetts, 545; 
 Farmers' 8fc. Bank v. Polk, 1 Del. Ch. 167; Trapnall v. Hill, 31 Arkansas, 345 ; 
 Nesbil v. St. Patrick's Church, 9 New Jersey Eq. 76. Mr. Beach says : " The 
 basis and extent of the equitable jurisdiction over matters of account appear 
 to have been seldom considered in the American courts, but often discussed in 
 the English authorities. These latter are not always harmonious." "The 
 necessity for a resort to equity for the reason in question," he continues, "is 
 now, in many of the States, and in England, very slight, if it can be said to 
 exist at all," &c. He adds the following citations : Warner v. McMullin, 131 
 Peun. St. 370 ; Fair v. Stickney Farm Co., 35 Minnesota, 382 ; Parkersburg v. 
 Brown, 106 United States, 487 ; Hathaway v. Hag'an, 59 Vermont, 75 ; Mc- 
 Ciilln v. Bcadleston, 17 Rhode Island, 20. To these may be added Smiley v. 
 Bell, 1 Martin & Yerger (Tennessee), 378; 17 Am. Dec. 813. 
 
 The principal case is cited in Uhlman v. N. Y. Life Ins. Co., 109 New York, 
 421 ; 4 Am. St. Rep. 482, in which the court hold that it is still discretionary 
 with the court whether to take jurisdiction of an action for an accounting for 
 the sole reason that the account is complicated, observing : "Judges in the 
 English equity courts have been somewhat slow to maintain jurisdiction in a 
 case where the ground thereof was solely that the account was complicated ; 
 and although there are very many cases in which the statement has been made 
 that equity would sometimes take jurisdiction on that account, yet in most of 
 them it is seen that there were added to that other grounds making it proper 
 for equity to assume cognisance of the cases. However it may be, it has at 
 least been stated that whether or not the court would take jurisdiction upon 
 the sole ground of the account being complicated, was a matter largely within 
 the discretion of the court. See South~Easte?-n By. Co. v. Martin, 2 Phill. Ch. 
 758 ; also Phillips v. Phillips, 9 Hare, 471 ; and Bliss v. S?nith, 34 Beav. 508. 
 We are not inclined to enlarge the principle, or to hold that in all cases the 
 mere fact of a complicated account being at issue will oblige the court to take 
 jurisdiction." This is based on the ground, stated in Marvin v. Brooks, 94 
 New York, 71, " that the plaintiff has now all the facilities for examining a 
 complicated account in an action at law that he would have in equity."
 
 SECT. I. — JURISDICTION. 419 
 
 No. 2. — Smith v. Leveaux. — Rule. 
 
 No. 2. — SMITH v. LEVEAUX. 
 
 (chancery, l. j. j. 1863.) 
 
 RULE. 
 
 A Court of Equity will not entertain a bill for an account 
 by a commercial agent for his commission, where adequate 
 relief can be obtained in a Court of Law. 
 
 Smith v. Leveaux. 
 
 33 L. J. Ch. 167. 
 
 This was an appeal, by the defendants, the Hungarian Vineyard 
 Company, a trade firm of wine-merchants, carrying on business at 
 Liverpool under that title, against a decree of Vice Chancellor 
 Wood, decreeing an account of what was due to the plaintiff for 
 commission on all orders for wines and brandies obtained by him, 
 or through his introduction. 
 
 The plaintiff was a commercial traveller, and for some time pre- 
 viously to the year 1860 he had been employed by the defendants 
 as their agent for a considerable district in England, upon certain 
 terms, which were stated in the bill to have been, that the plain- 
 tiff should receive a commission of £7 10s. per cent, upon all orders 
 obtained by him through his connexions and friends, and executed 
 by the defendants ; and although the evidence went to show that 
 the original terms involved the payment of a higher rate of com- 
 mission, it was clear that in January, 1860, the defendant, Mr. 
 Edward Leveaux, in a letter to the plaintiff, informed him that his 
 firm could not continue to pay so high a commission, and offered 
 him the £7 10s. per cent, already mentioned. But it will be suffi- 
 cient to state that on the 23rd of July, 1860 the defendant, Edward 
 Leveaux, wrote a letter to the plaintiff, which contained the fol- 
 lowing passage : — 
 
 " Now, as regards the commission, I am most anxious that it 
 should be as remunerative as possible with the successful working 
 out of the business. To keep at our present prices for brandy, 
 port, sherry, &c, I find it will not suit to allow a higher commis- 
 sion than the following, and particularly ns I have had to give up 
 a highly lucrative portion <> e «o that I might have
 
 420 ACCOUNT. 
 
 No. 2. — Smith v. Leveaux. 
 
 time to travel entirely in the Hungarian wine trade. On all busi- 
 ness done by yourself, either in London or -your district, £7 10s. 
 per cent., where our full prices and shipping' arrangements are 
 adhered to, and of course only on good debts, and an allowance of 
 £3 10s. per cent, on all orders received from your friends, first 
 introduced by you, so long as you continue to exert yourself in 
 the working out of the business, and are engaged in the selling of 
 our Hungarian wines and spirits; but of course we could not bind 
 ourselves in perpetuity to such an allowance, as you might cease 
 to represent those interests, and then, of course, the allowance 
 would cease at the same time. Such a contingency, I hope, how- 
 ever, is not likely to occur." 
 
 These terms were accepted by the plaintiff, in a letter written 
 to the defendants, dated the 1st of April, I860 ; but very soon after- 
 wards the plaintiff became discontented with the extent of the 
 district assigned to him, and required an extension of it. This was 
 refused by the defendants, and the plaintiff wrote declining the 
 agency as from the date of his letter. The plaintiff and Mr. 
 Edward Leveaux then met, and an arrangement was made to con- 
 tinue the agency on the old terms, but with the addition that the 
 plaintiff should also receive £3 10s. per cent, commission on orders 
 obtained from such of his friends and connexions as were not 
 within the district assigned to him. 
 
 The parties subsequently disagreed on the accounts, and the 
 plaintiff ceased to act as agent for the defendants in. September, 
 1861 ; and in the following year he filed this bill for an account of 
 what was due to him, and for payment. 
 
 These statements were, in substance, admitted to be accurate ; 
 but the defendants did not demur to the bill (an omission which 
 they accounted for by the circumstance that the bill and instruc- 
 tions were not laid before counsel within the time limited for de- 
 murring alone, — namely, within twelve days after appearance), but 
 the answer contained the following submission on their behalf: 
 " We submit that this bill should not have been filed, and that the 
 . plaintiffs remedy (if any) is by an action at law." 
 
 Voluminous evidence was gone into in the suit, and the defen- 
 dants had filed a concise statement and interrogatories, upon 
 which the plaintiff himself was examined, and the cause came on 
 for hearing before Vice Chancellor Wood, in June last, when his 
 Honour, in pronouncing the decree already mentioned, thus ex-
 
 SECT. I. — JURISDICTION. 421 
 
 No. 2. — Smith v. Leveaux. 
 
 pressed himself: " I am anxious to give my reasons for not acced- 
 ing to Mr. Jessel's view on the question of law. I should be most 
 unwilling to do anything which would have the appearance or 
 effect of throwing any doubt upon the decisions in Dinwiddie v. 
 Bailey, 6 Yes. 136, and Phillips v. Phillips, 9 Hare, 471 ; S. C. 22 
 Law J. Rep. (N. s.) Chanc. 141, that, when the receipts and pay- 
 ments are wholly on one side, this court will not take the account 
 at the suit of an agent; that is to say, where it consists of receipts 
 by A. on account of B., and payments made by A. on account of B. 
 When the receipts and payments are wholly on one side, you can- 
 not have an account; but where each side has been paying and 
 receiving, having mutual confidence in each other, then the account 
 arises. Mr. Jessel's argument would have been perfectly right if 
 it had been the case of a simple commercial traveller, if the defen- 
 dants had not entered into a contract on their part that for every- 
 thing they sold upon the plaintiff's introduction, and which of 
 course he could know nothing of, they would pay him a commis- 
 sion of £3 106*. per cent. ; therefore, the whole thing, as I appre- 
 hend, arises, and the defendants are brought here, and the account 
 of that commission must be taken." The decree was therefore to 
 the effect stated above, and the defendants appealed against the 
 whole of it. 
 
 In the course of the argument the following authorities were 
 referred to : — 
 
 The South-Eastern Railway Company v. Martin, 2 Ph. 758 ; s. c. 
 1 Hall & Tw. 69; IS Law J. Rep. (x. s.) Chanc. 103; Phillips v. 
 Phillips, 9 Hare, 471 ; s. c. 22 Law J. Rep. (n. s.) Chanc. 141 ; Pad- 
 wick v. Stanley, 9 Hare, 627 ; s. c. 22 Law J. Rep. (n. s.) Chanc. 
 1S4; Foley v. Hill, 2 H. L. Cas. 28; Padwick v. Hurst, 18 Beav. 
 575 ; s. c. 23 Law J. Rep. (n. s.) Chanc. 657. 
 
 Mr. Willcock having been heard in reply, — 
 
 Lord Justice Knight Bruce said, that it appeared to him that 
 the present bill stated a case for an action at law, but not such a 
 case as would entitle the plaintiff to file a bill in equity. It did 
 not fall within those principles as to account and agency upon 
 which, when there was jurisdiction both in courts of law and of 
 equity, that joint jurisdiction was based. He was unable, with 
 great deference to the learned Vice Chancellor, to come to the 
 same conclusion as that at which his Honour had arrived, for it 
 appeared to him to be solely a case of legal right ; and, considering
 
 422 ACCOUNT. 
 
 No. 2. — Smith v. Leveaux. 
 
 the established rules of this court, there was neither account nor 
 agency within the meaning of those rules. The bill might have 
 been demurred to, and it must be now dismissed. 
 
 Lord Justice Turner added, that he should have hesitated to 
 pronounce an opinion at variance with that of Vice Chancellor 
 Wood, immediately and without further deliberation, if the sub- 
 ject had not been recently under his consideration ; but as he had 
 lately given full consideration to the subject, he thought that no 
 benefit would arise from deferring his judgment in the present case. 
 It had not been contended by the plaintiff that there would be 
 any possible right in him to file a bill for an account, unless on 
 the ground that it was the duty of the defendants to keep an 
 account of their receipts, so far at least as concerned that portion 
 of their business in respect of which the plaintiff was entitled to 
 a commission, — namely, on the orders received by the defendants 
 from friends and connexions of the plaintiff, hut, in the first 
 place, the bill contained no allegation whatever that there was 
 any contract by the defendants, or that it was any part of their 
 duty, to keep any such account ; in the next place, it was not 
 every contract which of necessity created such a trust as would 
 justify this court in interfering ; and in the third place, there 
 appeared in this to be nothing more than a simple contract by 
 the defendants to pay the plaintiff a commission upon the orders 
 to be obtained from his friends and connexions ; and if the plaintiff 
 could maintain a bill under such circumstances, it was impossible 
 to say where the jurisdiction of this court in similar cases would 
 cease. For instance, a banker not only received money paid in by 
 his customers, but he also applied money which he received from 
 other sources on their accounts ; and upon the contention of the 
 plaintiff, if this bill were right, every customer of every banker 
 might file a bill to have the accounts taken between himself and 
 the banker. This was quite inconsistent with the principles laid 
 down in the case referred to in the argument before the House of 
 Lords in Foley v. Hill. It was clear that in the present case there 
 were no mutual accounts between the parties ; and although it 
 would not be denied that complexity of accounts had in some 
 cases been held to justify a suit in this court, there was no such 
 allegation of complexity in the bill in this suit, nor was there any 
 allegation that there were mutual accounts. With the greatest 
 respect for his Honour, he was of opinion that the bill must be
 
 SECT. I. — JURISDICTION. 423 
 
 No. 2. — Smith v. Leveaux. — Notes. 
 
 dismissed, and with costs; but there would be no costs of the 
 appeal. The bill will be dismissed with costs, without prejudice 
 to any action at law; no costs of the appeal, and the deposit to be 
 returned to the defendants. 
 
 ENGLISH NOTES. 
 
 It should be noted that in this case the Lord Justices reversed the 
 judgment of V. C. "Wood, and that the decision as reported in 1 Hem- 
 ming & Miller, p. 123, thus stands reversed. 
 
 Hemming v. Pugh (1863), 4 Gift'. 456, was a case which came up 
 on demurrer before V. C Stuart, on Nov. 4th, 1863, — a few days 
 before the decision of the Lord Justices in the principal case (which 
 was on Nov. 9th). The bill claimed an account, and alleged that the 
 defendant had received moneys on behalf of the plaintiff, of which the 
 amounts and particulars were unknown to the plaintiff. The Vice 
 Chancellor, notwithstanding the decision of V. C. Wood in Smith v. 
 Leveaux being cited, allowed the demurrer. The mere averment of 
 receipt of money hy an agent, although accompanied by a hald state- 
 ment that without the evidence of the defendant and the production of 
 the books the plaintiff was unable to obtain an account, was not 
 enough. It did not appear why the plaintiff could not obtain that evi- 
 dence. The Vice Chancellor, however, stated that his decision was not 
 merely on the ground that the receipts and payments were wholly on 
 one side. "There are many cases," he said, "where the receipts and 
 payments are wholly on one side, in which, however, this court has 
 exercised its jurisdiction. In the case of a steward or land-agent, 
 the receipts and payments are almost necessarily on one side, — 
 that is, no mutual payments and receipts. Yet that is a case in 
 which this court from the most ancient times (and more recently 
 daring the times of Lord Rosslyn, Lord Thurlow, and Lord Eldon) 
 has exercised this jurisdiction. That jurisdiction still remains; and 
 wherever an agency partakes of a fiduciary character, this court has 
 jurisdiction, and will direct an account, although the receipts and pay- 
 ments are all on one side, and there are no mutual payments between 
 the parries." 
 
 Most of the earlier authorities will be found cited in the arguments 
 before the House of Lords in Foley v. Hill (1848), 2 H. L. C. 28. 
 There a bill in Chancery had been brought \>y a customer against a 
 banker for an account, the transactions being not complicated, but con- 
 sisting of a few items and a calculation of interest. The House of 
 Lords, affirming the decision of Lord Lyndhurst, the former Lord 
 Chancellor, held that the bill was rightly dismissed. The Lokd Chan
 
 424 ACCOUNT. 
 
 No. 2. — ■ Smith v. Leveaux. — Notes. 
 
 CELlor (Lord Cottenham), in advising the House,, drew the distinction 
 between such a case and the case of an agent dealing with what is the 
 property of the principal. u As between principal and factor," he says, 
 "there is no question whatever that that description of case which 
 alone has been referred to in the argument in support of the jurisdic- 
 tion has always been held to be within the jurisdiction of a Court of 
 Equity, because the party partakes of the character of a trustee. . . . 
 So it is with regard to an agent dealing with any property: he obtains 
 no interest himself in the subject-matter beyond his remuneration; he 
 is dealing throughout for another, and though he is not a trustee accord- 
 ing to the strict technical meaning of the word, he is quasi trustee for 
 that particular transaction for which he is engaged; and, therefore, in 
 these cases the Courts of Equity have assumed jurisdiction." 
 
 Dinwiddle v. Bailey (1801), 6 Ves. 136, referred to by the Vice 
 Chancellor in the principal case (p. 421, supra), was a bill by an insur- 
 ance broker to make good a claim in the nature of a set-off against the 
 principal. The demurrer was allowed. It was stated by the counsel 
 in support of the bill, after the cause had stood over for the purpose of 
 searching precedents, that there were numerous cases of accounts sought 
 by a principal against a factor; and this is apparently confirmed by 
 Lord Cottenham's judgment in Foley v Hill. The other case, PJiil- 
 lips v. Phillips (1852), 9 Hare, 471 ; 22 L. J. Ch. 141, referred to by 
 V. C. Wood (p. 421, supra), was a simple case of debtor and creditor 
 account. It was alleged that amongst the moneys received were moneys 
 arising from the sale of certain railway shares belonging to the plaintiff 
 and sold by them on his account. Turner, V. C, allowed a demurrer 
 for want of equity. 
 
 AMERICAN NOTES. 
 
 The principal case is cited, with Pad wick v. Startle)/, 9 Hare, 627, by Mr. 
 Pomeroy (3 Equity Jurisprudence, p. 473), who observes : " While the rules 
 are thus settled in favour of a principal, it does not follow that the reverse is 
 true, and that an agent may come into equity for an accounting against his 
 principal, since generally there is no trust or confidence reposed in the latter, 
 and no duty on his part to account." 
 
 But where an agent's salary depends upon the profits made by his employer, 
 an accounting may be had. Buel v. Selz, 5 Illinois Appeals, 116; Bentley v. 
 Harris, 10 Rhode Island, 434; 14 Am. Rep. 695, citing Harrington v. Church- 
 ward, 8 W. R. 302 ; 6 J n. s. 576 ; see also Garr v. Redman, 6 California, 574 ; 
 Hallett v. Cumston, 110 Massachusetts, 32.
 
 SECT. II. STATED ACCOUNT. 425 
 
 No. 3. — Laycock v. Pickles. — Rule. 
 
 Section II. — WJiat may be recovered on a Staled Account. 
 
 No. 3. — LAYCOCK v. PICKLES. 
 (q. b. 1863.) 
 
 RULE. 
 
 Where several items of claim are brought into account on 
 either side, and, being set one against another, a balance 
 is struck and agreed to be due, — although the transaction 
 is merely verbal and some of the items have been merely 
 equitable and unliquidated claims, — the balance maybe 
 sued for as money due on account stated. The essence of 
 the matter is that in consideration of the discharge of 
 items on either side, the balance is agreed to be due. 
 
 Layr.ock v. Pickles. 
 
 33 L. J., Q. B. 43 ; (s. c. 4 Best and Smith, 497). 
 
 Upon an appeal against a judgment of the Judge of the County 
 Court of Yorkshire, holden at Leeds, the following case was stated 
 by the Judge : — 
 
 The action was brought to recover £22, stated in the plaintiffs 
 particulars of demand annexed to the summons to be due to him 
 from the defendant, <: for work and labour done find performed, 
 and materials found and provided by the plaintiff for the use and 
 on account of the defendants, at their request, and also upon an 
 account stated, full particulars whereof have been sent and deliv- 
 ered to the defendants." 
 
 The case came on for trial at Leeds, on the 2d day of February, 
 1863, and was adjourned from time to time to the 1st of April 
 following, when it. was fully heard before Thomas Horncastle 
 Marshall, Esquire, Judge. 
 
 On the trial the plaintiff's attorney stated that he should pro- 
 ceed on the account stated only, as the plaintiffs cause of action, 
 and that he should not proceed on or prove the other causes of 
 action alleged in the particulars of demand.
 
 426 ACCOUNT. 
 
 No. 3. — Laycock v. Pickles. 
 
 The facts proved at the trial, so far as they are material to this 
 appeal, are as follows : — 
 
 The plaintiff, previous to the year 1860, purchased of one David 
 Metcalf a plot of land, by an agreement in writing, for £123 18s. 
 He paid a deposit on the purchase, and subsequently several 
 instalments of the purchase-money, and interest on the balance 
 owing from time to time. The vendor, however, never executed 
 a conveyance to him. In 1860 the plaintiff was indebted to the 
 defendants and their copartner, Edward Taylor (who carried on 
 business under the firm of Pickles & Co.), in a considerable sum, 
 and being required to pay the same, he deposited with them the 
 purchase agreement before mentioned, and executed an indenture, 
 bearing date the 28th day of April, 1860, whereby he charged his 
 interest in the said land with the sum of £100, stated to be owing 
 from him to the said defendants. In 1861 the plaintiff made a 
 contract with the said firm of Pickles & Co. to build certain houses 
 for them. He also did other work for and supplied materials to 
 them. During the progress of the contract, the plaintiff became 
 embarrassed, and called his creditors together, and, along with the 
 principal creditors, he had an interview with George Edward 
 Taylor, one of the defendants ; and at such interview a builder, 
 named Wilks, was appointed by all parties concerned to value the 
 work done by the plaintiff on the contract, and to ascertain the 
 sum due in respect thereof. The valuation was completed ; and 
 on the 6th of February, 1861, the plaintiff, the defendants, and 
 Wilks met together, and Wilks made out a statement in writing 
 for the purpose of ascertaining the state of accounts between the 
 plaintiff and the firm of Pickles & Co. From that account, and 
 from the evidence, it appeared that the firm were, at the time of 
 taking such account, creditors of the plaintiff to the extent of 
 X 111, and owed him £67 for work done for them, leaving the 
 plaintiff indebted to the firm on the cross-accounts before men- 
 tioned in a balance of £44, or thereabouts. These accounts having 
 been ascertained and agreed to at the interview above named, the 
 value of the plaintiffs interest in the land which he had bought of 
 Metcalf, and on which the defendants held the equitable security, 
 as before mentioned, was also calculated, and fixed at .£70, which 
 sum, being added to the credit of the plaintiff's said account with 
 the defendants, created a balance in the plaintiffs favour of £26. 
 It was proved, in the Judge's opinion (though the fact was denied
 
 SECT. II. — STATED ACCOUNT. 427 
 
 No. 3. — Laycock v. Pickles. 
 
 by the defendants), that the defendant, George Edward Taylor, on 
 behalf of the said firm, at the said interview, verbally agreed to 
 take the plaintiff's interest in the land at the above-named sum of 
 £70; but having made some objection to the balance of £26, as 
 being too great a sum, he agreed that such balance should be 
 taken at the sum of £22, to which the plaintiff' agreed. The 
 plaintiff had not sued Edward Taylor, the third partner in the said 
 firm of Pickles & Co., the County Court Act (9 & 10 Vict. c. 95, 
 § 68) enabling a plaintiff to sue any one or more joint debtors 
 without being subject to plea of non-joinder. 
 
 It was admitted by all parties that no memorandum in writing 
 (either before, at, or after the said interview) had been entered 
 into or signed by the plaintiff or the defendants, or any of them, 
 or by any one on their or his behalf, for the purchase of the plain- 
 tiffs interest in the. land before mentioned, or that they would 
 pay the said balance of £22 to the plaintiff. The land so verbally 
 agreed to be purchased of the plaintiff was subsequently sold by 
 the defendants, and conveyed by them to one William Kirk 
 Duxbury for the sum of £127 lis. 6d. It was agreed by the 
 attorneys on both sides that the said deed of conveyance should 
 be taken as part of this case. 
 
 It was contended, on behalf of the defendants, that there was 
 not legal evidence to support the plaintiff's demand for £22 on an 
 account stated ; that any assent to, or adoption of, that balance by 
 the defendants formed in reality one of the terms of a contract or 
 sale of lands, or some interest concerning them, and required by 
 the Statute of Frauds to be in writing, signed by the parties 
 charged therewith, or by some person lawfully authorised thereto, 
 and that no such memorandum in writing had been proved ; that 
 in point of law there was not sufficient evidence of the said 
 account stated ; that there was no evidence of any subsisting debt 
 to support the same, but that the contrary was proved. 
 
 On the above facts, the Judge of the County Court held that 
 there was sufficient evidence of an account stated between the 
 parties, on which the plaintiff was entitled to recover the sum 
 of £22 ; for which sum a verdict was accordingly entered, over- 
 ruling the points raised on behalf of the defendants. 
 
 The question for the opinion of the Court was, whether the said 
 ruling and determination of the Judge of the County Court was 
 correct in law. And if the Court should be of opinion that such
 
 428 ACCOUNT. 
 
 No. 3. — Laycock v. Pickles. 
 
 ruling and determination was incorrect in point of law, then the 
 Court might set aside the verdict entered for the plaintiff, and 
 make such order as the Court might think proper. 
 
 After argument, in which Cocking v. Ward (p. 433, r p os t) a nd 
 other cases were cited : — 
 
 Wightman, J. In this case it appears that there were del its 
 and credits, and that the parties were desirous of settling all the 
 differences on Loth sides, and of striking a balance ; and it was 
 agreed between them that the amount of the plaintiffs interest in 
 certain land to be taken by the defendants should be fixed at a 
 certain sum, and should be reckoned in an account stated between 
 the parties, subject to a deduction agreed to by the plaintiff. That 
 conveyance was duly made. If the account had been stated after 
 the execution of the conveyance, there could be no doubt about 
 the matter ; but it appears to me that the parties, in effect, agreed 
 that the ascertained sum should be due and payable then. If the 
 consideration failed, such failure might be an answer to the action 
 on the account stated ; but it seems to me that after the consider- 
 ation has been executed, it cannot be argued, as was done at the 
 hearing of the case, that the assent to or adoption of the balance 
 by the defendants formed in reality one of the terms of a contract 
 or sale of lands, or some interest in or concerning them required 
 by the Statute of Frauds to be in writing, and that therefore the 
 defendants cannot be legally compellable to pay the amount agreed 
 to be due. It is said that an executory agreement cannot amount 
 to an account stated; but I think that the cases which have been 
 cited differ from the present in this, that here the purchase-money 
 is treated as having been actually paid ; and the action was 
 brought for the balance which was agreed to be due, on the sup- 
 position that the purchase-money had been actually paid. In the 
 state of affairs between these parties, it may have been an advan- 
 tage to the defendants that there should have been a settlement of 
 the whole account, including many items, and that the account 
 should have been so stated. I think, therefore, that the stating 
 of the account itself was a sufficient consideration, and that an 
 action could be supported upon it, subject to its being defeated 
 by the non-conveyance of the land. 
 
 Blackburn, J. I am of the same opinion. [The learned Judge 
 stated the facts, and then proceeded.] Can this sum of £22 be 
 recovered in an action on an account stated ? In common talk,
 
 SECT. II. — STATED ACCOUNT. 429 
 
 No. 3. Laycock v. Pickles. 
 
 an account stated is treated as an admission of a debt due from 
 the defendant to the plaintiff; but there is also a real account 
 stated, which is equivalent to what is called in the old law an 
 insimul computawruut, when several items of claims are brought 
 into account on either side, and, being set against one another, a 
 balance was struck, and the consideration for the payment of the 
 balance was the discharge on each side. I do not agree with Mr. 
 Quain, that, in order to make out a real account stated, there must 
 be real debts due at the time, or that the claims brought into the 
 account must be legal claims ; equitable claims would do, and I 
 am not certain that a moral obligation would not he sufficient. I 
 think that the matter is to be considered as if the sums had been 
 paid down on each side, and had been actually taken in satisfac- 
 tion, subject to this : that if the nature of some of the items be 
 such that, if they had been actually paid over, the party paying 
 them would have been able to recover them back as upon a failure 
 of consideration, the Court could inquire into the account stated, 
 and could hold that it was invalid. That is, I think, consistent 
 with what is stated in Com. Dig. tit. Pleader, 2-G. 11: "So to 
 an assumpsit the defendant may plead that, since the promise 
 made, he and the plaintiff insimul computavefunt et super compt. 
 Me ipse inventus fuit in arrear, so much, which he has paid." 
 And, further on, the writer says, referring to 3 Lev. 238, that " an 
 account without payment or release is no plea to an indebitatus 
 assumpsit ; for a chose in action cannot discharge a matter executed." 
 I think that that applies to the case of an account stated, where 
 there is only one item ; but where there are several items, the 
 account stated discharges the items on each side, as w T as ruled in 
 Mil ward v. Ingram, 2 Mod. 43, where the Court held a plea good 
 which was to the effect that after the promises made, but before 
 the action brought, the parties came to an account concerning divers 
 sums of money, and that the defendant was found in arrear to the 
 plaintiff 305. ; whereupon, in consideration that the defendant 
 promised to pay him the said 30s., the plaintiff likewise promised 
 to release and acquit the defendant of all demands. The same 
 principle is to be found in Dawson v. Remnant, 6 Espinasse, 
 24. In that case a clear, consistent, and intelligible principle is 
 laid down ; and the report is probably correct, except that the 
 reporter makes Mansfield, C. J., use the term "set-off" where 
 "settlement in account" must have been really meant. Here, I
 
 430 ACCOUNT. 
 
 No. 3. — Laycock v. Pickles. — Notes. 
 
 think, the arrangement between the parties was, that the £70 
 should be taken as if it had been paid by the defendants to the 
 plaintiff, and paid back to the defendants in part payment of the 
 <£lll due from the plaintiff to the defendants, and that th i <ult 
 of the whole was, that the defendants should pay to bhe -t'if 
 
 £22. Supposing that the plaintiff had actually paid the £70. do 
 not think that he could have recovered it back. The defend nts 
 object that inasmuch as the transaction was all by word ui in nth, 
 they could not enforce the agreement for the transfer of the e u ity 
 of redemption ; but if the £70 had been actually paid down, the 
 defendants would not be able to get it back unless the transfer of 
 the equity of redemption had been refused when they had asked. 
 for it; but there is no attempt to show that the plaintiff has ever 
 refused it, or that he has set up the Statute of Frauds. Where 
 there has been a real insimul computassent of several items, it is 
 just the same as if the money had been actually paid and returned. 
 I think there was a sufficient account stated, and that the plaintiff 
 was entitled to succeed. 
 
 MELLOK, J. I doubted at first whether, upon the finding in this 
 case, 'this balance of £22 was the result of a real accounting 
 between the parties. But upon a more careful consideration, I 
 think there is abundant reason why it should be reasonable and 
 proper that the price of the equity of redemption should be brought 
 into the account which the parties were stating. I think it was 
 so brought into account, and I agree with my brothers. 
 
 Judgment for the plaintiff. 
 
 ENGLISH NOTES. 
 
 "If one merchant sends an account current to another in a different 
 country, on which a balance is made due to himself; the other keeps it 
 by about two years without objection; the rule of this Court (the Court 
 of Chancery) and of merchants is, that it is considered as a stated 
 account." Per Lord Chancellor Hardwicke in Ticket v. Short (March 
 14, 1750-1751), 2 Ves. 239. 
 
 On a motion in the Queen's Bench for prohibition upon an action in 
 the Lord Mayor's Court, Brenan v. Crawley (1SG8), 10 W. R. 754, the 
 question, was whether what took place at an interview in London — 
 where an account certified by an agent of the defendants was gone 
 through and the amount admitted — created a cause of action arising 
 within the city of London. The Court ruled that there was no such 
 cause of action, and that prohibit] >n must issue. Blackburn, J.,
 
 SECT. II. — STATED ACCOUNT. 431 
 
 No. 3. — Laycock v. Pickles. — Notes. 
 
 cited a passage from the judgment of Baron Aldeiisox in Ashby v. 
 James (1843), 11 M. & W. 542, 544; 12 L. J. Exch. 295, that "going 
 
 through an account where there art' items on both sides, and striking a 
 balance, converts the set-oft into payments; the going through an ac- 
 count where there are items on one side only docs not alter the situation 
 of the parties at all, or constitute a new consideration," and from the 
 judgment of Baron Holfe in the same case: "An actual settlement 
 of accounts is not an 'acknowledgment or promise by words only.' It 
 is a transaction between the parties, out of which a new consideration 
 arises for a promise to pay the balance." In the case before the C »urt 
 the learned Judge (Blackburn) said what was alleged to have taken 
 place at the interview amounted to no more than a simple admission, 
 which does not alter the original position of parties. 
 
 AMERICAN NOTES. 
 
 The following general principles are established by the American cases in 
 respect to Accounts Stated : — 
 
 1. An account stated is an agreement that all the items are correct. Union 
 Bank v. Knapp, 3 Pickering (Mass.), 96 ; 15 Am. Dec. LSI; Andingv Levy, 
 57 Mississippi, 51; 34 Am. Rep. 435; Claire v. Claire, 10 Nebraska, 54; 
 Hawkins v. Long, 71 North Carolina, 781. 
 
 2. It need not be signed by the parties. Lockwood v. Thome, 11 New York, 
 170 ; 62 Am. Dec. 81 ; Freeman v. Howell, 4 Louisiana Annual, 196 ; 50 Am. 
 Dec. 561 ; Brown v. Vandyke, 4 Halsted Chancery (New Jersey), 795 ; 55 
 Am. Dec. 250. 
 
 3. There need not be cross-demands. Rutledge v. Moore, 9 Missouri, 537 ; 
 Ware v. Dudley, 16 Alabama, 742 ; Cobb v. Arundell, 26 Wisconsin, 553 ; Kock 
 v. Bonitz, 4 Daly (New York), 117. 
 
 4. The agreement need not be express, but may be implied. Freeman v. 
 Howell, supra; Brown v. Vandyke, supra ; Gilchrist v. Association. 66 Barbour 
 (New York), 390. 
 
 5. There must be an absolute and unqualified assent, express or implied, 
 to a certain amount or balance due. Tassey v. Church, 4 Watts & Sergeant 
 (Penn.), 141; 39 Am. Dec. 65; Stenton v. Jerome, 54 New York, 480; Cape 
 Girardeau, Sf c. R. Co. v. Kimmel, 58 Missouri, 83; Reinhardt v. Hlnes, 51 
 Mississippi, 314 ; Bouslog v. Garrett, 39 Indiana, 338 ; Boon/ v. Hackett, 21 
 Wisconsin, 613 ; Pulllam v. Booth, 21 Arkansas, 420 ; Volkening v. De Graaf, 
 81 New York, 268. 
 
 6. . The admission must be to the opposite party or his agent. Hoffar v. 
 Dement, 5 Gill (Maryland), 532; Thurmond v. Sanders, 21 Arkansas, 255. 
 
 7. If an account rendered is not objected to within a reasonable time, it 
 maybe treated as an account stated. Freeman v. Howell, supra; Brown v. 
 Vandyke, supra ; Lockwood v. Thome, supra ; Langdon v. Roane, '6 Alabama, 
 518; 41 Am. Dec. 60; Freeland v. Heron, 7 Cranch (U. S. Sup. Ct.), 
 147 ; Oil Co. v. Van Etten, 107 United States, 325 ; Terry v. Sickles, 13
 
 432 ACCOUNT. 
 
 No. 3. — Laycock v. Pickles. — Notes. 
 
 California, 427; Freas v. Truitt, 2 Colorado, 489 ; While v. Campbell, 25 Michi- 
 gan, 463 ; Stebbins v. Niles, 25 Mississippi, 267; Powell v. Pac. R. Co., 65 
 Missouri, 65S ; Hawkins v. Long, 74 North Carolina, 781 ; Verrier v. Guillou, 
 97 Penn. St. 63; Bun/en v. McElmoyle, 1 Bailey Equity (So. Carolina), 
 375; Craighead v. Bank; 7 Yerger, 399; Tharp v. Tharp, 15 Vermont, 105; 
 Robertson v. Wright, 17 Grattan (Virginia), 534. 
 
 8. The doctrine of account stated, as derived from acquiescence, applies 
 only as between merchants. Anding v. Levy, 57 Mississippi, 51 ; 34 Am. Rep. 
 435; Rich v. Eldredge, 42 New Hampshire, 153. Contra: Terry v. Sickles, 
 supra; White v. Hampton, 10 Iowa, 238; Tharp v. Tharp, supra ; White v. 
 Campbell, supra : Townes v. Birchett, 12 Leigh (Virginia), 173; Shepardv. Bank, 
 supra. In Appleby v. Brown, 24 New York, 143, it was held that at common 
 law an action of account would only lie between two merchants, and was not 
 available where a partnership consisted of more than two. Lockwood v. 
 Thome, 11 New York, 170, was a case between tanners and leather merchants; 
 Stenton v. Jerome, 54 New York, 480, a stock-broker and a customer ; Co.se v. 
 Hotchkiss, 1 Abb. Ct. App. Dec. (New York), 324, attorney and client ; Towsley 
 v. Denison, 45 Barbour (New York), 490, vendor of stone and canal contractor. 
 In Townes v. Birchett, 12 Leigh (Virginia), 173, Allen, J., dissented. 
 
 9 An account stated may be impeached for fraud, mistake, duress, &c. 
 
 I Story Eq. Jur. § 523, and cases cited in note, 62 Am. Dec. 91. It " is a mere 
 admission that the amount is correct. It is not an estoppel." Lockwood v. 
 Thome, 18 New York, 285. 
 
 10. The stating an account is in the nature of a new promise, as to plead- 
 ing. Smith v. Glens Falls Ins. Co., 66 Barbour (New York), 556 ; McClelland's 
 Exr v. West's AdrnW, 70 Penn. St. 183. But still a recovery may be had 
 on the original account. Cross v. Moore, 23 Vermont, 482. But see Rand v. 
 Wright, \-2>) Massachusetts, 50. 
 
 11. An item disallowed and left out of the settlement may form the foun- 
 dation of subsequent suit or set-off. Bright v. Coff'mau, 15 Indiana, 371 ; 77 
 Am. Dec. 96; Rehill v. McTague, 114 Penn. St. 82 ; 00 Am. Rep. 341. 
 
 12. An action will not lie on an account stated growing out of an intrinsi- 
 cally immoral and illegal contract. Melchoir v. McCarty, 31 Wisconsin, 252 ; 
 
 II Am. Rep. 605 ; Dunbar v. Johnson, 108 Massachusetts, 519. But see as to 
 usury, Bullard v. Raynor, 30 New York, 202.
 
 SECT. II. STATED ACCOUNT. 433 
 
 No. 4. — Cocking v. Ward. — Rule. 
 
 No. 4 — COCKING v. WARD, 
 (c. p. 1845.) 
 
 RULE. 
 
 Where a contract which, by reason of the Statute of 
 Frauds, could not (if it had remained executory) have been 
 enforced, has been executed on the one part, and the con- 
 sideration payable on the other part admitted as a debt, 
 the party of the former part may recover it by action, as 
 a debt upon account stated. 
 
 Cocking v. Ward. 
 
 15 L. J. C. P. 245 (s. c. 1 C. B. 858). 
 
 Assumpsit. The first count of the declaration recited that the 
 plaintiff was the occupier of a farm, as tenant thereof from year to 
 year to one G. H. Vernon, and continued such tenant until a certain 
 day. — to wit, the 25th of March, 1842; that the defendant was 
 desirous of taking and renting the said farm from the said G. H. 
 Vernon, and had thereupon applied to and requested the plaintiff 
 to surrender and relinquish possession of the said farm to the said 
 G. H. Vernon, on the said 25th of March, and to apply to the said 
 G. H. Vernon, and endeavour to prevail upon him to accept of such 
 surrender, and to accept the defendant as tenant of the farm in 
 place of the plaintiff, from the said 25th of March. The declaration 
 then stated that, thereupon, afterwards, and whilst the said plain- 
 tiff's tenancy was still subsisting, — to wit, on the 1st day of August, 
 a. D. 1841, — in consideration that the plaintiff, at the request of the 
 defendant, would surrender and relinquish possession of the said 
 farm, &c, to the said G. H. Vernon, on the said 25th of March, 
 1842, and would also, at the like request of the defendant, apply 
 to the said G. H. Vernon and endeavour to prevail upon him to 
 accept of such surrender, and also to accept the said defendant 
 as tenant of the said farm, &c, in lieu and in place of the said 
 plaintiff, from the said 25th of March, 1842, he, the defendant, under- 
 took and then faithfully promised the plaintiff to pay her £100 
 when and as soon as he, the defendant, should become tenant to 
 the said G. H. Vernon as aforesaid, in lieu and in place of the 
 vol. i. — 28
 
 434 ACCOUNT. 
 
 No. 4. — Cocking v. Ward. 
 
 said plaintiff as aforesaid. The declaration then averred that 
 afterwards, and after the making of the said promise, to wit, on 
 the said 25th of March, 18-12, — she, tiie plaintiff, confiding in the 
 said promise of the defendant, and in hopes of his faithful per- 
 formance thereof, did then surrender and relinquish possession of 
 the said farm, &c to the said G. H. Vernon, from the day and 
 year last aforesaid, and did also then, — - to wit, on the day and year 
 last aforesaid, — apply to the said G. H. Vernon, and endeavour to 
 prevail upon him to accept of such surrender, and also to accept 
 him, the defendant, as tenant of the said farm, &c, in lieu and in 
 place of the plaintiff, from the day and year last aforesaid ; and, 
 although the said G. H. Vernon did afterwards, — to wit, on the day 
 and year last aforesaid, — accept of such surrender, and did also 
 then accept the defendant as such tenant as aforesaid, in lieu and 
 in place of the plaintiff ; and although the defendant did after- 
 wards — to wit, on the day and year last aforesaid — enter upon 
 and take possession of the said farm, &c, and then became tenant 
 thereof to the said G. H. Vernon, in lieu and in place of the said 
 plaintiff: breach, that the defendant did not, when he so became 
 and was accepted such tenant, pay the defendant the said sum 
 of £100. 
 
 The second count was upon an account stated. 
 
 Pleas : First, non assumpsit to the whole declaration. Second, 
 (to the first count) that the plaintiff did not apply to and endeav- 
 our to prevail upon the said G. H. Vernon to accept the defendant 
 as tenant of the said farm. 
 
 The cause was tried, before Coltman, J., at the last Summer 
 Assizes for Nottinghamshire, when the plaintiff having called a 
 witness to prove the agreement stated in the declaration, it was 
 objected, on the Statute of Frauds, that parol evidence was not 
 receivable, as the contract related to an interest in land ; and a 
 case of Whattoff v. Frisby, which was tried before Patteson, J., 
 at the Leicester Summer Assizes, 1843, was cited, as being directly 
 in point. The defendant, upon being requested to pay the £100 
 after his admission to the farm, admitted his liability. It was 
 objected that this parol evidence was not admissible to prove an 
 account stated, the account being stated with respect to a contract 
 void by the Statute of Frauds. Coltman, J., overruled both the 
 objections, reserving leave to the defendant to move to enter a 
 nonsuit or a verdict.
 
 SECT.IL- — STATKD ACCOUNT. 435 
 
 No. 4. — Cocking v. Ward. 
 
 A rule was obtained accordingly, and, after argument, the 
 court took time for consideration. 
 
 On a subsequent day, — 
 
 TlNDAL, C. J., delivered the judgment of the court. There \vere 
 two questions brought before us in this case : one, whether the 
 contract stated in the first count of the declaration was a contract 
 which was required to be proved by a written memorandum, signed 
 by the party ; the other, whether there was sufficient evidence to 
 maintain the verdict for the plaintiff on the count upon an account 
 stated. The special count of the declaration was framed upon an 
 agreement between the plaintiff and the defendant, that if the 
 plaintiff, the tenant of a farm, would surrender her tenancy to 
 her landlord on the 25th of March then next, and would prevail 
 on her landlord to accept the defendant as his tenant in the place 
 of the plaintiff, he, the defendant, would pay the plaintiff £100 
 as soon as he should become the tenant of the land. It was not 
 contended that a contract under which the plaintiff, in considera- 
 tion of a sum of money, gave up his tenancy in the land and pro- 
 cured the defendant to be put into her place was not " a sale of 
 an interest in land" within the meaning of the Statute of Frauds ; 
 but the argument before us was, that although, if this contract had 
 been executory, it must have been proved by an agreement or 
 memorandum in writing, yet, as it was executed, as the plaintiff had 
 surrendered her tenancy, and had procured the defendant to be made 
 :i it instead of herself, the case was not to be held to be within the 
 -i itute ; and the case of Price v. Le>/hurn,Go\y. 109, before Dallas, 
 (J. L was relied upon as an authority to that effect. But as the 
 s|j iiil count in this action is framed upon the very contract itself, 
 o iiorce the payment, by the defendant, of the sum stipulated to 
 be paid as the price of the interest in the land which the plaintiff 
 gave up, and to which the defendant succeeded, we think the con- 
 tract tself cannot be considered as altogether executed, so lonjj as 
 the defendant's part still remains to be performed. And the case 
 appears to us to fall within the principle adverted to by Le Blanc, J., 
 in Griffith v. Young, 12 East. 513 ; and, further, we think, the case of 
 Buttcmere v. Hayes, 5 M. & W 459, 9 L. J. (x. s.) Exch. 44, is an au- 
 thority in point that the present contract, though executed on the 
 part of the plaintiff, yet not being executed on the part of the defen- 
 dant also, is still to be considered a contract within the Statute of 
 Frauds. The plaintiff, therefore, failing upon the special contract,
 
 436 ACCOUNT. 
 
 No. 4. — Cocking v. Ward. 
 
 the remaining question is, whether she is in a condition to recover the 
 £100 under the count upon an account stated. There was distinct 
 evidence in this case, that after the plaintiff' had given up the pos- 
 session, and after the defendant had succeeded to it through the 
 plaintiff's application to the landlord, the defendant admitted that 
 he owed the £100 to the plaintiff'. And this appears to us to be 
 sufficient evidence to enable the plaintiff to recover on the account 
 stated. The objection was, that the admission of a debt will only 
 enable a plaintiff' to recover as upon an account stated, where the 
 debt itself does not appear to be incapable of being recovered as a 
 debt; and that, here, the plaintiff could not recover upon the orig- 
 inal contract, inasmuch as it was not evidenced by a writing signed. 
 But, in the first place, such an exception is contrary to the author- 
 ity of several decided cases. In Knowles v. Michel, 13 East, 249, the 
 ground of the original debt was a sale to the defendant of standing 
 trees, which the defendant afterwards procured to be felled and taken 
 away; and the objection was, that the plaintiff could not recover 
 on the original contract for standing trees, which formed part of 
 the realty. But it was held, nevertheless, that the acknowledgment 
 of the price to be paid for the trees, after they were felled and 
 applied to the use of the defendant, was sufficient to sustain the 
 count on the account stated, Lord EUenborough saying, that if 
 there was an acknowledgment by the defendant of a debt due to 
 the plaintiff' upon any account, it was sufficient to enable him to 
 recover on an account stated. And afterwards, in Highmore v. 
 Primrose, 5 Man. & Selvv. 65, the court held that the proof of the 
 acknowledgment of one item of debt only, was good to support a 
 count upon an account stated ; and the former case was there men- 
 tioned and relied on. In Piiichon v. Chilcott, 3 Car. & Pay. 236, 
 there was a verbal contract for turnips growing in a field, upon 
 which it was held that the plaintiff could not recover; yet, as the 
 defendant admitted, after some of the turnips were drawn, that he 
 owed the plaintiff £3 for them, it was held at Nisi Prius that he 
 could recover to that amount upon an account stated ; and no 
 motion was made to the court to question the ruling. And in 
 Seago v. Deane, 4 Bing. 459; s. c. 6 Law J. Rep. C. P. 66, a prom- 
 ise to pay a specified sum, where the party had had the benefit' of 
 the contract, though he could not have been sued upon it, on ac- 
 count of its being a verbal contract only, was held to be good evi- 
 dence on the account stated. See also Peacock v. Harris, 10 East,
 
 SECT. II. — STATED ACCOUNT. 437 
 
 No. 4. — Cocking v. Ward. — Notes. 
 
 104. Upon the authority, therefore, of decided cases, we think the 
 plaintiff's right to the verdict on the account stated may be sus- 
 tained. And we think it sustainable also on principle; for after 
 the debt has formed an item in an account stated between the 
 debtor and his creditor, it must be taken that the debtor has satis- 
 fied himself of the justice of the demand; that it is a debt which 
 he is morally, if not legally, bound to pay, and which, therefore, 
 forms a good consideration for a new promise ; and the creditor, 
 on the other hand, may reasonably be excused for not preserv- 
 ing the evidence which would have been necessary to prove 
 the original debt before such admission. The principle may not, 
 perhaps, be applicable to cases where it can be shown that the 
 original debt is absolutely void from any illegal or immoral con- 
 sideration, or where it is made void by any statute, as by those 
 against usury or gaming ; but we think it applies to cases where 
 the only objection is, that the original debt might not have been 
 recoverable, from the deficiency of legal evidence to support it. 
 We, therefore, think the verdict for the plaintiff, on the first count, 
 should be set aside, and a verdict thereon entered for the defen- 
 dant; but that the verdict should stand for the plaintiff on the 
 second count. Rule accordingly. 
 
 ENGLISH NOTES. 
 
 This case is an example of the way in which, in the days of strictest 
 pleading, a certain elasticity was allowed in order to do substantial jus- 
 tice. For that purpose, and in a case where money was clearly due in 
 some form or other, the admission was held sufficient to support the 
 plea of money due on account stated, although the stating of the account 
 did not itself involve a consideration for the promise to pay it. 
 
 In Pulbrook v. Lawes (1876), 1Q. B. P. 284. 289; 45 L. J. Q. B. 178, 
 it is remarked by Blackbcrx, J., 1 Q. B. D. 289, that the principal case- 
 was decided before the Common Law Procedure Acts came into opera- 
 tion; and he implies that the question of pleading under those acts 
 would probably not have arisen in the same form. 
 
 To support the action under the ordinary money counts of the C. L. P. 
 Act,' 1852, it would perhaps have been enough to say that the delivery 
 up of possession was a new consideration (causa, in the sense of con- 
 sideration executed) to support a new promise to pay, which would be 
 implied by the acceptance of the possession under the circumstances. 
 But this was not the way the assumpsit was pleaded. 
 
 The observations in the latter part of the judgment, to the effect that, 
 where the original contract is void from an illegal consideration, the
 
 438 ACCOUNT. 
 
 No. 4. — Cocking v. Ward. — Notes. 
 
 debt could not form a good consideration for a new promise so as to 
 support a declaration on an account stated, are confirmed by the judg- 
 ment of the Court of Common Pleas in Kenned// v. Brown (1863), 13 
 C. B. N. S. 677; 32 L. J. C. P. 137. (Seepost, ''action " No. 18.) The 
 distinction made by Lord Loughborough for this purpose, in Watts v. 
 Brooks (1798), 3 Ves. 61U, between considerations immoral in themselves 
 and those against a prohibitory statute, has long been considered and 
 treated as overruled. See Knoioles v. Haughton (1805), 11 Ves. 168, 169. 
 
 AMERICAN NOTES. 
 
 See ante, p. 432, par. 12. The principal case is cited by Mr. Freeman in 
 note, 62 Am. Dec. 93. The cases distinguish between transactions intrinsi- 
 cally immoral and those merely prohibited by statute. 
 
 " But though an agreement be legally void and unenforceable by reason of 
 some statutory or common-law prohibition, which does not involve positive 
 immorality, and there is no other reason of public policy why the courts. 
 should refuse to grant relief, a party who has received anything under it from 
 the other party, and has failed to perform on his part, must account to the 
 other for what he has received." 2 Beach Eq. Jur, § 854 ; 1 Pomeroy Eq. 
 Jur. § 403. See Manchester, ire. R. Co. v. Concord R. Co., New Hampshire, 
 20 Atl. Rep. 383, and cases cited; Brooks v. Martin, 69 United States, 70: 
 Planters'' Bank v. Union Bank, 83 United States, 483 ; White v. Franklin Bank, 
 22 Pickering (Massachusetts), 181 ; Whitney v. Peay, 24 Arkansas, 22 ; Phila. 
 Loan Co. v. Towner, 13 Connecticut, 249; Foulke v. San Diego, Sfc. R. Co., 51 
 California, 365 ; Pratt v. Short, 79 Xew York, 445, a case of recovery of loan 
 for which usurious securities were given. 
 
 Where one has rendered services or transferred property under a contract- 
 voidable under the statute of frauds, he may recover the value of the services 
 or property. Wolke v. Fleming, 103 Indiana, 105; 53 Am. Rep. 495. 
 
 There are numerous cases holding that where the agreement is executed, 
 the party in default may be held in an action for the price or value. Reming- 
 ton v. Palmer, 62 Xew York, 31 ; Wetherbee v. Potter, 99 Massachusetts, 360 ; 
 Warden v. Sharp, 56 Illinois, 104; King v. Broicn, 2 Hill (Xew York), 485; 
 Detroit, Sfc. R. Co. v. Forbes, 30 Michigan, '166. 
 
 If A. lets B. into possession of a house, under an oral promise that if he will 
 make certain improvements he will lease it to him for twelve years, and after 
 the improvements are made refuses to do so, B. cannot recover for work and 
 labour. Hopkins v. Richardson, 5 X. Y. Leg. 01>s. 149; Gillett v. Maynard, 
 5 Johns. 85. But he lias a remedy in equity. McNamee v. Withers, 37 Mary- 
 land, 172. But if A. fraudulently represents that he is owner of lands, and 
 induces B. to do work on them in expectation of becoming joint owner, he 
 may recover for his work although the contract was void under the Statute of 
 Frauds. Rickard v. Stanton, 16 Wendell (Xew York), 25. 
 
 Where plaintiff entered on defendant's land under an oral agreement to pur- 
 chase, and sowed oats with his consent, and defendant refused to perform, and 
 ejected him, he was held entitled to the crop. Harris v. Frink, 49 Xew York, 
 21 ; 1(1 Am. Rep. 318. See also Stone v. Stone, 43 Vermont, 180 ; Day v. N. Y. 
 Sfc. R. Co., 51 Xew York, 583, 590; Harris v. Harris, 70 Penu. St. 170.
 
 SECT. III. — SETTLED ACCOUNTS. 439 
 
 No. 5. — Dunbar v. Lem. — Rule. 
 
 Section III. — Settled Accounts, how far conclusive. 
 
 No. 5.— DUNBAR v. LEM. 
 
 (h. l. 1772.) 
 
 RULE. 
 
 No settled account ought to be opened upon the mere gen- 
 eral suggestions of a bill in Equity ; especially when the 
 truth of such suggestions is fully and substantially denied 
 by the answer. 
 
 Dunbar v. Lem. 
 
 1 Brown, P. C. 3. 
 
 The respondent, William Lem, in the year 1751, became clerk to 
 the appellant, who was then a merchant in London, and agreed to 
 attend him four hours in the morning and two hours in the after- 
 noon, if required, to keep his books, and to do the usual business of 
 a clerk, during the time he continued in that capacity ; but he found 
 the appellant's books unsettled and unbalanced. 
 
 About the year 1753, the respondent followed the business of an 
 insurance broker, and in March, 1761, of an underwriter, and had 
 dealings with the appellant and various other persons to a very 
 large amount; and his demand on the appellant, as an insurance 
 broker and underwriter, for premiums only, amounted to £12,000 
 and upwards, antecedent to the 31st of December, 1762. 
 
 The appellant being engaged as agent and owner of a great num- 
 ber of privateers, was frequently in distress for money, and bor- 
 rowed several sums to a considerable amount of the respondent, 
 William Lem, who not only lent him his own money, but, from 
 motives of friendship, borrowed money of others, and stretched his 
 credit to serve the appellant and extricate him out of his pecuniary 
 difficulties. 
 
 The appellant, being frequently absent from London, found it 
 necessary, for the transaction of his business, to give the respondent, 
 William Lem, an unlimited authority to draw on his banker, and 
 to leave with him blank papers signed with the appellant's name, 
 which is usual among merchants when they place confidence in
 
 440 , ACCOUNT. 
 
 No. 5. — Dunbar v. Lem. 
 
 their clerks ; but the respondent constantly accounted with the 
 appellant, when he returned to town, for all money paid and 
 received in consequence of such authority. 
 
 The appellant, finding his want of money increase, as well from 
 his extravagant manner of living as from his losses in his new 
 trade of privateering, was reduced to the necessity of mutually bor- 
 rowing, and lending his name to notes and bills, payable at a future 
 day, in order to raise money by discount ; a great part of which passed 
 through the hands of the respondent, William Lem, but no entries 
 were made either of the receipt or payment of many such notes 
 and bills, because they were generally destroyed as soon as they 
 had served their purpose, so that no trace remained of the trans- 
 action. 
 
 The respondent, William Lem, was so fully employed in raising- 
 money and transacting the business of the privateers that he had 
 no time even to post the appellant's books, much less to balance 
 them, of which the appellant was so sensible that he hired one 
 Richard Postlethwaite for that purpose, and the respondent, William 
 Lem, was obliged to leave the appellant's books at the expiration of 
 his clerkship unbalanced, as he received them from William Hun- 
 ter, the appellant's former clerk. 
 
 On the 20th of February, 1762, the appellant executed a deed of 
 co-partnership between him and the respondent, in consideration, 
 among other things, that the respondent might by means of his 
 credit raise money to enable the appellant to carry on his business ; 
 and he accordingly continued to advance money for the use of the 
 appellant, from time to time, so that the debt due to the respondent 
 in the year 1762 amounted to £4341 14s. lid. upon a fair balance 
 of all accounts then subsisting between them, except the co-part- 
 nership account. 
 
 The appellant having lost upwards of £15,000 by gaming in 
 Exchange Alley, the respondent became very uneasy, and re- 
 quested him to execute a mortgage for £2000 or £3000, or any 
 nominal sum, to secure what was owing to him (the respondent at 
 that time not having balanced the account between them); but Mr. 
 Francis Eyre, the solicitor for the appellant, refused to let the appel- 
 lant give a mortgage for any, except the real and exact sum which 
 should be found due to the respondent on the balance of all their 
 accounts ; whereupon the respondent, some time after, having settled 
 such balance, which amounted to £4341 14s. lid., the appellant, by
 
 SECT. III. — SETTLED ACCOUNTS. 441 
 
 No. 5. — Dunbar v. Lem. 
 
 the approbation of the said Francis Eyre, executed a mortgage for 
 that sum, being the exact balance of all accounts then subsisting 
 between them, to the 3lst of December, 1762 (except the co-partner- 
 ship account), which mortgage the appellant himself sent to Antigua 
 to be registered ; and the respondent, on receiving the mortgage, 
 signed a paper agreeing to rectify any mistake in the settled account 
 which the appellant should afterwards discover. 
 
 Having thus balanced and settled all accounts between the appel- 
 lant and the respondent, William Lem, to the 31st of December, 
 1762, except the account of the co-partnership, a second account 
 was opened between them, commencing from that period, and dis- 
 tinguished by the name of the private account; and the appellant 
 was indebted to the respondent very considerably on this second 
 account. 
 
 On the execution of the deed of co-partnership a third account 
 was opened between them, called the co-partnership account, which 
 continued till the expiration of the partnership in February, 1766 ; 
 and the appellant was likewise considerably indebted to the re- 
 spondent on the balance of this third account. 
 
 As to the second and third accounts, the respondent was ready 
 to settle them with the appellant as soon as possible ; but as to the 
 £4341 14s. lid., it was the balance of a settled account, and was 
 always considered as such by the appellant himself, who, sixteen 
 months after the execution of the mortgage for securing that bal- 
 ance, wrote a letter to Mr. Fraser, part of which was in the follow- 
 ing words : " I thought it absolutely incumbent on me in the 
 spring of 1763 to take care of all my friends that had lent me hard 
 sums of money in preference to any dealers, but more especially in 
 preference to any of the Alley people, and therefore gave a mort- 
 gage to Mr. William Lem, reciting that I was under covenant to 
 mortgage to you first, and stood indebted to you for £2000, and to 
 Mr. Gough and to Mr. Knowlys for certain sums specified by bonds, 
 and sent that mortgage to Antigua, which is now registered, a copy 
 of which you may see at Mr. Lem's, in Brabant Court, Philpt Lane." 
 
 In the month of November, 1764, the respondent intended to 
 have proceeded at law against the appellant to recover the said 
 sum of £4341 14s. lid., together with all interest due thereon ; but 
 he absconded till he had obtained the injunction of the Court of 
 Exchequer, and by that means prevented the respondent from pro- 
 ceeding against him.
 
 442 ACCOUNT. 
 
 No. 5. — Dunbar v. Lem. 
 
 In Michaelmas Term, 1764, the appellant filed his bill against 
 the respondent for an injunction against proceedings at law ; and 
 subsequently, in February, 1766, an amended bill, suggesting that 
 the appellant did not understand merchants' accounts ; that the 
 respondent, William Lem, had taken unfair advantage thereof; 
 that he was only a clerk at £40 a year, and was therefore inca- 
 pable of lending the appellant £4341 14s. lid.; that he had 
 opened a book with his banker, and with the Bank of England, 
 on purpose to confound the account between him and the appel- 
 lant ; and that either by keeping back money, or by rendering 
 an unfair account, or by some other means, the balance of 
 £4341 14s. lid. was not justly owing, and ought not to be paid 
 to the respondent ; and, further, stating that the respondent, Ann 
 Lem was a separate trader. 
 
 The respondent, by his answer, denied the whole equity of the 
 bill, and said that the books and schedules annexed to his answers 
 were kept and stated in a regular manner, according to the custom 
 of merchants, and that they contained a full and fair account of 
 all money, bills, notes, produce, or value that were ever paid or 
 received by the respondent, or any person by his order or for 
 his use, on the appellant's account, except such sums of which 
 no entry had ever been made, as already stated ; that the appel- 
 lant was not ignorant of merchants' accounts, but on the contrary 
 understood them very well, and was capable of keeping a regular 
 set of merchants' books ; and that the respondent almost daily 
 accounted with the appellant for his cash, and all the other trans- 
 actions of his business, and that he was very capable of detecting 
 any errors in such accounts if there had been any ; that the 
 £4341 14s. lid. was the balance of a settled account, and that it 
 was considered as such by the appellant himself during a period 
 of eighteen months ; and that the said £4341 14s. 1 Id., together 
 with all interest due thereon, was then justly due and owing from 
 the appellant to the respondent, after having allowed all proper 
 credit to the appellant on every account whatsoever, and after 
 having fairly and honestly accounted to the appellant for all sums 
 of money ever received by the respondent for the appellant or for 
 his use. And the respondent insisted on the settled account and 
 mortgage in bar of any account between the appellant and the 
 respondent, antecedent to the 31st of December, 1762, and hoped 
 he should have the same benefit as if he had pleaded the same.
 
 SECT. III. — SETTLED ACCOUNTS. 443 
 
 No. 5. — Dunbar v. Lem. 
 
 Various exceptions to the answer having been overruled, oil a 
 hearing on the merits it was ordered that the in junction should be 
 absolutely dissolved. 
 
 The appellant, having appealed to the House of Lords, eon- 
 tended on the merits that the mortgage was extorted from him 
 when he was under the utmost distress in his circumstances, and 
 •all his creditors were falling on him for a balance of accounts 
 pretended to be due from him to the respondent upon his own 
 representation, who had it in his power to impose upon the appel- 
 lant and to make or omit any entries he pleased in his books of 
 account, having had the sole management of his affairs ; and it 
 appeared by the respondent's answer, and by the recital in the 
 mortgage deed, that the accounts between the appellant and respon- 
 dent were not settled, but only stated by the respondent, and that 
 upon such stating the balance was made to be £4341 14s. lid. It 
 was admitted by the respondent that at first he proposed security 
 to be given him for £2000 only ; that in a few days afterwards he 
 proposed the security to be for £3000, and in a few days after that 
 for upwards of £4000, which the appellant found himself under 
 the necessity of submitting to in his then situation of affairs, 
 without examining the accounts; and understanding that the mort- 
 gage was not to be an absolute security for the £4341 14.5. lid., 
 but a security only for what, if anything, should be really due 
 from him to the respondent, trusting that at some future time the 
 accounts would be fairly taken and settled ; and therefore the 
 respondent ought not to proceed at law upon the security until 
 the account between the parties should be liquidated and adjusted; 
 that the respondent, becoming partner with the appellant in 1762, 
 upon the unreasonable terms of the appellant, being bound to 
 secure to him a profit of £200 a year at all events, afforded two 
 very strong inferences : 1st, that there was not anything due to 
 the respondent at that time upon the balance of all accounts ; for 
 if there had been, the respondent would have settled and adjusted 
 the same before entering into such partnership; and, 2ndly, that 
 the appellant was ignorant of his affairs, and in the respondent's 
 power, and ready to come into any terms he proposed. It was 
 therefore hoped that the orders complained of would be reversed, 
 with costs, and that the injunction would be continued till the 
 hearing of the cause, and further order. 
 
 On the part of the respondent it was insisted that the £4341
 
 444 ACCOUNT. 
 
 No. 5. — Dunbar v. Lem. — Notes. 
 
 14s. lid. was the balance of a settled account, for securing which 
 the appellant executed a mortgage, and that no settled account ought 
 to be opened upon the bare suggestion of a bill in equity, especially 
 when the truth of such suggestions is fully and substantially de- 
 nied by the answer ; that the paper signed by the respondent and 
 called by the appellant a defeazance was nothing more than an 
 acknowledgment on the part of the respondent to rectify any error 
 in the said account, which, it was apprehended, did not open the 
 whole account, but only the particular item or charge supposed to 
 be erroneous ; that if there was any error in this account, it was 
 incumbent on the appellant to have pointed it out in a reasonable 
 time, but which neither he nor his agents had been able to do 
 during a space of eight years ; on the contrary, after a cartful 
 examination they had declared that they were perfectly satisfied 
 with the respondent's account, and could find no error therein ; 
 that the respondent was under no obligation to settle the appel- 
 lant's books, or transact any of his affairs as clerk, after the expi- 
 ration of his clerkship, especially as he had stated a very fair 
 account between him and the appellant ; and therefore, if the 
 appellant's accounts with his other correspondents were unsettled, 
 he ought to be at the expense and trouble of making them out, as 
 they had no relation whatever to the respondent. 
 
 After hearing counsel on this appeal, it was ordered and adjudged 
 that the same should be dismissed, and the several orders therein 
 complained of affirmed. 
 
 ENGLISH NOTES. 
 
 Where an order is made under the modern practice directing an 
 account, the accounting party may set up settled accounts, although 
 the order does not expressly direct that settled accounts shall not be 
 disturbed; and, on the other hand, the opposite party may impeach (on 
 the ground of fraud) any settled accounts set up, although the order is 
 equally silent with regard to impeaching them. Hoi (jute v. Shutt 
 (C. A. Nov., 1884), 28 Oh. D. Ill ; 54 L. J. Ch. 436. At a former stage 
 of the same case, Lord Justice Lixdley, after referring to the recent 
 alterations in pleading and procedure, said : •' We must take care not to 
 introduce rules which would preclude parties from impeaching a settled 
 account on the ground of fraud, and at the same time we must not treat 
 settled accounts as waste paper." Holgate v. Shutt (C. A. June, 1884), 
 27 Ch. 1). Ill, 115; 53 L. J. Ch. 774. 
 
 In the case of Daniell v. Sinclair, which came before the Judicial
 
 SK(T. III. — SETTLED ACCOUNTS. 445 
 
 No. 5 — Dunbar v. Lem. Notes. 
 
 Committee of the Privy Council on appeal from New Zealand (1881), 
 (i App. Cas. 181 : 50 L. J. 1'. C. 50, a mortgage account had been settled 
 on the footing of compound interest with half-yearly rests, both nartie 
 wrongly understanding the mortgage deed to authorise interest to be < 
 charged. It was decided by the Judicial Committee, affirming the judg- 
 ment of tlie Court of Appeal in New Zealand, that the settled ace unit 
 might he re-opened on the ground of the mistake; and that simple inter- 
 est only should be charged. 
 
 It appeared on the evidence that the plaintiff (mortgagor), under the 
 belief that he was bound to pay compound interest on the mortgy 
 assented to accounts made out on the footing of half-yearly rests, and 
 that in particular, on an account being sent to him stating a certain bal- 
 ance as due on the 11th of May, 1872, part of which consisted of com- 
 pound interest charged on the footing of half-yearly rests, he signed it 
 as correct; and that in 1876 he sent to defendant what he termed a 
 sketch account, in which compound interest with half-yearly rests was 
 calculated. There had been a prior settlement of the account in 1869 
 on a similar footing, and the plaintiff had acknowledged by deed the 
 amount then made out as due; and on the authority of Blackburn v. 
 Warwick (1826), 2 Y. & C. 92, it had been in effect conceded that this 
 could not be disturbed. But the defendant had contended further that 
 a direction should be given that the account prior to the 14th of May, 
 1872, should not be re-opened. And in this contention he failed, as 
 above mentioned. 
 
 AMERICAN NOTES. 
 
 An account will not, in the absence of fraud, be opened ordinarily upon a 
 general charge of inaccuracy, but the specific errors must be alleged. Story 
 Eq. Jur. §§ 523, 527 ; Young v. Hill, 67 New York, 162. " Relief will be 
 granted as the circumstances may require, either by setting aside the settle- 
 ment, or by permitting a party to surcharge or falsify." 2 Pomeroy Eq. Jur. 
 § 871, citing Stuart v. Sears, 119 Massachusetts, 143; Russell v. Church, 
 65 Penn. St. 9 ; McCrae v. Mollis, 4 Desaussure Equity (So. Carolina), 122 ; 
 Monnin v. Beroujon, 51 Alabama, 196 ; Waggoner v. Minler, 7 J. J. Marshall 
 (Kentucky), 173. See, to the same effect, DanielPs Chancery Practice, 764; 
 1 Reach Eq. Jur., § 63. 
 
 When a party seeks to open a settled account by falsifying any particular 
 item, he must in his lull state the real objection, and the omission cannot lie 
 supplied on the hearing. By Kent, Chancellor, in Noursev. Prime, 7 Johnson's 
 Chancery (New York), 69 ; 11 Am. Dec. 403. 
 
 When an account has "been settled, balance struck, and security given for 
 its payment, a party complaining of fraud or mistake must allege it specifically, 
 and prove the allegation, before a court will allow him to unravel the account. 
 Langdon v. Roane, 6 Alabama, 518: 41 Am. Dec. 60.
 
 446 ACCOUNT. 
 
 No. 6. — Brownwell v. Brownwell. — Rule. 
 
 Settled accounts will not generally be opened, but at most only liberty will 
 be granted to surcharge and falsify, unless in cases of apparent fraud. Brown v. 
 Vandyke, 4 Halsted Chancery (New Jersey), 795 ; 55 Am. Dec. 250 ; Brutn 
 v. Hone, 2 Barbour (New York), 586. 
 
 A stated and settled account will not be opened in equity except for fraud* 
 mistake, or manifest error. Rutty v. Person, 52 Superior (New York), 329; 
 Hurley v. Eleventh Ward Bank, 76 New York, 618. 
 
 A mistake as to only one item does not authorise the opening of the account 
 as to other items. Carpenter v. Kent, 101 New York, 591. 
 
 A party alleging mistake must show it, and furnish the data for correction _ 
 Chubbuck v. Vernam, 42 New York, 432. 
 
 Story states the doctrine with great clearness and accuracy (1 Eq. Jur. 
 § 523), as follows : — 
 
 " If therefore there has been an account stated, that may be set up by way 
 of plea, as a bar to all discovery and relief, unless some matter is shown 
 which calls for the interposition of a court of equity. But if there has been 
 any mistake or omission, or accident, or fraud, or undue advantage, by which 
 the account stated is in truth vitiated, and the balance is incorrectly fixed, a 
 court of equity will not suffer it to be conclusive upon the parties, but will 
 allow it to be opened and re-examined. In some cases, as of gross fraud, or 
 gross mistake, or undue advantage, or imposition made palpable to the court. 
 it will direct the whole account to be opened and taken de novo. In other- 
 cases, where the mistake, or omission, or inaccuracy, or fraud, or imposition 
 is not shown to affect or stain all the items of the transaction, the court will 
 content itself with a more moderate exercise of its authority. It will allow 
 the account to stand, with liberty to the plaintiff to surcharge and falsify it; 
 the effect of which is to leave the account in full force and vigour as a slated 
 account, except so far as it can be impugned by the opposing party, who has 
 the burden of proof on him to establish errors and mistakes." 
 
 No. 6. — BROWNWELL v. BROWNWELL. 
 (chancery, 1785.) 
 
 RULE. 
 
 An account settled for ten years, although there were gross 
 errors in it, will not be opened. The plaintiff may, how- 
 ever, surcharge and falsify. 
 
 Brownwell v. Brownwell. 
 
 2 Brown C. C. fed. Belt) fi2. 
 
 This was a bill to open an ace 1 ten years before thfr 
 
 bill filed.
 
 SECT. III. — SETTLED ACCOUNTS. 447 
 
 No. 6. — Brownwell v. Brownwell. 
 
 It was a devise by a father to his two sons, the younger of whom, 
 the plaintiff, was a minor, and the elder, the defendant, adult, of 
 four sloops in the Customs-House service. The share of the infant 
 son was to be laid out for his benefit, until he should attain the 
 age of twenty-three years, then to be paid him for his own use ; 
 and if he should die before that age, the whole was to go to the 
 defendant. The defendant took possession of the property, and 
 upon the 22d October, 1772, he met the plaintiff, and told him he 
 had stated the account; and there was a balance due of thirty-nine 
 pounds, which he paid to him ; and the plaintiff, from confidence 
 in his brother, accepted. Afterwards he found a pocket-book of 
 his father's, in which the value of the ships and the price at which 
 they were let to government were stated ; and this occasioned 
 him to make further inquiry, upon which he found several gross 
 false charges with respect to the price at which the ships sold, 
 and the wages from government. The defendant had given credit 
 for less than half he had received ; he had charged for repairs of one 
 ship double the sum for which he sold the ship in the course of 
 the year, and other very gross errors ; on which the plaintiff filed 
 the bill. 
 
 Mr. Scott (for the plaintiff) stated this case, and contended it 
 would not be enough to surcharge and falsify, but that the whole 
 account must be opened. Here the elder brother was a trustee for 
 the defendant ; all the articles were grossly fallacious ; the accounts 
 were different in the different answers. No vouchers had been 
 given up, and the account was settled in confidence. And although, 
 where a fair and just account is settled with an infant, it shall not 
 be opened, yet where it is unfair it shall be opened, 2 Atkyns, 119, 
 even notwithstanding death has intervened. 
 
 Mr. Price and Mr. Mansfield (for the defendant) insisted that the 
 elder brother was not in this case a trustee for the younger ; the 
 settlement was at the end of two years after he became entitled to 
 the moiety. Only four articles in the account are attacked, and 
 the plaintiff wants to have the whole unravelled. The plaintiff 
 had the account sent to him before the payment of the balance;' 
 and there is no proof in the cause of the surprise charged in 
 settling of it. 
 
 Master of the Eolls. This case has not been overrated, in 
 saying the brother was a trustee for the plaintiff. It is to be 
 wished, in settling such an account, that the vouchers should be
 
 448 ACCOUNT. 
 
 No. 6. — Brownwell v. Brownwell. — Notes. 
 
 forced upon a young man. If the application had been recent, I 
 should think this a case for opening the account ; but where there 
 has been an acquiescence for eleven years, the labouring oar is 
 upon the party calling for the account. There are several items in 
 this account objected to with great force. The £52 10s. for sun- 
 dries : as to this, if I were to let in the objection, I should throw 
 innumerable difficulties in the defendant's way, as the charge con- 
 sists of many articles. The £50 received at the Custom-house : 
 upon this alone I should not send it to the Master. But there are 
 other items of a different nature : £47 is charged as paid to the 
 auctioneer, who swears to have received only £12 6s. If this can be 
 explained, it will be right to put it in the way of being so. So of 
 the sale of the ship Hollis, it is fit that should be inquired into. 
 The matter is not sufficient to open the whole account, but it is 
 sufficient to answer the calls of justice to let the plaintiff falsify the 
 price of the Hollis, the sum paid to the auctioneer, and the Custom- 
 house account. 
 
 Note by Editor (Mr. Belt). The plaintiff having falsified the 
 accounts before the Master, to the amount of £200 and upwards, 
 the cause came on for further directions on the 24th of May, 1787, 
 when his Honour decreed the defendant to pay the balance, with 
 £4 per cent, interest and costs. Reg. Lib. 1786 A. fol. 432 B . 
 
 AMERICAN NOTES. 
 
 See ante, p. 445. Mr. Pomeroy says (2 Pomeroy E'q. Jur. § 820) : " Parties 
 who have long acquiesced in settlements of accounts ov other mutual dealings 
 are not permitted to reopen or disturb them," citing Bright v. Legerton, 6 Jur. 
 N. s , 1170; Clarke v. Hart, 5 id. 447, referring to remarks of Lord Chelms- 
 ford in the last case. See Galway v. Metropolitan Ry. Co., 128 New York, 
 132. The doctrine of laches in equity generally is discussed in note, 23 
 Am. St. Rep. 148, and in Galway v. Metropolitan Ry. Co., 128 New York, 132. 
 The general doctrine, applied in the principal case to accounts stated, is 
 recognised in this country. "A court of equity will not, in an action of 
 accounting, aid the enforcement of stale claims." 2 Beach Eq. Jur. § 843. 
 Sec Johnson v. Toulmin, 18 Alabama, 50; 52 Am. Dec. 212; Smith v. Thomp- 
 son, 7 Grattan (Virginia), 112; 54 Am. 4)ec. 120, and note 130; Drunkard v. 
 Ingram, 21 Texas, 650 ; 73 Am. Dec. 250 ; also note, 12 Am. Dec. 371, citing 
 principal case.
 
 SECT. TV. — BETWEEN TENANTS IX COMMON. 449 
 
 No. 7. — Henderson v. Eason. — Rule. 
 
 Section IV. — Accounts between Tenants in Common. 
 
 No. 7. — HENDEKSON" v. EASOK 
 (ex. ch. from q. b. 1851.) 
 
 RULE. 
 
 If there are tenants in common, and one tenant alone 
 possesses the property, he is, under the Statute 4, Ann. c. 
 16, § 27 (though not at common law), answerable as bailiff 
 to his co-tenant in an action of account, if he receives more 
 than comes to his just share, but not otherwise. 
 
 But it has been decided by the Exchequer Chamber, 
 overruling the judgment of the Queen's Bench, that the 
 tenant does not receive more than his share within the 
 statute, if he merely has the sole enjoyment of the prop- 
 erty, even though by the aid of his own industry and 
 capital he makes a profit of the enjoyment, and takes the 
 whole of that profit. 
 
 Henderson v. Eason. 
 
 21 L. J. Q. B. 82; (s. c. 17 Q. B. (Ad. & Ell. jr. s.) 701). 
 
 This was an action of account, brought in pursuance of an order 
 of the Lord Chancellor, who was not satisfied with the decision of 
 the Court of Queen's Bench, in favour of the plaintiff, in a previous 
 action of account, brought by order of the Court of Chancery. 
 
 The pleadings and facts sufficiently appear from the judgment of 
 the court (Parke, B., Alderson, B., Maule, J., Creswell, J., Wil- 
 liams, J., and Martin, B.), which was delivered by 
 
 Parke, B. This case was heard before us at the sittings after 
 last Trinity Term. It was an action of account, founded on the 
 statute of the 4 Anne, c. 16, by Robert Eason against the executor 
 of his co-tenant in common, Edward ICason. The declaration states 
 that the Easons were co-tenants in common in fee in equal undi- 
 vided moieties of messuages and lands ; that Edward Eason had 
 managed the whole, and had received and taken the rents and 
 profits thereof for the common profit of the plaintiff and Edward 
 
 VOL. I. — -'»
 
 450 ACCOUNT. 
 
 No. 7. — Henderson v. Eason. 
 
 Eason deceased, and as bailiff of the plaintiff of what Edward 
 Eason received more than his just share and proportion thereof, to 
 render a reasonable account thereof to the plaintiff and his said 
 share thereof according to the form of the statute. There is an 
 averment that Eason in his lifetime received more than his just 
 share and proportion of the rents, issues, and profits of the said 
 tenements, — that is to say, the whole of the rents, issues, and 
 profits, — and had not rendered an account to the plaintiff. There 
 were two pleas to the declaration. The first traverses that Edward 
 Eason had the care and management of the whole of the said 
 tenements, to receive and take the rents and profits thereof to the 
 common profit of the plaintiff and Edward Eason as the bailiff to 
 the plaintiff, and of what he received more than his just share and 
 proportion, to render a reasonable account to the plaintiff according 
 to the statute. The second plea denied that Eason received more 
 than his just share and proportion of the rents, issues, and 
 profits. 
 
 Issue being joined on these pleas, evidence was given that the 
 two Easons were tenants in common, in fee, of a messuage and 
 farm, and about 132 acres of land, from November, 1833, to No- 
 vember, 1S39, during which time Edward Eason occupied the whole 
 on his own account, the plaintiff occupying no part ; that he culti- 
 vated the same on his own account solely, and appropriated the 
 produce to his own use, and that he cropped the farm in the usual 
 wa\ and kept the usual quantity of live and dead stock, and 
 farmed well, and that he received all the produce of the farm and 
 sold it on his own account. 
 
 On tire trial, before my Brother Coleridge, the plaintiff's counsel 
 insisted that this evidence was conclusive on the first issue, and 
 ] 'resumptive evidence on the last issue in favour of the plaintiff, 
 and so the learned Judge held, in compliance with the ruling of the 
 Court of Queen's Bench on a special case between the same parties. 
 That case was stated by leave of a judge* in an action brought by 
 order of the late Vice Chancellor of England. The Lord Chan- 
 cellor, we are told, was dissatisfied witli that proceeding for certain 
 reasons wholly immaterial to be inquired into by us, and directed 
 this action to be brought, in which the important question between 
 these parties is to be settled. There is no doubt as to the law 
 before the statute, the 4 Anne, c. 16 : if one tenant in common 
 occupied and took the whole profits, the other had no remedy
 
 SECT. IV. — BETWEEN TENANTS IN COMMON. 451 
 
 No. 7. — Henderson v. Eason. 
 
 against him while the tenancy in common continued, unless he 
 was put out of possession, when he might have his ejectment, or 
 unless he appointed the other to be his bailiff as to his undivided 
 moiety, and the other accepted that appointment, in which case an 
 action of account would lie as against the bailiff as in the case 
 of the owner of the entirety of an estate. Until the Statute of 
 Anne this state of the law continued. That Statute provides, by 
 § 27, that an action of account may be brought and maintained " by 
 one joint tenant and tenant in common, his executors or adminis- 
 trators, against the other as bailiff for receiving more than conies 
 to his just share and proportion, and against the executor and 
 administrator of such joint tenant or tenants in common." Decla- 
 rations framed on this statute vary from those at common law, and 
 it is an essential averment in them that the defendant has received 
 more than his share. That was held in the case of Wheeler v. 
 Home, Willes, 208, and Sturton v. Richardson, 13 M & W. 17; 
 13 L. J. Exch. 281. Under the Statute of Anne a tenant in com- 
 mon is bailiff only by virtue of his receiving more than his just 
 share, and as soon as he does so is answerable only for so much 
 as he actually receives, as is fully explained by Lord Chief 
 Justice Willes in the case above cited : he is not responsible 
 as bailiff at common law for what he might have made without 
 his wilful default. It is to be observed, the Statute does not men- 
 tion lands and tenements, or any particular subject ; every case in 
 which a tenant in common receives more than his just share is 
 within the statute, and an account will lie when he does so receive, 
 but not otherwise. It is to be observed, also, the receipt of rents, 
 issues, and profits is not mentioned, but simply the receipt of more 
 than comes to his just share ; and, further, he is to account when he 
 receives and takes more than comes to his just share. What, then, 
 is a receiving of more than comes to his just share within the 
 meaning of the provisions of the Statute of Anne ? It appears to 
 us that, construing the Act according to the ordinary meaning of 
 the words, this provision of the Statute applies only to cases where 
 one tenant in common receives the money or something else from 
 another person to which both co-tenants are entitled, simply by 
 reason of their being tenants in common and in proportion to 
 their interest as such, and of which the one receives and keeps 
 more than his just share according \n that proportion. The Statute, 
 therefore, includes all rf><* ■ ■ tenants of land leased
 
 452 ACCOUNT. 
 
 No. 7. — Henderson v. Eason. 
 
 to a third party at a rent payable to each, or where there is a rent- 
 charge, or any money payment, or payment in kind due to them 
 from another person, and where one receives the whole or more 
 than his proportionate share according to his interest in the sub- 
 ject of the tenancy. There is no difficulty in ascertaining the 
 share of each, and determining when one has received more than 
 his just share ; and if he has, he becomes as such receiver in that 
 case the bailiff of the other, and must account. But when we 
 seek to extend the meaning of the Statute beyond the ordinary 
 meaning of its words, and to apply it to cases in which one has 
 enjoyed more of the benefit of the subject, or mads more by its 
 occupation than the other, we have insuperable difficulties to en- 
 counter. There are obviously many cases in which a tenant in 
 common may occupy and enjoy the land or other subject of 
 tenancy in common solely, and have all the advantage to be de- 
 rived from it, and yet it would be most unjust to make him pay 
 anything. For instance, if a dwelling-house or room is solely 
 occupied by one tenant in common without ousting the other, or 
 a chattel is used by one tenant in common and nothing is received, 
 it would be most inequitable to hold that by the simple act of 
 occupation or user, without any agreement, he should be liable to 
 pay a rent or anything in the nature of compensation to his co- 
 tenant for that occupation, to which, to the full extent to which he 
 enjoyed, he had a perfect right. It appears impossible to hold such 
 a case to be within the Statute, and an opinion to that effect was 
 expressed by Lord Cottenham in M'Mahon v. Burchell, 2 Ph. 127. 
 Such cases are clearly out of the operation of the Statute. Again, 
 there are many cases where profits are made and are actually 
 taken by one co-tenant, yet it is impossible to say that he has re- 
 ceived more than comes to his just share. For instance, if one 
 tenant employs his capital and industry in cultivating the whole of 
 the piece of land, the subject of the tenancy, in a mode in which 
 the money and labour expended greatly exceeds the value of the 
 rent or compensation for the mere occupation of the land, — in 
 raising hops, for example, which is a very hazardous adventure, — 
 and he takes the whole of the crops, is he to be accountable for 
 any of the profits in such a case, where it is clear if the specula- 
 tion had been a losing one altogether he could not have called for 
 a moiety of the loss, as he would have been enabled to do had it 
 been so cultivated by the mutual agreement of the co-tenants ?
 
 SECT. IV. — BETWEEN TENANTS IX COMMON. 453 
 
 No. 7. — Henderson v. Eason. — Notes. 
 
 The risk of the cultivation and the profits and the loss are his own, 
 and what is just with respect to the very uncertain and expensive 
 crop of hops, is also just with respect to all the product' of the 
 land, — the fructus industriales which are raised by, the capital and 
 
 industry of the occupier, and could not exist without it. In taking- 
 all the produce, he cannot he said to receive more than his just 
 share and proportion to which he is entitled as tenant in common, 
 as he receives in truth the remuneration for his own labour and 
 capital to which a tenant has no right. In the Anonymous Case 
 before Lord North (Skin. 230), in which it was said, " If one of four 
 tenants in common stock the land and manage it, the rest shall 
 have an account of the profits ; but if a loss come, — as if the sheep, 
 &c, die, — they shall bear a part," it is evident from the context 
 Lord North is speaking of a case where one tenant in common 
 manages by the mutual agreement of all for their common benefit, 
 for he gives as an illustration the right of a part owner of a ship 
 to an account when the voyage is undertaken by his consent, 
 express or implied. When the natural produce of the land is 
 augmented by the capital and industry of the tenant, — in the case 
 of grass, for instance, by manuring and draining, — and the tenant 
 sells it, or by feeding his cattle he makes a profit of it, the case 
 seems to be neither within the words nor the spirit of the Act, 
 for the profits of the grass are f nidus industriales. It may be 
 observed, however, that the evidence in the bill of exceptions does 
 not raise either of these points. We therefore think, that, upon 
 the evidence set out in this case, there was nothing to warrant the 
 jury in coming to the conclusion that the defendant's testator 
 received more than his just share within the meaning of the stat- 
 ute, and that the direction of the learned Judge, as to the second 
 issue, was therefore wrong; and we also think there was no con- 
 clusive or sufficient, or indeed any evidence, that he had the care 
 and management of the farm, for the common profit of the plain- 
 tiff and the testator, as averred in the declaration. We therefore 
 think that there should be judgment to reverse the judgment of 
 the Court of Queen's Bench, and for a venire de novo. 
 
 Judgment reversed. 
 
 ENGLISH NOTES. 
 
 .The position of a tenant in common, where the other tenant in com- 
 mon was in actual occupation of the land, was thus, at common law.
 
 454 ACCOUNT. 
 
 No. 7. — Henderson v. Eason. — Notes. 
 
 very unsatisfactory. The only remedy was by a writ or suit for par- 
 tition. At common law a writ of partition only lay between parceners; 
 but by Statutes 31 Hen. VIII. c. 1 and 32 Hen. VIII. c. 32 the right was 
 given to every tenant in common or joint tenant of manors, lands, tene- 
 ments, and hereditaments. The writ at law was in practice, however, 
 superseded by the more convenient remedy of a suit l Chancery; and 
 — except where the special statutory jurisdiction (under 8 & 9 Vict, 
 c. 118, §§ 147, 148 and various amending acts) of the Inclosnre Com- 
 missioners, now merged in the Board of Agriculture, was resorted to — 
 a suit in Chancery for partition was the only remedy. The Partition 
 Act. 1868 (31 & 32 Vict. c. 40). which enabled tin- court to decree a 
 sale in lieu of partition, with tin- amending Act of 1876 (39 & 40 Vict. 
 c. 17), has given a more complete remedy to the tenant in common who 
 is kept out of his rights, or who in any way finds his position as owner 
 of an undivided right inconvenient, In an action for partition or sale, 
 where one of the parties is in occupation, the modern practice is to 
 make an order before the hearing, for a receiver, unless that party elects 
 to pay an occupation rent. Porter v. Lopes (1877), 7 Ch. D. 358. 
 
 AMERICAN NOTES. 
 
 Mr. Beach says (2 Eq. Jur. § 819): "Every case in which a tenant in 
 common receives more than his share is within the statute (4 Anne, c. 10, 
 § 07) ; and account will lie where he does rea ice, but not otherwise. He is to 
 account when he receives, not takes, more than comes to his just share." 
 Citing the principal case. " This construction is followed," he continues, " in 
 Sarqent v. Parsons, 12 Massachusetts, 149 ; Wooleoer v. Knapp, 18 Barbour, 
 265; Crane v. Waggoner, 27 Indiana, 52; Ragan v. McCoy, 29 Missouri, 307." 
 
 Mr. Pomeroy says (3 Eq. Jur. 2100, note) : " This statute " (of Anne) " has 
 been substantially re-enacted in many of the American States, but the equity 
 jurisdiction exists notwithstanding." 
 
 The doctrine of the principal case is denied in Early v. Friend, 10 Grattan 
 (Virginia), 21 ; 78 Am. Dec. 019 ; and this view is taken in Leach v„ Beatties, 
 33 Vermont, 195; Dodson v. Hays, 29 West Virginia, 577; Almy v. Daniels, 
 15 Rhode Island, 312 ; Huff v. McDonald, 22 Georgia, 131 ; 08 Am. Dec. 
 187; McPherson v. McPherson, 11 Iredell Law (No. Carolina), 391 ; 53 Am. 
 Dee. 410. 
 
 Where the occupancy of one tenant is exclusive, entire, and beneficial, and 
 at a profit to him, he is bound to account to his co-tenants for the excess of 
 his receipts above his proportion; and so, if not being an occupant, he has 
 received more than his share. Almy v. Daniels, 15 Rhode Island, 312; Edsall 
 v. Merrill, 37 New Jersey Equity, 114 ; Annely v. De Saussure, 26 South Caro- 
 lina. 497 ; 4 Am. St, Rep. 725; Bird v. Bird, 15 Florida, 424; 21 Am. Rep. 
 290; Hancock v. Day, 1 McMullan Equity (So. Carolina), 09 : 36 Am. Dec. 
 293 ; Kean v. Connelly, 25 Minnesota, 222.
 
 SECT. IV. — BETWEEN TENANTS IN COMMON. 455 
 
 No. 7. — Henderson v. Eason. — Notes. 
 
 In Early v. Friend, supra (a, d. 1860), the court observe of the principal 
 case: " It is somewhat remarkable that its construction" (i e., thai of the 
 statute) " had not there been settled long before. And it would seem that 
 until that decision was made, the current, or at leasl the preponderance of 
 judicial opinion in that country, was the other way." " With ail deference to 
 the Court of Exchequer Chamber, 1 think the construction they put upon the 
 word 'receiving' is too technical and narrow, at least for our country; and if 
 it be a just one in England, it is because of circumstances existing there 
 which do not exist here." It "maybe a reasonable one in England, where 
 the ordinary mode of deriving profit from real estate is by renting it out ; but 
 not in tliis State, where real estate is generally occupied and used by the 
 owners." The principal ease is also disapproved in Hayden v. Merrill, 44 
 Vermont, 336; 8 Am. He}). 372, the court pronouncing "in favour of a more 
 liberal constxuetion," and approving Lord Denman's views in the Queen's 
 Bench, as "calculated more fully to cure the mischief or supply the defect of 
 the common law, and thereby more completely to accomplish the purpose of 
 the statute." This holding is followed in Dodson v. Hays, 29 West Virginia, 
 001, in which the doctrine is thus summarised : "1. One tenant in common 
 may maintain a suit in equity against his co-tenant, who has occupied the 
 whole of the common property, for an account of rents and profits. 2. When- 
 ever the nature of the property is such as not to admit of its use by several, 
 and it is used and occupied by one only of the tenants in common, or when- 
 ever the property, though capable of use and occupation by several, is yet so 
 used and occupied by one as in effect to exclude the others, he receives more 
 than comes to his just share and proportion in the meaning of the statute. 
 •'). When the common property is rented out by one tenant in common, he is 
 accountable to his co-tenants for their share of the rents which he has received. 
 And when he occupies and uses the whole property himself, he is liable to his 
 co-tenants for a reasonable rent for it in the condition in which it was when 
 he took possession." The same doctrine is approved in Almy v. Daniels, 15 
 Rhode Island, 317. 
 
 The doctrine of the principal case however is laid down in Israel v. Israel 
 (a. d. 1808), 30 Maryland, 120; 90 Am. Dec. 571, citing the principal case. 
 and in Woolever v. Knapp, 18 Barbour (Xew York), 205 ; Sargent v. Parsons, 12 
 Massachusetts, 153; Izard v. Bodine, 11 New Jersey Equity, 403; 00 Am. Dec. 
 595; and Pico v. Columbet, 12 California, 411 ; 73 Am. Dec. 550, citing the 
 principal case and observing: "These decisions are clear and full to the point 
 that one tenant in common cannot be held liable to his co-tenants for use and 
 occupation of the common property, unless there has been an ouster of his 
 co-tenants." The principal case is also cited and approved in McCord v. Oak- 
 land Quicksilver M. Co., 04 California, 134; 40 Am. Rep. 080. The same 
 doctrine is announced in Nelson's Heirs v. Clay's Heirs, 7 J. J. Marshall 
 (Kentucky), 138 ; 23 Am. Dec. 387 ; Young v. Adams, 14 B. Monroe (Ken- 
 tucky), 127; 58 Am. Dee. 054; Hamby v. Wall, 48 Arkansas, 135; 3 Am. 
 St. Rep. 218 (citing Fielder v. Childs, 73 Alabama, 507; House v. Hause, 29 
 Minnesota, 252; Reynolds v. Wilmelh, 45 Iowa, 093); Ercrls v. Beach, 31 
 Michigan, 130 ; 18 Am. Rep. 109 ; Crane v. Waggoner, 27 Indiana, 52 ; Le-
 
 456 ACCOUNT. 
 
 No. 7. — Henderson v. Eason. — Notes. 
 
 Ban-on v. Babeock, 122 New York, 153; 19 Am. St. Rep. 488, citing the prin- 
 cipal case ; Kean v. Connelly, 25 Minnesota, 222 ; 33 Am. Rep. 458. In the 
 last case (a. d. 1878) the court observe : — 
 
 " In Henderson v. Eason, 17 Q. B. 701, on appeal from the court of Queen's 
 Bench to the Exchequer Chamber, the passage above quoted from the statute 
 of 4 and 5 Anne was fully considered, and was held 'to apply only to t In- 
 cases where the tenant in common receives money or something else, where 
 another person gives or pays it, which the co-tenants are entitled to simply 
 by reason of their being tenants in common, and in proportion to their 
 interests as such, and of which one receives and keeps more than his just 
 share according to that proportion.' McMahon v. Burchell, 2 Phil. 134 (22 
 Eng. Ch. 125), is to the same effect. In Woo/ever v. Knapp, 18 Barb. 205, 
 the statute of New York came under consideration. It was held to be sub- 
 stantially the same as the statute of Anne, and the court followed Henderson 
 v. Eason, supra, holding that one of the several tenants in common, who 
 possesses the entire premises, without any agreement with the others as to 
 his possession, or any demand on their part to be allowed to enjoy the prem- 
 ises with him, is not liable to account to his co-tenants for the use and occupa- 
 tion of the premises. This case is approved and followed in Dresser v. Dresser, 
 40 Barb. 300 ; in Elwell v. Burnside, 44 id. 447 ; Wilcox v. Wilcox, 48 id. 327 ; 
 in Scott v. Guernsey, 00 id. 163, and has not, so far as we discover, been 
 criticised or disapproved in any of the courts of New York. In Crane v. 
 Waggont r, 27 Ind. 52, the statute of Indiana above referred to was considered ; 
 and citing and following Henderson v. Eason, and Woolever v. Knapp, the 
 court held, that the statute applied only to cases ' where rent and payment in 
 money or in kind, due in respect of the premises, is received from a third 
 party by one co-tenant, who retains for his own use the whole, or more than 
 his proportionate share,' and that one tenant in common, unless he has been 
 excluded from possession by his co-tenant, cannot maintain an action against 
 the latter for use and occupation. Ragan v. McCoy, 29 Missouri, 350, is to 
 the same effect. See also Israel v. Israel, 30 Maryland, 120 ; Izard v. Bodine, 
 3 Stockt. 403 ; Davidson v. Thompson, 22 New Jersey Eq. 83 ; Pico v. Columbet, 
 12 California, 414 ; Peck v. Carpenter, 7 Gray, 283 ; Freeman on Co-tenancy, 
 §§ 258, 270, 275, 270. A different view of the liability of a tenant in com- 
 mon is taken in Tliompson v. Bostick, 1 McMullan's Eq. (So. Carolina) 75 ; in 
 Early v. Friend, 16 Gratt. 47; in Shiels v. Stark, 14 Georgia, 435; in Hayden 
 v. Merrill, 44 Vermont, 348; 8 Am. Rep. 372; but we think that Mr. 
 Freeman is warranted in asserting that ' the decided preponderance of the 
 authorities, both in England and in America, affirms the right of each co- 
 tenant to enter upon and hold exclusive possession of the common property. 
 and to make such profit as he can by proper cultivation or other usual means 
 of acquiring benefit therefrom, and to retain the whole of such benefits, pro- 
 vided that in having such possession, and in making such profits, he has not 
 been guilty of an ouster of his co-tenant, nor hindered the latter from enter- 
 ing upon the premises and enjoying them as he had a right to do- The 
 reasoning upon which these decisions, constituting the great bulk of the 
 authorities on this subject, rest, is that as each co-tenant has at all times
 
 SECT. IV. — BETWEEN TENANTS IN COMMON. 457 
 
 No. 7. — Henderson v. Eason. — Notes. 
 
 the right to enter upon and enjoy every part of the common estate, this right 
 cannot be impaired by (he fact that another of the co-tenants absents himself, 
 
 or does not choose to claim his right to an equal and common enjoy nt ; 
 
 that it would be inequitable to compel a co-tenant in possession to account for 
 the profits realised out of his skill, labour, and business enterprise, when he 
 has no right to call upon his co-tenant to contribute anything towards the 
 production of these profits, nor to bear his proportion, when through had 
 years, failure of crops, or other unavoidable misfortunes, the use made of the 
 estate resulted in a loss, instead of a profit, to the one in possession.' Free- 
 man on Co-tenancy, Sec. 258." 
 
 In Izard v. Bodine, 3 Stockton Chancery (New Jersey), 403 ; 69 Am. Dec. 
 595, the court said : " The following propositions, as laid down by the coun- 
 sel of the defendant, are well established : 1. If one tenant in common occu- 
 pies the whole estate, claiming it as his own, it is an ouster of his co-tenant, 
 who must first establish his right at law, and thus recover the mesne profits, 
 for one tenant is bound to account to another only as his bailiff appointed by 
 contract, express or implied. 2. Where one tenant in common actually 
 receives the rents, issues, and profits, then lie may he compelled to account 
 for such profits actually received; but this is by statute, both in England and 
 this State, and not by the common law. 4 Anne, ch. 16; N. T. Act of 1794, 
 Nix. Dig. 5, pi. 3 ; Sargent v. Parsons, 12 Mass. 153. 3. Where one tenant in 
 common occupies the whole estate, without claim on the part of his co-tenants 
 to be admitted into possession, he is under no obligation to account, for he 
 had a right to such occupancy. Co. Litt. 200 6 , Sargent v. Parsons, 12 Mass. 
 152, 153; Meredith, v. Am/Ires, 7 Iredell Law, 5; 45 Am. Dec. 501; Colburn v. 
 Mason, 25 Maine, 434; 43 Am. Dec. 292." 
 
 Referring to the principal case, the court in Bird v. Bird, 15 Florida, 424; 
 21 Am. Rep. 299, observe that its doctrine has obtained in Massachusetts, 
 California, New York, Kentucky, Maryland, New Jersey, and Missouri, but is 
 denied in Virginia, Vermont, South Carolina, and Georgia. 
 
 The doctrine of New Jersey is thus stated more recently in Edsall v. Mer- 
 rill, 37 New Jersey Equity, 117: "The principle adopted maybe stated as 
 follows : Where the tenant in possession has prevented his co-tenants from 
 obtaining from the premises such profits as they were capable of yielding, or 
 has taken possession of the whole and used them as his own, and thereby 
 made a profit, he must account, either for the fair rental value or the profits." 
 This they announce as "a construction rather more liberal to the tenants out 
 of possession" than the doctrine of the principal ease. 
 
 The doctrine of the principal case is very learnedly considered by Mr. Free- 
 man, editor of the American Decisions and American State Reports, in his 
 work on Co-tenancy, §§ 274, 275, and in § 258 he says : " In some parts of 
 the United States, a co-tenant occupying the entire real estate or any portion 
 more than equivalent to his interest, though without any denial to his co- 
 owner's right to enter and enjoy in common with him, is liable to account 
 for the value of such occupation," citing cases from South Carolina, Georgia, 
 New Jersey, Maine, Virginia, Tennessee, Mississippi. " Rut the decided pre- 
 ponderance of the authorities, both in England and America, affirms the right
 
 458 ACCRETION. 
 
 No. 1. — R. v. Lord Yarborough. — Rule. 
 
 of each co-tenant to enter upon and hold exclusive possession of the common 
 property, and to make such profit as he can by proper cultivation or by other 
 usual means of acquiring benefit therefrom, and to retain the whole of such 
 benefits, provided that in having such possession, and in making such profits, he 
 has not been guilty of an ouster of his co-tenant, nor hindered the latter from 
 entering upon the premises and enjoying them as he had a right to do," citing- 
 cases from Massachusetts, Indiana, New York, Maryland, California. Louisiana, 
 Minnesota, Alabama. Michigan, Florida, Iowa, Illinois. 
 
 The rule is manifestly different where there is an ouster, as by refusal to 
 let his co-tenant in. Hollowa?/ v. Holloway, 97 Missouri, 628 ; 10 Am. St. Rep. 
 339; Career v. Coffman, 109 Indiana, 547; Muldowney v. Morris, frc. R. Co., 
 42 Hun (New York Supreme Ct.), 445. 
 
 ACCRETION (of Subject-Matter of a Right). 
 
 No. 1. — R. v. LORD YARBOROUGH. 
 (k. b. 1824, H. l. 1828.) 
 
 RULE. 
 
 Land formed by gradual and imperceptible alluvion, ac- 
 cresces (even as against the Crown as lord of the fore- 
 shore) to the owner of the adjacent soil. 
 
 Imperceptible, for this purpose, means not obvious in 
 its progress ; and does not imply that in a long course of 
 years the accretion may not be ascertained to be consider- 
 able. Where the evidence shows that the growth could 
 not be perceived as it went on, but in 26 or 27 years 
 amounted to 140 or 150 yards, a jury may reasonably con- 
 clude that it is imperceptible. 
 
 R. v. Lord Yarborough. 
 
 3 B. & C. 91 ; (in II. L.) 5 Bing. 163 (s. c. in II. L., 1 Dow & Clarke, 178). 
 
 This was a record transmitted from the petty bag office into the 
 Court of King's Bench, which sets forth an inquisition taken at 
 Cleathorps, in the county of Lincoln, on the 12th day of Novem- 
 ber, 1818, by which, amongst other things, it was found that there 
 is a certain piece of land, being salt-marsh, lying near or adjoining
 
 ACCRETION. 459 
 
 No. 1. — R. v. Lord Yarborough. 
 
 to the parish or lordship of North Cotes in tin 1 said county, which 
 piece of land is bounded towards the south and south-west by the 
 sea-wall or sea-bank of the said lordship of North Cotes, and 
 towards the north-west by part of the sea-wall or sea-bank of cer- 
 tain lands in the lordship of Titney, and on all other parts by the 
 sea, and contains by estimation 453 acres or thereabouts, and is 
 of the annual value of 4s. an acre, and was in times past covered 
 with the water of the sea, but is now, and has been for several 
 years past, by the sea left, and is not covered with water, except 
 at high tides, when the sea doth flow to the said sea-walls or sea- 
 bank ; which said piece of land, from the time of such dereliction, 
 hitherto has been, and still is, unoccupied ; but the herbage thereof 
 has been from time to time eaten and consumed by the cattle and 
 sheep belonging to divers tenants or occupiers of lands situate within 
 the said parish or lordship of North Cotes. And the inquisition 
 then stated that the said piece of land, together with other lands 
 therein specified, the commissioners had taken and caused to be 
 seized into the hands of our said lord, the King. To this inqui- 
 sition the defendant filed a traverse, which, after craving oyer of 
 the commissioner's return and inquisition, and admitting the boun- 
 daries, quantity, and value of the land in question, and that the 
 same piece of land is now, and has been' for several years past, 
 not covered with water, except at high tides, when the sea doth 
 flow to the said sea-wall, or sea-bank, states, that "from time 
 whereof the memory of man runneth not to the contrary, there 
 hath been, and still is, a certain ancient manor called, or known by 
 the name of, the manor of North Thoresby cum North Cotes, situ- 
 ate within the parish of North Cotes aforesaid, in the said countv 
 of Lincoln, and that the defendant, long before the respective days 
 of issuing the commission and finding the inquisition, to wit, on 
 &c, was seized in his demesne as of fee, of and in the manor of 
 North Thoresby cum North Cotes, and the demesne lands thereof. 
 and that the same piece of land heretofore, to wit, on the 1st day 
 of January, 1300, and on divers other clays and times between 
 that day and the day of the finding the inquisition, by the slow, 
 gradual, and imperceptible projection, alluvion, subsidence, and 
 accretion of ooze, soil, sand, and matter, being slowly, gradually, 
 and by imperceptible increase in long time cast up, deposited, and 
 settled by and from the flux and reflux of the tide and waves of 
 the sea, in, upon, and against the outside and extremity of the
 
 460 ACCRETION. 
 
 No. 1. — R. v. Lord Yarborough. 
 
 demesne lands of the same manor, hath been formed, and hath 
 settled, grown, and accrued upon and against and unto the said 
 demesne lands of the same manor, and the same and every por- 
 tion thereof, when and as the same hath so there been formed, 
 settled, grown, and accrued, hath thereupon and thereby at those 
 times respectively in that behalf above mentioned, forthwith be- 
 come and been, and from the same several times respectively have 
 and hath continued to be, and still are, and is part and parcel 
 of the said demesne lands of the same manor; and the several 
 owners and proprietors of the same manor for the time being, 
 during all the time aforesaid, until the time of the seisin of the de- 
 fendants, as aforesaid, and defendant during the time he hath been so, 
 as aforesaid, seized of and in the said manor, from the time of the 
 formation and accretion of the same piece of land and every part 
 thereof respectively, continually, until the time of the rinding of 
 the inquisition, respectively were and was seized in their and his 
 demesne as of fee, of and in the same piece of land and every part 
 thereof, when and as the same hath so been formed and accrued 
 as aforesaid, as and for part and parcel of the demesne lands of the 
 same manor. Without this, that the said piece of land in the 
 plea mentioned, and in the inquisition last above mentioned, or 
 any part or parcel thereof, was or now is by the sea left in manner 
 and form as in the inquisition is above supposed and found." The 
 replication of the Attorney-General traversed part of the induce- 
 ment to the defendant's traverse as follows : " Without this, that 
 the said piece of land, in the inquisition lastly mentioned, being 
 the piece of land before described at the times in the said plea 
 mentioned, by the slow, gradual, and imperceptible projection, 
 alluvion, subsidence, and accretion of ooze, soil, sand, and other 
 matter being slowly, gradually, and by imperceptible increase in 
 long time, cast up, deposited, and settled by and from the flux and 
 reflux of the tide and waves of the sea in, upon, and against the 
 outside and extremity of the demesne land of the same manor, 
 hath been formed, and hath settled, grown, and accrued upon and 
 against and unto the said demesne lands of the same manor, in 
 manner and form as the defendant hath above in his plea in that 
 behalf alleged;" and the defendant in his rejoinder took issue 
 upon that fact. The replication then took issue on the defen- 
 dants' traverse, " that the said piece of land in the plea of defen- 
 dant mentioned, was and now is by the sea left, in manner and
 
 ACCRETION. 461 
 
 No. 1. — R. v. Lord Yarborough. 
 
 form as in the inquisition is above supposed and found;" and there- 
 upon also the defendant joined issue. These issues were tried at 
 the last assizes for the county of Derby, before Park, J., and a ver- 
 dict found for the defendant. A rule nisi having been obtained 
 to show cause why a new trial should not be had, the Court di- 
 rected, at the time of showing cause against the rule, that the 
 facts proved at the trial should be stated in a special case for 
 the opinion of the Court, and that if judgment should be given 
 for the King upon such case, the verdict obtained for the defen- 
 dant should be set aside and a new trial hail ; and if judgment 
 should be given for the defendant upon such case, judgment should 
 be entered for the defendant upon the verdict. The case was as 
 follows : — 
 
 The land in question consists of 450 acres of salt-marsh called 
 littees, being the land covered with herbage, which, at the time of 
 taking the inquisition set forth in the pleadings, lay between the 
 sea-wall and the sea opposite to North Cotes, in the county of 
 Lincoln. It was proved that this land had been formed in the 
 course of time by means of ooze, warp, silt, sludge, and soil, carried 
 down by the Humber and deposited and cast up by the flux and 
 reflux of the sea upon and against the adjacent land, whereby the 
 land has been enlarged and increased, and the sea has receded. The 
 matter thus deposited is at first soft and sludgy, but in the course 
 of five or six years grows firm, and then produces herbage. With 
 respect to the degree or rate of growth and increase of the land, 
 the evidence produced on the part of the Crown was as follows : 
 the first witness proved that the sea had receded in parts 140 or 
 150 yards within twenty-six or twenty-seven years; and that 
 within the last four years he could see that it had receded much 
 in parts, but could not say how much ; and in parts he believed 
 that it had not receded at all. The alteration, he said, had been 
 slow and gradual, and he could not perceive the growth as it went 
 on, though he could see there had been an increase in twenty-six 
 or twenty-seven years of 140 to 150 yards, and that it had cer- 
 tainly receded since he measured the land the year before. The 
 second witness proved that in fifteen years there had been an 
 increase of the fittees on the outside of the sea-wall ; in some 
 parts from 100 to 150 yards; that it grows a little from year to 
 year. That within the last five years there had been a visible 
 increase in some parts during that period, of from thirty to fifty
 
 462 ACCRETION". 
 
 No. 1. — It. v. Lord Yarborough. 
 
 yards; that the gradual increase is nut perceptible to the eye at 
 the moment. The third witness said there had been some small 
 increase in every year; and the fourth witness said the swartli 
 increased every year very gradually, and that perhaps it had gath- 
 ered a quarter of a mile in breadth in some places within his 
 recollection, or during the last fifty-four or fifty-five years, and in 
 soine places it had gathered nothing. It was proved that the 
 ground between the sea-wall above mentioned and another sea- 
 wall still more remote from the sea, appeared to have been covered 
 over with the sea formerly. 
 
 Goulburn, for the Crown. The principles of law which govern 
 the rights of the Crown to maritime accretions are laid down with 
 great precision by Lord Hale, in his treatise De Jure Maris. He 
 states that " the King hath a title to maritime increments, or in- 
 crease of the land by the sea; and this is of three kinds, — viz., 
 first, increase per projectionem vel alluvionem ; second, increase per 
 relictionem vel desertionem ; third, per insulce produetionem," Pt. I., 
 c. 4, p. 14, and he gives a description of each. The increase per 
 alluvionem is now in question, and that he describes as follows: 
 " The increase per alluvionem is when the sea, by casting up sand 
 and earth, doth by degrees increase the land, and shut itself out 
 further than the ancient bounds went. The reason why this be- 
 longs to the Crown is, because, in truth, the soil where there is now 
 dry land was formerly part of the very fundus maris, and conse- 
 quently belonged to the King. But, indeed, if such alluvion be so 
 insensible that it cannot be by any means found that the sea was 
 there, idem est nan esse et non apparere, the land thus increased 
 belongs, as a perquisite, to the owner of the land adjacent." In 
 page 28 Lord Hale again describes tic jus alluvionis in nearly the 
 same words, and then cites the following passage from Bracton, 
 lib. 2, c. 2: "Item quod per alluvionem ngro tuo flumen adjecit 
 jure gentium tibi acquiritur. Est autem alluvio lateris incremen- 
 tum. Et per alluvionem adjici dicitur quod ita paulatim adjicitur 
 quod intelligere non possis quo momento temporis adjiciatur, &c. 
 Si autem non sit lateris incrementum contrarium erit, ut vis flumi- 
 nis partem aliquam ex tuo praedio detraxit et vicini praedio appulit, 
 certum est earn tuum permanere, &c," and then he observes : " but 
 Bracton follows the civil law in this and some other following 
 places;" and soon after he adds: " This jus alluvionis, as I have 
 before said, is de jure communi, by the law of England, the King's."
 
 ACCRETION. 463 
 
 No. 1. — E. v. Lord Yarborough. 
 
 AVith respect to the increase per relictionem, or recess of the sea, 
 Lord Hale says: "This doth de jure communi belong to the King" 
 (p. 14), and he assigns the same reason as before, that the sea is 
 part of the waste of the Crown, and therefore that which lies under 
 it belongs to the King; and he cites the case of an information 
 against Oldsworth and others, "for intruding into 300 acres of 
 land which was relictum per mure, and now called Sutton Marsh ; 
 the defendants pleaded specially and entitled themselves by pre- 
 scription to the lands -project by the sea ; and upon demurrer 
 adjudged against them, that, first, by the prescription or title made 
 to lands project, which is jus alluvionis, no answer is given to the 
 information for lands relict, lor these were of several natures 
 Second, it was held that it lies not in prescription to claim lands 
 relict per mare." This case proves two things ; first, that it is 
 necessary to plead specially a title to lands gained per alluvionem ; 
 and, secondly, that custom cannot give a right to lands per relicr 
 tionem. In the case of The Abbot of Peterborough, Hale, De Jure 
 Mar. 29, he pleaded and proved a title by custom to lands formed 
 per alluvionem, and judgment was given for him. It is not con- 
 tended that the defendant, in the present case, might not have 
 shown a title to the lands in dispute if he had alleged and proved 
 a custom, but he has not done so. In The Abbot of Ramsay' s Case, 
 Dyer, 326 b, where the Crown demanded sixty acres of land which 
 the abbot had appropriated to himself, he pleaded that he held the 
 manor of Brancaster, situate near the sea, and that there was there 
 a certain marsh, sometimes diminished and sometimes increased by 
 the flux and reflux, of the sea, and traversed the appropriation ; 
 and upon issue joined a verdict was found for the abbot, and judg- 
 ment given quod cat sine die. This case is cited by Lord Hale, 
 p. 29, who observes upon it: "Here is no custom at all alleged; 
 but it seems he relied upon the common right of his case, as that 
 he suffered the loss, so lie should enjoy the benefit, even by tic 
 bare common law, in case of alluvion." Upon that authority it 
 must be conceded that a subject may be entitled to accretions by 
 alluvion if he pleads and proves that he has been subject to loss 
 by the sea in. the same place. At the commencement of that case 
 Dyer puts a qumre, "whether lands left by the sea shall belong to 
 the prince or the owner of the adjoining land," which is answered 
 in a note supposed to be by Treby, C. J. : " The prince shall have 
 all lands left by or gained from the sea." There is another way
 
 464 ACCRETION. 
 
 No. 1. — It. v. Lord Yarborough. 
 
 also in which the subject may be entitled to increase by alluvion, 
 — viz., if the alluvion is so insensible that it cannot be known that 
 the sea ever was there. To this right Callis, on Sewers, p. 51, ap- 
 plies the principle " de minimis non curat lex." It is unnecessary 
 to notice the increase per insulce productionem. The right of the 
 King to lands funned by alluvion, or left by the sea, is therefore 
 clear. It is also admitted that where the land of a subject is over- 
 whelmed by the sea, and again left dry, the right of the subject 
 revives. Eoll. Abr. 16S, Prerog. duo. Roy B. pi. 2. The Crown, 
 therefore, in claiming maritime increments, takes nothing from the 
 subject ; it merely claims to retain, in a dry state, that which 
 clearly belonged to it when covered with water. In the present 
 instance, the subject seeks to take something from the Crown. 
 Probably the passage cited from Bracton by Lord Hale may be 
 relied on by the other side ; but Lord Hale observes that the pas- 
 sage in question follows the civil law, and in various other works 
 Bracton is spoken of as not being entitled to much weight as an 
 authority in our law. See Fitz Abr. Gard.pl. 71. Stowellv. Zouch, 
 1 Plowd. 357; Ball v. Herbert, 3 T. R 263. But see a different 
 opinion of Bracton in Pref. to 9 Co. p. 13, and Doddridge's Eng. 
 Lawyer, 41. Another authority relied upon by the defendants at 
 the trial was 2 Bl. Com. p. 261 ; but that is plainly a very loose 
 passage, for no distinction is made between the increment by allu- 
 vion and by dereliction. It cannot be contended that all increase 
 by alluvion belongs to the subject if it be imperceptible to the eye 
 whilst going on, for then the increase by alluvion muse always be- 
 long to the subject, for the actual formation of the land can never 
 be observable at the moment. The right of the subject really 
 depends on the principle " de minimis non curat lex." Here the 
 whole increase was 460 acres, and it went on at the rate of eight 
 or nine yards in width every year. The principle before men- 
 tioned is here inapplicable. No customary or prescriptive right was 
 pleaded, nor was the defendants' case made to depend upon the 
 liability to loss by the encroachment of the sea ; the first issue 
 should, therefore, have been found for the Crown. On the second 
 issue the only question was, whether the land had been left in the 
 manner stated in the inquisition. Now, the only object of the in- 
 quisition was to find whether land which had originally been cov- 
 ered with the sea had been left dry. No technical distinction 
 was made by the commissioners between lands formed by alluvion
 
 ACCRETION. 465 
 
 No. 1. — R. v. Lord Yarborough. 
 
 and those derelict by the sea. Their finding was in substance that 
 the sea had receded from the lands in question, and that was sup- 
 ported by the evidence. 
 
 Phillipps, contra. The word "imperceptible," in the first issue, 
 must be understood in the sense which the term commonly bears. 
 It has not any legal or technical meaning in contradistinction from 
 the sense which it bears in common parlance. The same meaning 
 will be collected from the context. The issue is, whether the piece 
 of land in dispute has been formed upon the demesne lands of the 
 manor by the " slow, gradual, and imperceptible projection, allu- 
 vion, subsidence, and accretion of ooze, soil, and other matter being 
 slowly, gradually, and imperceptibly deposited by the flux and 
 reflux of the tides." The words "slow, gradual, and imperceptible 
 accretion and alluvion " must be understood to describe an alluvion 
 so gradual as not to be observed at the time, as not to be perceived 
 in its progress. The deposition being thus imperceptible, the in- 
 crease must be the same. By the operation of the titles, then, a 
 small increment has been deposited from day to day, until, in the 
 course of time, a considerable piece of land has been formed ; still, 
 however, composed of minute increments, each part being to the 
 whole as the fluxion to the fluent. If the words of the issue are to 
 be understood in their ordinary sense, the evidence completely 
 established the defendant's allegation, and the jury could only find 
 their verdict for him. One witness stated that the alteration had 
 been slow and gradual, and he could not perceive the growth as it 
 went on. Another said that the land grows a little from year to 
 year, and that the gradual increase is not perceptible to the eye at 
 the moment. If there be in return naturd such a thing as imper- 
 ceptible alluvion, it was that which the witnesses in this case proved 
 to have taken place. It exactly corresponds with Bracton's defini- 
 tion of alluvion: " Lateris incrementum quod ita paulatirn adjicitur 
 ut intelligere non possis quo momento temporis adjiciatur." The 
 jury, therefore, could not do otherwise than find the first issue for 
 the defendant, and if so, all questions as to the second is at once 
 disposed of; for that describes the lands as left by the sea. Now, 
 Lord Hale and Callis, in a variety of passages, speak of lands 
 formed by alluvion and those left by the sea as totally different in 
 nature, and subject to different rules of law. If, therefore, the first 
 issue was properly found for the defendant, the jury could not 
 have done right had they found the second for the Crown. The 
 vol. i. —30
 
 466 ACCRETION". 
 
 No. 1. — R. v. Lord Yarborough. 
 
 principal point made on the other side was, that even supposing 
 the land in question to have been deposited by imperceptible 
 degrees, still the defendant cannot be entitled to the judgment 
 of the court, inasmuch as he has not stated on the record any cus- 
 tom or prescription, or oilier legal title to it. But upon a careful 
 examination of the authorities it will be found that the subjert is 
 entitled to such lands of common right. There is little to be found 
 touching the point in the old books. Neither Brooke's or Fitzher- 
 bert's Abr. contains any trace of such a prerogative as that now 
 claimed, nor is it mentioned in Staunford de Prerog. Eegis. Dyer, 
 C. J., puts it as a doubtful question, whether a great quantity of land 
 relinquished by the sea shall belong to the prince by his prerogative 
 or to the owner of the adjoining land as a perquisite (Dyer, 
 326 h) ; and after referring to several text writers, he cites The 
 Abbot of Ramsay's ('use, and afterwards Digges v. Hammond as a 
 like case. In both, judgment was given for the subject against the 
 Crown, although the record did not contain any allegation of a cus- 
 tomary or prescriptive title ; and it appears by Callis, pp. 50 and 
 53, that the lands were formed by alluvion. With respect to the 
 note by Treby, C. J., it is plain that if it was meant as a solution 
 of C. J. Dyer's doubt, it applies to derelict lands only ; but if it is 
 to be taken in a larger sense, still it can only apply to derelict 
 lands, and those from which the sea has been excluded by artificial 
 means. It cannot be supposed to include lands formed by allu- 
 vion ; that is contrary to the natural meaning of the words, and in 
 opposition to the two cases reported immediately after the qucere 
 put in the text. Now, it is not probable that Treby, C. J., would 
 have expressed an opinion inconsistent with those cases, without 
 making some observation upon them. In 2 Roll. Abr. Prerog. B, 
 pi. 9, 10; the cases cited by Dyer are adopted, and then follows 
 pi. 11. "If the salt water leaves a great quantity of land on the 
 shore, the King shall have the land by his prerogative, and the 
 owner of the adjoining soil shall not have it as a perquisite." 
 Whence it may be inferred that Rolle thought, land formed grad- 
 ually by alluvion would go to the owner of the adjoining land, of 
 common right as a perquisite; and it has been so understood 
 Com. Dig. Prerog. (D. 61) and 2 Bl. Com. 261. Lord Hale, in 
 his treatise, De Jure Maris, manifestly speaks of two different kinds 
 of gain by alluvion ; the one where a considerable increase takes 
 place at one time, the other where it is gradual and by insensible
 
 ACCRETION'. 407 
 
 No. 1. — R. v Lord Yarborough. 
 
 degrees. In the former case it belongs to the Crown, in the lat- 
 ter to the subject; and he does nut cite any case to show, that, 
 under such circumstances, the right of the subject depends on cus- 
 tom or prescription. In The Abbot of Peterborough's Case & custom 
 was certainly alleged, but it is not stated that his right could nut 
 have been established without it; and in The Abbot of Rams 
 ('use no such title was stated on the record. Lord Hale cannot 
 be taken to mean that the increment belongs to the subject only 
 when it is so inconsiderable as to be scarcely perceptible ; for in 
 The Abbot of Ramsay's Case, which he cites, the dispute was for 
 sixty acres; and unless the land is, after the lapse of many years, 
 ■clearly discernible, a dispute respecting it can hardly arise. The 
 true and only sensible meaning is, that where the increase is im- 
 perceptible in its progress, there the land becomes the property 
 <>f the subject as it is formed ; it is then vested in him de die in 
 diem ; and what is once vested in him, cannot be divested by the 
 circumstance of a still further increase afterwards taking [-lace. 
 This agrees with the case cited in Callis, 51, from the 22 Lib. Ass. 
 pi. 93. " The case was, that a river of water did run between two 
 lordships, and the soil of one side, together with the river of water, 
 ■did wholly belong to one of the said lordships ; and the river, by 
 little and little, did gather upon the soil of the oilier lord, but so 
 slowly that if one had fixed his eye a whole day thereon together 
 it could not be perceived. By this petty and imperceptible in- 
 crease the increasement was got to the owner of the river; but if 
 the river, by a sudden and an unusual flood, had gained hastily a 
 great parcel of the other lord's ground, lie should not thereby have 
 lost the same: and so of petty and imperceivable increase- 
 ments from the sea, the King gains no property, for de minimi* 
 -non curat lex.'" The case of the river clearly explains the mode 
 in which Callis intends to apply the maxim, — viz., that the King 
 has no claim to the land where the increase is by imperceptible de- 
 grees, however large it may ultimately become. There is not, 
 then, either upon authority or principle, any ground for disturb- 
 ing the verdict found for the defendant. Cur. adv. vult. 
 
 The judgment of the court was now delivered by 
 Abbott, C. J. Upon this case the only question for the judg- 
 ment of the court is, whether the evidence given at the trial was 
 such as to justify the verdicl of the nrv ■ , the issues joined.
 
 468 ACCRETION. 
 
 No. 1. — R. v. Lord Yarborough. 
 
 Whether the pleadings have been correctly framed on either side, 
 or what may be the legal consequence and effect of the verdict, 
 supposing it to stand, are points not now before us. I notice this, 
 because some part of the argument at the bar was more properly 
 applicable to a matter of law upon admitted facts than to the 
 question whether particular issues are maintained by the evidence ; 
 or, in other words, whether particular facts are found to exist. 
 
 The second issue upon the record arises upon a traverse of the 
 matter found by the inquisition. The matter thus found is, that 
 the land now claimed by the Crown was in times past covered with 
 the water of the sea, but is now, and has been for several years, left 
 by the sea. Now, the distinction between land derelict, or left by 
 the sea, acquiring a new character in consequence of the mere sub- 
 sidence and absence of the salt-water, and land gained by alluvion 
 or projection of extraneous matter, whereby the sea is excluded 
 and prevented from overflowing it, is easily intelligible in fact, and 
 recognised as law by all the authorities on the subject. Upon the 
 evidence it is very plain that the land in question is of the latter 
 description, and therefore the issue joined upon this point was 
 properly found for the defendant. 
 
 The principal question arose upon the first issues, and it is, as I 
 have before intimated, merely a question of fact. The defendant has 
 pleaded that the land in question, by the slow, gradual, and imper- 
 ceptible projection, alluvion, subsidence, and accretion of ooze, soil, 
 sand, and other matter, being slowly, gradually, and by imperceptible 
 increase, in long time cast up, deposited, and settled by and from 
 the flux and reflux of the tide and water of the sea in, upon, and 
 against the outside and extremity of the demesne lands of the manor, 
 hath been formed, and hath settled, grown, and accrued upon, against, 
 and unto the said demesne lands. This allegation has been denied 
 on the part of the Crown, and an issue taken upon it. The allega- 
 tion regards only the manner in which the land has been formed ; it 
 contains nothing as to the result of its formation, nothing as to the 
 practicability of ascertaining, after its formation, by any marks or 
 limits or quantity previously existing and known, or by measure 
 to commence and be taken from such marks, or, with reference to 
 such quantity, how much is now land that once was sea. It 
 is clear upon the evidence that the land has been formed slowly 
 and gradually in the way mentioned in the plea. The argument 
 was upon the word " imperceptibly ; " and for the Crown two pas-
 
 ACCRETION. 469 
 
 No. 1. — R. v. Lord Yarborough. 
 
 sages were cited from Sir Matthew Hale's treatise, De Jure 
 Maris, wherein that very learned writer speaks of land gained by 
 alluvion as belonging generally to the Crown, unless the gain be so 
 insensible that it cannot be by any means, according to the words 
 of one of the passages, or by any limit* or marks, according to the 
 words of the other passage, found that the sea was there : idem est 
 Dim esse et non apparere. In these passages, however, Sir Mat- 
 thew Hale is speaking of the legal consequence of such an accre- 
 tion, and does not explain what ought to be considered as accretion 
 insensible or imperceptible in itself, Lint considers that as being 
 insensible of which it cannot be said with certainty that the sea ever 
 was there. An accretion extremely minute — so minute as to be 
 imperceptible even by known antecedent marks or limits at the end 
 of four or five years — may become, by gradual increase, perceptible 
 by such marks or limits at the end of a century, or even of forty or 
 fifty years. For it is to be remembered that if the limit on one 
 side be land, or something growing or placed thereon, — as a tree, 
 a house, or a bank, — the limit on the other side will be the sea, 
 which rises to a height varying almost at every tide, and of which 
 the variations do not depend merely upon the ordinary course of 
 nature at fixed and ascertained periods, but in part also upon the 
 strength and direction of the wind, which are. different almost 
 from day to day. And therefore these passages from the work of 
 Sir Matthew Hale are not properly applicable to this question. 
 And considering the word " imperceptible " in this issue as con- 
 nected with the words " slow and gradual," we think it must be 
 understood as expressive only of the manner of the accretion, as 
 the other words undoubtedly are, and as meaning imperceptible in 
 its progress, — not imperceptible after a long lapse of time. And 
 taking this to be the meaning of the word "imperceptible," the 
 only remaining point is, whether the accretion of this land might 
 properly upon the evidence be considered by the jury as impercep- 
 tible. Not one witness has said that it could lie perceived, cither 
 in its progress or at the end of a week or a month. One witness, 
 who appears twice to have measured the land, says, that within 
 the last four years he could see that the sea had receded, but he 
 could not say how much ; the same witness said that it certainly 
 had receded since he measured it last year, but he did not say how 
 much ; and, according to his evidence, the gain in a period of 
 twenty-six or twenty-seven years was on the average about live
 
 470 ACCRETION. 
 
 No. 1. — R. v. Lord Yarborough. 
 
 yards and a half in a year. Another witness speaks of a gain of 
 from 100 to 150 yards in fifteen years, — a much greater increase 
 than that mentioned by the first witness ; and this second witness 
 adds, that during the last five years there had been a visible 
 increase in some parts of from thirty to fifty yards. Upon the 
 evidence of this witness, it is to be observed that he speaks very 
 loosely, — the difference between 100 and 150 in fifteen years, and 
 between thirty and fifty in five years being very great. The third 
 witness said there had been some small increase in every year. 
 The fourth witness said, the swarth increases every year very grad- 
 ually, and perhaps it had gathered a quarter of a mile in breadth 
 in some places within his recollection, or daring the last fifty four 
 or fifty-five years ; and in some places it had gathered nothing. 
 And this was the whole evidence on the subject. We think the 
 jury might, from this evidence, very reasonably find that the in- 
 crease had not only been slow and gradual, but also imperceptible, 
 according to the sense in which, as I have before said, we think 
 that word ought to be understood. And consequently we are of 
 opinion that a new trial ought not to be granted, and the rule 
 therefore must be discharged. Rale discharged. 
 
 A writ of error in Parliament having been brought by the Attor- 
 ney-General on behalf of the Crown, the cause was heard on the 
 9th of June, 1828, in the House of Lords, in the presence of the 
 eleven judges, and having been argued by counsel, the judgment of 
 the Judges was, by leave of the House, on the 15th of July, 1828, 
 delivered by 
 
 Best, C. J. My Lords, the question which your Lordships have 
 proposed for the opinion of the Judges is as follows : " A. is 
 seized in his demesne as of fee of the manor of N., and of the 
 demesne lands thereof, which said demesne lands were formerly 
 bounded on one side by the sea. A certain piece of land, consist- 
 ing of about 450 acres, by the slow, gradual, and imperceptible 
 projection, alluvion, subsidence, and accretion of ooze, soil, sand, 
 and matter slowly, gradually, and imperceptibly, and by imper- 
 ceptible increase in long time cast up, deposited, and settled 
 by and from flux and reflux of the tide and waves of the sea in, 
 upon, and against the outside and extremity of the said demesne 
 lands, hath been formed and hath settled, grown, and accrued upon 
 and against and unto the said demesne lands. Does such piece of
 
 ACCRETION. 471 
 
 No. 1. — R. v. Lord Yarborough. 
 
 land so formed, settled, grown, and accrued as aforesaid belong to 
 the Crown or to A., the owner of the said demesne land ? There 
 is no local custom on the subject." 
 
 The Judges have desired me to say to your Lordships, that land 
 gradually and imperceptibly added to the demesne lands of a 
 manor, as stated in the introduction to your Lordship's question, 
 does not belong to the Crown, but to the owner of the demesne 
 land. 
 
 All the writers on the law of England agree in this : that as the 
 King is lord of the sea that Hows around our coasts, and also owner 
 of all the land to which no individual has acquired a right by 
 occupation and improvement, the soil that was once covered by 
 the sea belongs to him. 
 
 But this right of the sovereign might, in particular places, or 
 under circumstances, in all places near the sea, be transferred to 
 certain of his subjects by law. A law giving such rights may be 
 presumed from either a local or general custom, such custom being 
 reasonable, and proved to have existed from time immemorial. 
 Such as claim under the former must plead it, and establish 
 their pleas by proof of the existence of such a custom from time 
 immemorial. 
 
 General customs were in ancient times stated in the pleadings 
 of those who claimed under them, — as the custom of merchants, 
 the customs of the realm with reference to innkeepers and carriers, 
 and others of the same description. But it has not been usual for 
 a long time to allude to such customs in the pleadings, because no 
 proof is required of their existence; they are considered as adopted 
 into the common law, and as such are recognised by the Judges 
 without any evidence. These are called customs, because they 
 only apply to particular descriptions of persons, and do not affect all 
 the subjects of the realm; but if they govern all persons belonging 
 to the classes to which they relate, they are to be considered as 
 public laws, — ■ as an act of Parliament applicable to all merchants, 
 or to the whole body of the clergy, is to be regarded by the 
 Judges, as a public act. 
 
 If there is a custom regulating the right of the owners of all 
 lands bordering on the sea, it is so general a custom as need not 
 be set out in the pleadings, or proved by evidence, but will be 
 taken notice of by the Judges as part of the common law. We 
 think there is a custom bv which lands from which the sea is
 
 472 ACCRETION. 
 
 No. 1. — E. v. Lord Yarborough. 
 
 gradually and imperceptibly removed by the alluvion of soil be- 
 comes the property of the person to whose land it is attached, 
 although it has been the fundus maris, and as such the property of 
 the King. Such a custom is reasonable as regards the rights of the 
 Xing and the subjects claiming under it ; beneficial to the public ; 
 and its existence is established by satisfactory legal evidence. 
 
 There is a great difference between land formed by alluvion and 
 derelict land. Land formed by alluvion must become useful soil 
 by degrees too slow to be perceived; little of what is deposited by 
 one tide will be so permanent as not to be removed by the next. 
 An embankment of a sufficient consistency and height to keep out 
 the sea must be formed imperceptibly. But the sea frequently 
 retires suddenly and leaves a large space of land uncovered. 
 
 When the authorities relative to these subjects are considered, 
 this difference will be found to make a material distinction in the 
 law that applies to derelict lands, and to such as are formed by 
 alluvion. Unless trodden by cattle, many years must pass away 
 before lands formed by alluvion would be hard enough or suffi- 
 ciently wide to be used beneficially by any one but the owner of 
 the lands adjoining. As soon as alluvion lands rise above the 
 water, the cattle from the adjoining lands will give them consis- 
 tency by treading on them, and prepare them for grass or agricul- 
 ture by the manure which they will drop on them. When they 
 are but a yard wide the owner of the adjoining lands may render 
 them productive. Thus lands which are of no use to the King 
 will be useful to the owner of the adjoining lands, and he will 
 acquire a title to them on the same principle that all titles to 
 lands have been acquired by individuals, — - viz.. by occupation and 
 improvement. 
 
 Locke, in a passage in his Treatise on Government, in which 
 he describes the grounds of the exclusive right of property says : 
 " God and man's reason commanded him to subdue the earth ; 
 that is, improve it for the benefit of life, and therein lay out some- 
 thing upon it that was his own, his labour. He that in obedience 
 to that command subdued, tilled, and sowed any part of it, 
 thereby annexed to it something that was his property which 
 another had no title to, nor could without injury take from 
 him." 
 
 This passage proves the reasonableness of the custom that assigns 
 lands gained by alluvion to the owner of the lands adjoining.
 
 ACCRETION. 47* 
 
 No. 1. — R. v. Lord Yarborough. 
 
 The reasonableness is further proved by this, that the land so 
 gained is a compensation for the expense of embankment, and for 
 losses which frequently happen from inundation to the owners of 
 lands near the sea. 
 
 This custom is beneficial to the public. Much land which 
 would remain for years, perhaps forever, barren, is in conse- 
 quence of this custom rendered productive as soon as it is formed. 
 Although the sea is gradually and imperceptibly forced back, the 
 land formed by alluvion will become of a size proper for cultiva- 
 tion and use ; but in the mean time, the owner of the adjoining 
 lands will have acquired a title to it by improving it. 
 
 The original deposit constitutes not a tenth part of its value, the 
 other nine tenths are created by the labour of the person who has 
 occupied it; and, in the words of Locke, the fruits of his labour 
 cannot, without injury, be taken from him. 
 
 The existence of this custom is established by legal evidence. 
 In Bracton, bk. 2, c. 2, there is this passage : " Item, quod 
 per alluvionem agro tuo flumen adjecit, jure gentium tibi acqui- 
 ritur. Est auteni alluvio lateris incrementum, et per alluvionem 
 adjici dicitur quod ita paulatim adjicitur quod intelligere non 
 possis quo momento temporis adjiciatur. Si autem non sit lateris 
 incrementum contrarium erit." 
 
 In a treatise which is published as the work of Lord Hale, 
 treating of this passage, it is said : " that Bracton follows in this 
 the civil law writers ; and yet, even according to this, the common 
 law doth regularly hold between parties. But it is doubtful in 
 case of an arm of the sea." Hale, De Jure Maris, p. 28. It is true 
 that Bracton follows the civil law, for the passage above quoted 
 is to be found in the same words in the Institutes, lib. 2, tit. 1, § 20. 
 But Bracton, by inserting this passage in his books on the laws 
 and customs of England, presents it to us as part of those laws 
 and customs. Lord LIale admits that it is the law of England in 
 cases between subject and subject ; and it would be difficult to 
 find a reason why the same question between the Crown and a 
 subject, should not be decided by the same rule. Bracton wrote 
 on the law of England, and the situation which he filled, — namely, 
 that of Chief Justice, in the reign of Henry the Third, — gives great 
 authority to his writings. Lord Hale, in his History of the Com- 
 mon Law (c. 7), says, that it was much improved in the time of 
 Bracton. This improvement was made by incorporating much of 
 the civil law with the common law.
 
 474 ACCRETION. 
 
 No. 1. — It. v. Lord Yarborough. 
 
 We know that many of the maxims of the common law are 
 borrowed from the civil law, and are still quoted in the language 
 of the civil law. Notwithstanding the clamour raised by our an- 
 cestors for the restoration of the laws of Edward the Confessor, 
 I believe that these and all the Norman customs which fol- 
 lowed would not have been sufficient to form a system of law 
 sufficient for the state of society in the times of Henry the Third. 
 Both courts of justice and law writers were obliged to adopt such 
 of the rules of the digest as were not inconsistent with our prin- 
 ciples of jurisprudence. Wherever Bracton got his law from, Lord 
 Chief Baron Barker, in Fortescue, 408, says, "As to the author- 
 ity of Bracton, to be sure, many things are now altered, but there 
 is no colour to say it was not law at that time. There are many 
 things that have never been altered, and are now law." The law 
 must change with the state of things to which they relate ; but, 
 according to Chief Baron Barker, the rules to be found in Bracton 
 are good now in all cases to which those rules are applicable. But 
 the authority of Bracton has been confirmed by modern writers, 
 and by all the decided cases that are to be found in the books. 
 The same doctrine that Bracton lays down is to be found in 2 
 Boll's Abr. 170; in Com. Dig. tit. Prerogative (I). 61); in Callis 
 (Broderip's edition), p. 51 ; and in 2 Bl. Com. 261. 
 
 In the case of The Abbot of Peterborough (Hale, I)e Jure Maris, p. 
 29), it was holden: "quod, secundum consuetudinem patriae, do- 
 mini maneriorum prope mare adjacentium, habebunt marettum et 
 sabulonem per fluxus et renuxus maris per temporis incrementum 
 ad terras suas costerse maris adjacentes projecta." In the treatise 
 of Lord LIale it is said, " Here is custom laid, and he relies not 
 barely on the case without it." But it is a general, and not a 
 local custom, applicable to all lands near the sea, and not to lands 
 within any particular district. The pleadings do not state the 
 lands to be within any district, and such a statement would have 
 been necessary if the custom pleaded were local. The consuetudo 
 ■patrice means the custom of all parts of the country to which it 
 can be applied, — that is, in the present case, all such parts as 
 adjoin the sea, 
 
 The case of The King v. Oldsworth (Hale, De jure Maris, p. 14), 
 confirms that of The Abbot of Peterborough as to the right of the 
 owner of the adjoining lands to such lands as were " secundum 
 majus et minus prope tenementa sua projecta," ib. p. 29. That
 
 ACCRETION. 475 
 
 No. 1. — R. v. Lord Yarborough. 
 
 ■case was decided against the owner, because he also claimed 
 <lerelict lands against the Crown. 
 
 Here it will be observed that there is a distinction made be- 
 tween lands derelict and lands formed by alluvion, — which distinc- 
 tion, I think, is founded on the principle that I have ventured to 
 lay down; namely, that alluvion must be gradual and impercep- 
 tible, but the dereliction of land by the sea is frequently sudden, 
 leaving at once large tracts of its bottom uncovered, dry, and tit 
 for the ordinary purposes for which land is used. But still what 
 was decided in this case is directly applicable to the question pro- 
 posed to us. The Judges are, therefore, warranted by justice, by 
 public policy, by the opinions of learned writers, and the author- 
 ity of decided cases, in giving to your Lordship's question the 
 •answer which they have directed me to give. 
 
 My Lords, the answer to your Lordship's question is the unani- 
 mous opinion of all the Judges wdio heard the arguments at your 
 Lordship's bar. For the reasons given in support of that opinion 
 I alone am responsible. Most of my learned brothers were obliged 
 to leave town for their respective circuits before I could write 
 what I have now read to your Lordships. I should have spared 
 your Lordships some trouble if I had had time to compress my 
 thoughts ; but I am now in the midst of a very heavy Nisi Prizes sit- 
 ting, and am obliged to take from the hours necessary for repose the 
 time that I have employed in preparing this opinion. If it wants 
 that clearness of expression which is proper for an opinion to be 
 delivered by a judge to this House, I hope that your Lordships 
 will consider what I have stated as a sufficient apology for this 
 defect. 
 
 The Lord Chancellor. My lords, I beg to express my thanks 
 to the learned Chief Justice, and to the Judges, for the attention 
 they have paid to this subject; and I have only to add that I en- 
 tirely concur in the conclusion at which they have arrived ; and 
 I would recommend to your Lordships, as a necessary consequence 
 of the opinion which has been expressed, that the judgment of the 
 Court of King's Bench upon the matter should be affirmed. 
 
 Earl of Eldox. My Lords, I heard only part of the argument, 
 and therefore I have some difficulty in stating my opinion in this 
 case ; but having had my attention called to subjects of the same 
 nature on former occasions, it does appear to me, I confess, after 
 reading the finding of the jury, that the opinion of the Judges must
 
 476 ACCRETION. 
 
 No. 1. — E. v. Lord Yarborough. — Notes. 
 
 be that which the learned Chief Justice has now expressed. I 
 therefore concur in the opinion the Lord Chief Justice has 
 expressed. Judgment affirmed. 
 
 ENGLISH NOTES. 
 
 The case of Scratton v. Brown (K. B. 1825), 4 B. & C. 485, though 
 rather a question of boundaries by description than of accretion, may 
 be cited in connection with tbe principal case. A deed of grant was 
 made by the lord of a manor in Essex of a certain boat-house and build- 
 ings, and also all the sea-ground, oyster-layings, shores, and fisheries 
 described as extending from the south at high-water mark to the north 
 at low- water mark and between certain limits on the east and west. 
 Since the date of the grant the sea had imperceptibly and gradually 
 encroached on the land, and consequently the high and low water 
 mark had altered their position. It was held that by the deed the 
 right of the soil in that portion of the land which from time to time 
 lay between high and low water mark, passed to the grantees. 
 
 In the case of Hull and Selby 11;/. Co. (1889), 5 M. & W. 327; 8 L. J. 
 Exch. 260, the sea had encroached, and it had been found as a fact in a 
 case stated by an order made on the Equity side of the Exchequer, that 
 the encroachment had been by slow and imperceptible degrees so that no 
 particular period thereof could be ascertained. On this finding the Court 
 pronounced judgment for the Crown. Ali erson, B., stated the law as 
 follows (5 M. & W. p. 332) : " Suppose the Crown, being the owner of the 
 foreshore. — that is, the space between high and low water mark, — grants 
 the adjoining soil to an individual, and the water gradually recedes 
 from the foreshore, no intermediate period of the change being percep- 
 tible; in that case the right of the grantee of the Crown would go for- 
 ward with the change. On the other hand, if the sea gradually covered 
 the land so granted, the Crown would be the gainer of the land. The 
 principle laid down by Lord Hale, that the party who suffers the loss 
 shall be entitled also to the benefit, governs and decides the question. 
 That which cannot be perceived in its progress is taken to be as if it 
 never had existed at all." 
 
 In the case of Att.-General v. Bees (1859), 4 De G. & J. 55, the 
 question was as to the title of the Crown to certain land gained from 
 the sea. Lord Chelmsford, C. (p. 69), laid it down, that if the gain 
 had been "rapid" in the sense of being ''perceptible," the Crown 
 would be entitled. But he thought that if the changes, though they 
 could not be discerned in their progress, could at the expiration of 
 some period of time be perceived to have taken place, a question might 
 arise, whether circumstances might not exist whereby the original
 
 ACCRETION. 477 
 
 No. 1. — E. v. Lord Yarborough. — Notes. 
 
 limits of the Crown's right and that of the owner of the adjoining land 
 are now capable of being distinctly ascertained. He then cited Lord 
 Tenterden's comment upon the word "imperceptible" in the prin- 
 cipal case (p. 469, supra), and observed ( 1 De G. & J. 71) that it was 
 not in accordance with the great authority upon the subject, Lord Hale 
 {Hargrave's Law Tracts, p. 28), who says: "This jus alluvion is is de 
 jure communi, by the law of England, the King's, — viz., if by any marks 
 or measures it can be known what is so gained; for if the gain be so 
 insensible and indiscernible by any limits or marks that it cannot be 
 known, idem est tion esse et huh apparere:" Issues were accordingly 
 directed to try the facts {inter alia) Whether the variation has been 
 slow,, gradual, and imperceptible, and Whether there are or were any 
 marks or bounds by which the natural line of high water can now be 
 ascertained and laid down. 
 
 What became of the case ultimately does not appear in the Reports; 
 but with reference to the latter part of Lord Chelmsford's judgment 
 and to the last issue directed it should be observed, that, whatever may 
 have been Lord Hale's meaning in the passage referred to, the sugges- 
 tion that, although the changes have been imperceptible in their pro- 
 gress, the question of the boundary may still have to be determined by 
 ancient land-marks, cannot be reconciled with any intelligible view of 
 the ratio decidendi of the House of Lords in Lord YarborouglCs Case, 
 unless the grant had been made by a description referring to the land- 
 marks, — what would in Scotch law be termed a bounding charter, — 
 which would raise a different question. 
 
 In 1884, a question very similar to that in Lord Yarborough's Case 
 came before the Queen's Bench Division in Att.-Gen. v. Reeve, reported 
 1 Times Rep. 675. It arose out of accretions to the hind by recession 
 of the sea at Lowestoft in Suffolk. To establish the title of the Crown 
 to the land in question, an action was brought in the nature of an 
 information in .the Exchequer. The defendant was the lord of the 
 manor in the adjacent lands, who claimed the property as an accretion 
 to his estate by imperceptible addition. The title of the Crown to the 
 foreshore in the locality was admitted. It was alleged on the part of 
 the Crown that the recession of the sea in the place in question was 
 entirely caused by the building of a certain pier and works which had 
 been then recently constructed on the foreshore by the grantees of the 
 Crown; and it was in effect admitted that since the erection of these 
 works the recession of the sea had been more rapid. The evidence 
 most relied on by the Crown was that of two witnesses, who, from then- 
 residence and occupations, had special means of observation, to the 
 effect that since the construction of the above mentioned works the 
 recession of the sea had been going on rapidly, and was visible from
 
 478 ACCRETION. 
 
 No. 1.— It. v. Lord Yarborougb,. — Notes. 
 
 month to month; and that, during the prevalence of strong winds from? 
 N. W. to N. combined with high tides, the recession, by reason of large- 
 fresh deposits of sand and shingle, could be perceived from day to day_ 
 On this evidence the Court gave judgment for the Crown. 
 
 In India, where the changes in the course of great rivers frequently" 
 raise difficult questions of property, the criterion has been laid down by 
 legislative authority; Bengal Regulations, XI. of 1825. The framers 
 of the Regulation doubtless had in view the rule in Lord Yarborough's 
 Case, which appears to be consonant to the general customary law of 
 India: Doe d. Seebkristo v. Ettst India Coqvpany (1856), 6 Moo. Ind. 
 App. 267, 283, 285. It is laid down by section 4 of this Regulation 
 (as to cases where there is no local usage) as follows : — 
 
 "First. When land maybe gained by gradual accession, whether 
 from the recess of a river, or of the sea, it shall be considered ait 
 increment to the tenure of the person to whose land or estate it is 
 thus annexed. . . . 
 
 " Second. The above rule shall not be considered applicable to cases 
 in which a river, by a sudden change of its course, may break through 
 and intersect an estate, without any gradual encroachment, or may by 
 the violence of its stream separate a considerable piece of land from 
 one estate, and join it to another estate, without destroying the iden- 
 tity and preventing the recognition of the land so removed. In such 
 cases the land, on being clearly recognised, shall remain the property of 
 its original owner. 
 
 "Third. When a chur or island may be thrown up in a large and 
 navigable river (the bed of which is not the property of an individual,) 
 or in the sea, and the channel of the river, or sea, between such island 
 and the shore may not be fordable, it shall, according to established 
 usage, be at the disposal of Government. — But if the channel between 
 such island and the shore be fordable at any season of the year, it shall 
 -be considered as an accession to the land tenure or tenures of the person 
 or persons, whose estate or estates may be most contiguous to it, subject 
 to the several provisions specified in the first clause of this section, with, 
 respect to increment of land by gradual accession." 
 
 The cases in the Bengal courts upon the questions touched by this 
 Regulation are very numerous, and generally resolve themselves into 
 questions of evidence as to the identity of the tracts of land which 
 emerge, and frequently as to the identity and ownership of the tract in 
 respect of which the accretion by alluvion is claimed. The following; 
 cases, decided by the Judicial Committee of the Privy Council, may be 
 referred to as samples : — 
 
 Mussumat Isnam Bandi v. //' id Ghnza (4848), 4 Moo. Ind..
 
 ACCRETION. 
 
 479 
 
 No. 1. — R. v. Lord Yarborough. — Notes. 
 
 App. 403; the case of Doe d. Seebkristo v. East India Company (1856), 
 above cited; Sree Eckowrie Singv. Heeraloll Seal (1868), 1- Moo. End. 
 App. 130; and Rughoobur Dyal Sahoo v. Kishen Pertab Sahee (1879), 
 L. R. G Ind. App. 211. 
 
 AMERICAN NOTES. 
 
 The doctrine of the principal case prevails universally in this country, both 
 in respect to accretions and alluvion or reliction. 
 
 A riparian proprietor is entitled to all accessions made to his land by the 
 retreating of the river from its former limits, or by the slow and secret 
 deposit of sand and other substances, so as to leave the soil theretofore inun- 
 dated uncovered by water. Hagan v. Campbell, 8 Porter (Alabama), 9; 33 
 Am. Dec. 267, and note, p. '270, both citing the principal case. Imperceptible 
 accretions to the bank of a river from washings from the opposite bank, belong- 
 to the proprietor of the land to which they become affixed. Spigener v. 
 Gooner,8 Richardson Law (South Carolina), 301; 64 Am. Dec. 755; Geirishv, 
 Plough, 48 New Hampshire, 9; 97 Am. Dec. 561, citing the principal case; 
 Warren v. Chambers, 25 Arkansas, 120; 4 Am. Rep. 23; 91 Am. Dec. 538; 
 Mulry v. Norton, 100 New York, 420 ; 53 Am. Rep. 200, citing the principal 
 case; Inhabitants of Deer fold v. A fats, 17 Pickering (Mass.), 41; 28 Am. Dec. 
 270; Lovingston v. County of St. Clair, 04 Illinois, 50; 16 Am. Rep. 510, citing 
 the principal case, and affirmed in the United States Supreme Court, 23 Wal- 
 lace, 68; Adam's v. Frothingham, 3 Massachusetts, 352; 3 Am. Dec. 151; Ball 
 v. Slack, 2 Wharton (Penn.), 508; 30 Am. Dec. 278; Municipality v. Neva 
 Orleans Cotton Press, 8 Louisiana Annual, 122; 30 Am. Dec. 024 (with quota- 
 tions from Horace and Virgil !) ; Welles v. Bailey, 55 Connecticut, 292 ; 3 Am. 
 St. Rep. 18 ; Cook v. City of Burlington, 30 Iowa, 94 ; Am. Rep. 649 ; Cook v. 
 McClure, 58 New York, 437 ; 17 Am. Rep. 270; Nebraska v. Iowa, 113 United 
 States, 359. 
 
 It is said in the note, 33 Am. Dec. 280 : " The general rules laid clown for 
 alluvion seem to govern as well if its formation was due to an artificial as if 
 to a natural cause; Lovingston v. St. Clair, 04 Illinois, 50; liaise// v. McCor- 
 mick, 18 Xew York, 119; Godfrey v. City of Alton, 12 Illinois, 37. In Lock- 
 woody. N. Y. cy H. R. R. Co., 37 Connecticut, 387, lands reclaimed from the 
 waters of a harbour were treated in the same light as accretions from natural 
 causes." But Halsey v. McCormick, supra, directly to the contrary. 
 
 The doctrine of accretion does not apply to an artificial body of water. 
 Cook v. McClure, 58 New York, 437; 17 Am. Rep. 270. 
 
 The word " imperceptible " refers to the mode of accretion, not to the 
 result. It is sufficient if the deposit cannot be detected by the eye in any mo- 
 ment of time. Lovingston v. St. Clair, 64 Illinois, 50; 10 Am. Rep. 510 ; 23 
 Wallace (U. S. Sup. Ct.), 68; Kraut v. Crawford, 18 Iowa, 554 ; and Benson v. 
 Morrow, 01 Missouri, 352, where the court dissent from the notion that the 
 deposit need be imperceptible, even in the case of a stream the title to whose 
 bed is in the public.
 
 480 ACCRETION. 
 
 No. 2. ■ — Doe d. Christinas v. Oliver. — Rule. 
 
 ACCRETION (of Title). 
 
 No. 2. — DOE d. CHRISTMAS v. OLIVER. 
 (k. b. 1829.) 
 
 No. 3. — SWAN v. WESTERN BANK OF SCOTLAND. 
 
 (COURT OF SESSION, SCOTLAND, 1866.) 
 RULE. 
 
 The title of a person derived from one who has no title, or 
 whose title is imperfect, is validated in the former person 
 by a conveyance or act in the law whereby the right would 
 have become completely vested in the latter person. 
 
 This principle has been summarised in the maxim, Jus 
 superveniens auctori accrescit successori ; or, as it has been 
 expressed in a barbarous tongue, Hie interest, ivhen it 
 accrues, feeds the estoppel. 
 
 Doe d. Christmas v. Oliver. 
 
 5 Manning & Ryland, 202. 
 
 Ejectment for certain messuages and lands, situate in the parish 
 of St. Margaret, in the town and borough of Leicester. Plea, not 
 guilty. At the trial, before D'Ovley, Serjt., at the Leicester Sum- 
 mer Assizes, 1828, a verdict was found for the plaintiff by consent, 
 subject to the opinion of this Court upon the following case: — 
 
 Theophilus Holmes, being seized in fee of certain tenements, by 
 his last will and testament in writing, bearing date 29th September, 
 1784, duly executed and attested for the purpose of passing real 
 estates, gave and devised as follows : " I give and devise the mes- 
 suage or tenement wherein I now dwell, with the appurtenances 
 thereto belonging, and the use of all my household goods, plate, 
 linen, and other household furniture of every sort and kind which 
 shall be about my said messuage or tenement at the time of my 
 decease, and also my messuage or tenement in Belgrave Gate, Lei- 
 cester, unt<> my wife, Christian Holmes, fur and during her natural
 
 ACCRETION. 481 
 
 No. 2. — Doe d. Christmas v. Oliver. 
 
 life; and from and after her decease, I give and devise the said 
 messuage or tenement wherein I now dwell, with the appurte- 
 nances, and also my said messuages or tenements" (in the said 
 will described, being those for the recovery of which these actions 
 are brought), " with warehouses, stables, and other building, yards, 
 gardens, and backsides thereto belonging, in case I shall die without 
 issue (but not otherwise), unto, between, and among all the children 
 of my brother, the Rev. Mr. William Holmes, that shall be living 
 at the time of my said wife's decease, and to their heirs and assigns 
 forever." 
 
 The testator died, seized of the premises in question, in September, 
 1785, without issue, and without altering or revoking his said will. 
 On his death his widow, who afterwards married Joseph Chamber- 
 lain, entered into possession of the tenements in question, and so 
 continued until the time of her death, which happened in or about 
 September, 1826. The William Holmes, mentioned in the will of 
 the testator, had issue three children only, — viz., James Harriman, 
 Ann-Alary, and Thomas Bradgate. James Harriman and Thomas 
 Bradgate Holmes died without issue in the lifetime of the testator's 
 widow. Ann-Mary Holmes married Joseph Brooks Stephenson, 
 and was the only child of William Holmes living in March, 1814, 
 and at the time of the death of the testator's widow. 
 
 On the 4th March, 1814, and during the lifetime of the testator's 
 widow, by indenture duly made between the said J. B. Stephenson 
 and Ann-Mary, his wife (therein described as devisee named in the 
 last will of the said Theophilus Holmes, then deceased), of the first 
 part, J. Connor, Gent., of the second part, Charles Waldron of the 
 third part, and Thomas Chandless, Gent., a trustee on behalf of the 
 said Charles Waldron, and also of the said J. B. Stephenson and 
 Ann-Mary his wife, of the fourth part; the latter, in consideration 
 of £600, granted to Charles Waldron, his executors, administrators, 
 and assigns, for and during their natural lives and the life of the 
 survivor, an annuity of £100 to be charged upon and issuing out of 
 the said messuages or tenements devised by the will of Theophilus 
 Holmes; and for better securing the payment, granted, bargained, 
 and sold to Thomas Chandless, his executors, &c, all the said pre- 
 mises, to hold, from and immediately after the decease of Christian 
 Holmes for the term of ninety-nine years. And then, after reciting 
 that the said J. B. Stephenson and Ann-Mary, his wife, did as of 
 Hilary term then last, levy before the court of C. P. at Westminster 
 
 VOL. I. — 01
 
 482 ACCRETION. 
 
 No. 2. — Doe d. Christmas v. Oliver. 
 
 unto T. Chandless and his heirs, one fine sur conusance dc droit come 
 ceo, &c, of the said premises, by the description of seven messuages, 
 seven gardens, and one acre of land, with the appurtenances, in tin- 
 parish of St. Margaret, in the town and borough of Leicester, of 
 which fine no uses had as yet then been declared, it was by the 
 said indenture agreed and declared that the said fine should be and 
 enure, in the first place, for confirming the said yearly rent-charge 
 of £100, and in the next place, to the use of T. Chandless, his ex- 
 ecutors, &c, for and during the said term of ninety-nine years. The 
 said last mentioned indenture was duly executed by the parties, and 
 a receipt for the consideration money indorsed, and a memorial of 
 the same was duly enrolled in the Court of Chancery. The fine 
 referred to by the said indenture was duly levied according to the 
 same in Hilary term, 54 Geo. III., with proclamations. On the 11 tli 
 April, 1823, T. Chandless died, having made a will and several codi- 
 cils, and appointed Sir William Long, Knt, and Henry Gore Chand- 
 less, executors. On the 27th January, 1827, by indenture of that 
 date, between the said C. Waldron of the first part, the said execu- 
 tors of T. Chandless, of the second part, Newbold Kinton, one of 
 the lessors of the plaintiff, of the third part, and James Christmas, 
 one other of the said lessors, of the fourth part, for the consideration 
 therein expressed, the said annuity was assigned to the said N. 
 Kinton ; and the said term of ninety-nine years for securing the 
 same was assigned to the said J. Christmas. On the 4th June, 
 1827, £1275 became due in respect of the said annuity. The day 
 of the demises laid in the declaration is the 1st November, 1827. 
 
 The questions for the opinion of" the Court are, First, whether 
 A. M. Stephenson, who was the, only child of William Holmes 
 living on the 4th March, 1814, and at the time of the death of 
 Christian Holmes (afterwards Chamberlain), took a vested or con- 
 tingent remainder under and by virtue of the will of Theophilus 
 Holmes ; secondly, whether the fine levied by Mr. and Mrs. 
 Stephenson worked any forfeiture of the estate of the latter, or 
 transferred any interest therein. 
 
 The case was argued at the sittings in Banc after Trinity Term, 
 1827, by Preston (with whom was Denman) for the plaintiff, and 
 by N. R Clarke, for the defendant. 
 
 It was admitted, on the part of the plaintiff, that the estate given 
 by Theophilus Holmes to the children of William Holmes was con- 
 tingent during the lifetime of the testator's widow ; but it was con-
 
 ACCRETION. 483 
 
 No. 2. — Doe d. Christinas v. Oliver. 
 
 tended that the fine levied by the daughter of \V. Holmes, though 
 operative only by way of estoppel during the lifetime of the testa- 
 tor's widow, operated after her death, when the contingency hap- 
 pened, on the estate which then became vested in the daughter of 
 W. Holmes. And the eases of Kick v. Edwards, 3 P. Wins. 372 ; 
 Helps v. Hereford, 2 Barn. & Aid. 242 ; and Davies v. Bush, 1 M'Clel. 
 & Y. 58, were cited and relied on. 
 
 For the defendant, it was contended that the estate given to the 
 daughter of W. Holmes could not be conveyed by the tine levied 
 during the lifetime of the widow of T. Holmes, the testator, because 
 a contingent remainder could not be so conveyed; and, therefore, 
 that the estate still remained vested in Mr. and Mrs. Stephenson. 
 That the fine levied by them operated by way of estoppel only, and 
 that of that a stranger was not entitled to take advantage. And 
 for the last position Doc d. Brum v. Martya, 2 Man. & Ry. 485 : 
 8 B. & C. 497, was cited and relied on. 
 
 The Court took time to consider of their judgment, which was 
 now delivered by 
 
 Bayley, J. This case depended upon the effect of a tine levied 
 by a person who had a contingent remainder in fee. The short 
 facts were these ; Ann-Mary, the wife of Joseph Brooks Stephen- 
 son, was entitled to an estate in fee upon the contingency of her 
 surviving Christian, the widow of Theophilus Holmes ; and she 
 and her husband conveyed the premises to Thomas Chandless for 
 a term of ninety-nine years, and levied a fine to support that con- 
 veyance. Christian, the widow, died, leaving Mrs. Stephenson 
 living; so that the contingency, upon which the limitation of the 
 estate to Mrs. Stephenson depended, happened, and this ejectment 
 was brought by the assignees of the executors of Thomas Chandless, 
 in whom the term of ninety-nine years was vested. It was admitted 
 in argument, on the part of the defendant, that the fine was binding 
 upon Mr. and Mrs. Stephenson, and all who claimed under them, 
 by estoppel ; but it was insisted that such fine operated by way of 
 estoppel only ; that it, therefore, bound only parties and privies. 
 not strangers ; that the defendant, not being proved to come in 
 under Mr. and Mrs. Stephenson, was to be deemed, not a privy, 
 but a stranger ; and that, as to him, the estate was to be con- 
 sidered as still remaining in Mr. and Mrs. Stephenson. Tn sup- 
 port of this position reliance was placed upon the latter part of the 
 judgment delivered by me in tli ■> case of Doe d. Bruiie v. Martyn,
 
 484 ACCRETION. 
 
 No. 2. — Doe d. Christmas v. Oliver. 
 
 and that part of the judgment certainly countenances the present 
 defendant's argument. But the reasoning in that case proceeds 
 upon the supposition that a fine by a contingent remainder-man 
 operates by estoppel, and by estoppel only ; its operation by estop- 
 pel, which is indisputable; was sufficient for the purpose of that 
 decision. Whether it operated by estoppel only, or whether it had 
 a further operation, was perfectly immaterial in that case ; and the 
 point did not there require that investigation which the discussion 
 of this case has rendered necessary. We have, therefore, given the 
 subject that further consideration which it required, and we are 
 satisfied, upon the authorities, that a fine by a contingent remainder- 
 man, though it operates by estoppel, does not operate by estoppel 
 only, but has an ulterior operation when the contingency happens ; 
 that the estate which then becomes vested feeds the estoppel ; and 
 that the fine operates upon that estate, as though that estate had 
 been vested in the conusors at the time the fine was levied. 
 
 The first authority which it is necessary to notice is Rawlins 
 Case, 4 Co. Rep. ~>2. There, Cartwright demised land, not his own, 
 to Weston for six years. Rawlins, who owned the land, demised it 
 to Cartwright for twenty-one years ; and Cartwright re-demised 
 it to Rawlins for ten years. Tt was resolved that the lease by Cart- 
 wright, when he had nothing in the land, was good against him by 
 conclusion, and that when Rawlins re-demised to him, then was 
 his interest bound by the conclusion; and that when Cartwright 
 re-demised to Rawlins, then was Rawlins concluded also. Rawlins, 
 indeed, was bound as privy, because lie came in under Cartwright; 
 but the purpose for which I cite this case is, to show that as soon 
 as Cartwright got the land his interest in it was bound. In Weak 
 v. Lower, Pollexf. 54, the case was thus : Thomas, a contingent 
 remainder-man in fee, demised to Grylls for five hundred years, 
 and levied a fine to Grylls for five hundred years, and died. The 
 contingency happened, and the remainder vested in the heir of 
 Thomas; and whether this demise was good as against the heir of 
 Thomas was the question. It was argued before Hale, C. J., and 
 his opinion was, that the fine did operate at first by conclusion, and 
 passed no interest, but bound the heir of Thomas ; that the estate 
 which came to the heir when the contingency happened, fed the 
 estoppel ; and then the estate by estoppel became an estate in 
 interest, and of the same effect as if the contingency had happened 
 before the fine was levied; and he cited Rawlins 1 Case, 4 Co. Rep.
 
 ACCRETION. 485 
 
 No. 2. — Doe d. Christmas v. Oliver. 
 
 53, in which it was held that if a man leased land in which he had 
 nothing, and afterwards bought the land, such lease would be good 
 against him by conclusion, but nothing in interest till he bought the 
 land; but that as soon as he bought the land, it would become a 
 lease in interest. The case was again argued before the Lord Chan- 
 cellor, Lord Chief Justice Hale, Wild, Ellis, and Windham, Jus- 
 tices, and they all agree that the tine at first inured by estoppel : 
 but that when the remainder came to the conusor's heir, he 
 should claim in nature of a descent, and, therefore, should be 
 bound by the estoppel ; and then the estoppel was turned into 
 an .interest, and the conusee had then an estate in the land. In 
 Treviban v. Lawrence, 2 Ld. Raym. 1048; 6 Mod. 258, Lord Holt 
 cites 39 Ass. 18, Fol. 287, where it was said by Cavendish, arguendo, 
 that if a man brings a writ of error, and then purchases the land, he 
 is ousted of the error forever; and speaks of an estoppel as creating 
 an interest in or working upon the estate of the land, and as run- 
 ning with the land to whoever takes it. In Vick v. Edwards, 3 P. 
 Wins. 371, cited by Mr. Preston, Lord Talbot must have con- 
 sidered a fine by a contingent remainder-man as having the double 
 operation of estopping the conusors till the contingency happened, 
 and then of passing the estate. There lands were devised to A. 
 and B. and the survivor, and the heirs of such survivor, in trust to 
 sell. Upon a reference to the Master, he reported that they could 
 not make a good title, because the fee would vest in neither till one 
 died. On exceptions to the Master's report, Lord Talbot held that 
 a fine by the trustees would pass a good title to the purchaser by 
 estoppel ; for though the fee was in abeyance, one of the. two trus- 
 tees must be the survivor, and entitled to the future interest ; con- 
 sequently, his heirs, claiming under him, would be estopped by reason 
 of the fine by the ancestor, from saying quod paries finis nihil 
 hahuerunt, though he that levied the fine had at the time no right 
 or title to the contingent fee. On the following day, he cited the 
 case of Weale v. Lower, Pollexf. 54, which I have before cited. Now, 
 whether Lord Talbot was right in treating the fee as being in abey- 
 ance, and the limitation to the survivor and his heirs as a contin- 
 gent remainder, or not, it is evident he did so consider them ; and 
 he must have had the impression that the fine would have operated, 
 not by estoppel only, but by way of passing the estate to the pur- 
 chaser, because, unless it had the latter operation as well as the 
 former, it would not pass a good title to the purchaser.
 
 486 ACCRETION. 
 
 No. 3. Swan v. Western Bank of Scotland. 
 
 Mr. Fearne, in his work on Remainders, c. 6, § 5, says, "We are 
 to remember, however, that a contingent remainder may, before it 
 vests, be passed by fine by way of estoppel, so as to bind the inter- 
 est which shall afterwards accrue by the contingency;" and after 
 stating the facts in Weale v. Lower, he says, "It was agreed that 
 the contingent remainder descended to the conusor's heirs ; and 
 though the fine operated at first by conclusion only, and passed 
 no interest, yet the estoppel bound the heir; and that, upon the 
 contingency, the estate by estoppel became an estate in interest, 
 of the same effect as if the contingency had happened before the 
 fine was levied."' 
 
 Upon these authorities, we are of opinion that the fine in this 
 case had a double operation, — that it bound Mr. and Mrs. Stephen- 
 son by estoppel or conclusion so long as the contingency continued ; 
 and that when the contingency happened, the estate which devolved 
 upon Mrs. Stephenson fed the estoppel ; tiie estate created by the 
 fine, by way of estoppel, ceased to be an estate by estoppel only, 
 and became an interest, and gave Mr. Chandless, and those having 
 a right under him, exactly what he would have had in case the 
 contingency had happened before the fine was levied. 
 
 Judgment for the plaintiff. 
 
 Swan v. Western Bank of Scotland. 
 
 Court of Session 1866, 3rd series of C. of S. Rep. Vol. 4, p. 663. 
 
 The question in this case, which was in effect an action between 
 vendor and purchaser of land, was whether the vendor had shown 
 a good title to the land. 
 
 William Dixon, being (subject as hereinafter mentioned) seized 
 of and entitled to the land in question by a deed of trust-disposition, 
 dated 29th August, 1849, conveyed to William Johnston the whole 
 property, heritable and movable, then belonging to him; and by 
 a supplementary deed, dated loth September, 1851, conveyed to 
 the said William Johnston certain lands, including the land in 
 question, by specific description. There was an instrument of 
 seisin taken out on the latter conveyance and duly registered, 
 which had by statute the same effect as if Dixon had given seisin 
 to (or infeft) Johnston on the land itself. Through an inter- 
 mediate conveyance to one Bunten, Johnston's title became vested 
 in the vendors, the Western Bank of Scotland.
 
 ACCRETION. 487 
 
 No. 3 — Swan v. Western Bank of Scotland. 
 
 It appeared, however, that in 1847 Dixon had conveyed the 
 lands in question by an exfacie absolute disposition to the Com- 
 mercial Bank of Scotland; and this disposition had 1 n duly 
 
 followed by infeftinent. In 1854 the Commercial Bank recon- 
 veyed the land to Dixon, and Dixon was duly infeft, pursuant 
 to that reconveyance. 
 
 The purchasers (Swans) pleaded that by Dixon's conveyance to 
 the Commercial Bank, and the infeftinent of the Bank thereon, 
 Dixon was divested of all right in the land in question, and that 
 the subsequent dispositions of 1849 and 1851, and subsequent 
 deeds transmitting the title to the Western Bank of Scotland., 
 were nugatory. 
 
 The vendors pleaded, (1) That the conveyance to the Commercial 
 Bank having been really a mere conveyance in security was only 
 a burden on Johnston's title, which was validly discharged by the 
 reconveyance to Dixon and his infeftinent thereon ; (2) That, even 
 assuming the conveyance to the Commercial Bank to have been 
 absolute and irredeemable, the subsequent reconveyance to Dixon 
 accresced to Johnston's title, which Dixon was bound to warrant 
 absolutely. 
 
 The Lord Ordinary (or Judge of first instance), Lord Barcaple, 
 found the vendors' title valid and effectual to enable them to sell 
 and convey the lands, but found neither party entitled or liable to 
 the costs of the action. His note of reasons for this judgment was 
 as follows : — 
 
 " The title of the vendors, the Western Bank of Scotland, flows 
 from Dixon, who conveyed inter alia the land in question to 
 Johnston in trust for creditors. Johnston was infeft, and sold 
 and disponed the land to one Bunten, who was also infeft, and sold 
 and disponed to the Western Bank. It appears, however, that 
 Dixon had, by an ex facie absolute disposition, conveyed subjects 
 of great extent, including the land in question, to the Commercial 
 Bank, who were infeft before the date of the trust-deed granted 
 by Dixon to Johnston. In 1854, several years after the date of 
 the trust-deed to Johnston and his infeftment upon it, the Com- 
 mercial Bank reconveyed the land in question to Dixon, and he 
 took infeftment on the reconveyance of that year. In these cir- 
 cumstances the purchasers (Swans) maintain that the trust-deed 
 in favour of Johnston having been granted by Dixon when he had 
 no title or right of any kind to the lands, the trust-deed and
 
 488 ACCRETION. 
 
 No. 3. — Swan v. Western Bank of Scotland. 
 
 Johnston's infeftment upon it are therefore invalid, and incapable 
 of being validated by the accretion of the right subsequently 
 acquired by Dixon under the Commercial Bank's conveyance 
 to him. 
 
 " The vendors allege that the right of the Commercial Bank, 
 though ex facie absolute, was truly a trust for security of such 
 advances as they should make to Dixon. But the object of the 
 conveyance to the Bank does not appear, either on the face of that 
 deed or of the reconveyance to Dixon. 
 
 " All difficulty might be got over by Mr. Dixon's representative 
 concurring in the disposition to be granted to the purchasers. But 
 it was explained at the debate that he declines to take that step, 
 as tending to throw doubt upon the validity of Dixon's trust- 
 deed. 
 
 " The plea of the purchasers raises the question whether the 
 maxim jus superveniens a actor i accrescit successori applies where 
 there was no right of any kind, or at least no right constituted 
 by writing, in the person of the author when he granted the con- 
 veyance. I think that, in the existing state of the authorities, the 
 purchasers were entitled to treat this as a doubtful point, It would 
 have been more satisfactory if it could have been tried with a party 
 having an interest to set up a competing title ; but it is not sug- 
 gested that such an interest exists anywhere, and this proceeding 
 between the purchasers and vendors seems to be the only mode of 
 trying the question. 
 
 " The purchasers refer to Bell's Principles, § 882, and to the 
 case of Miuiro v. Brodic, 4 July, 1881, in support of their conten- 
 tion that accretion does not take place where there was no right in 
 the author at the date of the conveyance. Mr. Bell, in the passage 
 referred to, says : ' If the granter of the precept (i. c., the warrant 
 for infeftment) have at the time no right to the subject, but 
 acquires a right by subsequent title, it may be doubted whether 
 accretion will take place.' In the case of Munro there was 
 unquestionable ground for refusing effect to the supervening title, 
 in respect of a mid-impediment. 1 Lord Ivory, whose judgment 
 
 ' Mid-impediment has been defined as required confirmation by the feudal supe- 
 anything which intervenes between two rior. A conveyance meantime to another 
 events so as to prevent, as between the created a mid-impediment, and precluded 
 two, the retrospective operation of the the superior from making a valid con- 
 latter event. The term was much used firmation of the former's right. — R. C. 
 in Scotch ia\v at a period when titles
 
 ACCRETION. 48!) 
 
 No. 3. — Swan v. Western Bank of Scotland. 
 
 was adhered to, rested it upon this ground ; but his Lordship in 
 his note expressed views unfavourable to the application of the 
 doctrine of accretion, where, as in that case, the author's right, 
 when he granted the conveyance, depended upon a mere missive 
 of sale (i. c, a contract not having the solemnity of a deed), with- 
 out a disposition or other inchoate title capable of being feudally 
 perfected. The only report of the judgment of the court of review 
 is in the (Scottish) Jurist (xxvi. 541). Lord Fullerton, with whom 
 the Lord President concurred, appears to have rested his opinion 
 entirely upon the mid-impediment; and that appears to have been 
 also the ground of Lord Jeffrey's opinion. But Lord Mackenzie. 
 while he also concurred on that ground of decision, said: 'I have 
 never been in the habit of considering that a jus accrescendi could 
 supervene on the grantor completing his title to the effect of vali- 
 dating deeds granted by him while his title depended solely on 
 missives of sale. 1 must say I think this very doubtful.' 
 
 "While I feel the great weight due to the serious doubt expressed 
 and sanctioned by the authority of Mr. Bell, Lord Mackenzie, and 
 Lord Ivory, 1 am of opinion that the qualification of the doctrine 
 of jus sttperveniens contended for is not consistent with the nature 
 and grounds of the doctrine as it has been explained and under- 
 stood in the law of Scotland. I can discover no trace of such a 
 limitation, or of any principle which should lead to it, in the 
 Institutional writers. Stair, iii. 2, 1, & 2; Bankton, iii. 2, 16; and 
 Erskine, ii. 7, 3, & 4, make no mention of the important qualifica- 
 tion of the rule, which they lay down in general terms. Stair 
 says : ' Whatever right befalleth to the author after his disposition 
 or assignation, it accresceth to his successor, to whom he had 
 before disponed, as if it had been in his person when he disponed, 
 and as if it had been expressly disponed by him.' Erskine, adopt- 
 ing in great measure the phraseology of Stair, says : ' The super- 
 vening right is by a fiction of law considered to have been in the 
 disponer at the date of the transmission, and at that time made 
 over by him to the disponee.' Stair and Erskine here speak of 
 a supervenient right, and not of the mere completion of a pre- 
 viously existing inchoate title ; and the explanation which they 
 give of the doctrine applies directly to the case of a disponer 
 only acquiring right to the subject after he had granted the 
 disposition. 
 
 "The doctrine has no doubt been most frequently called into
 
 490 ACCRETION. 
 
 No. 3. — Swan v. Western Bank of Scotland. 
 
 effect in cases where infeftment had been taken upon a disposition, 
 the grantor of which had only a personal title at the date of 
 granting, or where, after disponing, he had acquired some sub- 
 ordinate or corroborative right. But it is by no means confined 
 to this class of cases. Indeed, though its practical application is 
 most valuable in feudal conveyancing, the rule is originally derived 
 from the civil law. It is remarkable that Dirleton propounded the 
 question, ' If it should be understood of the right only of mov- 
 ables and such things as may be transmitted without infeftment, 
 and not of lands and others which cannot hdbili mode be conveyed, 
 much less accresce, without infeftment.' However unfounded the 
 doubt on this point, it shows that Dirleton did not look upon this 
 kind of accretion as a rule of feudal conveyancing. 
 
 " Looking to the nature of the rule, I think that the restriction 
 contended for would be an unnecessary subtlety, preventing its 
 application in cases where it is most required, and at variance with 
 its true principle. The Institutional writers refer to warrandice, 
 express or impliedly, as its ground, which is as applicable where 
 the granter had no right at the date of his disposition as where, 
 he had an incomplete one. The view stated by Professor Bell, 
 ' that law may, fictione, supply solemnities, but not substantial 
 right,' seems to overlook the true purpose for which the fiction is 
 introduced. It is not to supply either solemnities or substantial 
 right, both of which must actually exist, but to carry back the 
 supervening solemnity or right to the date of the disposition. 
 
 " The vendors referred to the case of Gla**for<l v. Scott (1850, 
 Court of Session, 2nd series, Vol. 12, p. 893) as an authority in their 
 favour. The reference is to the 4th branch of the case. In so far 
 as I can discover from the report, it would appear that accretion 
 must have been held to have taken place where there was no 
 right in the person of the granter at the date of his disposition. 
 But it does not clearly appear whether the question now under con- 
 sideration was then in the view of the Court, and the judgment can 
 hardly be taken as a decision upon the point. 
 
 " On these grounds I am of opinion that this objection to the 
 title is not well founded." 
 
 Against this judgment of Lord Barcaple, the purchasers appealed 
 to the Inner House (1st division of the Court) and argued, (1) that 
 a purchaser is entitled to an unquestionable title ; (2) that the 
 maxim jus su/perveniem auctori accrescit successors does not apply
 
 ACCRETION. 4U1 
 
 No. 3. — Swan v. Western Bank of Scotland. 
 
 where there was no right of any kind in the person of the author 
 when lie granted the conveyance. 
 
 The vendors argued that accretion takes place although there 
 was no right whatever in the person of the author at the date of 
 the conveyance. 
 
 The following judgments were delivered: — 
 
 Lord President (McNeill, afterwards Lord ( !olonsay). I cannot 
 say that I have so much doubt on this point as Professor Bell 
 seems to have had. 
 
 The position of the case seems to be this, that in 1847 Dixon 
 conveyed these subjects to the Commercial Bank, that in 1854 tin- 
 Bank reconveyed them to Dixon, and that in the interval, Dixon 
 had executed the trust-deed and supplementary trust-deed in 
 favour of Johnston. The question then is, whether the convey- 
 ance to the Bank divested Dixon entirely, and whether when he 
 got the conveyance from the Bank in March, 1854, it accresced to 
 Johnston. There was no mid-impediment, it has been argued 
 that the conveyance by Dixon to the Bank was a conveyance in 
 security merely, and there are strong grounds for so holding ; 
 but I would hesitate to say that that has been clearly established, 
 and accordingly I rest no part of my opinion on that ground. 
 
 I am of opinion that the right acquired by Dixon by the recon- 
 veyance from the Bank accresced to Johnston. I have always 
 been under the impression that even where there was no com- 
 pleted right in the disponer, the subsequent title acquired by him 
 accresced to his disponee. I think that is the fair reading of our 
 early Institutional writers, who treat of this matter broadly, and, 
 in language apt for comprehending this very question. But then 
 we have the doubt of Mr. Bell and Lord Ivory and Lord Mackenzie 
 in one case, though in the case of Glassford v. Scuff his Lordship 
 did not adhere to his doubt. Bell died in the faith expressed in 
 his doubt, though he does not press it further than a doubt; but 
 he tells us that Jamieson was of another opinion. I have always 
 been accustomed to give much weight to the opinion of Jamieson, 
 who was a sound lawyer; and in this case I am for following 
 the opinion of Stair and Erskine and Jamieson. 
 
 Lord Curkiehill. The question here is, whether or not John- 
 ston had power, on the 1st of June, 1854, to convey these subjects 
 to Bunten. If he had, then the title is unexceptionable. 
 
 Johnston's title had been acquired by him by the trust-convey-
 
 492 ACCRETION. 
 
 No. 3. — Swan v. Western Bank of Scotland. 
 
 ances of 1849 and 1851 ; and on these dispositions Johnston is 
 authorised to sell the land. The objection taken is, that Dixon, 
 who granted these dispositions, and the power of sale conferred by 
 them, had, in 1847, divested himself of these subjects in favour of 
 the Commercial Bank. It is said that that conveyance, though 
 ex facte absolute, was in reality a security, and perhaps that was 
 the case. But we have no evidence of that here ; and I, there- 
 fore, assume that it was an absolute conveyance, and I deal with 
 the case on that footing. Was, then, the power given by Dixon 
 to Johnston ineffectual because Dixon had been divested of his 
 real right in favour of the Commercial Bank? The reply to this 
 is, that before Johnston executed the conveyance to Bunten — ■ 
 namely, in March, 1K54 — the subjects had been conveyed to 
 Dixon. There was no mid-impediment ; and I have no doubt 
 whatever that the reconveyance to Dixon in March, 1 854, accresced 
 to the trust-conveyance which he had previously granted, and 
 validated the power of sale therein contained. T concur entirely in 
 the views expressed by your Lordship as to the retrospective effect 
 of such a conveyance in cases where there is no mid-impediment. 
 This is a doctrine stated by all our Institutional writers except 
 Bell, who has expressed a doubt in regard to it, hut has stated no 
 authority for that doubt. It is an elementary principle of the law 
 of Scotland. 
 
 It was said, in the course of the argument, that the doctrine of 
 accretion was borrowed from the Roman law, and was inconsis- 
 tent with the principles of feudal law. But this is not the case. 
 On the contrary, I find it operating in a clear and effectual man- 
 ner in our feudal conveyancing. To take a well-known example: 
 a charter of confirmation — not under the recent statute, but 
 according to the common feudal law which regulates our convey- 
 ancing — has a retrospective effect, operating back to the date of 
 the former entry, to the effect of even extinguishing mid-superiori- 
 ties which had been constituted. This shows that the doctrine is 
 not repugnant to the principles of feudal law. I am, therefore, 
 clearly of opinion that the conveyance to Dixon in March, 1854, 
 accresced to Johnston's right, and validated the power of sale 
 given to him by the trust conveyances of 1849 and 1851. 
 
 Lord Deas. Taking the case on the same footing as your Lord- 
 ships do, — namely, that Dixon, being duly vested in these subjects, 
 conveyed them to the Commercial Bank by an absolute disposition,
 
 ACCRETION. 493 
 
 No. 3. — Swan v. Western Bank of Scotland. 
 
 on which the Commercial Bank was infeft; that thereafter he 
 granted the deed now in question while he still stood denuded of 
 the property; and that, after granting that deed, he re-acquired the 
 subjects from the Commercial Bank — the question is, whether 
 the title under which he re-acquired the subjects accresced to his 
 disponee, Johnston. 
 
 That is an important question, because there is no case, unless it 
 be the case of Glassford v. Scott, in which the question has been 
 decided since Professor Bell expressed the doubt which has been 
 referred to. Mr. Bell's doubt was, whether there was room for ac- 
 cretion, if the party who granted the deed had, at the time of grant- 
 ing it, no right whatever to the subjects. That is not the doubt 
 which was expressed by Lord Ivory, or by the late Lord Mackenzie. 
 The doubt they expressed was, whether, supposing the granter to 
 have had a right, if it was not a right capable of being feudalised, 
 accretion could take place, — whether, for example, accretion could 
 take place if the granter had purchased the subjects, but his pur- 
 chase stood merely on a simple contract in writing, such as could 
 not warrant or be followed up by infeftment. That doubt appears 
 to rest on a different ground from Professor Bell's doubt, and, with 
 all deference, I think it is going too far to say that accretion can 
 never take place where the title of the disponer is one which can- 
 not be feudalised. On that view there could be no accretion, al- 
 though the disponer had a disposition, unless containing authority 
 for taking infeftment properly expressed and executed with all 
 due formality. I cannot go along with that view of the law. I 
 think, amongst other objections to it, that it would lie difficult to 
 reconcile it with the principle involved in the late case of The Earl 
 of Fife v. Duff, as decided in this court and in the House of Lords 
 (Court of Session, 2 Series, p. 657 and 4 Macq. 469), where it was 
 found that the original deed, although it contained no express 
 authority for infeftment, formed the statutory entail. It would 
 be equally difficult to reconcile it with our familiar practice of 
 taking a disposition from an heir apparent ] and infefting the pur- 
 chaser thereon, and afterwards making up the heir's title which 
 accresced to the disponee. 
 
 1 The expression here means an heir inquisitio post mortem, which survived in 
 
 who is actually entitled in possession, but Scotland until a recent date), or their 
 
 who has not completed his title with the statutory equivalents, 
 formalities of feudal law (including the
 
 494 ACCRETION. 
 
 No. 3. — Swan v. Western Bank of Scotland. 
 
 But Professor Bell's doubt was, whether there could be accretion 
 where the disponing party had, at the time of disponing, no right 
 of any kind. He expresses no more than a doubt, and it is a doubt 
 of a doctrine laid down both by Stair and Erskine, and which must 
 have been frequently acted on before Professor Bell's doubt was 
 expressed. The reason he assigns for it, " that law may, firfionc, 
 supply solemnities, but not substantial rights," does not appear to 
 me satisfactory. The substantial right has, exhypotlicsi, come to be 
 in the disponing party, and the fiction which holds that right to 
 have been acquired [trior to its being exercised is, to say the least 
 of it, as easily admissible as the fiction which holds such a solem- 
 nity as infeftment to have taken place before it actually did take 
 place. Solemnities, of all things, are the least open to be supplied 
 by fictions. The doctrine of accretion is not less equitable and 
 convenient in the matter of substantial right than in the matter of 
 solemnity. A purchaser may be quite aware that the seller who 
 conveys to him has no right to the subjects, but that he means to 
 acquire them, or expects to succeed to them ; and if the doctrine of 
 accretion did not apply to such a case, the seller might, so soon as 
 he obtained a title, dispone to a third party, who, if first infeft and act- 
 ing ho ad fide, would cut out the first purchaser. These are just the 
 sort of cases in which the doctrine of accretion is most necessary. 
 
 The case of Keith (1792, M. Diet. 2933) is not against, but 
 rather confirmatory of, the doctrine of Stair and Erskine. The 
 question there was not as to the accretion of a title obtained by 
 the granter of the deed, but of a title made up in the person of 
 his heir, who had entered cum he'fieficio inventarii. That title was 
 held not to accresce, for the reasons assigned in the report. But 
 it was conceded in argument, that where " a person, who is not m 
 tituh) at the time, gives infeftment to another, and is himself there- 
 after vested in the feudal right, the jus superveniens does accresce. 
 All the necessary solemnities here concur, although there has been 
 an irregularity in point of time. But when the infeftment Hows 
 from a person who at no future period acquires the feudal right, 
 there is an essential defect in point of solemnity which can never 
 be supplied." Now, this, it is true, was mere concession in argu- 
 ment ; but it was concession by the first Lord Meadowbank and 
 Matthew Ross, who were counsel for Mr. Keith, and amongst the 
 chief lawyers of their time. 
 
 No doubt could be entitled to more respect than a doubt expressed
 
 ACCRETION. 495 
 
 Nos. 2. 3. — Doe d. Christmas v. Oliver, &c. — Notes. 
 
 by the late Professor Bell ; but I agree with your Lordship that 
 the opinion (which Mr. Bell has recorded) of the late Mr. Robert 
 Jamieson is not less weighty. I do not think that the doubt has 
 pervaded the profession generally. 1 did not myself entertain it 
 
 when at the bar, and I concur in the able note, as well as in the 
 judgment of the Lord Ordinary. 
 
 Lord ARDMILLAN. I concur. In my opinion the doctrine or 
 rule of accretion is not a principle of feudal law, but is rather an 
 equitable remedy for, a wrong, — a remedy which, however, is not 
 repugnant to feudal law, and tends to support feudal title. I do 
 not think that the maxim/ws superveniens auctori accrescit suecessori 
 is a brocard of feudal law. When a conveyance has been granted 
 by a party with an imperfect right, a wrong is done to the dis- 
 ponee ; and if the granter subsequently acquires a muniment of 
 the right he has conveyed, law will not allow him to say that he 
 has acquired it for his own benefit to the prejudice of his dis- 
 ponee, and therefore it accresces to his disponee. 
 
 This is the way in which the law is put by Lord Stair. The 
 rule of equity that a muniment of a right devolving on the granter 
 must accresce to the title of the granter, applies even more strongly 
 when the granter has no right than when he has only an inchoate 
 right, because the wrong to the grantee is all the greater. The 
 authority of Stair and Erskine is clear; and I think the decision 
 in the case of Glassford v. Scott proceeds on the recognition of the 
 principle that accretion applies in a case such as the present, and 
 the decision of that case appears to me inconsistent with the doubt 
 expressed by Professor Bell, and more recently by Lord Ivory. 
 
 The Court accordingly pronounced judgment affirming the judg- 
 ment of Lord Barcaple. 
 
 ENGLISH NOTES. 
 
 The odd expression that the estate or interest "'feeds the estoppel" 
 appears to have been borrowed from the opinion of the Lord Chief Jus- 
 tice Holt in Wealer. Lower (1672), Pollexfen, 54, 66, and p. 485 supra. 
 But here the expression is explained to mean that the estate or right 
 which at first operated by way of estoppel became an estate in interest. 
 And this agrees with the expression used in Rawlins' C"se(lof>T) as 
 cited p. 484, supra. The Scotch case of Swan (No. .">. 487, supra) lias 
 been selected to show that the rule depends on no technical or peculiar 
 principle of English law, but has been established, and is capable of 
 1»eing maintained, on a broad, aid intelligible ground, in am system 
 of civilised jurisprudence.
 
 496 ACCRETION. 
 
 Nos. 2, 3. — Doe d. Christmas v. Oliver, &oc. — Notes. 
 
 The rule was applied by the Court of Exchequer in 1846 in the case of 
 Sturgeon v. Wing/field, 15 M. & W. 224; 15 L. J. Exch. 212. The 
 action was by a tenant farmer against the landlord for bread) of a covenant 
 to keep down rabbits; and the question turned upon whether the estates 
 in possession and reversion under the lease were vested in the respective 
 parties. The lease in question was by deed dated in 1828; and therein 
 H. had demised the farm by way of lease to plaintiff, and by same deed 
 entered into the covenant in question. What interest H. had in the 
 farm at the time does not appear by the report; but it is at least clear 
 that he had no interest of which a court of law could take cognisance. 
 At the time of the lease the farm belonged to a certain corporation, sub- 
 ject to a term of 100 years, with perpetual right of renewal which had 
 been granted by the corporation, in 1742. In 1836 this long term was 
 surrendered to the corporation, and a new term of 100 years was granted 
 by them toll. Shortly after this, H. conveyed all his estate and inter- 
 est in the farm to the defendant. It was held that the reversion which 
 H. had by way of estoppel, on making the lease of 1828, was fed (as it is 
 expressed) by the new demise from the corporation, and so became an 
 estate in reversion, which passed by his conveyance to the defendant. 
 This might have been expressed in the language of the Scotch case as 
 follows: On the acquisition by H. of the legal right to the term of 
 400 years, that right accresced in favour of both parties under the lease 
 of 1828, and validated that lease, so that the right to the term under the 
 lease became vested in the plaintiff, and the right to the reversion in H. 
 And therefore on the assignment by H. of his estate and interest to 
 the defendant, the term and reversion under the lease of 1828 became 
 vested as estates in possession and reversion in the plaintiff and defen- 
 dant, respectively. 
 
 AMERICAN NOTES. 
 
 Where one sells and conveys lands to which lie has no title, but afterward 
 acquires title, his heirs will be estopped to deny title in the grantee. Mc- 
 Williams v. Nisley, 2 Sergeant & Rawle (Penn.), 507; 7 Am. Dec. 654; 
 McPherson v. Cunliff, 11 Sergeant & Kawle (Penn.), 422; 14 Am. Dec. 642; 
 Ranch v. Derh, 1 16 Penn. St. 157 ; 2 Am. St. Rep. 599 : and so where imperfect 
 title was afterward rendered indefeasable, Knowles v. Kenned//, 82 Penn. St. 445. 
 
 A sale or mortgage of land with warranty operates to convey such title as 
 the grantor may afterward acquire. Williams v. Gray, 3 Greenleaf (Maine), 
 207 ; 14 Am. Dec. 234, citing Jackson v. Bush, 10 Johnson (New York), 223: 
 Jenkins v. Collard, 145 United States, 546; to the same effect, Village of Man- 
 hato v. Willard, 13 Minnesota, 1 ; 97 Am. Dec. 208; McCusker v. McEvey, 9 
 Rhode Island, 528; 11 Am. Rep. 295; Doe v. Dowdall, 3 Houston (Delaware). 
 3(39 ; 1 1 Am. Rep. 757, citing Doe v. Oliver. 5 M. & R. 202 ; and so, although there 
 was no warranty, if there was in the deed any averment or implication that the 
 grantor had title to the premises; Reynolds v. Cook, 83 Virginia, 817 ; 5 Am. 
 St. Rep. 317; Van Rensselaer v. Kearney, 11 Howard (IT. S. Sup. Ct), 297:
 
 ACCIIETION. 497 
 
 Nos. 2, 3. — Doe d. Christinas v. Oliver, &/C. — Notes. 
 
 Buchelder v. Lor,!//. 69 Maine. 33 : Teffl. v. Munson, 57 New York, 97; Bybee 
 v. Hageman, 66 Illinois, 519 ; Magruder v. Esmay, 35 Ohio St. l'l'I ; Nixon v. 
 Carco, 28 Mississippi, 111; C7aivfc v. Baker, 11 California, 612; 76 Am. Dec. 
 449; Lindsay v. Freeman, 83 Texas. 25!). IJut there is no estoppel without 
 covenant of title of some sort; Sparrow v. Kingman, 1 New York, 242 ; Julian 
 v. Boston, «Sr. A'. Co. 128 Massachusetts, 555. 
 
 But if the' deed is of the grantor's " right, title, and interest," and recites 
 the title then possessed by him. or contains no recital of the character of that 
 title, it will not convey an after-acquired title ; Hanrich v. Patrick, 119 United 
 States, 156. 
 
 Mr. Bigelow (Estoppel. 348 [4]) discusses with great learning the question 
 whether "the after-acquired estate actually passes to the grantee as soon as the 
 grantor acquires it, or is the grantor only precluded from setting it up ? " The 
 eases cited by him at all events sustain the proposition that the grantee 
 acquires the subsequent title by virtue of the grant. 
 
 This doctrine is also supported by the following cases : Blakeslee v. Mobile 
 Im. Co., hi Alabama, 205; Watkins v. Wassell, 15 Arkansas. 73; Klumpke v. 
 Baker, 68 California, 559 ; O'Bannon v. Pari mow, 24 Georgia, 189 : Wadhams v. 
 Strati, 109 Illinois, 40; Handle v. Lower,98 Indiana. 255; Thomas x. Stickle, 32 
 Iowa, 72; Dickerson v. Talbol, 11 B. Monroe (Kentucky), 60 ; .W/A v. 117/- 
 frams, 44 Michigan, 240 : A7w/ v. /*o##, 60 Maine, 479 ; Farnum v. Peterson, 111 
 Massachusetts, 148; Hooper v. Henry, 31 Minnesota, 264 ; Mitchell v. Woodson, 
 37 Mississippi, 578; Hayes v. Tabor, 41 Xew Hampshire, 521; SmiV/i v. Z>? 
 Rr.ssy, 29 New Jersey Equity, 407 ; Mickies v. Dillaye, 15 Hun (Xew York 
 .Supreme Ct.), 290; Zk// v. Adams, 81 North Carolina, 118; Hart v. Gregg, 32 
 Olio St. 502; 117/soh v. McEwan, 7 Oregon, 87; Bade// v. Hoppin, 12 Rhode 
 Island, 560; Gaffney v. Peeler, 21 South Carolina, 55; Robinson v. Douthit, 64 
 Texas, 101 ; CW CVee& J/. Co. v. fto.ss, 12 Lea (Tennessee), 1 ; A7/% v. 67?w>- 
 o/v/, 51 Vermont, 436; Haines v. ICa/to - . 77 Virginia, 92; JI7^ern 4/. Co. v. 
 Peytonia C. C. Co., 8 West Virginia, 406 ; JU/7.s»er v. Zaun. 39 Wisconsin, 
 188; 7Yms/ ^' Loan Co. v. Covert, 32 Up. Can. (^. 15. 222; Boulter v. Hamilton, 
 15 Up. Can. C. P. 125; Zmne v. Irvine, 9 Wallace ( U. S. Sup. ('(.). 017. 
 
 A mere quitclaim deed works no estoppel as to an after-acquired estate. 
 Tillotson v. Kennedy, 5 Alabama, 413; Quvey v. Baker, 37 California. 465; 
 /Jar/ v. Dar/, 7 Connecticut, 256; Bennett v. Waller, 23 Illinois. 182 ; Locke v. 
 White, 89 Indiana, 492; Scojfins v. Grandstaff, 12 Kansas, 407 ; /fo//o« v. Bohon, 
 78 Kentucky, 408; Haw v. Ham. 14 Maine, 351 ; W^eed Sewing Machine Co. v. 
 Emerson, 115 Massachusetts, 554; Brown v. Phillips, 40 Michigan, 264; A7>h- 
 ?«( j / v. Benna, 70 Missouri, 52; Harden v. Cuttins, 8 Nevada, 49; Bell \. Twi- 
 light, 6 Foster (Xew Hampshire), 401 ; .S7«/M v. /)<? Russy, 29 Xew Jersey 
 Equity, 407; Sparrow v. Kingman, 1 New York, 242; Jackson v. Af'/te//, 56 New 
 York, 108; //art v. Gregg, 32 Ohio State, 502; Burston v. Jackson, 9 Oregon, 
 275; Doswell v. Buchanan, 3 Leigh (Virginia), :>0.~> : A>/>/ v. JUatom, 22 West 
 Virginia, 561. 
 
 But if the grantor in a quitclaim deed had the equitable title, and was en- 
 titled to, and subsequently got, the legal title, it inures to the grantee. Welch 
 v. Dutton, 79 Illinois, 465. 
 vol. i. — 32
 
 498 ACCUMULATION'. 
 
 No. 1. — Thelluson v. Woodford. — Kule. 
 
 ACCUMULATION. 
 
 No. 1. — THELLUSSON v. WOODFORD. 
 
 WOODFORD v, THELLUSSON. 
 
 (chancery, 1798. n. of lords, 1805.) 
 
 RULE. 
 
 A trust under a will to accumulate the income of prop- 
 erty until the death of the survivor of a class of persons 
 named or described, to be born (or to be en ventre sa mere) 
 in the lifetime of the testator, is good. (This was the 
 English law as unaffected by the Act passed in conse- 
 quence of this decision, commonly called the Thelluson 
 Act 39 & 40 Vict. c. 98.) 
 
 Thellusson v. Woodford. 
 Woodford v. Thellusson. 
 
 4 Yes. 227; 11 Yes. 112. Also in 8 Kevised Reports, p. 104. 
 
 The part of the will out of which the question in these causes 
 arose was (as stated by Mr. Justice Lawrence in his judgment, 
 4 Ves. 308) shortly this : — 
 
 Tt is a devise and bequest by Mr. Thellusson to his trustees and 
 executors of his real estate and the residuum of his personal estate 
 upon tiust to lay out the personal estate, and the accumulated 
 profits which may arise from his original and the after-purchased 
 estates, during the lives of his three sons and such of their issue 
 as shall be living at the time of his death or born in due time 
 afterwards, in the purchase of real estates, and on the death of the 
 survivor of the several persons, during whose lives the accumulation 
 is directed to go on, to divide the devised and purchased estates 
 into three parts, and to convey them respectively in tail male to 
 the eldest male lineal descendant of his three sons, with cross-
 
 ACCUMULATION. 499 
 
 No. 1. Thellusson v. Woodford. 
 
 remainders; and if there shall be but one son, then to him in tail 
 male; and in case there should not be any such male lineal descen- 
 dant, then upon trust to sell the same, and pay the money arising 
 from thence to his Majesty for the benefit of the Sinking Fund. 
 
 The Lord Chancellor (Lord Loughboroh:h) having in accor 
 dance with the judgment of the Judges, the Master of the Rolls 
 Subsequently Lord ALVANLEY) and the Judges BuLLEB and 
 Lawrence, made his decree to the effect that the limitations 
 and directions contained in the will were good, the cause came on 
 -appeal before the House of Lords, and was argued on several days 
 .at the bar of the House; and after the argument the following 
 questions (relating to the question of the devolution of the real 
 estate merely) were proposed to the Judges on the motion of the 
 Lord Chancellor (Lord Eldon) : — 
 
 1st. A testator by his will, being seized in fee of the real estate 
 therein mentioned, made the following devise : " I give and devise 
 fill my manors, messuages, tenements, and hereditaments at Brods- 
 worth, in the county of York, after the death of my sons Peter 
 Isaac Thellusson, George Woodford Thellusson, and Charles Thel- 
 lusson, and of my grandson John Thellusson, son of my son Peter 
 Isaac Thellusson, and of such other sons as my said son Peter 
 Isaac Thellusson may have, and of such sons as my said sons 
 "George Woodford Thellusson and Charles Thellusson may have, 
 and of such issue as such sons may have as shall be living at the 
 time of my decease or born in due time afterwards, and after the 
 •-deaths of the survivors and survivor of the several persons afore- 
 said to such person as at the time of the death of the survivor of the 
 said several persons shall then lie the eldest male lineal descendant 
 of mj- son Peter Isaac Thellusson. and his heirs forever." At the 
 time of the testator's death there were seven persons actually 
 horn, answering the description mentioned in the testator's will ; 
 and there were two en centre sec mere, answering the description,— 
 if children en ventre sa mere do answer that description. All the 
 said several persons so described in the testator's will being dead, 
 and at the death of the survivor of such several persons there being 
 living one male lineal descendant of the testator's son Peter Isaac 
 Thellusson, and one only, is such person entitled by law, under the 
 legal effect of the devise above stated, and the legal construction 
 of the several words in which the same is expressed, to the said 
 manors, messuages, tenements, and hereditaments at Brodsworth ?
 
 5 JO ACCUMULATION. 
 
 No. 1. — Thellussan v. Woodford. 
 
 2nd. If at the death of the survivor of such several persons, as 
 aforesaid, such only male lineal descendant was not actually born. 
 but was en ventre sa mere, would such lineal descendant, when 
 actually born, be 'so entitled ? 
 
 The unanimous opinion of the Judges was pronounced by the 
 Lord Chief Baron Macdonald. The other Judges present were 
 Lords Ellknborough, Grose, Le Blanc, Heath, Booke, Chambre ; 
 Barons Thompson and Graham. Since the argument Lord Alvanlky 
 had died, and Baron Hotham resigned, — the former being sue- 
 ceeded by Sir James Mansfield, the latter by Sir T. M. Sutton. 
 
 Sir A. Macdonald, Chief Baron. The first objection to the will 
 is, that the testator has exceeded that portion of time within which 
 tiie contingency must happen upon which an executory devise is 
 permitted to be limited by the rules of law, for three reasons : 
 first, because so great a number of lives cannot be taken, as in the 
 present instance, to protract the time during which the vesting 
 is suspended, and consequently the power of alienation is sus- 
 pended ; secondly, that the testator has added to the lives of per- 
 sons who should be born at the time of his death the lives of 
 persons who might not be born ; thirdly, that after enumerating 
 different classes of lives during the continuance of which the 
 vesting is suspended, the testator has concluded with these restric- 
 tive words, " as shall be living at the time of my decease or born 
 in due time afterwards ; " and that, as these words appertain only 
 to the last class in the enumeration, the words which are used in 
 the preceding classes being unrestricted, they will extend to 
 grandchildren and great-grandchildren and their issue, and so 
 make this executory devise void in its creation, as being too 
 remote. With respect to the first ground, — viz., the number of 
 lives taken, which in the present instance is nine, — I apprehend 
 that no case or dictum has drawn any line as to this point, which 
 a testator is forbidden to pass. On the contrary, in the cases in 
 which this subject has been considered by the ablest Judges, they 
 have for a great length of time expressed themselves as to the 
 number of lives, not merely without any qualification or circum- 
 scription, but have treated the number of co-existing lives as 
 matter of no moment ; the ground of that opinion being that no 
 public inconvenience can arise from a suspension of the vesting, 
 and thereby placing land out of circulation during any one life;
 
 ACCUMULATION. 501 
 
 No. 1. — Thellusson v. Woodford. 
 
 and that in fact the life of the survivor of many persons named 
 or described is but the life uf some one. This was held without 
 dissent by Twisden in Love v. Wyndham, 1 Mod. 50, twenty years 
 before the determination of the Duke of Norfolk's Case, 3 Ch. ('a. 1, 
 2 Ch. Rep. 229, 2 Freem. 72; who says, that the devise of a farm 
 may be for twenty lives, one after another, if all be in existence at 
 once. By this expression he must be understood to mean any num- 
 ber of lives, the extinction of which could be proved without diffi- 
 ■cuJty. When this subject of executory trusts came to lie examined 
 by the great powers of Lord Nottingham, as to the time within 
 which the contingency must happen, he thus expresses himself : 
 " If a term be devised, or the trust of a term limited, to one for life, 
 with twenty remainders for life successively, and all the persons 
 are in existence and alive at the time of the limitation of their 
 estates, these, though they look like a possibility upon a possibility, 
 .are all good, because they produce no inconvenience; they wear 
 out in a little time." With an easy interpretation we find from 
 Lord Nottingham what that tendency to a perpetuity is which the 
 policy of the law has considered as a public inconvenience; namely, 
 where an executory devise would have the effect of making lands 
 unalienable beyond the time which is allowed in legal limitations, 
 --that is, beyond the time at which one in remainder would attain 
 his age of twenty-one, if he were not born when the limitations 
 Avere executed. When he 1 declares that he will stop where he 
 finds an inconvenience, he cannot, consistently with sound construc- 
 tion of the context, be understood to mean where Judges arbitra- 
 rily imagine they perceive an inconvenience ; for he has himself 
 stated where inconvenience begins, — namely, by an attempt to 
 suspend the vesting longer than can be done by legal limitation. 
 I understand him to mean that wherever courts perceive that such 
 would be the effect, whatever may be the mode attempted, that 
 effect must be prevented; and he gives the same, but no greater, 
 latitude to executory devises and executory trusts; as to estates 
 tail. This has been ever since adopted. In Scatterwood v. Edge, 
 1 Salk. 229, the court held that an executory estate, to arise 
 within the compass of a reasonable time, is good, — as twenty or 
 thirty years. So is the compass of a life or lives; for, let the lives 
 be never so many, there must be a survivor; and so it is but the 
 length of that life. In Humberston v. Humberston, 1 P. Wins. 
 o32, where an attempt was made to create a vast number of
 
 502 ACCUMULATION. 
 
 No. 1. — Thellusson v. Woodford. 
 
 estates for life in succession, as well to persons unborn as to per- 
 sons in existence, Lord Cowper restrained that devise within the 
 limits assigned to common-law conveyances, by giving estates for 
 life to all those who were living (at the death of the testator), and 
 estates tail to those who were unborn, considering all the co- 
 existing lives (a vast many in number) as amounting in the end 
 to no more than one life. His Lordship was in the situation 
 alluded to by Lord Nottingham, where a visible inconvenience 
 appeared. Tim bounds prescribed to limitations in common-law 
 conveyances were exceeded ; the excess was cut off, and the devise 
 confined within those limits. Lord Hardwicke repeats the same 
 doctrine in Sheffield v. Lord Orrery, 3 Atk. 282, using the words 
 " life or lives " without any restriction as to number. Many other 
 cases might be cited to the like effect ; but 1 shall only add what 
 is laid down in two very modern eases. In Gurnall v. Wood, 
 Willes, 211, Lord Chief Justice Willes speaks of a life or lives 
 without any qualification ; and Lord Thurlow, in Robinson v. 
 Hardcastle, 2 Bro. (J. C. 30, says that a man may appoint 100 
 or 1000 trustees, and that the survivor of them shall appoint a 
 life estate. It appears, then, that the co-existing lives, at the 
 expiration of which the contingency must happen, are not confined 
 to any definite number. But it is asked, shall lands be rendered 
 unalienable during the. lives of all the individuals who compose 
 very large societies or bodies of men, orSvhere other very extensive 
 descriptions are made use of? It may be answered that, when such 
 eases occur, they will, according to their respective circumstances,. 
 be put to the usual test, whether they will or will not tend to a 
 perpetuity, by rendering it almost if not quite impracticable to 
 ascertain the extinction of the lives described, and will be sup- 
 ported or avoided accordingly. But it is contended that in these 
 and other eases the persons during whose lives the suspension was 
 to continue, were persons immediately connected with or immedi- 
 ately leading to the person in whom the property was first to vest, 
 when the suspension should be at an end. I am unable to find 
 any authority for considering this as a sine oint hod in the creation 
 of a good executory trust. It is true that this will almost always 
 be the case and mode of disposing of property, introduced and 
 encouraged up to a certain extent, for the convenience of families ; 
 in almost all instances looking at the existing members of the 
 familv of the testator and its connections. But when the true
 
 ACCUMULATION. 503 
 
 No. 1. — Thellusson v. Woodford. 
 
 reason for circumscribing the period during which alienation may 
 be suspended is adverted to, there seems to be no ground or prin- 
 ciple that renders such an ingredient necessary. The principle 
 is the avoiding of a public evil by placing property for too great 
 a length of time out of commerce. The length of time will not 
 be greater or less, whether the lives taken have any interest, 
 vested or contingent, or have not ; nor whether the lives are those 
 of persons immediately connected with or immediately leading to 
 that person in whom the property is first to vest, — terms to which 
 it is difficult to annex any precise meaning. The policy of the 
 law, which, I apprehend, looks merely to duration of time, can 
 in no way be affected by those circumstances. This could not 
 be the opinion of Lord Thurlow in Robinson v. ffardcastle ; nor 
 is any such opinion to lie found in any case or book upon this 
 subject. The result of all the cases upon this point is thus 
 summed up by Lord Chief Justice Willes, Willes, 215, with his 
 usual accuracy and perspicuity : — 
 
 "Executory devises have not been considered as mere possibili- 
 ties, but as certain interests and estates ; and have been resembled 
 to contingent remainders in all other reapects,— only they have 
 been put under some restraints, to prevent perpetuities. As at 
 first it was held that the contingency must happen within the com- 
 pass of a life or lives in being, or a reasonable number of years ; at 
 length it was extended a little further, — namely, to a child en 
 ventre sa mere at the time of the father's death; because, as that 
 contingency must necessarily happen within less than nine months 
 after the death of a person in being, that construction would in- 
 troduce no inconvenience; and the rule has in many instances 
 been extended to twenty-one years after the death of a person 
 in being, as in that case likewise there is no danger of a per- 
 petuity." 
 
 Comparing what the testator has done in the present case with 
 what is above cited, it will appear that he has not postponed the 
 vesting even so long as he might have done. 
 
 The second objection which has been made in this case is, that. 
 the testator has added to the lives of persons in being at the 
 time of his decease those of persons not then born. It becomes, 
 therefore, necessary to discover in what sense the testator meant 
 to use the words "born in due time afterwards." Such words, in 
 the case of a man's own children, mean the time of gestation.
 
 >04 ACCUMULATION. 
 
 No. 1. - -Thellusson v. Woodford. 
 
 What is to be intended by these words in his will must be col- 
 lected from the will itself. It may be collected from the will 
 itself that by those words the testator meant to describe the 
 period of time within which issue might be born, during whose 
 lives the trust might legally continue ; or, in other words, whom 
 th" law would consider as born at the time of his decease. 
 These could only be such children of the several persons named 
 as their respective mothers were ensient with at the time of his 
 death. He may have meant to use the word "due" as denoting 
 that period of time which would be the necessary period for ef- 
 fecting his purpose. This is probable from his using the same 
 word, as applied to the time, during which the presentation to 
 the living of Marr might be suspended without incurring a lapse. 
 That a child en ventre sa mere was considered as in existence, so 
 as to be capable of taking by executory devise, was maintained by 
 Powell in the case of Loddington v. Kime, 1 Ld. Rayin. 207, upon 
 this ground : that the space of time between the death of the 
 father and the birth of the posthumous son was so short that no 
 inconvenience could ensue. So in Norihey v. Strange, 1 P. Wins. 
 340, Sir J. TREVOR held, that by a devise to children and grand- 
 children an unborn grandchild should take. Two years after, 
 Lord Macclesfield, in Burdet v. Hopegood, 1 P. Wins. 486, held 
 that, where a devise was to a cousin, if the testator should 
 leave no son at the time of his death, a posthumous son should 
 take, as being left at the testator's death. In Wallis v. Hodgson, 
 2 Atk. 117, Lord Hardwicke held, that a posthumous child was 
 entitled under the Statute of Distributions ; and his reason de- 
 serves notice. " The principal reason," says he, " that I go upon, is, 
 that the plaintiff was en ventre sa mere at the time of her brother's 
 death, and consequently a person in rerum naturd; so that by the 
 rules of the common and civil law she was, to all intents and 
 purposes, a child, as much as if born in the father's lifetime." 
 Such a child, in charging for the portions of other children liv- 
 ing at the death of the father, is included as then living : Beale 
 v. Beale, 1 P. Wins. 244, and so in a variety of other cases. In 
 Basset v. Basset, 3 Atk. 203, Lord Hakdwicke decreed rents and 
 profits, which had accrued at a rent-day preceding bis birth, to a 
 posthumous child ; and since the statutes of 10 & 11 Win. III. c. 16, 
 ?uch children seem to be considered in all cases of devise, and mar- 
 riage or other settlement to ' ' living at the death o'f their father,
 
 ACCUMULATION. 505 
 
 No. 1. - Thellusson v. Woodford. 
 
 although not born till after his decease. It is otherwise considered 
 in the ease of descent. In Roe v. Quartley, 1 T. R. 634; 1 1!. R. 
 
 326, the devise was to Hester Read for life, daughter of Walter 
 Read, and to the heirs of her body ; and for default of such issue, 
 to such child as the wife of Walter Read is now ensient with, and 
 the heirs of the body of such child, then to the right heirs of 
 Walter Read and Mary his wife. It was contended that the lasl 
 limitation was too remote, as coming after a devise to one not in 
 being, and his issue. But the court said, that since the statute of 
 King William, which puts posthumous children on the same foot- 
 ins with children born in the lifetime of their ancestor, this obiec- 
 tion seemed to be removed, whatever was the case before. In 
 Gulliver v. Wickett, 1 Wils. 105. the devise was to the wife for life, 
 then to the child, with which she was supposed to be ensient, in 
 fee, provided that if such child should die before twenty-one, 
 leaving no issue, the reversion should go to other persons named. 
 The court said, if there had been no devise to the wife for life, 
 which made the ulterior estate a contingent remainder, the devise 
 to the child en ventre sa mere, being in futuro, would have been a 
 good executory devise. In Doe v. Lancashire, 5 T. R. 49 ; '1 R. \\. 
 535, the Court of King's Bench has held, that marriage and the 
 birth of a posthumous child revoke a will, in like manner as if the 
 child had been born in the lifetime of the father. In Doe v. 
 Clarke, 2 H. Bl. 399 ; 3 R. R. 431, Lord Chief Justice Eyre holds, 
 that independent of intention an infant en ventre sk mere, by the 
 course and order of nature, is then living, and comes clearly within 
 the description of a child living at the parent's decease ; and he 
 professes not to accede to the distinction between the cases, in 
 which a provision has been made for children generally, and where 
 the testator has been supposed to mark a personal affection for 
 children who happened to lie actually born at the time of his 
 death. The most recent case is that of Long v. Blackall, :'> Yes. 
 486; 7 T. R, 100; 4 R. R. 73. There the Court of King's Bench 
 had no doubt, that a devise to a child en ventre sa mere in the first 
 instance was good, and a limitation over was good also, on the con- 
 tingency of there being no issue male or descendant of issue male 
 living at the death of such posthumous child. It seems, then. 
 that if estates for life had been given to the several cestuis que 
 vie in this will, and after their deaths to their children, either born 
 or en ventre sa mere at the testator's death, they would have been
 
 5UG ACCUMULATION. 
 
 No. 1. — ThellussDii v. Woodford. 
 
 good. No tendency to perpetuity, then, can arise in the case of 
 .such lives being taken, not to confer on them a measure of the 
 beneficial interest, but to fix the time during which the vesting 
 of the property, which is the subject of this devise, shall be pro- 
 tracted, inasmuch as the circulation of real property is no more 
 fettered in one case than in the other. it is, however, observa- 
 ble, that this question may never arise if it shall so happen that 
 the children in ventre matris at the death of the testator shall not 
 .survive those who were then born. 
 
 The third ground of objection depends upon the application of 
 the restrictive words which are added to the enumeration of the 
 different classes of persons during whose lives the restriction is 
 suspended. This objection, 1 conceive, will be removed by the 
 application of the usual rules in construing wills to the present 
 case. First, where the intention of the testator is clear, and is 
 consistent with the rules of law, that shall prevail. His intention 
 evidently was to prevent alienation as long as by law he could. 
 If, then, it is to be supposed that the restrictive words are to be 
 confined to the last of seven different descriptions of persons, and 
 that the testator intended to leave the four descriptions of per- 
 sons which immediately preceded this seventh class without the 
 benefit of such restriction, although they equally stand in need 
 of it, we must do the utmost violence to all established rules on 
 this head. That construction is to be adopted which will support 
 the general intent. The grammatical rule of referring qualifying- 
 words to the last of the several antecedents, is not even supposed 
 by grammarians themselves to apply, when the general intent of 
 a writer or speaker would be defeated by such a confined appli- 
 cation of them. Iieason and common sense revolt at the idea of 
 overlooking the plain intent which is disclosed in the context, — 
 namely, that they should be applicable to such classes as require 
 them, and as to the others to consider them as surplusage. If 
 words admit of more constructions than one, that which will 
 support the legal intention of the testator is in all cases to be 
 adopted. I do not trouble your Lordships with any observation 
 upon the objections arising from the magnitude of the property 
 in question, either as it now stands or may hereafter stand; or 
 as to the motives which may have influenced this testator, or his 
 neglect of those considerations by which I or any other individ- 
 ual may or ought to hive been moved. That would be to sup-
 
 ACCUMULATION. 507 
 
 No. 1 — Thellusson v. Woodford. 
 
 pose that such topics can in any way affect the judicial mind. 
 For these imperfect reasons 1 concur with the rest of the Judges 
 in offering this answer to your Lordships' first question. 
 
 With respect to your Lordships' second question, the objection 
 to such child being entitled must arise from an allowance having 
 been made for the time of gestation at the end of the executory 
 trusts. It seems to be settled that an estate may he limited in 
 the first instance to a child unborn, and, I apprehend, to the first 
 and other sons in fee, as purchasers. The case of Long v. Blackall, 
 'A Ves. 486; 7 Term Rep. 100; 4 R. R. 73, seems to have decided 
 that an infant in ventre m.atris is a life in being. The estab- 
 lished length of time during which the vesting may be suspended 
 is during a life or lives in being, the period of gestation, and 
 the infancy of such posthumous child. If, then, this time has 
 been allowed in some cases at the beginning, and in others at 
 the termination, of the suspension, and if such children are con- 
 sidered by the construction of the statute of 10 & 11 Win. III. 
 c. 16, as being horn to such purposes, what should prevent the 
 period of gestation being allowed both at the commencement 
 and termination of the suspension, if it should be called for? In 
 those cases where it has been allowed at the commencement, and 
 particularly in Long v. Blackall, it must have been obvious to the 
 court that it might be wanting at the termination ; yet that was 
 never made an objection. In Gulliver v. Wickett, 1 Wils. 10.~>, the 
 child who was supposed to be en ventre sa mere might have mar- 
 ried and died before twenty-one, and have left his wife ensient. In 
 that case a double allowance would have been required ; yet that 
 possibility was never made an objection, although it was obvious. 
 In Long v. Blackall, according to the printed report, the precise 
 point was not gone into. But it is plain that the attention of the 
 »court must have been drawn to it; for the learned Judge (Mr. 
 Justice Chambre, then at the bar) who argued that case in supporl 
 of the devise, expressly stated that every common case of a limi- 
 tation over, after a devise for a life in being, with remainder in 
 trust to his unborn issue, includes the same contingency as was 
 then in question; for the devisee for life may die leaving his wife 
 •ensietit ; and the only difference is, that the period of gestation 
 occurs at the beginning instead of the end of the first legal es- 
 tate. It must have been palpable that it might possibly occur at 
 both ends. Every reason, then, for allowing the period of gesta-
 
 508 ACCUMULATION. 
 
 No. 1. — Thellusson v. Woodford. 
 
 tion in the one case seems to apply with equal force to the other,. 
 and leads the mind to this conclusion, that it ought to he allowed, 
 in both cases, or in neither case. But natural justice, in several 
 cases, having considered children en nut re sa mere as living at the 
 death of the father, it should seem that no distinction can proper!) 
 he made; but that in the singular event of both periods being 
 required, they should be allowed, as there can be no tendency to a 
 perpetuity. 
 
 The Lokd Chancellor. The learned Judges having given their 
 opinion upon the points of law referred to them, no question re- 
 mains to which the attention of the House should be particularly 
 called, except the point arising out of this will, and which could 
 not be referred to the Judges, with regard to the accumulation 
 of the rents and profits. When this cause was decided in the 
 Court of Chancery, it was decided by Lord ROSSLYN, with the as- 
 sistance of Lord Alvanley, Mr. Justice Buller, and Mr. Justice* 
 Lawrence ; and it is well known that the late Chief Justice, Lord 
 Kenyon, of the Court of King's Bench could hardly be brought to 
 think any of the questions in this case fit for argument, conceiving 
 it dangerous to give so much of serious agitation to them as has 
 1 n had. considering what had been settled with respect to execu- 
 tory devise and accumulation. Some of your Lordships have had 
 the advantage of hearing the opinion of Lord Thurlow, which 
 cannot be doubted upon this point, after his Lordship has laid 
 down, in Robinson v. ffardcastle, 2 Br. C. C. 22; see p. 30, what is 
 unquestionable law, that it is competent to a testator to give a life- 
 estate, to lie appointed by the survivor of 1000 persons. That 
 estate would be to commence at the death of the last of those 
 1000 persons. Upon the questions of law your Lordships have 
 had the unanimous opinion of the several learned Judges. As 
 far as judicial opinion can be collected, there is therefore the 
 testimony of all the judicial opinion I have detailed concurrent 
 upon this great ease, — great, with reference, not to the questions 
 arising out of it. but to that circumstance, of which, whatever 
 attention your Lordships may think proper to give it in your 
 legislative capacity, you cannot, exercising the function of Judges, 
 take notice ; for the question of law is the same upon a property of 
 £100 or a million. If it were possible, speaking judicially, to say 
 you entertain a wish upon the subject, your Lordships may all 
 concur in the regret that such a will should be maintained. But
 
 A.CCI MULAT10N. 509 
 
 No. 1. — Thellusson v. Woodford. 
 
 that goes no farther than as a motive to see whether it contains 
 anything resting upon which we may as Judges say it is an attempt 
 to make an illegal disposition. 
 
 When this was put originally as a case, representing that it was 
 monstrous to tic up property for nine lives, it seemed to me a pro- 
 position that is incapable of argument as lawyers ; for the length 
 of time must depend, not upon the number, but upon the nature, 
 of the lives. If we are to argue upon probability, two lives may 
 be selected, affording much more probability of accumulation and 
 postponement of the time of vesting than nine or ninety-nine 
 lives. Look at the obituary of this House since the year 1796, 
 when this will was made. Suppose the testator had taken the lives 
 of so many of the Peers as have died since that time, that would 
 have been between twenty and thirty lives ; and yet that number 
 has expired in a very short period. It cannot therefore depend 
 upon the magnitude of the property or the number of lives ; but 
 the question always is, whether there is a rule of law fixing a 
 period during which property may be unalienable. The language 
 of all the cases is, that property may be so limited as to make it 
 unalienable during any number of lives, not exceeding that to 
 which testimony can be applied to determine when the survivor 
 of them drops. 
 
 If the law is so as to postponing alienation, another question 
 -arises out of this will, which is a pure question of equity, — 
 Avhether a testator can direct the rents and profits to be accumu- 
 lated for that period during which he may direct that the title 
 .shall not vest and the property shall remain unalienable ; and 
 that he can do so, is most clear law. A familiar case may be 
 put. If this testator had given the residue of his personal estate 
 to such person as should be the eldest male descendant of Peter 
 Isaac Thellusson at the death of the survivor of all the lives 
 mentioned in this will, without more, that simple bequest would 
 in effect have directed accumulation until it should be seen what 
 individual would answer the description of that male descendant ; 
 and the effect of the ordinary rule of law, as applied in equity, 
 would have supplied everything that is contained in this will as 
 to accumulation; for the first question would be, Is the executory 
 devise of the personal estate to the future individual, so described, 
 good ? If it is, wherever a residue of personal estate is given, the 
 interest goes with the bulk ; and there is no more objection to
 
 510 ACCUMULATION. 
 
 No. 1. — Thellusson v. Woodford. 
 
 giving that person that which is only forming another capital, 
 than to giving the capital itself. But the constant course of a 
 court of equity is to accumulate interest from time to time with- 
 out a direction, and to hand over the accumulation to that person 
 who is to take the capital. Take another instance of accumula- 
 tion : suppose the nine persons named in this will had heen 
 lunatics; without any direction, there would have been an accu- 
 mulation of the interest and profits of all these estates. In truth, 
 there is no objection to accumulation, upon the policy of the law 
 applying to perpetuities ; for the rents and profits are not to be 
 locked up and made no use of, for the individuals or the public- 
 The effect is only to invest them from time to time in land; so that 
 the fund is not only in a constant course of accumulation, but 
 also in a constant course of circulation. To that application what 
 possible objection can there be in law ? 
 
 But this is not new; for in the case upon Lady Denison's will, 
 Harrison v. Harrison, 21st July, 1786, Lord Kenyon, who saw 
 great danger in permitting argument to go too far against settled 
 rules, held most clearly that the testatrix had well given her 
 property to such second son of her infant niece as should first 
 attain the age of twenty-one, and directed accumulation through 
 the whole of that period, — following Lord Hardwicke and his 
 predecessors, and taking the rule to be perfectly clear that, sc* 
 long as the property may be rendered unalienable, so long there 
 may be accumulation ; that in common sense it is only giving 
 the accumulation to the person who is to take the fund itself, if it 
 could be foreseen who that person would lie. Therefore, as to 
 giving the property at the expiration of nine lives and the accu- 
 mulation, I never could doubt upon these points. The latter could 
 not be a subject of dispute before the late act of Parliament (Stat. 
 .°> ( ) & 40 Geo. III. c. 98), which has been sometimes, though without 
 foundation, attributed to me, and which in some respects I would 
 have corrected, if it had not come upon me rather by surprise- 
 That Act, however, expressly alters what it takes to have been the 
 former law upon the subject, admitting the right to direct accumula- 
 tion, and reducing that right in given cases to the period of twenty- 
 one years. The amount of accumulation, even through the provi- 
 sions of that Act, though only to endure for twenty -one years, might 
 in many instances, by giving the son a scanty allowance, be enor- 
 mous. I do not think it was intend >d, but the accumulation directed
 
 ACCUMULATION. 511 
 
 No. 1. — Thellusson v. Woodford. 
 
 by this will must under that Act have gone on for twenty-one years. 
 In the construction of that Act it lias been held, that it only makes 
 void so much of the disposition as exceeds twenty-one years, leaving 
 it good for that period. Griffiths v. Vere, !» Ves. 127; Longden v. 
 Simson, 12 Ves. 295. Upon the old rule, also, accumulation for 
 particular purposes might have gone on for nine lives, or more. 
 
 The only points that appear to me fairly to hear argument are, 
 the critical discussion upon the word '-as,'' as a relative term, and 
 that with reference to the double period of gestation. As to the 
 former, if your Lordships could from dislike to such a will refuse 
 that construction which will consider that word as a word of 
 reference to each preceding description of persons, grounding tha- 
 coiistruction upon the manifest intention of the testator upon the 
 whole will to make the property unalienable as long as he could, 
 you would gratify that inclination at the expense of overturning 
 all the rules of construction that have been settled and applied foi 
 ages to support wills. If your Lordships will give any relief by 
 legislative interference against this will, that is a very bold propo- 
 sition ; hut not so bold as that, because you dislike the effect of 
 the will, you will give a judgment wrong in point of law. 
 
 As to the other point, upon the words, "born in due time after- 
 wards," I observe in the report, 4 Ves. 314, 315, 321, the Judges 
 Lawrence and Bullee afford each a construction of these words, 
 — the one, that they mean children en renin: sa mere; the other 
 heVd them a declaration of the testator's will that the property 
 shall be unalienable, and the accumulation go on, during the lives 
 of all the persons, born or unborn, whom the law would authorise 
 him to take as the lives for restraint of alienation, and for the 
 purpose of accumulation. In my opinion, either of those construc- 
 tions may be taken to be the intention consistently with the rules 
 of law; but consistently with the rules of law your Lordships can- 
 not reject both, but must give the words such a construction as 
 will support the manifest intention of the testator. It is therefore 
 beucle the point to ask what child shall take, or when a child 
 shall take ; for the testator is describing, not the object to take, 
 but the lives of persons, in order to define the period during which 
 the power of alienation shall not exist, and the accumulation shall 
 go on. But if it is necessary, I have no difficulty in stating, as a 
 lawyer, that the rule of law has been properly laid down, that the 
 time of gestation may be taken both at the beginning and the end;
 
 512 ACCUMULATION. 
 
 No. 1. — Thellusson v. Woodford. — Notes. 
 
 and that is what was meant in Gulliver v. Wickett, 1 Wils. 105, in 
 which case the devise was to a child en centre set mere, and to go 
 over if that child should die under the age of twenty-one, leaving 
 m> issue. In the construction of that limitation, expressly to a 
 child en ventre sa mere, suppose that child had at the age of 
 twenty married, and died six months afterwards, leaving his wife 
 ensient ; that property, absolutely given to him, would not be 
 devested merely because the child was not born till three months 
 after his death. In fair reasoning, therefore, that is the construc- 
 tion of the words. 
 
 Of the case of Long v. Blackall, 3 Yes. 486 ; 4 E. R 73 ; 7 Term 
 Rep. 100, in which I was counsel, I can give a faithful history. It 
 was my duty to submit to the Lord Chancellor the point that the 
 allowance was claimed at both ends of the period. His Lordship 
 treated the point not with much respect; but I prevailed with him, 
 against his inclination, to send it to the Court of King's Bench. 
 Upon the report of the case in that court, the point did not appear 
 to have been discussed. I therefore pressed the Lord Chancellor 
 to send the case back. His answer was as rough as his nature, 
 which w T as very gentle, would permit, and shows the clear opinion 
 he had upon the point. He said distinctly, he was ashamed of 
 having once sent it to a court of law, and would not send it there 
 again. I know Lord Kenyon's opinion upon the subject was 
 clear ; so were those of Mr. Justice Bullki; and Mr. Justice 
 Lawrence, as may be collected from the report of these causes. 
 This case, therefore, comes to this, and this only. The legal and 
 equitable doctrine is clear; and then the question is, with what- 
 ever regret we may come to the determination, Is it not our duty 
 to determine according to the rules of law and equity '. Upon the 
 question whether this judgment ought to be reversed, 1 am bound 
 to say it ought not, but that it ought to be affirmed. 
 
 The decree was affirmed accordingly. 
 
 ENGLISH NOTES. 
 
 This was the case which suggested tin- restriction by statute of the 
 powers of directing accumulation, which was done by the Act 39 & 40 
 <4eo. III., e. 98, commonly called The Thellusson Act, passed on the 28th 
 July, 1800. By this Act (briefly stated) all persons are prohibited from 
 settling property by deed or will made after the passing of the Act, so 
 that the rents and profits shall be wholly or partially accumulated for
 
 ACCUMULATION. 
 
 No. 1. — Thellusson v. Woodford. —Notes. 
 
 a longer term than the life of the settlor, or twenty-one years after his 
 death, or during the minority of a person or persons living at the time 
 of the death of the sett lor. Or during the minor it y or respective minori- 
 ties only of a person or persons who, if of full age, would have been 
 absolutely entitled under the settlement; and it was enacted that any 
 rents or profits directed to he accumulated contrary to the Act should 
 go to the person who would have been entitled thereto if such accumu- 
 lation had not been directed. It was provided that the prohibition 
 should not extend to a, provision for payment of debts of the settlor, or 
 for raising portions for children of the settlor, or of a person taking an 
 interest under the settlement. 
 
 In the case of Griffiths v. Vere, 9 Ves. 127, decided in 1803 (and 
 Defore the ultimate decision of the House of Lords in the principal 
 case), it was decided by Lord Klddn, ('. J., affirming the judgment 
 of the Master of the Rolls (Sir Win. Grant), that where directions 
 were made by a will for accumulation during a certain life, the direc- 
 tion for accumulation was good for the period of twenty-one years if 
 the life lasted so long. And in Longdon v. Simson (1806), 1- Ves. 
 295, it was held that the accumulation is void only for the excess, 
 whether it has been directed for an uncertain or for a certain period. 
 
 Although the will contains no express direction to accumulate, }~et 
 if an accumulation necessarily takes nlace by reason of the form in 
 which the property is given, the ease falls within the Act, Tench v. 
 Cheese (1855), G De G. M. & G. 453. (Opinion by Lord Ci; ax- 
 worth, Chancellor, p. 461); Talbot v. Jevers (1875), L. 11., 20 Eq. 
 255; 44 L. J. Ch. 646; Weatherall v. Thornburgh (('. A. 1878). 
 <S Ch. 1). 261; 47 L. J. Ch. 658. 
 
 Where income of residue, or of a share of residue, is directed to be 
 accumulated for a period beyond that allowed by the Act. for the benefit 
 of persons named or described, the effect of the statute is that the in- 
 come, during the period for which accumulation is unlawful, goes to 
 the next of kin as undisposed of. And, similarly, rents and profits of 
 real estate unlawfully directed to be accumulated would go to the heir 
 at law. McDonald v. Bryce (1838), 2 Keen, 276; Eyre v. Marsden 
 (1838), 1' Keen, 564; Te,vh v. Cheese (1855), 6 De G. M. & G. 453; 
 Simmons v. Pitt (1873), L. R., 8 Ch. 978; 43 L. J. Ch. L'<;7; Talbot 
 v. Jevers (1875), L. R., 20 Eq. 255; 44 L. J. Ch. 646; Weatherall v. 
 Thornburgh (C. A. 1878), 8 Ch. D. 261; 47 L. J. Ch. 658. But where 
 the direction to accumulate for certain beneficiaries is followed by an 
 ultimate gift of residue, the residuary legatees under the ultimate gift 
 become entitled to the income so unlawfully directed to be accumulated. 
 Crawley v. Crawley (1835), 7 Sim. 427; O'Neill v. Lucas (1838), 
 2 Keen, 313; Ellis v. Maxwell (1841), 3 Beav. 587; 10 L. J. Ch. 266. 
 
 VOL. I.— 33
 
 514 ACCUMULATION. 
 
 No. 2. — Lord Southampton v. Marquis of Hertford. — Rule. 
 
 It has been decided by Kay, J., in Jagger v. Jagger (188.")). 25 Ch. 
 I). 729; 53 L. J. Ch. 201. that the tour different periods during which 
 accumulation is restricted by the Act are alternative and not cumulative. 
 So that where a settlor, by deed in the nature of a post-nuptial settle- 
 ment, assigned property to trustees upon trust (subject to a trust for 
 his own maintenance) to apply during the joint lives of his wife and 
 himself and the life of the survivor of them all or any part of the income 
 for the maintenance of his wife and the children of the marriage and 
 to accumulate the surplus: the trust tor accumulation, as it might have 
 begun to operate during the life of the settlor, could only hold good 
 during that period; and could neither be extended during the lifetime 
 of the wife, nor during the minorities of the children. A similar de- 
 cision of Vice-Chancellor Shadwell, In re Rosslyri's trust (1848), 
 16 Sim. 391; IS L. J. Ch. 98, was referred to. 
 
 The power of directing accumulations is now still further restricted 
 by the Accumulation Act, 1892 (55 & 5() Vict. c. 58), applying to the 
 United Kingdom. After the passing of this Act (dune 28, 1892) no 
 person can settle property in such a manner that the income shall b? 
 wholly or partially accumulated for the purchase of land only, for any 
 longer period than during the minority or respective minorities of any 
 person or persons, who, under the settlement, would for the time being. 
 if of full age, be entitled to that income. 
 
 No. 2.— LORD SOUTHAMPTON v. MARQUIS OF 
 HERTFORD. 
 
 RULE. 
 
 A trust for accumulation which may extend heyond the 
 period allowed by law (without reference to the statutory 
 restrictions under the Thellusson Act) is void in toto. 
 
 So in a strict settlement of real estate, the trust of a 
 term declared to be for the purpose of accumulating the 
 rents during the minorities of the respective tenants for 
 life or in tail, is bad. 
 
 Lord Southampton v. Marquis of Hertford. 
 
 2 Vcsey & Beanies, 54. 
 
 By indentures, dated the 12th and 13th of July, 1790, estates 
 were conveyed in strict settlement, subject to a term of 1000 
 vears, upon trust, during the minority or respective minorities of
 
 ACCUMULATION. 515 
 
 No. 2. — Lord Southampton v. Marquis of Hertford. 
 
 any person or persons entitled to the yearly rents, &c., the trustees 
 should receive and take the yearly rents, &c., and pay and apply 
 so much as should remain after answering the payments before 
 or after mentioned in or towards the discharm' of the principal 
 sums, which should then affect the said estates ; and after payment 
 of all such charges and incumbrances should, during such minorit) 
 ©irrespective minorities, lay out and invest the said yearly rents, 
 &c., in the purchase of public stocks, &c. ; and receive the divi- 
 dends, interest, &c. ; and lay out and invest the same in the pur- 
 chase of or upon stocks, &c, of the like nature, so that the same 
 might during such minority or respective minorities accumulate; 
 and to stand possessed of and interested in the sums of money, 
 stocks, &c, to he purchased with such yearly rents, &c, and the 
 accumulations thereof respectively, in trust for such person or 
 persons respectively as should immediately upon the expiration 
 of such minority <>r respective minorities, or the death or deaths 
 of such minor or minors, be tenant or tenants in possession, or 
 entitled to the rents and profits, and be of the age of twenty- 
 one years; and that in the mean time and until the said rents, 
 issues, and profits should amount to a sum competent for the 
 discharge of the sums so to be discharged, the trustees might 
 invest the same in the purchase of stock. &c. ; and that in such 
 case the dividends and interest of such last mentioned stock 
 should be accumulated, and the same and the accumulation thereof 
 be laid out and invested, as last hereinbefore mentioned, till the 
 same respectively should be applied in the discharge of the said 
 sums of money so to be discharged. 
 
 The bill contended that the direction for the accumulation of 
 the rents and profits, during minority, until there should he a 
 tenant in possession of the age of twenty-one, is illegal and void ; 
 and that, therefore, the plaintiff, as tenant in tail, is entitled to 
 all the estates, and to all, or so much of, the rents and profits as 
 should remain after discharging the incumbrances. 
 
 Argued for the plaintiff: — 
 
 This trust for accumulation, not being within the act of Parlia- 
 ment, made in consequence of the case on Mr. Thellusson's will, 
 must fall. 
 
 [Counsel having been heard for the different defendants claiming 
 in remainder, the counsel for the trustees cited P/ripps v. Ketynge 
 (2 Vesey & Beanies, 57; 13 E. R. 16).]
 
 516 ACCUMULATION. 
 
 No. 2. — Lord Southampton v. Marquis of Hertford. 
 
 Counsel having been heard in reply. 
 
 The Master of the Rolls (Sir W. Grant). I have examined 
 the case of Phipps v. Kelynge, and tind it is in substance as stated 
 in the note in Fearne's " Executory Devises ; " hut, when the cir- 
 cumstances are attended to, 1 do not think it will be found to be 
 an authority for the proposition that a trust for accumulation, 
 exceeding the allowed limits, is void only for the excess. Lord 
 Alvanley in the Thellusson case says that Phipps v. Kelynge is 
 not properly a case of accumulation, as Phipps had a right to call 
 from time to time to have the rents and profits laid out in lands 
 to be settled. That certainly was so ; and there was a direction 
 that, until proper purchases could be found, the money should be 
 laid out in Government or real securities, and the interest paid to 
 the persons who would have been entitled to the rents and 
 profits. There was therefore no period during which the rents 
 and profits of the leasehold estate would have been wholly with- 
 drawn from enjoyment. Still, to a certain degree there was a trust 
 for accumulation, as the rents and profits themselves are not to 
 be enjoyed, but only the produce thereof, when invested in land or 
 securities. Whether that was a trust wholly void, or good in part 
 and bad in part, Lord Camden under the circumstances of the case 
 had no occasion to consider, as the eldest son, the first tenant in 
 tail, had attained twenty-one before the suit was instituted. He 
 did not quarrel with the past application of the rents : nor was it 
 his interest to do so, as his father, the tenant for life, was living. 
 All he contended against his brothers, entitled to estates tail in 
 remainder, was, that this sort of accumulation should go no 
 farther, the leasehold estates having vested absolutely in him, 
 as tenant in tail of the freehold, subject to his father's life estate. 
 If that was true, as it was held to be, it was immaterial whether 
 the trust was retrospectively good, or not; and therefore it would 
 be too much to construe the declaration that the trust ceased and 
 became void upon his attaining the age of twenty-one, into a posi- 
 tive decision that, until he attained that age, it was valid and 
 effectual ; that being a point on which no decision was sought by 
 any of the parties in the cause. 
 
 As Lord Camden decided that the first tenant in tail became 
 absolutely entitled to the leasehold estate, I do not see distinctly 
 how it could be held that it vested in him only at the age of 
 twenty-one. The decision upon the first point implied that the
 
 ACCUMULATION. 517 
 
 No. 2. — Lord Southampton v. Marquis of Hertford. 
 
 leasehold estate was to be considered as subject to the same 
 limitation as the freehold, notwithstanding the attempt to confine 
 the successive takers to the enjoyment of less than the entire 
 rents and profits of the leasehold. If so, the general rule is, that 
 the leasehold estate vests absolutely upon the birth of the first 
 tenant in tail of the freehold. The question then would have 
 been, whether the direction for a modified accumulation was to 
 be taken as a declaration of intention, that the two estates should 
 go together, subject to such modified accumulation, as long as the 
 rules of law and equity would permit; and whether a court of 
 equity would in consequence of such intention suspend the 
 vesting as long as the testatrix herself might, by a specific pro- 
 vision, have suspended it. 
 
 In the case of Ware v. Polhill, 11 Yes. 257 : 8 11. R. 145, where 
 the rents and profits of leasehold estate were logo to the persons 
 entitled to the rents of the freehold and copyhold estates, but with 
 a power to the trustees at any time, with consent of the persons so 
 entitled, or, if minors, at their own discretion, to sell, and invest 
 the produce in real estate to the same uses. The Lord Chancellor 
 held, that, notwithstanding the power, the leasehold estate vested 
 absolutely in the first tenant in tail from the time of his birth. 
 
 The present case, however, is different from either of those. 
 This is an attempt wholly to sever the surplus rents and profits 
 from the legal ownership of the estate for a time, that may extend 
 much beyond the period allowed for executory devises or trusts 
 of accumulation, and to give them to a person who may not come 
 into existence until after that period. I do not see how any part 
 of such a trust can he executed. In Warev. Polhill the Lord Chan- 
 cellor held the power of sale to be void, upon the ground that it 
 might travel through minorities for two centuries; and adds, " If 
 it is bad to the extent in which it is given, you cannot model it 
 to make it good." 1 In Lade v. Hoi ford the court did not attempt 
 to model the trust, and make it good in the extent to which it 
 might have been well carried on in its creation. As to the possi- 
 bility, that Lord Southampton may attain the age of twenty-one, 
 that never has been held to lie an answer to the objection that 
 the trust, as originally created, is too remote. Supposing this 
 
 1 It is now, however, well settled that a See Lantsberg v. Collier, 2 K. & J. 709 : 25 
 power of sale need not be expressly limited L. J. Ch. 672. — K. C. 
 to take effect within any definite time.
 
 518 ACCUMULATION. 
 
 No. 2. — Lord Southampton v. Marquis of Hertford. — Notes. 
 
 accumulation allowed to go on, and he dies under twenty-one, 
 what is to become of the accumulated fund ( The' deed says, it 
 shall go to the first person entitled to the estate who shall attain 
 twenty-one, though there should be no such person for a century 
 to come. As it is impossible so to dispose of it, 1 should thus 
 deprive Lord Southampton of the rents and profits during the 
 years lie had lived upon the speculation that he might live to 
 take the accumulated fund. 
 
 My opinion is, that this trust is altogether void except so far 
 us it is a trust for the payment of debts. 1 
 
 ENGLISH NOTES. 
 
 In Leake v. Robinson (1817), 2 Mer. 363, the Master of the Rolls, Si* 
 Wm. Grant, lavs down the same doctrine* as that in the principal ease, 
 as follows (p. 389) : " Perhaps if might have been as well if the courts had 
 originally held an executory devise transgressing the allowed limits to be 
 void only for the excess, where that excess could, as in this case it can, be 
 clearly ascertained. But the law is otherwise settled. In the construc- 
 tion "f the act of Parliament passed after the Thellusson cause. 1 thought 
 myself at liberty to hold that the trust of accumulation was void only 
 for the excess beyond the period to which the Act restrained it. And 
 the Lord Chancellor afterwards approved of my decision (Griffiths v. 
 Vere, p. 513, supra, and 9 Yes. -127). But there the Act introduced a 
 restriction on a liberty antecedently enjoyed, and therefore it was only to 
 the extent of the excess that the prohibition was transgressed. Whereas, 
 executory devise is itself an infringement on the rules of the common 
 law. and is allowed only on condition of its not exceeding certain estab- 
 lished limits. If the condition be violated the whole devise is held to 
 
 be void. " 
 
 In Marshall v. Holloway (1818), 2 Swanston, 432, a testator de- 
 vised his estates to trustees upon trust to invest and accumulate the 
 rents and profits while any person beneficially interested by virtue of 
 the trusts afterwards declared should be under twenty-one, and subject 
 thereto in trust for X. (a grandchild living at his death) for life, witli 
 various remainders, some of which were void for remoteness. It was 
 held that the trust for accumulation was altogether void, and X. took 
 an immediate life estate. The Lord Chancellor (Lord Eldon) on the 
 final consideration of the case, said he could not distinguish it from 
 Lord Southampton v. The Marquis of Hertford (the principal case, 
 p. 514, supra). 
 
 1 This exception is confirmed by the decision of Hall, V. C, in Tewart v. 
 Laioson (1874), L. R., 18 Eq. 490; 43 L.J. Ch 67:; — R.C.
 
 ACCUMULATION. 519 
 
 No. 2. — Lord Southampton v. Marquis of Hertford. - Notes. 
 
 The principle is briefly stated by Vice-Chancellor Knight-Bruce, in 
 Broughton v. Jtxmes (1844), 1 Coll. 26, 45, as follows: "Before the 
 Accumulation Act, a, testamentary trust or direction to accumulate, so 
 worded as to last or be capable of lasting beyond the compass of all lives 
 in being ai the testator's death and twenty-one years after tin- death of 
 the survivor of those lives, would have been illegal and void for the 
 whole, and such a trust or direction i.s not less illegal or less void since 
 the Accumulation Act." 
 
 In Browne v. Houghton (1846), 14 Sim. 369; 15 L. J. Ch. 391, the 
 principle was again applied by Vice Chancellor ShADWELL to a case 
 where testator devised his estates in trust for A. for life, remainder to 
 his first and oilier sons in tail male, with remainders over; and directed 
 that if any person for the time being entitled to the possession of the 
 estates should lie under twenty-one, the trustees should receive the rents 
 and apply a competent part for maintenance, and accumulate the residue, 
 lie held the trust for accumulation was void for remoteness. 
 
 More recent applications of the principle will be found in the Irish 
 cases of Cochrane v. Cochrane (1883), 11 L. R. Ir. .">(J1 ; and Smith v. 
 Cunningham (1884), 13 L. R. Ir. 480. The Thellusson Act does not 
 apply to Ireland. But the same principles were applied, and most of 
 the above English cases cited in the judgments. 
 
 AMERICAN NOTES. 
 
 The doctrine of the principal case has but a limited application in this 
 country. It being against the policy of our democratic institutions to favour 
 the accumulation and perpetuity of estates in families or classes, many of the 
 States have enacted statutes shortening the period for which the power of alien- 
 ation may be suspended and within which the estate must vest. Tims, in New 
 York, Michigan, Minnesota, and Wisconsin the absolute power of alienation 
 may not be suspended by any means for a longer period than two lives in 
 being at the creation of the estate (with certain exceptions) ; in Connecticut 
 and Ohio no estate can be limited to any persons unless they are in being, or 
 to their immediate descendants; in Alabama, estates, other than those given 
 to wife and children, must vest within ten years after three existing lives in 
 being; in Indiana the limitation is to any number of specific lives existing at 
 the time of the creation of the estate; in Kentucky the limitation is to 
 twenty-one years and ten months after an existing life or lives in being, which 
 is substantially the common-law ride; in Mississippi, fees-tail are prohibited, 
 and estates may be limited in succession to two donees in being and the heirs 
 of the body of the remainder-man, and in default thereof to the heirs of the 
 body of the donee in fee. In Iowa and Maryland the limitation can be only 
 for lives in being and twenty-one years. In Arkansas and Vermont, perpetu- 
 ities are prohibited by the constitutions, and it is believed that the common- 
 law rule as to suspension prevails. In all the other States, except Louisiana.
 
 520 ACCUMULATION. 
 
 No. 2. — Lord Southampton v. Marquis of Hertford. — Notes. 
 
 where the civil law prevails, the common-law rules ar-e supposed to be in force. 
 
 The foregoing are rules in respect to real property. 
 
 As to accumulations, it is held that in the absence of statutory provision, 
 trusts for accumulation of rents and profits of land must be measured by the 
 rules against perpetuities, and if they exceed this limit, they are wholly void 
 and cannot be cut down to the legal limit. Perry on Trusts, § 393. 
 
 In Xew York, Michigan, Wisconsin, and Minnesota, the common-law rule 
 as to accumulations has been modified by statutes, substantially alike, and 
 accumulation is restricted to the minority of one or more existing persons ; 
 but in case of direction for a longer accumulation, the excess alone is void. In 
 Alabama, accumulation is limited to ten years or the minority of a child liv- 
 ing at the creation of the estate or at the death of the testator. In Pennsyl- 
 vania, the limitation is for the life of the grantor or testator, and twenty-one 
 years thereafter ; and if a longer limitation is attempted, only the excess is 
 void. " In the other States," says Mr. Perry (Trusts, § 398), " the commor.-aw 
 rules are supposed to prevail. The rule in regard to accumulation is analo- 
 gous to the rules in regard to the vesting of executory estates. At common 
 law the same rule prevails in both cases. In many of the States, the rules 
 regarding the vesting of such estates have been altered by statute. Whether 
 the modification of those rules by statute, without reference to the rule as to 
 accumulations, would also alter the rule as to accumulations in those Stales 
 does not seem to have been considered." 
 
 The invalidity of a direction for accumulation will not impair a bequest to 
 which it is attached, if it is separable therefrom. Phelps v. Pond, 23 New- 
 York, 69 ; Philadelphia v. Girard, 45 Penn. St. 1. But otherwise where the 
 bequest is to take effect after and out of the accumulation. Amor// v. Lord, 9 
 New York, 403. 
 
 ACT OF STATE. 
 
 (See notes under Action. No. 1 0.)
 
 SECT. I. — RIGHT OF ACTION COMMENSURATE WITH INJURY. 52] 
 
 No. 1. — Ashby v. White. — Rule. 
 
 ACTION (Right of). 
 
 Section- I. Arises (generally) from every Injury. 
 
 Section* II. For Cause affecting the Public. 
 
 Section III. Where adeemed <>r restricted by Statute. 
 
 Section IV. Arising out of Contract with Third Person. 
 
 Section V. Cases where no Right of Action. — Damnum absque injuria. 
 
 Section VI. When the Right survives. — Actio personalis moritur cum persona. 
 
 Section I. — Arises (generally) from every Injury, 
 
 No. L— ASHBY v. WHITE. 
 (h. l. from q. b. 1703.) 
 
 RULE. 
 
 A max who has a right to vote at an election for members 
 of Parliament may maintain an action (in the form of an 
 action on the case) against the returning officer for refus- 
 ing to admit his vote, although the persons for whom he 
 offered to vote were elected. 
 
 Ashby v. White. 
 
 Holt, p. 524 (s. c. Lord Raymond, 938 ; in House of Lords, 1 Rro P. C. 47 ; also 
 
 8 St. Tr. 89). 
 
 In an action upon the case against the constables of Ailesburv, 
 the plaintiff declared, that such a day the late King's writ issued 
 and was delivered to the sheriff of B. for election of members of 
 Parliament in his county; whereupon the said sheriff made out 
 his precept or warrant to the defendants, being constables of A., to 
 choose two burgesses for that borough, which precept was deliv- 
 ered to the said Constables; and that, in pursuance thereof, the 
 burgesses were truly assembled, &c., and the plaintiff being then 
 truly qualified to vote for the election of two burgesses, offered to
 
 522 ACTION (RIGHT OF). 
 
 No. 1. — Ashby v. White. 
 
 give his voice for Sir T. L. and S. M. Esq., to be burgesses of Par- 
 liament for the said borough ; but the defendants, knowing the pre- 
 mises, with malice, &c, obstructed him from voting, and refused 
 and would not receive his vote, nor allow it; and that two bur- 
 gesses were chose, without allowing or receiving his voice. A 
 verdict was found for the plaintiff; and upon motion in arrest of 
 judgment, three judges held, that this action would not lie, till the 
 Parliament had decided whether the plaintiff had a right to vote 
 as an elector. 
 
 Holt, C. J. The case is truly stated, and the only question is, 
 whether or not, if a burgess of a borough, that has an undoubted 
 right to give his vote for the choosing a burgess of Parliament for 
 that borough, is refused giving his vote, has any remedy in the 
 king's courts for this wrong against the wrong-doer ? All my 
 brothers agree that he has no remedy ; but I differ from them, for 
 I think the action well maintainable, that the plaintiff had a right 
 to vote, and that in consequence thereof the law gives him a 
 remedy, if he is obstructed; and this action is the proper remedy. 
 By the common law of England, every commoner hath a right 
 not to be subjected to laws made without their consent; and 
 because it cannot be given by every individual man in person, by 
 reason of number and confusion, therefore that power is lodged in 
 their representatives, elected by them for that purpose, who arc 
 either knights, citizens, or burgesses; and the grievance here is 
 that the party, not being allowed his vote, is not represented. The 
 election of knights of shires is by freeholders ; and a freeholder 
 has a right to vote by reason of his freehold ; and it is a real right, 
 and the value of his freehold was not material till the Statute of 
 8 Hen. Y II. c. 7, which requires it should be 40.s. a year, for 
 before that, every freeholder, though of never so small a value, 
 had a right to vote at these elections. In boroughs, some of 
 which are by prescription, they have a right of voting ratione 
 hurgagii and ratione tenurce ; and this, like the case of a free- 
 holder before mentioned, is a real right, annexed to the tenure in 
 burgage; and in cities and corporations it is a personal inheri- 
 tance, and vested in the whole corporation, hut to be used and 
 exercised by the particular members; and such a privilege cannot 
 lie granted but to a corporation. This is a noble franchise and 
 right, which entitles the subject in a share of the government and 
 legislature ; and here the plaintiff, having this right, it is apparent
 
 SECT. I. — COMMENSURATE WITH INJURY. 
 
 No. 1. — Ashby v. White. 
 
 that the officer did exclude him from the enjoyment of it, wherein 
 none will say he has done well, but wrong to the plaintiff; and it 
 is not at all material whether the candidate that he would have 
 voted for were chosen, or likely to be, for the plaintiffs right is tin- 
 same, and being hindered of that, he has injury done him, for 
 which he ought to have remedy. It is a vain thing to imagine 
 there should be right without a remedy; for want of right and 
 want of remedy are convertibles. If a statute gives a right, the 
 common law will give remedy to maintain it ; and wherever 
 there is injury, it imports a damage; and there can he no petition 
 in this case to the Parliament, nor can they judge of this injury, 
 or give damages to the plaintiff. Although this matter relates to 
 the Parliament, yet it is an injury precedaneous to the Parliament ; 
 and where parliamentary matters come before us, as incident to a 
 cause of action concerning the property of the subject, which' we 
 in duty must determine, though the incident matter be parlia- 
 mentary, we must not be deterred, but are bound by our oaths to 
 determine it. The law consists, not in particular instances, but in 
 the reason that rules them; and if where a man is injured in one 
 sort of right he has a good action, why shall he not have it in 
 another ? And though the House of Commons have right to 
 decide elections, yet they cannot judge of the charter originally. 
 but secondarily, in the determination of the election ; and, there- 
 fore, where an election does not come in debate, as it doth not in 
 this case, they have nothing to do, and we are to erect and vindi- 
 cate the queen's jurisdiction, and not to be frightened because it 
 may come in question in Parliament; and I know nothing to 
 hinder us from judging of matters depending on charter or pre- 
 scription. He concluded for the plaintiff. 
 
 Here, judgment being given for the defendant, contrary to the 
 opinion of the Chief Justice, on a writ of error afterwards brought 
 in the House of Lords, the judgment was reversed by a great 
 majority of the Lords, who concurred with Holt, C. J. 
 
 The case of Ashby v. White was the occasion of a memorable 
 conflict between the Court of King's Bench aiid the House of ( om- 
 inous, the latter having arrogated to itself the exclusive right of 
 dealing with all questions concerning elections of members of that 
 House. This conflict was ultimately ended by the dissolution of 
 Parliament, and it is unnecessary to pursue the subject further,
 
 )24 ACTION (RIGHT OF). 
 
 No. 1. — Ashby v. White. 
 
 except in so far as it gave the Lord Chief Justice (Holt) an op- 
 portunity to elaborate his arguments, upon which the House of 
 Lords founded their judgment. In the course of the conflict here 
 mentioned, the Lords, in vindication of their proceedings, appointed 
 a committee, to he assisted by the Lord Chief Justice of the King's 
 Bench and the Lord Chief Baron, to report on the whole state of 
 the case. The report of the committee is recorded in the Lords' 
 Journals, 27 Mar. 1704-5, p. 597, and the argument which it 
 contains in support of the judgment of the House is understood to 
 have been substantially the work of the Lord Chief Justice. The 
 argument will be found at length in Gale's edition of Lord Ray.-; 
 mond's Reports, pp. 597, et seq. 
 
 In order to explain and supplement the reasons of the judg- 
 ment of the Lord Chief Justice, as above extracted from his own 
 (Holt's) reports, it will be sufficient here to set forth the following 
 passages of this argument: — 
 
 The law in all cases of wrong and injury hath provided proper 
 and adequate remedies : — 
 
 1. When a man is injured in his person, by being beaten or 
 wounded, the law gives him an action of trespass, assault and 
 battery ; if by being imprisoned, an action of false imprisonment. 
 
 2. If his goods lie taken away, or trespass done to his house or 
 lands, an action of trespass lies to repair him in damages. 
 
 .'!. If a man hath a franchise, and is hindered in the enjoyment 
 thereof, the proper remedy is by an action on the case. 
 
 The plaintiff in this case hath a privilege and a franchise, and 
 the defendants have disturbed him in the enjoyment thereof, in the 
 most essential part, which is his right of voting. 
 
 4. Where any officer or minister of justice, intrusted with the 
 execution of the process of law, does an injury, an action of the 
 case lies against him. If the sheriff will not execute a writ, by 
 arresting the party defendant, or taking his goods, the plaintiff 
 shall have his action upon the case, because he refused to do his 
 duty, to the plaintiffs damage. 
 
 * * * * * * 
 
 The injured plaintiff in this case has no other remedy besides 
 this action : no indictment lies, because it is a personal wrong to 
 the party, and no wrong to the public ; but only in the conse- 
 quence of it, as an evil example, which tends to the encourage- 
 ment of other such officers to commit the like transgressions. Not
 
 SECT. I. — COMMENSURATE WITH INJURY. 52o 
 
 No. 1. — Ashby v. White. 
 
 is there any danger to an honest officer that means to do his duty ; 
 for where there is a real doubt touching the parties' right of voting, 
 and the officer makes use of the best means to be informed, and it 
 is plain his mistake arose from the difficulty of the case, and not 
 from any malicious or partial design, no jury would find an office] 
 guilty in such a case; nor can any court direct them to do it, for 
 it is the fraud and the malice that entitles the party to the action. 
 In this case the defendant knew the plaintiff to be a burgess, and 
 yet fraudulently and maliciously hindered him from his right of 
 voting; and justice must require that such an obstinate and un- 
 just ministerial officer should not escape with indemnity. 
 
 That the officer is only ministerial in this case, and not a judge. 
 nor acting in a judicial capacity, is most plain ; his business is only 
 to execute the precept, to assemble the electors, to make the elec- 
 tion by receiving their votes, computing their numbers, declaring 
 the election, and returning the persons elected. The sheriff, or 
 other officer of a borough, is put to no difficulty in this case, but 
 what is absolutely necessary in all cases. If an execution be 
 against a man's goods, the sheriff must, at his peril, take notice. 
 what goods a man has. 
 
 Another objection was made in respect of the novelty of the 
 action: it was said, "Never any such action was brought." 
 
 In answer to this objection, it may be said, that probably there 
 have not been many occasions given for bringing such suits. It is 
 to be hoped that very few have ever been so presumptuous as to 
 dare to make an obstinate and malicious refusal of an undisputed 
 vote. If the case has happened before, perhaps the party, out of 
 consideration that only small damages were to be expected, might 
 be discouraged, and think it better to acquiesce. And it is prob- 
 able the ill-designing officer would be at least so cautious as to 
 refuse the votes of such persons only as he thought, by reason of 
 the meanness of their circumstances, were unable to vindicate their 
 right. It is not every one that has such a true English spirit as 
 the plaintiff, who could not sit down meanly under a wrong done 
 to him in one of the most valuable privileges of an Englishman. 
 It is not the novelty of the action that can be urged against it, if 
 it can be supported by the old grounds and principles of the. law. 
 The ground of law is plain, certain, and indeed universal, that 
 where any man is injured in his righl by being either hindered in 
 or deprived of the enjoyment thereof, the law gives him an action 
 to repair himself.
 
 526 action (right of;. 
 
 No. 1. — Ashby v. White. — Notes. 
 
 The case of Hunt v. Bowman, which was, 16 Jac. 1 (A. I). 1618); 
 2 Cro. 478, of an action by the landlord against the tenant for 
 hindering him from searching his house to see whether it was in 
 repair, was never brought before that time ; and that of Turner v. 
 Hdrting was not brought till 23 Car. 2. 
 
 The law of England is not confined to particular precedents and 
 cases, but consists in the reason of them, which is much more 
 extensive than the circumstances of this or that case. Ratio legis 
 .est anima legis, et ubi eadern ratio ibi idem jus, are known maxims. 
 
 ENGLISH NOTES. 
 
 In liberty, life, and estate, every man who hath not forfeited them 
 hath a property and right which th6 law allows him to defend: and if 
 it be violated, it gives an action to redress the wrong, and to punish the 
 wrong-doer. Thomas \. Sowell (1667), Vaughan, 330, per Vaughan, 
 C. J., p. 337. 
 
 In Winsmore v. Greenbanh (1745), Willes, 577, in an action on the 
 case for enticing away the plaintiff's wife, whereby the plaintiff lost 
 the comfort and society of his wife and certain advantages from her 
 fortune, a verdict was given for the plaintiff for large damages; and on 
 motion for arrest of judgment, decision was in favour of the plaintiff. 
 The general objections to the declaration were disposed of by Willes, 
 < '. J., as follows : — '• The first general objection is that there is no pre- 
 cedent of any such general action as this, and that therefore it will not 
 lie; and the objection is founded on Lit. § 108, and Co. Lit. 81 b, and 
 several other books. But this general rule is not applicable to the pre- 
 sent case; it would be if there had been no special action on the case 
 before. A special action on the case was introduced for this reason, 
 that the law will never suffer an injury and a damage without a remedy; 
 but there must be new facts in every special action on the case: — 
 
 •> The second general objection is that there must lie damnum cam in- 
 juria, which I admit. I admit, likewise, the consequence that the fact 
 laid before per </>io<l consortium amisii is as much the gist of the action 
 as the other; for though it should be laid that the plaintiff lost the 
 comfort and assistance of his wife, yet if the fact that is laid by which 
 he lost it is a lawful act, no action can be maintained. By injuria is 
 meant a tortious act: it need not be wilful and malicious ; for, though 
 it be accidental, if it be tortious, an action will lie." 
 
 In Chapman v. Pickersgill (C. P. 17011), 2 Wijs. 145. an action was sus- 
 tained for falsely and maliciously suing out a commission of bankruptcy, 
 although the Chancellor had power to give £200 damages by statute.
 
 SECT.!. — COMMENSURATE WITH INJURY. 527 
 
 No. 1. — Ashby v. White. — Notes 
 
 The Lord Chief Justice (Pratt) said: "Wherever there is an injury 
 done to a man's property by a false and malicious prosecution, it is 
 most reasonable he should have an action to repair himself. . . . But, 
 If is said, this action was never brought; and so it was said in Ashby 
 v. White. I wish never to hear this objection again. This action is for 
 a tort: torts are infinitely various, not limited or confined, for there is 
 nothing in nature but may be an instrument of mischief; and this of 
 suing nut a commission of bankruptcy falsely and maliciously is of l In- 
 most injurious consequence in a trading country." 
 
 In Pasley v. Freeman (1789), 3 T. R. 51, 1 11. IT 634, the point 
 decided was that a false affirmation, made by the defendant, with intent 
 to defraud the plaintiff, whereby the plaintiff receives damage, is the 
 ground of an action upon the case in the nature of deceit; and that, 
 whether the defendant should he benefited by the deceit, or not. The 
 class of cases particularly relating to this ground of action will he more 
 properly considered under the topic of fraud. But it is appropriate here 
 to cite the observation of AsiiHrusx, J. (1 R. R. 047), referring to the 
 argument that there was no precedent of such an action. "Where 
 cases," he says, "are new in their principle, there I admit it is neces- 
 sary to have recourse to legislative interposition in order to remedy the 
 grievance; but where the case is only new in the instance, and the only 
 question is upon the application of a principle recognised in the law to 
 such new case, it will be just as competent to courts of justice to apply 
 the principle to any case which may arise two centuries hence as it was 
 two centuries ago; if it were not, we ought to blot out of our lawbooks 
 one fourth part of the cases that are to he found in them." 
 
 The keeper of a prison who receives and detains one apprehended and 
 charged in his custody under a warrant, must take the risk (although 
 he has no means of ascertaining the identity) of the warrant having 
 been executed against the right person, and is liable to an action of 
 trespass if, by a mistake of the officer to whom the warrant was directed, 
 it has been executed against the wrong person. Aaron v. Alexander 
 (Lord Ellenbobough, at Nisi Prius, 1811), o Camp. 35, 13 R. 11. 741'. 
 
 In an action on the case bj r the plaintiff, who had been damaged by the 
 bursting of a gun sold by the defendant to the plaintiffs father for //<>• 
 use of himself and Jus sons, the defendant having warranted the gun as 
 safe and made by a certain maker, whereas lie knew that it was unsafe am! 
 by an inferior maker. — the Court, after verdict for the plaintiff, held 
 that the action was maintainable, not upon the contract of warranty, 
 which was made with a third person, hut on the ground that the de- 
 fendant, having sold the gun for the purpose of being used by the plain- 
 tiff, and having intended the plaintiff to use it (as he did) upon the 
 representation, which the defendant made knowing it to he untrue, that
 
 528 ACTION (RIGHT OF). 
 
 No. 1. — Ashby v. White. - - Notes. 
 
 the gun was safe, had been guilty of an intentional injury. Lang- 
 rkhje v. Levy (1837), 2 M. & W. 519, 6 L. J. Exch. 317. 
 
 Where, by statute, a duty is expressly imposed upon one person for the 
 benefit of another class of persons, an action lies for breach of the stat- 
 utory duty, at the suit of a member of the latter class who has suffered 
 damage from the breach; and this, although the Act imposes a penalty, 
 recoverable by a common informer, as a specific punishment for the 
 breach of the duty as to the public. Couch v. Steel (1854), 3 El. & 
 Bl. 402, 23 L. J. Q. B. 121. The duty in question was the duty under 
 the Act of that time relating to merchant seamen (7 & 8 Vict. c. 112). 
 by the 38th section of which it is enacted that cwvy ship on a foreign 
 vo} - age shall be supplied with certain medicines; and the action was 
 brought against the shipowner by a seaman, alleging (by the second 
 count of his declaration) a breach of this duty by the defendant and 
 consequent loss of health to the plaintiff. The case was argued on de- 
 murrer; and Lord Campbell's judgment is instructive upon the general 
 principle of liability. "The enactment," he says (3 El. & Bl. p. 411 |, 
 "provides a benefit for the seamen; and thereby the plaintiff, being n 
 seaman on board, was deprived of that benefit and his health was in- 
 jured. The general rule is, that 'where, a man has a temporal loss or 
 damage by the wrong of another, he may have an action upon the case, 
 to be repaired in damages.' Com. Dig. Action upon the Case (A). 
 The Statute of AVestm. 2 (13 Ed. 1. Stat. 1, c. 50) gives a remedy by 
 action on the case to all who are aggrieved by the neglect of any duty 
 created by statute. See 2nd Inst . 486. And in Com. Dig. Action upon 
 Statute (F) it is laid down that, ' in every ease where a statute enacts, 
 or prohibits a thing for the benefit of a person, he shall have a remedy 
 upon the same statute for the thing enacted for his advantage, or for the 
 reeompenee of a wrong done to him contrary to the said law. 1 There- 
 fore the simple enactment requiring the supply of medicines would 
 have entitled the plaintiff to an action, in the same manner as if the 
 obligation had been imposed by the common law, or had been expressly 
 included in the ship's articles." The learned Judge then considers the 
 question raised by the circumstance that a penalty is imposed, by the 
 same section, upon the owner of the ship for not keeping a supply of 
 medicines, and comes to the conclusion that, as this penalty is recover- 
 able at the suit of the common informer for the benefit of himself and a 
 seamen's hospital, and not for the benefit of the individual injured by 
 the breach of duty, this clause does not take away the plaintiff's com- 
 mon-law right to maintain an action on the case for the special damage 
 sustained by him through the breach of the public duty created by the 
 statute. 
 
 Whether the principle thus laid down by Lord Campbell in Couch
 
 SECT. I. — COMMENSURATE WITH INJURY. 529 
 
 No. 1. — Ashby v. White. — Notes. 
 
 v. Steel is not too wide lias been questioned by theCourt of A.ppeal in 
 Atkinson v. Newcastle, &c. Waterworks Co. (1877), 2 Ex. 1). 441 ; 46 L. 
 J. Exch. 77.">. And the Court of Appeal refused to apply it so as to give 
 a right of action to a plaintiff who claimed compensation on the burn- 
 ing down of his promises in consequence (as he alleged) of the Water 
 Company failing in their statutory duty to maintain lire plugs with 
 pipes charged under a certain pressure. The real criterion, doubtless, 
 is whether the primary intention of the statute is the benefit of the indi- 
 vidual <>r the protection of the public. 
 
 In an action brought for a false and malicious publication, consisting 
 of an untrue statement intentionally published in a newspaper about 
 the plaintiff's business, tending in its natural consequence to produce, 
 and actually producing, loss of business to the plaintiff, — the acl done 
 with the intention to injure, and damage resulting, is the gist of the 
 action; and, although the statement is not per se actionable as a libel, 
 and no special damage in the sense of loss of particular customers is 
 proved, evidence of a general loss of business is admissible, and suffi- 
 cient to support the action. Ratcliffe v. Era us (C. A. from Q, B. 1 >. 
 1892) [1892], 2 Q. B. T>24; 01 L. J.Q. B. 535. 
 
 The ease of Ashby v. White has been set forth as the ruling case on 
 the general principle ubi jus i/>i rernedium, and the cases already noted 
 have been selected for their application to the general principles, apart 
 fr .tm the special subject-matter of the ruling case. The following notes 
 relate to the special subject of actions against returning officers. il is 
 to he observed that, in the declaration in Ashby v. White, malice — that 
 is to say, the intention to deprive the plaintiff of the franchise to which 
 the defendant knew he was entitled — was clearly laid as entering into 
 the gist of the action ; but this point is ignored in the original judg- 
 ment of HolT, C. J., both as reported by himself and in the longer 
 report of Lord 1v.vvmo\i>. The more considered argument, however, 
 as prepared for the committee of the House of Lords, sufficiently shows 
 that this point was not lost sight of in the reasons as there finally 
 settled. 
 
 In a later case of Oullen v. Morris (1819), 2 Stark. .">77, where 
 an action was brought against the high-bailiff of Westminster for 
 refusing the plaintiff's vote at a contested election, it was clearly 
 laid down by Abbott, C. J., that an action is not maintainable for 
 merely refusing the vote of a person who appears afterwards to have 
 really had a right to vote, unless it also appears that the refusal re- 
 sulted from a malicious and improper motive; and that, if the defendant 
 has acted honestly and uprightly according to the best of his judgment, 
 he is not answerable in an action of damages. The learned Judge fur- 
 ther obsei-ved that the returning officer is to a certain degree a minis- 
 vol. i. — 34
 
 530 ACTION (RIGHT OF). 
 
 No. 1. — Ashby v. White. — Notes. 
 
 terial one, but he is not so to all intents and purposes; neither is he 
 wholly a judicial officer: his duties are neither entirely ministerial nor 
 wholly judicial, they are of a mixed nature. He also pointed out that 
 in the case of Ashby v. White the record was, after verdict, conclusive 
 upon the question of malice. 
 
 In Tozer v. Child (1857), 7 El. & 15. 377 ; 26 L. J. Q. B. 142, — an 
 action against a churchwarden presiding at an election of vestrymen 
 who refused the plaintiff's vote, — there was a decision of the Ex- 
 chequer Chamber, affirming a judgment of the Queen's Bench, in favour 
 of the defendant. The ruling of Abbott, C. J., in Callen v. Morris, 
 was cited at length and approved. 
 
 In England the position of returning officers has been much altered 
 by statutory enactments which throw upon them definite ministerial 
 duties. Thus, by G & 7 Vict. c. 18, § 81, the returning officer is pre- 
 cluded from any inquiry at the time of election except as to the 
 identity of the voter with the person on the register, and whether he 
 has already voted; and, by § 82, is prohibited from rejecting any vote 
 tendered by a person whose name is on the register, except by reason of 
 its appearing on putting the above questions that he is not the person 
 whose name is on the register, or that he has already voted. And by the 
 Ballot Act, 1872 (35 & 36 Vict. c. 33, §§ 8, 28, and first schedule) fur- 
 ther enactments and rules are laid down for the guidance of these officers. 
 In a case depending on the former of these Acts, the plaintiff, after 
 succeeding in having a demurrer overruled, ultimately failed, by reason 
 that he was not entitled to lie on the register, or to vote ; so that, although 
 the returning officer might be liable to a criminal prosecution for neglect 
 of a public duty under the 82nd section, the rejection of the vote was 
 not an infringement of any right of the plaintiff. Pryce v. Belcher 
 (1846, 1847). 3 C. B. 38; 4 C. B. 806; 16 L. J. C. I*. 264. 
 
 The judgment of the Common Pleas in Pickering v. James (1873). 
 L. R., 8 C. P. 481); 4L' L. J. 0. P. 217, is an express decision that 
 where the duty is purely ministerial, as the Court thought the duties 
 under the latter statute to be, an action will lie at the instance of a 
 party aggrieved by a breach of it without any allegation of malice. As 
 authorities for this decision were cited Schinotti v. Bumsted .(17 ( .M*>), 
 6 T. P. 646, where an action was held maintainable against the. com- 
 missioners under the Lottery Act (33 Geo. 2 c. 62), for not awarding a 
 prize to the holder of the ticket entitled to receive it. 
 
 There is no right in a person desirous of petitioning the House of 
 Commons to compel any particular member of the House to present his' 
 petition; and no action will lie against a member of the House refus- 
 ing to present such petition. Chaffers v. Goldsmid (1893;, 1894, 1 Q. 
 B. 186.
 
 SECT. I. — COMMENSURATE WITH [NJURY. 531 
 
 No. 1. — Ashby v. White. — Notes. 
 
 AMERICAN NOTES. 
 
 The doctrine of the principal case is apparently sustained by the weighl of 
 authority in this country. 
 
 It was early held, in Massachusei ts, that a seleci man w ho denies to a ci1 izen 
 his right of voting is answerable in an action of damages. Capen v. Foster, 
 12 Pickering (Mass.), 485; 23 Am. Dec. 632; Lamed v. Wheeler, 111) Massa- 
 chusetts, 390; 54 Am. Rep. 483. 
 
 But it has been held generally that election officers are not liable for an 
 honest mistake in the exercise of a lawful judgment, and fraud or malice or 
 •corruption on their part is essential to the maintenance of the action. Jenkins 
 v. Waldron, 11 Johnson (Xew York), 114 ; (i Am. Dec. 359, citing the princi- 
 pal case, Harman v. Tappenden, 1 East, 555; and followed in Goetcheus v. .!/<//- 
 thewson, 58 Barbour, 152; Patterson v. D'Auterive, 6 Louisiana Annual. 467; 
 -51 Am. Dec. 564; Morgan v. Dudley, 18 13. Monroe (Kentucky). 693 ; 68 Am. 
 Dec. 735; Bevard v. Hoffman, 18 Maryland, 47!) ; 81 Am. Dec. 618, citing and 
 •disapproving the principal case from 2 Lord Raymond, and also Lincoln v. 
 Hapgood, 11 Massachusetts, 350, observing: "When the act in question is 
 that of a judicial officer, all that the law can secure is a guaranty that they 
 shall not with impunity do wrong willfully, fraudulently, or corruptly ; . . . 
 for an error of judgment they are not liable." To the same effect, Raynsford 
 v. Phelps, 43 Michigan, 342; Chrisman v. Bruce, 1 Duvall (Kentucky). 63; 85 
 Am. Dec. 603, quoting Lord Holt's remarks on the value of the right to vote, 
 from the principal case in 2 Lord Raymond; Curler v. Harrison, 5 Blackford 
 (Indiana), 138; Pike v. Megoun, 41 Missouri, 491 ; Weckerly v. Geyer, 11 Ser- 
 geant & Rawle (Penn.). 3!i ; Pail. v. Potts, 8 Humphrey (Tennessee), 225. 
 
 M\ Throop, the latest writer on this subject (Public Officers, § 7LS). says : 
 ■" But in the absence of any statutory restriction upon the right of action, the 
 better opinion appears to be, although the cases are not harmonious, that 
 inspectors of election, selectmen, judges of election, or other officers control- 
 ling the reception or rejection of the votes, are liable to an action by a qualified 
 voter for rejecting his vote, if he has taken the prescribed oath and answered 
 such questions as the statute allows them to put to him, and otherwise complied 
 with the statutory regulations as to registry, etc.; and this, not only without 
 any allegation or proof of malice, but even where they affirmatively show that 
 they acted honestly and in good faith." As where they honestly refused the 
 vote on the ground that the plaintiff was coloured, whereas the evidence showed 
 that he was not ; Anderson v. Millikin, Ohio State. 568. And so on the mis- 
 taken ground that he was a deserter. Goetcheus v. Mattheioson, til Xew York. 
 20, reversing 58 Barbour, 152. Mr. Throop cites the principal case, and. to 
 the same effect, Spragins v. Houghton, 3 Illinois. 377; Dernier v. Russell, 
 81) id. fit); Gillespie v. Palmer, 20 Wisconsin, 544; Murphy v. Ramsey, 111 
 U.S. 1.1. 
 
 The doctrine of the principal case in the lower court, was not accepted in 
 Maryland. In Anderson v. Baker, 23 Maryland, 621, the Chief Justice ob- 
 served : " Ashby v. White and Lincoln v. Hapgood. 11 Massachusetts, wen;
 
 ACTION (RIGHT (»F). 
 
 No. 1. — Ashby v. White. — Notes. 
 
 reviewed and overruled in Bevard v. Hoffman, 18 Md. Rep. 483. In that case 
 this court said : ' The decisions in those cases assert the principle that a party 
 who. like the plaintiffs, has been deprived of a right, is thereby injured, and 
 must have his remedy. It seems to us that the error of the application of that 
 principle to this case consists in misapprehension of what is the right of a 
 citizen under our election laws. In one sense if he is a legal voter, he has 
 the right to vote, and is injured if deprived of it ; hut the law has appointed a 
 means whereby his right to vote is decided, and for that purpose has provided 
 judges to determine that question, and has also provided the most careful 
 guarantees for a proper discharge of duty by the judges, by the mode of their 
 selection and their oaths of office. . . . When the act in question is that < f a 
 judicial officer, all that the law can secure is a guarantee that they shall not 
 with impunity do wrong willfully, fraudulently, or corruptly. If they do so 
 act, they are liable both civilly and criminally; but for an error of judgment 
 they are not liable either civilly or criminally.' " ' 
 
 In Spragins v. Houghton, supra, it was held that where the citizen takes the 
 statutory oath, the election judges are bound to receive the vote: "They 
 have no discretionary power, for the law is imperative," etc. This however 
 was an action for a penalty for wrongfully receiving the vote of an unnatural- 
 ised foreigner. 
 
 In Bernier v. Russell, supra, the rejection was on the ground that the plain- 
 tiff was a negro, whereas that was not a ground of rejection under the statute. 
 
 In Jeffries v. Ankeny, 11 Ohio. 373, the rejection was on the ground that the 
 plaintiff was a "coloured man," whereas he was three quarters white and one 
 quarter Indian. The court relied on the early Massachusetts cases and (mis- 
 takenly) on Lord Holt's views in 2 Lord Raymond, and was grounded on 
 the fact that there was " no other remedy." -One judge dissented. In Stewart 
 v. Southard. 17 Ohio. 403, an action for wrongfully admitting coloured children 
 into a public school, the court held that "an officer acting the scope of his- 
 duty is only responsible for an injury resulting from a corrupt motive," and 
 distinguished the Jeffries case on the same ground of necessity. 
 
 In Murphy v. Ramsey, supra, the court said : " If they," the election officers. 
 " have not the right to exact an oath different from that the form of which is 
 given in the territorial act. they must otherwise satisfy themselves that per- 
 sons offering to register are free from the disqualifications denned in the act of 
 Congress. In doing so they are of course required to exercise diligence and 
 good faith in their inquiries, and are responsible in damages for rejections 
 made without reasonable cause." 
 
 The question is very learnedly examined in Goetcheus v. Matthewson, supra, 
 two judges giving opinions, in which the principal case is cited. In that case 
 the vote was rejected because the plaintiff had refused to answer a question 
 not permitted by the statute to be put to him, and " in this," say the court. 
 " they acted without authority and beyond their jurisdiction ; and their rejec- 
 tion of his vote made them liable to him for the damage resulting to him 
 therefrom." " They are liable if they knowingly put a question which they 
 have no right to ask. There is, in the circumstances of the present case, suf- 
 ficient evidence of willful wrong-doing to have been submitted to a jury."
 
 SECT. I. — COMMENSURATE WITH INJURY, 
 
 No. 2. — Scott v. Lord Seymour. Rule. 
 
 The court also said: "We willingly adopt, in all such cases of abuse, the mas- 
 t-uline expressions of Lord Holt, in the celebrated case of Ashby v. White, 
 already referred to," etc. They distinguished Jenkins v. Waldron, supra, on 
 the ground that the determination there was judicial, the plaintiff being a 
 
 black, who had no right to vote except on presenting a certificate of IV loin, 
 
 and the defendant had judicially determined that the person certifying was 
 not, the officer whom he assumed to be, —"a point in the law of evidence on 
 which they might fairly be held to act judicially." The court disapprove of 
 contrary dicta in People v. Pease, 27 New York, 65, and Weaver \. Decendorf, 
 ■1 Qenio, 117. 
 
 Judge Cooley sums up the question thus (Constitutional I. imitations, 
 p. (517): "When the law invests the inspectors with power to pass upon the 
 ■qualifications of the electors, they exercise judicial functions in sodoing, and 
 are entitled to the sane protection as other judicial officers, and cannot be 
 made liable except upon proof of express malice. When on the other hand 
 their duties are only ministerial, they have no discretion hut to obey the law 
 and receive the vote." 
 
 The leading case is elaborately annotated by Hare and Wallace in their 
 edition of Smith's Leading Cases, vol. I., p. -122. 
 
 No. 2. — SCOTT v. LORD SEYMOUR. 
 (exch. and exch. oh. 1862.) 
 
 RULE. 
 
 A British subject may maintain in an English court of 
 law an action against another British subject for assault 
 committed in a foreign country, although proceedings are 
 alleged to be pending in that foreign country in respect of 
 the same. 
 
 Scott v. Lord Seymour. 
 
 32 L.J. Ex. 61 : s. c. 1 II. &. ( '. -_>19. 
 
 The declaration alleged that the defendant assaulted and im- 
 prisoned the plaintiff. The defendant pleaded, in effect, as 
 follows : — 
 
 lost, except as to the imprisonment, — that tin 1 trespasses 
 were committed at Naples, nut of the jurisdiction of this court; and 
 that before the commencement of this suit, and whilst the plaintiff 
 and the defendant were resident tit Naples, proceedings were taken, 
 it the instance of the plaintiff, before the correctional judge there.
 
 534 ACTION (KIGHT OF). 
 
 No. 2. Scott v. Lord Seymour. 
 
 according to the articles of the penal procedure laws of that 
 country for the said trespasses; and that according to the laws 
 of the said country and place the defendant was not at the time 
 of the commencement of this suit, nor at the time when the ties- 
 passes were committed, nor at any time thereafter, liable to he 
 sued by the plaintiff in any civil action or other proceedings t<» 
 recover damages for the alleged trespasses to which this plea is 
 pleaded, except those taken and instituted as aforesaid under the 
 laws aforesaid, and which are still pending and undetermined in 
 the said court at Naples. 
 
 Secondly, except as to the imprisonment of the plaintiff, — that 
 the trespasses were committed at Naples, &c. ; that penal proceed- 
 ings had been taken there, and that, by the laws of Naples, the 
 plaintiff could not recover damages in a civil action or other pro- 
 ceeding in respect of the trespasses until the defendant had been 
 condemned and found guilty of those trespasses, or some part 
 thereof, in the said penal proceedings, and which said penal pro- 
 ceedings before and at the time of the commencement of this 
 suit were and still are pending and undetermined ; and the 
 said defendant has not been condemned or found guilty of the 
 offences and trespasses, or any part thereof, charged by such penal 
 proceedings. 
 
 Thirdly, as to the imprisonment, to an effect similar to the 
 second plea. 
 
 The plaintiff demurred to these pleas; and also replied severally 
 to the pleas, that the plaintiff and the defendant were and still are 
 liege subjects of our Sovereign Lady, the Queen Victoria, and sub- 
 jects of Great Britain : and to this replication the defendant 
 demurred. 
 
 After argument, the Court took time for consideration; and, on 
 a subsequent day, 
 
 Pollock. ( '. P., delivered the judgment of the Court. It is 
 concluded by authority that the circumstance of the assault 
 and battery having been committed in a foreign country is, 
 in itself, no impediment to an action being maintained for it 
 here. Then, what is the meaning of the first plea ? The de- 
 fendant argued that it means, Proceedings to punish him. the 
 defendant, had been taken in Naples, and that except those 
 proceedings none can there be taken, and that, therefore, none can 
 here be taken to recover damages. Put we think it means that
 
 SECT. I. — COMMENSURATE WITH INJURY. 535 
 
 No. 2. — Scott v. Lord Seymour. 
 
 proeeedings have been taken in the Neapolitan court, and that 
 except those proceedings none can there be taken. It' so, it durs 
 not negative that those are proceedings in which a compensation 
 
 fur damages can lie recovered. We hold this to he the natural 
 meaning of the words of the plea, and we are confirmed in thai 
 opinion by this : that the argument of the defendant makes the 
 substance of the plea to be, that no civil action for the wrong 
 complained of is maintainable in Naples, and that in respect of it 
 no damages or compensation can be there recovered. If so, it 
 would be easy to say so in so many words; and applying the rule 
 to a reasonable extent, that pleadings are to be taken most against, 
 the pleader, we put the construction we have done on this plea. 
 Then it comes to this: that this is a wrong for which an action 
 would lie here, and for which (as it is not negatived) we must 
 assume an action will lie in Naples, but in respect of which pro- 
 ceedings are pending at Naples, at the plaintiff's instance. This. 
 however, is no defence. It cannot be a defence in bar of the 
 action. It would be no answer, even in abatement of the writ, 
 that an action was pending here in an inferior court; and how, 
 in law or reason, can it be an answer, that it is pending in a 
 foreign court, when the action is in no sense local? The case 
 of Cox v. Mitchell, 7 Com. B. N. S. 55 ; 29 L. J. C. P. 33, is an 
 authority to show that an action pending abroad for a wrong is 
 no ground for staying proceedings in an action here. The first 
 plea, therefore, is bad. 
 
 The other two pleas demurred to allege, in effect, this: that by 
 the law of Naples, until the defendant has been criminally con- 
 demned for the matters complained of, no action can be maintained 
 against him for damages, and that he has not been so condemned. 
 These pleas assume, therefore, that the acts complained of are the 
 subject of civil proceedings in Naples to recover damages, but 
 that, as a preliminary, there must be a penal proceeding and con- 
 viction. We. think this furnishes no defence. It is a matter of 
 procedure which has to be governed by the lex fori The plain- 
 tiffs cause of action is the assault and battery. Our statute of 
 limitations would run from its occurrence, and it would be strange 
 that, if the criminal proceedings in Naples lasted for six years, the 
 plaintiff lost his remedy here. Besides, if the defendant with- 
 draws from the jurisdiction of the Neapolitan tribunals, we must 
 assume he prevents the very proceeding which is, by their law.
 
 530 ACTION (RIGHT OF). 
 
 No. 2. — Scott v. Lord Seymour. 
 
 necessary to perfect the plaintiff's power to sue, and lie does nol 
 substitute another mode of proceeding criminally here. He would, 
 therefore, by his own act, deprive the plaintiff of a remedy for the 
 wrong he had done. Besides, the reason of the thing ceases 
 before our tribunals. For certain police and municipal purposes 
 the foreign law says, that when the act complained of is of a 
 criminal character, criminal proceedings shall he taken lief ore 
 civil; but that neither is nor can he a consideration with us. 
 Suppose a man here stole a chattel and went to Xew York, would 
 it he reasonable that the tribunals there should refuse to entertain 
 a suit by the owner of the article against the thief till there had 
 been a prosecution here? Before the extradition treaties such an 
 objection would be obviously preposterous, and is not really less 
 so now. But this is the defence raised by the second and third 
 pleas demurred to, and for the reasons we have given we think 
 they are bad. 
 
 Judgment was accordingly given for the plaintiff; and on this 
 judgment error was brought in the Exchequer Court. 
 
 Archibald (C. Pollock with him) (Dec. 1, 1862) for the plaintiff 
 in error, the defendant below, repeated the arguments used in the 
 Court below, but relied chiefly upon the point that the first plea 
 alleged that there was no civil remedy by the law of Naples for 
 such trespasses as those set forth in the declaration ; and he argued 
 that if such was the law of the place where the trespasses were 
 committed, no action would lie in England in respect of them. He 
 cited Mostyn v. Fabrigas, Cowp. 161. The Queen v. Lesley, 29 Law 
 J. Rep. (x. s.) M. C. 97. Dobree v. Napier, 2 Bing. N. C. 781 ; s. c. 5 
 Law J. Rep. (n. s.) C. P. 273. Buron v. Denman, 2 Excli. Rep. 167. 
 Ekins v. The East India Company, 1 P. Wms. 395. Santos v. 
 midge, 8 Com. B. Pep. (x. s.)861 ; s. c. 29 Law J. Rep. (x. s.) C. P. 
 348, and Cammell v. Sewell, 5 Hurl. & N. 728; s. c. 29 Law J. Rep. 
 (x. s.) Exch. 350. 
 
 Honyman (Jenkins with him) for the defendant in error, the 
 plaintiff below, was not called upon. Cur. adv. vidt. 
 
 WlGHTMAN, J. (Dec. 2.) We are all of opinion that the second 
 and third pleas in this case are bad, and afford no answer to the 
 action. They admit the right to compensation for damages for 
 such trespasses as those mentioned in the declaration, but they
 
 SECT. 1. — COMMENSURATE WITH INJURY. 531 
 
 No. 2. — Scott v. Lord Seymour. 
 
 state that by the Neapolitan law damages cannot be recovered 
 except by a certain course of proceedings which have been com- 
 menced there but are not concluded. This is an objection to 
 procedure merely, which must be determined by the lex fori, and 
 not by the lex loci; and the pleas, indeed, in effect seem to set 
 forth nothing more than procedure in a foreign country; they are, 
 therefore, clearly not sustainable. The main argument for the 
 plaintiff in error, however, was founded on the first plea, which, 
 as Mr. Archibald contended, asserted ,that by the law of Naples 
 no damages were recoverable in respect of the alleged trespasses 
 mentioned in the declaration. My learned brethren are of opin- 
 ion that the plea does not contain any averment that damages 
 might not lie recovered by the law of Naples for the alleged 
 trespasses in some form of proceeding or other, and that it may 
 he taken as against the defendant in the action that the pleas 
 admit that they might be recovered ; and that, if that be so, the 
 question is one of procedure merely and governed by the lex fori, 
 and that there is nothing to oust the jurisdiction of an English 
 court to entertain an action to recover damages in such a case. 
 I agree with the rest of the Court, if the construction of the first 
 plea is that which they suggest. But, speaking only for myself, 
 I go further, and I am of opinion, if Mr. Archibald's construction 
 of the plea be correct, and by the law of Naples, as stated in the 
 first plea, no damages are recoverable in any form of procedure 
 there, that an action nevertheless is maintainable in England by 
 one British subject against another for the trespasses mentioned 
 in the declaration. The construction and validity of a contract 
 may, as a general rule, depend on the lex loci where the contrad 
 was made; but the rules relating to contracts are not applicable 
 to the present case. And since the case of Mostyn v. Fabrigas, 
 supra, I am not aware of any rule of law that would disable ;i 
 British subject from maintaining an action in this country, or from 
 obtaining damages against another British subject for assault and 
 battery committed by him in a foreign country, merely because 
 no damages for such trespass were recoverable by the law of that 
 foreign country, and without any allegation that such trespass was 
 lawful or justifiable in that country. By the law of England, an 
 action to recover damages for assault and battery is maintainable ; 
 and whatever may be the case as between two Neapolitan subjects 
 or between a Neapolitan and an Englishman, I find no authority
 
 538 ACTION (RIGHT OF). 
 
 No. 2. — Scott v. Lord Seymour. 
 
 for holding, even if the Neapolitan law gives no remedy for assault 
 and battery, however violent and unprovoked, for recovery of 
 damages, that therefore a British subject is deprived of his right. 
 I think the first plea is had, either on this ground, or on thai 
 suggested by the rest of the Court, and that the judgment there- 
 fore should be affirmed. 
 
 AVilliams, J. I am entirely of the same opinion as to the 
 former part of my Brother Wightman's judgment; and as to the 
 latter part, it is quite unnecessary to express any opinion ; but I 
 am desirous of saying that, as at present advised, I am not pie- 
 pared to assent to it. 
 
 Cromptox, J. I think it is not necessary at all to decide the 
 latter and more important question in this < ase, as to whether the 
 rule of law be as my Brother AVightman has propounded it. I 
 think it a matter of very great difficulty and doubt, and I do in it 
 wish to express any opinion upon that, because I think the case 
 may lie properly decided on the other ground. Looking at the 
 pleas, I take the view which the majority of the Court take, that 
 they do not sufficiently aver that no compensation was recoverable 
 by the law of Naples for these trespasses. We can hardly suppose 
 that there could be any such barbarous law, and I believe that 
 there is not any such law. It is very lamentable that by the loose 
 mode of pleading that has been so much adopted in the present 
 day, a party can plead in such a way that he can almost say his 
 pleas mean either one thing or another. Looking, however, merely 
 at this first plea, I think it does not show that no compensation 
 is to be recoverable. It avers that before a particular magistrate 
 at Naples a suit was commenced, the magistrate " having juris- 
 diction in that behalf for the said trespass in the declaration 
 mentioned." One would suppose from that, that it meant he had 
 jurisdiction over the whole matter. Then it goes on to say, that 
 the defendant is not liable to be sued by the plaintiff "in any 
 civil action or other proceeding to recover damages for the alleged 
 trespasses." Now, whether this allegation means that the defen- 
 dant was not liable to be sued in any civil action or other civil 
 proceeding may be doubtful. If it means civil action or proceeding 
 in contradistinction to the original criminal proceeding, that would 
 lie no answer, because it would admit that the plaintiff might 
 recover the damages before the magistrate under the penal pro- 
 cedure laws. Then it goes on to say: "Nor liable to any other
 
 SECT. I. — COMMENSURATE WITH INJURY. 539 
 
 No. 2. — Scott v. Lord Seymour. 
 
 proceedings to recover damages for the alleged trespass to which 
 
 this plea is pleaded, except those taken and instituted as afore- 
 said under the laws aforesaid." Construing the allegation fairly, and 
 not supposing that there would be any such barbarous law, thai 
 a man however assaulted is not to recover any compensation, 1 
 think we must assume that the plea means that except in the 
 course resorted to there is no means to get any compensation, 
 which is admitting that it may he got in that form. On this con- 
 struction it becomes a question of procedure, and on that ground 
 I agree that the judgment should be affirmed. 
 
 YVilles, J. I entirely concur with the opinion of the other 
 members of the Court as stated by my Brother Wightman in his 
 judgment. With respect to what our decision ought to hi', if the 
 construction of the plea were not that which my Brother Wight- 
 man put shortly, I need not express any opinion. 1 am very far 
 from saying that I differ from anything that my Brother Wight- 
 man has said in that part of his judgment. Certainly. 1 entirely 
 concur in the judgment of the Court as expressed by him. constru- 
 ing the plea, as I construe it, to he a plea which docs not state 
 that there is any positive law at Naples against the recovery of 
 damages for an assault. 
 
 Blackbuisn, J. I also agree in the judgment for the plaintiff. 
 Construing the first plea as I do, it amounts merely to this: that 
 by the law of Naples the royal Judge of the Court of tin; Circuit 
 -of Chiaja, in Naples, had exclusive jurisdiction over all suits for 
 personal trespass, whether criminal or civil, and that a suit was 
 still pending in his couxC Construing it as amounting to that, 
 and 1 think it amounts to no more, I think it is merely procedure, 
 and that the plea does not show that the substance of the cause 
 of action was by the foreign law no cause of action at all. Taking 
 that plea in that light, I think that it is had. As to the rest of 
 the matter, supposing the plea had said that no damages were 
 recoverable by the Neapolitan law, that would raise a question on 
 which my mind is far from made up at present. I doubt very 
 much whether it would be a good bar. I am not sure it might 
 not he : but I say nothing further about it. But supposing it were a 
 good bar, I cannot think that the fact of the parties being British 
 subjects made any difference at all. As at present advised, 1 think 
 that when two Britons go into a foreign country, they owe local 
 allegiance to the law of the country, and are just as much governed
 
 540 ACTION (right of). 
 
 No. 2. — Scott v. Lord Seymour. — Notes. 
 
 by that law a.s foreigners. That point is not at present raised, ane? 
 I think it is not necessary to say anything' more than, as at pres- 
 ent advised, I think the judgment should he affirmed. 
 
 Judgment affirmed. 
 
 ENGLISH NOTES. 
 
 Upon the main point, that a British subject may maintain an action 
 in a .Superior Court of law in England against another British subject, 
 for assault committed in a foreign country, the leading case usually 
 cited is Mostyn v. Fabrif/as, K. B. 1775, 1 Sm. L. Cas. ; Cowper 161. 
 The action was one of trespass and false imprisonment, committed by 
 the defendant on the plaintiff in the island of Minorca. There was ;t 
 plea, 1st, of not guilty; and I'ndly, a justification on the ground that 
 the defendant was governor of the island, and, in order to preserve the 
 peace and government of the island, had laid hands on the plaintiff, who 
 was raising a disturbance there, and after detaining him for a few days 
 deported him from the island. The replication denied these causes of 
 the defendant's doings. There was a verdict for the plaintiff upon 
 both issues. It appeared on the evidence that the district of the island 
 within which the question arose was under the immediate order of the 
 governor, and that the judges who exercise authority in the rest of the 
 island cannot act, nor can process be executed, in this district but by 
 the governor's leave. It also appeared on the evidence that the gover- 
 nor had caused the plaintiff to be seized, imprisoned, and banished 
 without any probable cause. The case having been brought before the 
 King's Bench mi a Bill of Exceptions, the judgment was delivered by 
 Lord Mansfield. After disposing of an objection that the plaintiff 
 was a native of Minorca by saying that there never " could exist a 
 doubt but that a subject born in Minorca had as good a right to appeal 
 to the King's Courts of Justice as one who is born within the sound of 
 Bow Bells," he said: "The two other grounds (of objection) are. 1st. 
 That the defendant, being governor of Minorca, was answerable for no 
 injury whatsoever done by him in that capacity; 2ndly, That the injury 
 being done at Minorca, out of the realm, is not cognisable by the King's 
 Courts in England." Upon the first point Lord Mansfield said: 
 " The defendant, if he has any justification for an act of this kind, must 
 plead it. . . . In every plea to the jurisdiction you must state another 
 jurisdiction, . . . and in every case to repel the jurisdiction of tlie- 
 King's Court you must show a more proper and more sufficient jurisdic- 
 tion; for, if there is no other mode of trial, that alone will give the 
 King's Courts a jurisdiction." He summed up on this branch of the 
 argument by saying: " To lay down in an English Court of Justice-
 
 SECT. I. — COMMENSURATE WITH INJURY. 541 
 
 No. 2. Scott v. Lord Seymour. Notes. 
 
 such :i monstrous proposition as that a governor, acting by virtue of 
 ietters-patenl under the ureal seal, is accountable only to God and his 
 conscience; that he is absolutely despotic, and can spoil, plunder, and 
 affect His Majesty's subjects both in their liberty and property with 
 impunity, is a doctrine that cannot be maintained."' 
 
 Upon the latter objection, that the injury was dune out <>t' the realm. 
 Lord Mansfield's argument is mainly directed to the formal rules 
 ■which then existed as to the place <>f trial or venue of an act inn. In 
 ■effect he showed that, apart from the substantial distinction between a 
 proceeding in rem (such as an ejectment) and other actions, there was 
 ji formal distinction between actions which were termed transitory and 
 local actions. In the latter, such as actions of trespass to land, the 
 Venue must be laid in the county where the hind hiy. In the former. 
 the place was immaterial, and the venue might be laid anywhere; and. 
 if the cause of action happened abroad, and it became necessary to state 
 the place in the declaration, the mode had been adopted of first stating 
 the place truly, ajid then adding under a videlicet the. fictitious locality, 
 *' in the county of Middlesex," or any other county. Lord Mansfield 
 proceeded to show that it was well established by precedents that the 
 fiction so stated could not be traversed, or put in question; so that, in 
 effect, the action was maintainable for the injury done abroad. 
 
 Lord Mansfield further observed that actions had been sustained 
 even in cases where, if the injury had been done in England, the action 
 Avould have been local; and he cited an action which had been tried 
 before himself, against Captain Gambier, who, by order of Admiral 
 Boscowen, had pulled down the houses of some sutlers who supplied the 
 navy with spirituous liquors. This had taken place on the coast of 
 Nova Scotia, where there were no regular courts of judicature, and if 
 there were, Captain Gambier might never go there again; and there- 
 fore (as Lord Mansfield had ruled in that case) the reason of locality 
 in such an action in England did not hold. It is now, however, settled 
 by decision of the House of Lords that the Supreme Court of Judicature 
 in England has no jurisdiction to entertain an action to recover dam- 
 ages for a trespass to land situate abroad. British Africa Co. v. Com- 
 panhia de Mogambique, H. L. Sept. 8, 1893. 
 
 The history of the fiction by which the formal requirement of 
 laying the venue was satisfied, is fully given in the notes to Mostyn 
 v. Fabrigas, in Vol. I. of Smith's Leading Cases. The fiction is 
 now wholly abolished in England by the rules under the Judica- 
 ture Act (II. S. C, Order 36, rule 1); and the place of trial is wholly 
 si matter of convenience, the plaintiff having the choice in the first 
 instance.
 
 542 ACTION (right of). 
 
 No. 2. — Scott v. Lord Seymour. — Notes. 
 
 The ruling of Lord Mansfield upon the former point in Mostyn v. 
 Fabrlgas came under discussion in the case of Phi/tips v. Eyre (1869,. 
 1870, 10 15. & 8. 1004; L. B,, 4 Q. B. 225; and 6Q.B.1; 38. L. J. Q. 
 B. 113; 40 L. J. Q. B. 28), where the action arose out of certain arbi- 
 trary proceedings of the governor, Eyre, in the island of Jamaica. On 
 the first argument before the Queen's Bench, Cockiutrn, C. J. (L. L\. 
 4 Q. B. 229), observed: "No one doubts that the law as laid down by 
 Lord Mansfield in Mostyn v. Fahrigas is correct." The main ques- 
 tion, however, in Phillips v. Pyre turned upon the effect of an Act of 
 Indemnity, passed by the legislature of the colony and assented to by the 
 Crown, whereby the proceedings in question had been ''made and de- 
 clared lawful, and confirmed."' It was decided by the Queen's Bench, 
 and the decision affirmed by the Exchequer Chamber, that this Act of 
 Indemnity was well pleaded in bar to an action in the Queen's Bench 
 for an assault and false imprisonment done in the course of the pro- 
 ceedings covered by the Act. The judgment of the Exchequer Chamber,; 
 delivered by Mr. Justice Willes, after discussing the constitutional 
 questions raised as to the competency ami effect of the Colonial Act of 
 Indemnity, deals with the question which, was raised, but not decided, 
 in Scott v. Seymour; — whether, if the damage complained (if is not 
 actionable by the law of the place, it can be made the subject of an 
 action for damages here. Upon this point the law is laid down in the- 
 judgment as follows (10 B. & 8. 1044 et seg.): "A right of action,, 
 whether it arises from contract governed by the law of the place, or 
 from wrong, is equally the creature of the law of the place, and subor- 
 dinate thereto. . . . The civil liability arising out of a wrong derives. 
 its birth from the law of the place, and its character is determined by 
 that law. Therefore an act committed abroad, if valid and unquestion- 
 able by the law of the country where it is done, cannot, so far as civil 
 liability is concerned, be drawn in question elsewhere, unless b}' force 
 of seme distinct independent legislation superadding a liability other 
 than and besides that incident to the act itself. In this respect no* 
 sound distinction can be suggested between the civil liability in respect 
 of a contract governed by the law of the place, and a wrong. ... As a 
 general rule, in order to found a suit in England for a wrong alleged to 
 have been committed abroad, two conditions must be fulfilled. First. 
 the wrong must be of such a character that it would have been action- 
 able if committed in England. Therefore, in The Pulley (1868, 5 Moo. 
 P. C. K S. 262; L. B,, 2 P. C. App. 193; 37 L. J. Adm. 33), the Ju- 
 dicial Committee pronounced against a suit in the Admiralty Court r 
 founded upon a liability under the law of Belgium for collision caused 
 by the act of a pilot whom the shipowner was compelled to employ, and
 
 SECT.]. — COMMENSURATE WITH INJURY. 543 
 
 No. 2. Scott v. Lord Seymour. — Notes. 
 
 t'ci whom, therefore, as not being his agent, he was no1 responsible by 
 English law. Secondly, the act must not have been justifiable by the 
 law of the place where it was done.' 3 For this last mentioned condi- 
 tion were cited. Blad's Case {Blad v. Bamfield), 1674, .'> Swanst. 603. 
 604, arising out of the seizure of a ship in Iceland waters under author- 
 ity of the Danish Government; Dobree v. Napier (C. 1'. L836), 2 Biug. 
 N. C. 781, arising out of the capture in Portuguese waters of an Eng- 
 lish ship breaking blockade; and Reg. v. Lesley (1860), Bell. C. G. 220, 
 a criminal prosecution against a British shipowner for an act done in 
 carrying out an order of the Chilian Government, and which was held 
 justified so far as relates to what was done within Chilian waters. The 
 judgment proceeded (10 B. & S. 1046): "As to foreign laws affecting 
 the liability of parties in respect of bye-gone transactions, the law is 
 clear that if the foreign law touches only the remedy or procedure for 
 enforcing the obligation, as in the case of an ordinary statute of limita- 
 tions, such law is no bar to an action in this country; hut if the foreign 
 law extinguishes the right, it is as much a bar in this country as if the 
 extinguishment had been by a release of the party or an Act of our 
 own legislature." And for this distinction are cited JETuber v. Steiner 
 (C. P. 1835), 2 Bing X. C. 202; Potter v. Brown (K. B. 1804). 5 East, 
 124; 7 E. R. 66o; and the rule laid down by Lord Mansfield in Bal- 
 lantine v. Golding. (cited by Lord Ellenborotjgh, 5 East, 130; 7 R. \\. 
 667) : "What is a discharge of a debt in the country where it was con- 
 tracted, is a discharge of it everywhere." 
 
 The principle of the judgment in Phillips v. Eyre, above quoted, was 
 followed by the Court of Appeal in The 17. Moxham (C. A. 1876), 
 1 P. D. 107; 46 L. J. P. D. & A. 17, where, in a cause of damage insti- 
 tuted in the Admiralty Division against the owners of a British ship for 
 damage to a pier in Spain, the defendant was held entitled to the ben- 
 efit of the Spanish law. by which the master and mariners, ami not the 
 owners, are liable for negligent navigation. 
 
 In the case of Cox v. Mitchell (C. P. 1859), 7 C. B. X. S. 55; 20 L. 
 -I. C 1'. .">.'!, which was a, simple action for breach of contract, the Court 
 held that tin' fact of the plaintiff having previously commenced another 
 action, which was still pending in the United States, for the same cause 
 of action, was no bar to the action in England. 
 
 The judgment of the Court of Appeal in McHenry v. Lewis (1882). 
 22 Ch. D. 31)7; 52 L. J. Ch. 325, corrects the too general inference 
 which might have been drawn from Cox \ . Mitchell. The principle is 
 enunciated by all the Judges of Appeal, that the court has jurisdiction 
 in a proper case to stay the action, on the ground that the double proceed- 
 ings are vexatious; and that the court would so interfere, if this weir
 
 544 ACTION (RIGHT OF). 
 
 No. 2. — Scott v. Lord Seymour. — Notes. 
 
 shown by special circumstances beyond the mere fact that an action was 
 pending for the same cause between the same parties in the foreign 
 country; but that the mere pendency of the action is not sufficient. This 
 principle is fully recognised by the Court of Appeal in Peruvian Guano 
 Co. v. Bockwoldt (C. A. 1882), 23 Ch. D. 225, where the Court refused 
 a motion that the plaintiff might elect between an English and a 
 French action ; in Hynian v. Helen (C. A. 1883), L'4 Ch. I). 531, where 
 the Court refused, pending an action for an account in England, to re- 
 strain an action in San Francisco for payment of an amount alleged to 
 be due; and in Mutrie v. Binney (C. A. 1887), 35 Ch. D. 614, where 
 actions were pending in the United States and in England in respect 
 of the same partnership accounts, but the Court refused to interfere 
 with the English action at the stage of pleading. 
 
 The principle laid down by the court *in McHenry v. Leicis was also 
 fully recognised in The Christianberg (('. A. from Adm. Div. 1885, 10 
 P. D. 141 ; 54 L. J. P. I). & A. 84), where an action in rem had been 
 commenced against a Danish vessel in an Admiralty Court in Holland; 
 and. pending these proceedings, the vessel was released on security being 
 given for compensation to be awarded by the court in Holland. On the 
 vessel arriving in England, the plaintiffs commenced an action in rem 
 against the vessel in the English court for the same cause. The Court 
 < if Appeal by a majority (Baggallay and Fry, L. JJ.), affirming the 
 decision of Sir James Hannki;. ordered the vessel to be released. Bag- 
 GALLAY, L. J., laid down the rule as established by a series of authori- 
 ties to be, that where a plaintiff sues the same defendant in respect of 
 the same cause of action in two courts, one in this country and another 
 abroad, there is a jurisdiction in the courts of this country (1) to put the 
 plaintiff to his election; or (!') to stay proceedings in this country; or 
 (.">) to restrain the plaintiff from prosecuting the proceedings in the for- 
 eign country. That, according to the rule in McHenry v. Leicis, it is 
 ■prima, facie vexatious to sue the same party in two different actions in 
 two courts of the United Kingdom, but not necessarily so. where one of 
 the actions is in a foreign court. The ground on which the decision 
 went was that the security having been given and accepted so as to rep- 
 resent the ship in Holland, and the court there being thus seized of the 
 litigation as well as of the subject-matter, it was oppressive and vexa- 
 tious to institute the proceedings against the ship in England. Lord 
 Justice Fry explicitly draws a distinction where the proceeding is in 
 rem, from the case where there is a simple action in personam : and the 
 same distinction is implicitly involved in the judgments of Sir James 
 Haxxkr and Lord Justice I>a<;uallav. In effect, the proceedings 
 being in rem, and the res or its equivalent being attached in both
 
 SECT. I. COMMENSURATE WITH INJURY. 
 
 No. 2. — Scott v. Lord Seymour. — Notes. 
 
 courts, this circumstance presents the prima facie evidence of vexation 
 or oppression, which is wanting in the case of a simple action in 
 personam. 
 
 AMERICAN NOTES. 
 
 The doctrine of the principal case prevails universally in this country. 
 
 Pendency of a suit, in a foreign court or in a court of the United States is 
 not pleadable in abatement or in bar of a proceeding in a State court, the States 
 standing toward one another in the relation of foreign states. Mitchell 
 v Bunch, 2 Paige Chancery (New York), 606; 22 Am. Dec. <>(>!); Trubet v. 
 Alden, 6 Ilun (New York Supreme Ct.), 78 ; West v. McConnell, 5 Louisiana, 
 424; 25 Am. Dec. 191, and note 195, citing Salmon v. Wootton, 9 Dana (Ken- 
 tucky), -122; Newell v. Netvlon, 10 Pickering (Mass.), 470; Yelcerton v. 
 Conant, 18 New Hampshire, 123 ; De Armond v. Bohn, 12 Indiana, 607 ; Smith v. 
 Lathrop, 41 Penn. State, 326; McJilton v. Loce, 13 Illinois, 48(3; 51 Am. Dec. 
 11!) ; Humphries v. Dawson, 38 Alabama, 199 ; Drake v. Brander, 8 Texas, 351 ; 
 Chatzel v. Ballon, 3 McCord (So. Carolina), 33 ; Hatch v. Spofford, 22 Connec- 
 ticut, 485; 58 Am. Dec. 433. The same is held in Lockwood v. Nye, 2 Swan 
 (Tennessee), 515; 58 Am. Dec. 73; North Bank v. Brown, 50 Maine. 214; 
 Lowry v. Hall, 2 Watts & Sergeant (Penn.), 129 ; 38 Am. Dec. 495 ; Smith v. 
 Lathrop, 44 Penn. St. 32G ; 84 Am. Dec. 448, citing the principal case, and 
 note, 452 ; Hyde* v. Joyes, 4 Bush (Kentucky), 464 ; 96 Am. Dec. 311 ; O'Reilly 
 v. A r . Y., cyr., R. Co., 16 Rhode Island, 388; 6 Lawyers' Rep. Annotated. 719. 
 
 But this rule applies only to actions in personam, and not to actions in rem. 
 Lowry v. Hall, supra. As mortgage foreclosure, Gilmour v. Ewing, 50 Fed. 
 Pep. 656; or attachment, Harney v. Gt. North R. Col, 50 Minnesota, 405; or 
 garnishment, Ahlhauser v. Butler, 50 Fed. Rep. 705. 
 
 In Grossman v. Unicersal Rubber Co., 127 New York, 34. it was held that the 
 pendency of attachment proceedings in another State, and of a suit in chan- 
 cery in that State, brought by the same plaintiff for the sequestration of de- 
 fendant's property for the payment of its debts, were available as a plea in 
 abatement, unless the termination of such proceedings or their failure to 
 realise anything could be shown. But the court must have acquired jurisdic- 
 tion in the foreign proceeding in rem in order to afford a basis for a plea in 
 abatement. So in Douglass v. Phoenix Ins. Co., 183 NewYork, 209, it was 
 held that where an insurance company and its creditor both reside in New 
 York, in which State the debt originated, the pendency of an attachment suit 
 against such creditor by garnishment of the company in a foreign State con- 
 stitutes no defence to an action on such debt in New York by such creditor 
 against the company, in the absence of any appearance by such creditor to the 
 attachment suit, or personal service of process on him in such Stale. The 
 court said: % -The pendency of a suit in personam in one State is not. accord- 
 ing to the general rule, pleadable in abatement of a suit subsequently com- 
 menced in another State, between the same parties, on the same cause of 
 action, although the courts of the State where the prior suit is pending had 
 complete jurisdiction. The court, on application, may. in its discretion, grant 
 a continuance by reason of the pendency of the iirst action; and a judgment 
 vor.. i. - 35
 
 546 action (right of). 
 
 No. 2. — Scott v. Lord Seymour. — Notes. 
 
 once obtained in one of the actions would, on application of the court, be 
 allowed to be set up in bar of the further prosecution of the other. But the 
 pendency of an action in another State, between the same parties, and for the 
 same cause, does not, according to the general ride, abate the second suit. 
 Bourne v. Joy, 9 Johns. 221 ; Walsh v. Durkin, 12 id. 99 ; Bank v. Bonne//, 101 
 New York, 173; Cook v. Litchfield, 5 Sandf. 330. An exception to this gen- 
 eral doctrine was made in this State in the early case of Embree v. Hanna, 5 
 Johns. 101, in respect- to prior attachment proceedings instituted in the State 
 of Maryland, under the laws of that State, against a debtor of a New York 
 creditor, by a creditor of the latter. The New York creditor subsequently 
 commenced an action in this State against his Maryland debtor to recover the 
 debt, and the defendant pleaded in abatement the pendency of the attachment 
 proceedings in Maryland ; and the plea was held to be good, on the ground 
 that the debtor might otherwise be compelled to pay the debt twice. But 
 attachment siuts partake of the nature of suits in rem, and are distinctly such 
 when they proceed without jurisdiction having been acquired of the person of 
 the debtor in the attachment. Real and personal property may be subjected 
 to seizure and sale for the payment of debts of the owner, according to the 
 laws of the State or sovereignty where the property is, having regard to the 
 fundamental condition that due process of law shall precede the appropria- 
 tion, It is undeniable that a State may authorise the seizure and sale, by 
 means of appropriate judicial proceedings, of property of non-residents 
 within the jurisdiction, for the payment of their debts. There must be notice 
 and an opportunity to be heard, either actual or constructive, in such way and 
 form as the law may prescribe. But no State can subject either real or per- 
 sonal property out of the jurisdiction to its laws. It may, and oftan doe;, 
 compel persons, through the process and judgment of its courts, to perform 
 acts which affect their title and interest to property outside of the limits of 
 the State. Having acquired jurisdiction of the person, the courts could com- 
 pel observance of its decrees by proceedings in personam against the owner 
 within the jurisdiction. But it is a fundamental rule that in attachment pro- 
 ceedings the res must be within the jurisdiction of the court issuing the pro- 
 cess, in order to confer jurisdiction. Plimpton v. Bigelow, 93 New York, 593." 
 And it was held that "the general rule is well settled that the situs of debts 
 and obligations is at the domicile of the owner." See to the same effect, 
 Harvey v. Great No. It. Co , 50 Minnesota, 405; 17 Lawyers' Rep. Annotated, 
 84, with notes. The opinion cites Embree v. Hanna, supra ; Wallace v. McCon- 
 nell, 13 Peters (U. S. Sup. Ct.), 136; Bank v. Mini, 99 Massachusetts, 313; 
 Baltimore frc. R. Co. v. May, 25 Ohio St., 347, and disapproves Missouri Pac. 
 R. Co. v. Sharitt, 43 Kansas, 375. 
 
 Contra, People v. Judges, 27 Michigan. 406; 15 Am. Rep. 195, where it is 
 said, " the two proceedings must be in all respects identical." That was an 
 action for services in fitting out a vessel, and it was held not abated by pend- 
 ing proceedings in rem in the Federal court in another State.
 
 SECT. I. — COMMENSURATE WITH INJURY. 547 
 
 No. 3. — Harrop v. Hirst. — Rule. 
 
 No. 3. — HARROP v. HIRST. 
 (exch. 1S6S.) 
 
 RULE. 
 
 One of a class of persons enjoying a right may maintain 
 an action for its infringement, although he has suffered no 
 individual damage, if the act complained of is such that 
 repeated acts of the kind would furnish evidence in deroga- 
 tion of the risrht. 
 
 O 
 
 Harrop v. Hirst. 
 
 38 L. J. Ex. 1 (s, c. L. R. 4 Ex. 43). 
 
 The declaration stated that from time whereof the memory of 
 man was not to the contrary there had been, and of right ought 
 to have been, and still ought to be, a certain public water-spout 
 in a public highway called Kiln Lane, within the district of 
 Tamewater, in the parish of Saddleworth, in the West Hiding of 
 the county of York ; and during all the time aforesaid the water 
 of a spring arising in a certain close, now called the Wharnton 
 Grammar School Close, ran and flowed, and of right ought to run 
 and flow, from and out of the said spring in and along a certain 
 watercourse, through divers closes unto and into the said spout, 
 for the supply of water to the said spout for the purposes therein- 
 after mentioned ; and during all the time aforesaid, by an ancient 
 and laudable custom and usage of the said district, the inhabi- 
 tants for the time being of the said district residing therein and 
 occupying dwelling-houses situate and being within the said 
 district had been entitled, and still were entitled, to take, use, and 
 enjoy water from the said spout for their culinary and other 
 domestic purposes to be used in their said respective dwelling- 
 houses for the more convenient use, occupation, and enjoyment, 
 thereof respectively ; and the plaintiff's, before and at the time of 
 the committing of the grievances by the defendant, as thereinafter 
 next mentioned, were inhabitants of the said district and residing 
 therein and jointly occupying a dwelling-house within the said 
 district, and entitled to take, use, and enjoy water, from the said 
 spout for their culinary and other domestic purposes to be used in 
 their said dwelling-house for f Vi • > renient use, occupation,
 
 548 ACTION (right of). 
 
 No. 3. — Harrop v. Hirst. 
 
 and enjoyment thereof ; yet the defendant, well knowing the 
 premises, and contriving and intending to prejudice and aggrieve 
 the plaintiffs and other the persons so entitled as aforesaid respec- 
 tively, and to deprive them respectively of the water to which 
 they were so respectively entitled as aforesaid, on divers days and 
 times before the commencement of the suit, wrongfully diverted 
 large quantities of the said water which ought to have run and 
 flowed, and which otherwise would have run and flowed, in and 
 along the said watercourse unto and into the said spout for the 
 purposes aforesaid, as such water otherwise would and ought to 
 have done ; whereby the said spout became and was on divers 
 days and times imperfectly and insufficiently supplied with water 
 for the purposes aforesaid, and on divers other days and times was 
 wholly deprived of water; and by means of the premises the 
 defendant wrongfully hindered and prevented the plaintiffs from 
 taking from and out of the said spout, and using and enjoying, 
 divers large quantities of the said water to which they were 
 entitled as aforesaid, and the plaintiffs were thereby put to and 
 suffered and incurred great inconvenience, loss, and expense, and 
 were much disturbed in the use, occupation, and enjoyment, of the 
 said dwelling-house for want of the said water for the purposes 
 aforesaid, and to which they were so entitled, and of which they 
 were so deprived as aforesaid, and have been otherwise much 
 injured and damnified. 
 
 Pleas : The general issue, and traverses of the essential allega- 
 tions of right in the declaration. Issues thereon. 
 
 The cause was tried, at the Leeds Summer Assizes, 1868, before 
 Bramwell, B., and a special jury. It appeared that the right 
 alleged in the declaration existed, and that the plaintiffs were in 
 occupation of a dwelling-house within the district. The defendant 
 was the occupier of a certain close of land through which the 
 water in question flowed on its way from the spring to the spout. 
 The jury found that the defendant had by various acts, extending 
 over some years, diverted water from the spout, so as sensibly to 
 diminish the flow on various occasions. It was proved that seve- 
 ral inhabitants of the district had on various occasions, when the 
 flow was so impeded and diminished, been put to inconvenience 
 by failure to obtain water from the spout on endeavouring to do so ; 
 but the jury, in answer to a question from the learned Judge, said 
 that the plaintiffs had not individually sustained any loss capable
 
 SECT. I. — COMMENSURATE WITH [NJURY. 549 
 
 No. 3. — Harrop v. Hirst. 
 
 of pecuniary computation from the want of water, or anv inconve- 
 nience except the trouble of complaining of the defendant's acts 
 of infringement. Upon these findings the verdict was entered for 
 the plaintiffs for 406'. damages, and leave was reserved to the 
 defendant to move to enter a nonsuit, on the ground that the 
 action was not maintainable by the plaintiffs without proving 
 actual damage to themselves personally. 
 
 A rule nisi having been accordingly obtained, the question was 
 argued. In the course of the argument, Martin, B., referred to 
 the notes to Mellm- v. Spateman, 1 Wins. Saund. 346 a, 346 b. 
 
 Judgments were delivered as follows : — 
 
 Kelly, C. B. The plaintiffs in this case, in common with the 
 other inhabitants of a certain district, claim a right to a flow of 
 water through a spout within the district, for the supply of water 
 in their houses for domestic purposes; and the defendant, who is 
 the owner or occupier of land through which the stream flows by 
 which this spout is fed and supplied, has from time to time 
 abstracted large quantities of water from this stream, and has thus 
 diminished the quantity of water, so that at times it has been 
 insufficient for the supply of the entire district. It does not 
 appear that the plaintiffs have individually sustained any incon- 
 venience, inasmuch as they do not seem to have endeavoured to 
 obtain water from this spout at any of the periods at which the 
 supply had been substantially or largely diminished by the 
 abstraction of water on the part of the defendant ; and the ques- 
 tion is, whether, under these circumstances, an action lies for the 
 infringement of the right without — I will not say special, but 
 — without individual and particular damage sustained by the 
 plaintiffs. 
 
 Let us, in the first place, consider whether this injury to a per- 
 son possessing, in common with others, a right of this nature, is 
 the subject of an action. It is clear from Coke upon Littleton 56 ", 
 and the other authorities cited, especially the case of Westbury v. 
 J 'o well, cited in Flneux v. Hovenden, Cro. Eliz. 664, Co. Lit. 56a, that 
 such action is maintainable. In the case of Fineux v. Hovenden, ( !ro. 
 Eliz. 664, it was held, by two Justices against one, that the action 
 there was not maintainable, being an action for an injury done to 
 a right of a public nature, — a right not confined to the inhabitants 
 of a district, but common to the whole of the subjects of the king. 
 In that case the case of Westbury v. Powell was cited, and there it
 
 550 ACTION (right of). 
 
 No. 3. — Harrop v. Hirst. 
 
 appears that it was determined " that, where the inhabitants of 
 Southwark had a common watering-place, and the defendant had 
 slopped it, and the plaintiff, being an inhabitant there, brought 
 his action upon the case, it was adjudged maintainable." 
 
 Now, with respect to the question whether this action is main- 
 tainable without particular damage to the plaintiffs, certainly it did 
 not appear in that case that the plaintiff had himself sustained any 
 particular damage, and he may have been much in the same condi- 
 tion as the plaintiffs in the present case. But when we consider 
 the nature of the right claimed, and the nature of the infringe- 
 ment alleged to have occurred by the acts of the defendant, and 
 the probable effect of such acts if continued and repeated, it is 
 impossible not to see that the effect might lie to furnish the foun- 
 dation of a claim to a right to so largely diminish the supply of 
 water to this spout as to interfere with the right of the inhabi- 
 tants of the district, and render it practically valueless. Upon the 
 point that, under such circumstances, without particular damage, 
 an action of this nature may be sustained, my Brother Martin, in 
 the course of the argument, referred to the very learned note of 
 Mr. Serjeant Williams to the case, of Mellor v. Spateman, 1 Wins. 
 Saund. 346 b, where, after a reference to various cases of this 
 nature, we find this laid down: "For wherever any act injures 
 another's right, and would be evidence in future in favour of the 
 WTono-doer, an action may be maintained for an invasion of the 
 right without proof of any specific injury; and this seems to be a 
 governing principle in cases of this kind." There are several 
 authorities for that proposition. I hold it to lie an undeniable 
 proposition of law, that where there is a right in one man, and acts 
 have been done by another, which if continued would he evidence 
 of a right in derogation of the right claimed, such acts are the 
 subject of an action by the person entitled to the right in question. 
 Among the authorities referred to was the case decided in the 
 Common Pleas of Bower v. Hill, 2 Sc, 535 ; s. c.5 Law T J. Rep. (x. 
 s.) C. P. 77, and at the close of Chief Justice Tindal's judgment 
 we find he expressed himself thus : " But independently of this 
 narrower ground of decision, we think the erection of the tunnel 
 is in the nature of a natural easement, and is to be considered as 
 a permanent obstruction to plaintiff's right, and therefore an 
 injury to the plaintiff, even though lie received no immediate 
 damage thereby. The right of the plaintiff to this way is injured
 
 SECT. I. — COMMENSURATE WITH INJURY. 551 
 
 No. 3. — Harrop v. Hirst. 
 
 if there is an obstruction in its nature permanent. If acquiesced 
 ia for twenty years, it would be evidence of a renunciation and 
 abandonment of the right of way. That is the ground upon 
 which a reversioner is allowed to bring his action for an obstruction, 
 apparently permanent, of lights and other easements which belong 
 to the premises." Now, it is impossible to deny that if this 
 defendant, being occupier or owner of land through which the 
 stream of water Hows to this spout, had from time to time during 
 a period of twenty years abstracted large quantities of water, and 
 had even left this spout insufficiently supplied with water to meet 
 the exigencies of the inhabitants for domestic purposes, that after 
 that lapse of time such acts would constitute evidence of a right 
 in derogation of their right, and which might put an end to all 
 practical possibility of the establishment of it at law. 
 
 Under these circumstances, I think, although we must take it, 
 after the rinding of the jury, that no particular individual dam- 
 age has been sustained by the plaintiffs, an action is nevertheless 
 maintainable by the plaintiffs as inhabitants of the district for the 
 invasion of the general right of the inhabitants of the district to a 
 supply of water from this spout for domestic purposes, and 1 base 
 my opinion more especially upon the grounds I have adverted to, 
 as expressed in the note to the case of Mellor v. Spateman, supra. 
 
 Martin, B. I am of the same opinion. I think this case is 
 indisputably within the doctrine laid down in the notes to Mellor 
 v. Spateman, supra, and I have always thought that the doctrine 
 there laid down was perfectly correct. 
 
 Bramwell, B. I am of the same opinion. 
 
 Channell, B. I also am of the same opinion. It appears to 
 me that the law is correctly laid down in the proposition that has 
 been cited from the notes to the case in "Williams's Saunders, 
 and that that proposition goes a long way to determine the present 
 case. It seems that where an indictment may be maintained for 
 a common nuisance, — that is, for that which is an injury to all the 
 Queen's subjects, — there is no remedy by action unless you can 
 prove individual damage. That is undisputed law. But I am 
 not aware that the same rule is applied where it has not been an 
 injury to the whole of the public in contravention of the law, but 
 an injury to the inhabitants of a particular district. On the other 
 hand, it has been conceded, and cannot lie denied, and it is laid 
 down in the notes to Mellor v. Spateman, supra, that if there is an
 
 552 ACTION (right of.) 
 
 No. 3. — Harrop v. Hirst. — Notes. 
 
 actual injury to the right, that then the action is maintainable. 
 But it is said that here there is an injury to the right ; and it is 
 replied that when the injury to the right exists, there must be 
 some proof of individual or personal injury to the plaintiff himself. 
 I take the verdict of the jury to amount to this, that there was 
 the right existing and an injury to that right in point of law, but 
 that it was not attended with any pecuniary loss, or any extraor- 
 dinary expenditure of time or labour in getting the water. It merely 
 comes to this, that because the plaintiff did not want the water on 
 this particular day, or did not go for it, or it was supplied from 
 some other source, therefore pecuniary loss or pecuniary expendi- 
 ture did not arise, and no question in respect of loss of time and 
 labour could arise. Now, it was conceded, as I .understand, that 
 in the case of one of the other inhabitants who did go to the spout 
 on the particular day in question and found the water abstracted 
 by the defendant, and could not therefore obtain the supply of 
 water, there would be such damage or loss in his case as would 
 entitle him to maintain the action. It clearly follows from that 
 that other persons than the plaintiffs inhabiting the district, and 
 so entitled to this right to the supply of water, had their right 
 interfered with and put in jeopardy by the acts of the defendant. 
 If so, then that would be some evidence against the plaintiffs of a 
 right in the defendant in derogation of their rights. If this right 
 had been exercised for a sufficiently long period against the will of 
 the inhabitants of the district, then the plaintiffs, as two of such 
 inhabitants, might be prevented from making good their right. 
 Therefore I think there was here such an invasion of the plaintiffs' 
 right as entitles them to maintain this action, although they sus- 
 tained no personal damage or pecuniary loss. 
 
 Rule discharged. 
 
 ENGLISH NOTES. 
 
 The principle of the ruling case is so well established as to need little 
 comment. The note in Saunders referred to by Martin, B. (p. 550, 
 supra), is as follows: " Wherever any act injures another's right, and 
 would be evidence in future in favour of the wrong-doer, an action max 
 be maintained for an invasion of the right without proof of any specific 
 injury." And this rule is deduced from the cases of Wells v. Wailing 
 2 Black. Rep. 1233; Hobson v. Todd, (1790) 4 T. B. 71 (2 B, B, 335); 
 and Pindar v. Wadsworth, (1802) 2 East, 154 (6 B, B. 412). In 3f<r-
 
 SECT. I. — COMMENSURATE WITH INJURY. 553 
 
 No. 3 — Harrop v. Hirst. — Notes. 
 
 zetti v. Williams (1830), 1 B. & Axl. 415, if is observed by Taunton, 
 J. (p. 426): " Trespass quare elavsum fregit is maintainable for tin 
 entry on the land of another, though there be no real damage, because 
 repeated acts of going over the land might be used as evidence of a title 
 to do so, and thereby the right of the plaintiff might be injured. So 
 an action may bo maintained by a commoner for an injury done to his 
 common, without proving actual damage." The principle was applied 
 by the Court of Common Pleas in Bower v. Hill (Ls;i.~>), 1 Bing. >.'. ('. 
 549, where defendants, having erected on their own premises a per- 
 manent obstruction to a navigable drain leading from a riser through 
 defendant's premises to plaintiff's close, it was held that an action lay, 
 although the portion of the drain which passed through the plaintiff's 
 close had for sixteen years been completely choked up with mud. The 
 same principle is assumed and applied throughout the train of cases 
 carried on in recent years for the protection of commons, of which the 
 case of Robertson v. Hartopp (C. A. 1889), 43 Ch. D. 484, 59 L. J. Ch. 
 553, may be taken as a sample. The form of action (or suit in those 
 cases was, in order to obtain an injunction, adapted to the practice of the 
 Court of Chancery, — one of the injured class suing '' on behalf of him- 
 self and all other"' persons of the class. The application of this form of 
 suit to this class of cases was invented, and first successfully carried out 
 (with the advice and concurrence of the leaders of the Bar from time to 
 time) by Mr. Phillip H. Lawrence, then a solicitor (since called to the 
 bar), whose firm and their successors, Messrs. Home & Hunter, and 
 Home & Birkett, appear in the reports of all the cases as the solicitors 
 of the plaintiffs. 
 
 It will be observed that in the judgment of Channell, B., in the rul- 
 ing case, it is stated to have been conceded that, where an indictment 
 may be maintained, there is no remedy by action without proof of indi- 
 vidual damage. This will appear hereafter under the ruling cast of 
 Ricket v. Metr. Ry. Co. (No. 7, infra). The distinction is that, in the 
 cases under the above rule, the injury affects the plaintiff, not as one of 
 the public generally, but as one of a particular class or section of 
 persons. 
 
 AMERICAN NOTES. 
 
 The principal case appears to have been scantily cited in this country, and 
 in its exact circumstances — the violation of a quasi-public customary right 
 in water, and a recovery therefor by one of the public class cut il led to its 
 benefits, although he has suffered no personal damage thereby, on the ground 
 that a continuance of the violation might ripen into a prescriptive right — we 
 do not discover any American ease precisely parallel with it. 
 
 In Crooker v. Bragg, Hi Wendell (New York). 260; 25 Am. Dee. .TV.. Nel-
 
 5.14 ACTION (RIGHT of). 
 
 No. 3. — Harrop v. Hirst. — Notes. 
 
 son, J., observed : " A person through whose farm a stream naturally flows is 
 entitled to have the whole pass through it, though he may not require the 
 whole or any part of it for the use of machinery. Upon any other principle, 
 this right to the stream, which is as perfect and indefeasible as the right to 
 the soil, would always depend upon the use, and a party who did not occupy 
 the whole for special purposes would be exposed to have the same diverted 
 by his neighbour above him, without remedy, and which diversion, by twenty 
 years' enjoyment, would ripen into a prescriptive right beyond his control, 
 and thereby defeat any subsequent use." The same doctrine of the power to 
 vindicate the right against hostile prescriptive acquirement or defeat is clearly 
 declared in Amoskeag M. Co. v. Goodale, 46 New Hampshire, 53; Stein v. 
 Burden, 24 Alabama, 130; GO Am. Dec. 453; Blanchard v. Baker, 8 Greenleaf 
 (Maine), 253; 23 Am. Dec. 504; Ripka v. Sergeant,! Watts and Sergeant 
 (Penn.), 9; 42 Am. Dec. 214. 
 
 The principal case is cited, with apparent approbation, by Washburn 
 (Easements, * 570), but no American cases are cited to its doctrine. 
 
 There seems to be a conflict between the text-writers. Gould (Waters, 
 § 214) cites it to the point, that " Actual nominal damages need not be shown 
 in order to support an action for any extraordinary and unreasonable use of 
 the water by a riparian owner, when the act complained of, if continued, 
 would bar the plaintiff's right, and nominal damages may be recovered in 
 order to prevent the acquisition of an adverse title by prescription.'' "Phis is 
 supported by that author by a great number of American authorities, of 
 which it will be sufficient to name the following ; Munroe v. Slickneg, 48 
 Maine, 462 ; Lund v. New Bedford, 121 Massachusetts, 286; Crooker v. Bragg. 
 10 Wendell (New York), 260; 25 Am. Dec. 555; See/eg v. Brush, 35 Con- 
 necticut, 424; Hulme v. Shreve, 3 Green (New Jersey Eq.), 116; Gladfelter 
 v. Walker, 40 Maryland, 1 ; Graver v. Shall, 42 Penn. St. 58 ; Dumont v. Kel- 
 logg, 29 Michigan, 422; 18 Am. Rep. 102; Plumleigh v. Dawson, 1 Gilinan 
 (Illinois). 544; Stein v. Burden, 29 Alabama, 127; 69 Am. Dec. 394; Watson 
 v. Van Meeter, 43 Iowa, 76; Cory v. Silcox, 6 Indiana, 39; Little v. Stanback, 
 63 North Carolina, 285 ; Chapman v. Cope/and, 55 Mississippi, 476 ; Green v. 
 Weaver, 63 Georgia, 302 ; Creighton v. Evans, 53 California, 55 ; Smiths v. Mc- 
 Conathy, 11 Missouri, 517; Amoskeag M. Co. v. Goodale, 46 New Hampshire, 
 53; Haas v. Choussard, 17 Texas, 588. In many of these cases the precise 
 point was not decided, but their leaning is that way. 
 
 On the other hand, Mr. Bigelow (Lead. Cases on Torts, p. 518) says : " In gen- 
 eral, it is probably true that where a right is exactly defined, any infraction will 
 be ground for an action entitling the plaintiff to nominal damages at least. 
 Thus in the case of a right to the possession of land, no one can lawfully put foot 
 upon the soil of another without permission, express or implied ; and for every 
 infraction of this right an action maybe maintained, though the owner of the 
 land suffered no damage whatever. Williams v. Esling, 4 Barr (Penn.), 
 486. But the right of usufruct in running streams is incapable of any such 
 exact definition, and the courts can only say that where the plaintiff has sus- 
 tained actual injury from an undue use of the water, he has a ground of 
 action ; short of this he has not." Mr. Bigelow criticises the contrary doctrine
 
 SECT. I. — COMMENSURATE WITH INJURY. 555 
 
 No. 4. — Wedgewood v. Bailey — Rule. 
 
 of Croolcer v. Bragg, lo Wendell, 260, Imt that doctrine w;is followed and 
 approved in Parker v. Griswold, 17 Connecticut, 288; 43 Am. Doc. 739; Dacis 
 v. Fuller, 12 Vermont, 178; 36 Am. Dec. 334. 
 
 in Parker v. Griswold, supra, it was explicitly held that a lower riparian 
 owner might recover nominal damages for the diversion of a natural stream 
 by an upper proprietor, •• notwithstanding he has sustained no perceptible or 
 actual damage by .such diversion." This is a very learned examination, 
 citing many English cases, including Bowen v. Hill, 1 Bing. N. C. 549, 
 and also Webb v. Portland Manuf. Co., '6 Sumner (United States Circ), 
 190; Blanchard v. Baker, 8 Greenleaf (Maine), 25-J : 23 Am. Dec. 504; 
 Bolivar Manuf. Co. v. Neponset Manuf. Co., 16 Pickering (Mass.), 241; 
 Whipple v. Manuf. Co , 2 Story (United States Circ), 061 ; and Allaire v. Whit- 
 ney, 1 Hill (Xew York), 487, in which Cowex, J., approves Croolcer v. Bragg, 
 supra, and cites the opinion of Powell, J., in Ashby v. White, 2 Ld. Ravin. 
 948, and observes : " But actual damage is not necessary to an action. A vio- 
 lation of right with a possibility of damage forms the ground of an action." 
 Mr. Bigelow approves Parker v. Griswold, supra, and also Sampson v. Hoddi- 
 nott, 1 Com. B. N. S. 590, and does not seem to discuss the question of dam- 
 age by reason of the assertion of a right which may grow into a prescription. 
 He admits that in case of a " permanent diversion " an action may be main- 
 tained without proof of actual damage, citing Parker v. Griswold. Judge 
 Cooley does not cite the principal case in his work on Torts. 
 
 No. 4. — WEDGEWOOD v. BAILEY. 
 
 (K. B. AS COURT OF ERROR, 1782). 
 RULE. 
 
 A plaintiff recovers according to the right which he has 
 at the time of bringincr the action. 
 
 Wedgewood v. Bailey. 
 Sir T. Raym. 403. 
 
 Trover by five, and before verdict one of them dies, and they 
 proceed to trial, and verdict for the plaintiffs, and then the plain- 
 tiffs suggest that one of them is dead, and pray judgment for the 
 rest, and had it ; and the defendants bring a writ of error and 
 assign for error, that the party died before verdict, and so a verdict 
 was given for a dead person. And after argument at the bar, judg- 
 ment was reversed, because every man shall recover according to 
 the right which he hath at the time of the bringing the action ; 
 and therefore if the heir brings an ejectment and his ancestor dies
 
 556 ACTION (right of). 
 
 No. 4. — Wedgewood v. Bailey. — Notes. 
 
 subsequent to his action, he shall not recover. And in this case, 
 although the plaintiffs were joint-tenants and had a capacity of 
 having the whole survive, yet in truth every one had but a moiety, 
 and so were not at the time of the action entitled to so much as 
 they are after the death of one of the plaintiffs. And as to the 
 case of 2 Bulst. 262, Spring's Case, he reports the reason of the 
 judgment to be, because by the death of one the action survives to 
 the other; but he mistakes the reason as appears by Bead and 
 Haul mans Case. As to the cases where trespass is brought against 
 many, and one dies, they differ much from this case, because there 
 the trespass is joint or several at the pleasure of the plaintiff. As 
 to the case of a replevin, 3 Cro. 574, though an avowant is to some 
 purposes a plaintiff, yet he doth not bring the action, and so not 
 within the rule that the same right must continue which was at 
 the bringing the action ; and so judgment was agreed to be 
 reversed by the opinion of three against Dolben, who desired 
 time to consider. 
 
 ENGLISH NOTES. 
 
 It is a well-settled principle that in all actions, whether in the nature 
 of common-law actions, or of what were formerly suits in Chancery, the 
 cause of action must subsist at the time of the issue of the writ; but, in 
 this relation, the question — what is the cause of action — has given 
 rise, to controversy. This has arisen in cases where an act not wrong- 
 in itself is followed by damage, — the act and the damage combining 
 to create an injury under the maxim sic utere tuo ut alienum non 
 Icedas. The following are the cases: — 
 
 Backhouse v. Bonomi (H. L. 1861, an appeal in the action of Bonomi 
 v. Backhouse), 9 H. L. C. 503, 34 L. J. Q. B. 181: — A. works his own 
 mine under the land of B., so as to cause that land to subside. The 
 subsidence eventually, and at a biter date, causes damage to the adjoin- 
 ing land of C. Held, that C.'s right of action against A. arose when the 
 actual damage occurred ; and that such an action was not barred, although 
 brought more than six years after the original act done by A. 
 
 Lamb v. Walker (1878), 3 Q. B. D. 389, 47 L. J. Q. B. 451: — Tn an 
 net ion for injury to the plaintiff's land and buildings, by removal of 
 lateral support through mining operations carried on by defendant on 
 his own land adjoining, it was found by a referee, to whom the amount 
 of damage had been refer rod. that, in addition to the existing damage, 
 there would be future damage to the extent of £'450. The majority 
 (Mellok ami Maxistv, JJ.) held that the future damage was recoverable
 
 SECT. I. — COMMENSURATE WITH INJURY. 
 
 No. 4. — Wedgewood v. Bailey. — Notes. 
 
 in the action, and judgment was pronounced accordingly; bui Cockbi i:\. 
 C.J. (whose opinion has in effect been confirmed, as will presently 
 appear), dissented, holding that, inasmuch as according to Backhouse 
 v. Bonomi, the damage was the gist of the action, the actual damage 
 only could be recovered in the action ; and any furl her damage could only 
 be recovered when if actually arose in a subsequent action. 
 
 Mitchell v. Darley Main Colliery Co. (C. A. 1884), 1 I Q. B. I). L25, 
 53 L. J. t). B. 471; and s. c. in H. L. s. x. Darley Main Colliery Co. 
 v. Mitchell (1886), 11 App. Cas. 127. 55 L. .1. Q. 15. 529:— the de- 
 fendant, by working his mines, caused (at or near the time of work- 
 ing) a subsidence of the soil, involving damage to the plaintiff; ami 
 this damage had been complained of and repaired, presumably to the 
 plaintiff's satisfaction. After a considerable interval of time (more 
 than six years), and without any fresh act on the part of the defend- 
 ant, there was a fresh subsidence, causing damage to the plaintiff, 
 which it was admitted would not have taken place but for the de- 
 fendant's original working. The Court of Appeal, following out the 
 logical consequence of the decision of the House of Lords in Back- 
 house v. Bonomi, held that the new damage was a fresh cause of action; 
 and all the Judges of Appeal (Brett, M. R., Bowen, and Fry, L. JJ.) 
 concurred in approving the judgment of Cockburx, C. J., in Lamb \. 
 Walker as the logical consequence of the judgment of the House of 
 Lords in Backhouse v. Bonomi. Finally, on the case of the Darley 
 Main Colliery Co. being taken to the House of Lords, the judgment of 
 the Court of Appeal was affirmed by a majority, Lords HALSBURY, 
 Bramwell, and • Fitzgerald, against Lord Blackburn dissenting. 
 Each of the Lords forming the majority expressly approved of the judg- 
 ment of Cockkukx, C. J., in Lamb v. Walker. 
 
 It is to be observed that the judgment of the majority, in the case of 
 the Darley Main < 'oilier;/ Co., is expressly or impliedly based on two 
 inferences from the facts: — (1) That the original workings were in 
 themselves lawful acts which, if not followed by damage, would not 
 have created any cause of action; and (2) That the second subsidence 
 was a fresh and distinct occurrence. In the judgment of Lord FITZ- 
 GERALD, indeed, a secondary cause of the subsequent damage hv reason of 
 lawful workings of another person at a distant place, is adverted to ; hut. 
 as Lord Fitzgerald, no less Lords Halsbury and Bramwell, entirely 
 approved of the judgment of Cockburn, C. J., in Lamb v. Walker, 
 this last point cannot be regarded as entering into the ratio decidendi 
 of the House. The result of the judgments must, however, he taken 
 subject to the general observations by which they are accompanied. 
 Lord Halsbury (11 App. Cas. 132) says: '-The question is whether 
 The satisfaction for the past subsidence must he taken to have been 
 equivalent to a satisfaction for all succeeding subsidence. No one will
 
 558 ACTION (right of). 
 
 No. 4. — Wedgewood v. Bailey. — Notes. 
 
 think of disputing the proposition that, for one cause of action, you 
 must recover all damages incident to it by law. once and forever. A 
 house that has received a shuck may not at once show all the damage 
 done to it. but it is damaged none the less then to the extent that it is 
 damaged; and the fact that the damage only manifests itself later on, by 
 stages, docs not alter the fact that the damage is there.'' And Lord Bram- 
 well (p. 144) : "It is a rule that where a thing directly wrongful in 
 itself is done to a man, in itself a cause of action, he must, if he sues 
 in respect of it, do so once and for all. As if he is beaten or wounded, 
 if he sues, he must sue for all his damage past, present, and future, 
 certain and contingent. He cannot maintain an action for a broken 
 arm and subsequently for a broken rib, though he did not know of it 
 when he commenced his first action." And Lord Blackburn, whose 
 judgment, though overruled in the actual case, is not less weighty mioit 
 this point, observes (p. 137): " < .'<>< kisuex, L. C. J., could not, in 
 Lamb v. Walker, have meant to go so far as to say that if a house had 
 been shaken and was evidently going to fall, but had not completely 
 fallen, when the writ issued, the plaintiff could only recover for what 
 had already occurred, and would have to bring a fresh action when a 
 further chimney fell." 
 
 In Crumble v. Wallsend Local Board (1891), 1 Q. B. 503, 60 L. J. 
 Q. B. 392, the question arose out of the acts of a local board, who are 
 protected by the Public Health Act, 1875, from actions unless com- 
 menced within six months after the cause of action. The defendants 
 had made an excavation for a sewer, and by reason of their not having 
 properly filled in the excavation after the sewer was made, the adjacent 
 soil kept getting washed into the hollow, and the plaintiff's house was 
 gradually undermined. The Court of Appeal applied the principle of 
 the Doric ij Main Collier;/ Co., although the subsidence might have been 
 said, in a sense, to be continuous; and they held the plaintiff entitled 
 to recover for all damage which had accrued subsequently to the date of 
 six months before the issue of the writ. 
 
 Idie principle of the rule is modified in a case where the court, as a 
 Court of Equity, exercises the jurisdiction conferred upon the Court of 
 Chancery by Lord Cairn's Act (1858, 21 & 22 Vict. c. 27, s. 2) to 
 award damages in lieu of an injunction. In such a case, where an 
 injunction is claimed to restrain a wrongful act commenced before the 
 issue of the writ, and continued afterwards, though come to an end 
 before the trial, the court has jurisdiction to assess the whole of the 
 damages up to the determination of the wrong. Fritz v. Ilobson 
 (1880), 14 Ch. D. 542, 49 L. J. Ch. 321; Davenport, v. Rylands 
 (18(36), L. R. 1 Eq. 302, 35 L. J. Ch. 204. The formal repeal of 
 Lord Cairn's Act by the Statute Law Revision Act of 1S83 does 
 not, of course, alter this practice, which is within the saving clause;
 
 SECT. II. — FOE CAUSE AFFECTING PUBLIC. 559 
 
 No. 5. — Crosby v. Leng. — Rule. 
 
 and the practice is confirmed, and perhaps extended, by the enact- 
 ment of the R. S. C. 1883 ( Ord. 36, B. 58), that "Where damages 
 are to be assessed in respect of any continuing cause of action, they 
 shall be assessed down to the time of the assessment." The rules of 
 court which allow pleading by way of defence of matters arising pend- 
 ing the action (E>. S. C. Ord. 24) do not affect the principle as to the 
 plaintiff's right in the action. It was at one time a controverted ques- 
 tion whether a counterclaim under the modern rules must be confined to 
 matter arising before the date of issue of the original writ in the action. 
 But it is now settled that in this, as in other respects, the counterclaim 
 is to be dealt with as if it were an independent action. Beddall v. Mait- 
 land (1881), 17 Ch. 1). 174, 50 L. J. Ch. 401; McGoivan v. MiddUton 
 (C. A. 1883), 11 Q. B. D. 464, 52 L. J. Q. B. 355. 
 
 AMERICAN NOTES. 
 
 The right of action must be complete before action, and the subsequent 
 occurrence of a material fact will not avail in maintaining the action. 
 
 As the issue of execution on the judgment in a creditor's bill; McCullough 
 v. Colby, I Bosworth (New York Superior Ct ), 603; 5 id., 477; eviction, 
 Hare v. Van Deusen, ol Barbour (New York Supreme Ct.), 92; assignment. 
 Huchanan v. Comstock, 57 Barbour, 582; action on note against maker on last 
 day of grace but after hanking hours. Smith v. Aylesworth, 40 Barbour, 104 ; 
 subsequent claims accruing to a receiver, Bostwick v. Menck, 1 Daly (New 
 Y T ork Common Pleas), 08; assent of equitable owner of note to suit thereon, 
 Moore v. Maple, 25 Illinois, 341 ; and the like doctrine is supported by Church 
 v. Front, 3 Thompson & Cook (New York Supreme Ct.), 318; Wadley v. Jones, 
 55 Georgia, 329 : Muller v. Earle, 5 Jones & Spencer (New York Superior Ct. I, 
 388; Wultson v. Thibon, 17 Abbott Practice (New York), 184. 
 
 Section II. — For Cause affecting the Public. 
 
 No. 5. — CROSBY v. LENG. 
 
 (k. b. 1810.) 
 
 RULE. 
 
 Where an injury is done by a felonious act, the civil 
 injury does not merge in the felony, but the right of civil 
 action is suspended in order that public justice may first be 
 satisfied. The obstacle is removed by conviction or acquit- 
 tal on a criminal trial ; and in the latter case the court, in 
 order to entertain an action, have only to be satisfied that 
 there was no collusion in the acquittal.
 
 560 ACTION (right of). 
 
 No. 5 — Crosby v. Leng. 
 
 Crosby v. Leng. 
 
 12 East, 409, (s. c. 11 R. R. 437). 
 
 This was an action for an assault, very aggravated in its kind, 
 which was tried before Le Blanc, J., at the last assizes, at York, 
 when a verdict was given for the plaintiff for £100 damages, sub- 
 ject to the opinion of the Court upon a point of law which was 
 reserved. And Park having moved, by leave, at the beginning of 
 the term, for a rule to enter a nonsuit, in order to bring the ques- 
 tion before the Court, Le Blanc, J., now reported shortly that the 
 assault was proved at the trial to have been committed under such 
 circumstances as in his judgment would have amounted to a stab- 
 bing within the Act of the 43 Geo. III. c. 58 ; which makes it a 
 capital felony wilfully, maliciously, and unlawfully, to stab, with 
 intent to murder, maim, disfigure, or disable any person, &c, where, 
 if death had ensued, the case would in law have amounted to mur- 
 der : and he said that he should have so left the case to a jury on 
 the tiial of an indictment for the felony ; but that in this case it 
 appeared by a record produced in court, on the part of the plaintiff', 
 that the defendant had been before tried for the felony and 
 acquitted: and the question was whether, after such acquittal, this 
 action lay. 
 
 Holrovd and Richardson now opposed the rule, and contended 
 that the trespass was not entirely merged in the felony, but only 
 till after the party had been tried for the felony, whether such 
 trial ended in an acquittal or conviction. The justice of the 
 country was then satisfied ; and the doctrine of the merger of a 
 trespass in felony was only to stimulate the party injured to bring 
 the offender to trial for the public offence, and to prevent any com- 
 promise of that, by denying to him, in the first instance, all redress 
 for the private injury he may have received from the commission 
 of the felonious act, till the judgment of the law had been passed 
 upon it ; but by no means to take away his redress absolutely after 
 the ends of public justice were attained. Lord Hale (1 Hale P. 
 C. 546), lays it down, that after conviction the action lies to the 
 party injured, because he has prosecuted the law against the 
 offender, and there can be no mischief to the commonwealth. 
 The same law then must hold after an acquittal of the felony : and 
 the objection which may be urged, that this may lead to collusive 
 prosecutions for the purpose of an acquittal, cannot hold ; for if
 
 SKiT II. — FOE CAUSE AFFECTING PUBLIC. 561 
 
 No. 5. - Crosby v. Leng. 
 
 any collusion appeared, the plaintiff iD the action could not recover, 
 because be could not avail himself of a judgment procured by 
 fraud, as was held in The Duchess of Kingston's Case, 11 St. Tr. 
 198; Arnbl. 761, 762. They then mentioned a case «>|' Hayton v. 
 Brovn, which was tried before Mr. Baron WOOD at the. Lasl 
 summer assizes at Lancaster, where he permitted the plaintiff' to 
 recover in an action of trespass for a similar assault t<> the present, 
 after the defendant had been tried for the felony and acquitted at 
 the antecedent summer assizes. 
 
 Park, in support of the rule, argued from the defect of precedents 
 in this case in support of the action, that the general opinion of 
 the profession must have been against it, particularly where the 
 occasion must have frequently occurred. The cases have, already 
 broken in too much on the common-law principle, that the trespass 
 is merged in the felony, by admitting the action to be brought 
 after a conviction of the felony ; but if this be now extended to 
 cases of acquittal, it will let in all the mischief against which the 
 common law meant to guard, by encouraging faint or collusive 
 prosecutions for the felony, to give a better opportunity to the 
 party injured of obtaining private redress. The cases are not recon- 
 cileable ; for in Higgins v. Butcher, Tr. 4 Jac. 1; Yelv. 90, all 
 the Court agreed that if one beat the servant of another, so that 
 he die, the master shall not have an action for the battery and loss 
 of service, because the felony drowns the private wrong, and his 
 action is thereby lost; and this was agreed to be law in a subse- 
 quent case of Cooper v. Witham, M. 20 Car. 2 ; 1 Sid. 375. But 
 see 1 Lev. 247, S. C. He admitted the weight due to the bite deci- 
 sion in the case of Hayton v. Brown ; but as that was never brought 
 in revision before the Court in Bank, he considered that decision 
 as still open to review. 
 
 Lord Ellexborough, C. J. The policy of the law requires that 
 before the party injured by any felonious act can seek civil redress 
 for it, the matter should be heard and disposed of before the 
 proper criminal tribunal, in order that the justice of the country 
 may be first satisfied in respect to the public offence ; and after a 
 verdict either of acquittal or conviction, the judgment is so far con- 
 clusive in any collateral proceeding quoad the particular matter, that 
 the objection is thereby removed of bringing that sub jvdicc in a civil 
 action, which was the proper subject-matter of a criminal prosecu- 
 tion. Here the defendant having been before tried and acquitted 
 vol. i. — 36
 
 562 ACTION (right of). 
 
 No. 5. — Crosby v. Lsng. 
 
 of the felony, the objection founded upon the general policy of the 
 law does not apply. This point has been before decided in the 
 cases of actions brought after a conviction of the defendant for 
 the felony ; and the only difference which can be suggested 
 between the case of a prior conviction and that of an acquittal is, 
 that the acquittal may have been brought about by the defendants 
 colluding with the prosecutor. But if the acquittal be shown 
 either in pleading or by evidence to have been obtained by collu- 
 sion, it would be put aside, and the objection would still remain. 
 All the mischief therefore that could result from extending the 
 same rule to cases of acquittal, which has established the right to 
 sue after a conviction of the felon, is done away by letting the 
 defendant in to show that the judgment of acquittal was obtained 
 •per fr audi m. 
 
 Grose, J. The true ground of the general rule against the 
 plaintiff's right to sue for damages in a civil action, for any act 
 which amounts to felony, is to prevent the criminal justice of the 
 country from being defeated, — which it would be very likely to be 
 if the party were first permitted to obtain a civil satisfaction for 
 the injury ; but that does not apply to this case, where there has 
 already been a trial and acquittal of the felony. 
 
 Le Blanc, J. The defendant having been acquitted of the 
 felony, and that without fraud, as it must be taken to be, the case 
 stands clear of the general objection, that if the action were sus- 
 tained, criminal justice might be defeated. All the cases which 
 show that the action lies after convietion of the defendant for the 
 felony, apply strongly in support of it after acquittal ; for it is a 
 stronger case to permit the party injured to proceed upon his civil 
 remedy to recover damages after a conviction of the offender, when 
 the law has, by means of the forfeiture of his property consequent 
 upon a conviction, taken away from him the means of satisfying 
 the damages. Besides, when the defendant, after an acquittal of 
 the felony, is called upon to make recompence in civil damages 
 to the party grieved, it would be stronger for him to be permitted to 
 allege that he was not properly acquitted, than in the other case it 
 would be to allege that he had not been properly convicted. And 
 here the defendant cannot say, against the record of acquittal, that 
 this was a felony. After the question of felony has been deter- 
 mined, it leaves the trespass untouched : the defendant has com- 
 mitted the trespass, which is the subject of the civil action ; but
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 563 
 
 No. 5. — Crosby v. Lang. Notes. 
 
 the question on the indictment was whether he had not done some- 
 thing more. It often happens that after an acquittal of the felony 
 the defendant is tried for the misdemeanour upon the same evidence ; 
 and it would be no objection though the judge might still think 
 that there was evidence of the felony to have gone to the jury. 
 
 Bayley, J. If this action would not lie, there might he cases 
 where a party injured would he without remedy, and yet the 
 wrong-doer would not he liable to punishment : as, for instance, 
 there might he circumstances known only to the plaintiff himself, 
 which when proved by him upon the prosecution of the defendant 
 for felony, would entitle him to he acquitted, when, without such 
 proof, the evidence might lead to convict him. Suppose upon the 
 indictment for the felonious stabbing, it lay only within the knowl- 
 edge of the plaintiff that a previous provocation had been given, 
 which, if death had ensued, would have reduced the offence to 
 manslaughter; there would he a defect of justice if the plaintiff 
 could not afterwards obtain reparation in damages for the civil 
 injury, because, for want of the proof of such provocation, known 
 only to himself, the offence appeared to be felony. The record of 
 acquittal is at least conclusive evidence that the defendant was 
 not proved guilty of the felony, and he cannot be questioned for 
 the same offence again ; but it leaves the civil remedy open. 
 Unless, therefore, in those cases where the conduct of the party 
 complaining can be impeached as having colluded in procuring the 
 acquittal, it operates as an answer to any objection that the fact 
 proved would be evidence of felony. 
 
 Rule discharged. 
 
 ENGLISH NOTES. 
 
 l lie hypothesis, formerly current, that the civil injury merged in the 
 
 • rime, has long been abandoned; and, while the principle thai the right 
 
 if action is suspended has been reiterated by numerous and weighty 
 
 mthorities, doubts have been recently thrown upon the mode — and 
 
 ; to whether there is any mode — of giving practical effect to this 
 
 rinciple. 
 
 In Stone v. Marsh (K. lb 1S27). Gib & C. 551, the plaintiffs, who 
 
 were trustees, broughi a' action against the defendants, who were 
 
 bankers, for the proceeds of certain securities belonging to the trust 
 
 and received by the bank. The securities had been sold by means of a 
 
 forged transfer. The forgery had been committed by one Fauntleroy, 
 
 who was formerly a joint trn • ■ with the plaintiffs, and the managing
 
 564 ACTION (right of). 
 
 No. 5. Crosby v. Leng. — Notes 
 
 partner in the business of the hanking house. The defendants were 
 innocent of the crime; and, before this action was brought, Fauntleroy 
 had been executed for another forgery. It was held that, as there was 
 no longer any public policy to be served by a criminal prosecution, the 
 civil action was not barred. And in Marsh v. Keating (H. L. 1834), 
 1 Bing. N. C. 198, where a similar action, arising out of the forgeries 
 by Fauntleroy, was brought on appeal to the House of Lords, the plain- 
 tiff, the executor of the stockholder whose name had been forged (suing 
 on behalf of the Bank of England, who had admitted their liability to 
 replace the stock), was held entitled to recover the proceeds from the sur- 
 viving partners of the banking firm who had received them. Park. J., 
 who delivered the opinion of the consulted judges, said (1 Bing. N. C. 
 p. 217): "It may be admitted that the civil remedy is, in all cases, 
 suspended by a felony where the act complained of, which would other- 
 wise, have given a right of action to the plaintiff, is a felonious act. . . . 
 But this principle does not apply to the present case, because, first, None 
 of the defendants had any privity or share in the felonious act. . . . 
 And, secondl //, Fauntleroy, the person guilty of the forgery, had suffered 
 the extreme penalty of the law before the action was brought." 
 
 So in White v. Spettigue (Ex. 1845), 13 M. & W. 603, 14 L. J. 
 Excli. 99, an action of trover was held maintainable to recove lie 
 value of goods which had been stolen from the plaintiff, and which he 
 defendant had innocently purchased, although no steps had been tal en 
 to bring the thief to justice. Stone v. Marsh and Marsh v. Keating 
 were cited and relied on in the judgments. 
 
 The decision in White v. Spettigue is again cited and confirmed in 
 Zee v. Bayes ("C. P. 1856), 18 C. B. 599, (503; and it is thus set. led 
 law that the circumstance of the cause of action having had its origin 
 in crime is no bar or hindrance to an action between parties innocenl 
 of the crime. 
 
 The mode of carrying into effect the principle that the right of action 
 is suspended was brought into question in Wells v. Abraham (1872), 
 L. 11., 7 Q. B. 555, 41 L. J. Q. B. 306; where it was decided that a 
 judge trying the issue in the action at Nisi Prius, could not nonsuit the 
 plaintiff on the ground that the injury sued for was a felony. Black 
 burn, J., goes so far as to point out that the rule rests mainly upon 
 dicta; and suggests that the only mode of enforcing it would be that 
 the court might stay the proceedings on grounds of public policy, and 
 on the intervention of the Attorney-General. And it is observed by 
 Lush, J., that the defendant could not set up his own crime as a bar to 
 the plaintiff's redress in his action. These doubts are reiterated in the 
 judgment of the Lords Justices James and Bramwell (delivered by the 
 latter) in Ex parte Ball; In re Shepherd (C. A. 1879), 10 Ch. D. 667.
 
 SECT. II. — FOK CAUSE AFFECTING PUBLIC. 565 
 
 No. 5. — Crosby v. Leng. — Notes. 
 
 And observations are made upon the difficulty even of maintaining the 
 solution suggested by Mr. -lustier Blackburn - . 
 
 In Midland Ins. Co. v. Smith | 1881), 6 Q. B. D. 557, 50 L. J. Q. B. 
 •*!L M .), an action was brought by the Insurance Company against the insured 
 and his wife, by whose felonious act it was alleged the premises had been 
 burnt down, causing trouble and expense to the company. I Mi demurrer 
 it was held by Watkin Williams, J., that the action was not maintain- 
 able, the insurance company having no rights except the right, on ad- 
 mitting the claim, to stand in the place of the insured. But on a review 
 of all the authorities relating to the above rule, he held that, if the 
 action had been otherwise maintainable, the demurrer could not have 
 succeeded merely on the ground that the felon had not been prosecuted. 
 
 It is to be observed that in actions for damages under Lord Camp- 
 bell's Act (184(5, 9 & 10 Vict. c. 93) for negligently or by default caus- 
 ing the death of another person, it is expressly enacted that the action 
 shall be maintainable, although the death shall have been caused under 
 such circumstances as amount in law to a felony. 
 
 In connection with, though not strictly under, the above rule, may 
 be cited a case in which came into question the effect of the Statute of 
 o Rich. II., upon the right of action consequent upon a forcible entry. 
 The Statute (5 Rich. II. Stat. 1, c. 8) enacts, "That none from hence- 
 forth make any entry into any lands and tenements but in case where 
 such entry is given by the law; and in such case not with strong hand, 
 nor with multitude of people, but only in peaceable and easy manner. 
 And if any man from henceforth do to the contrary, and thereof he 
 duly convict, he shall be punished by imprisonment of his body, and 
 thereof ransomed at the King's will." In Beddall v. Maitland (1881), 
 17 Ch. D. 171, 50 L. J. Ch. 401, a question arose out of (inter alia) a 
 counterclaim by the defendant for (1) a forcible entry to the defendant's 
 house, and (2) reckless throwing about of, and damage to, the defendant's 
 furniture. It appeared at the trial that the plaintiff was entitled peace- 
 ably to enter and take possession of the house, but that he entered for- 
 cibly, contrary to the statute; and that he then turned the defendant and 
 his family out, and put his furniture out of the house. Fry, J., held 
 that (1) the defendant, who was unlawfully in possession, had no right 
 of action against the plaintiff for the forcible entry; but that (2) in re- 
 spect" of the injury done to the furniture which the defendant could only 
 have justified by a lawful possession, and which therefore constituted 
 an independent wrong, the plaintiff was entitled to succeed. < Mi the 
 former branch of this judgment he cited Pollen v. Brydges (1845), 1 1 
 M. & W. 437; and on the latter, Newton v. Harland (1840), 1 Scoti 
 X. K. 474. The last mentioned case, of which the report is \eiy dif-
 
 56G ACTION (right of). 
 
 No. 5. — Crosby v. Leng. — Notes. 
 
 fuse, is neatly summarised by th<' learned Judge (Fry, J.) as follows 
 (17 Ch. 1). 188) : " The action was brought to recover damages for an 
 assault committed on the plaintiff's wife in the course of a forcible 
 entry by the defendant into some apartments which had been occupied 
 by the plaintiff as tenant to the defendant. The plaintiff remained i it 
 the apartments after the expiration of his term, and the defendant en- 
 tered by force and turned out the plaintiff's wife and family, and in 
 doing so assaulted the wife. The defendant pleaded that the acts were 
 done in defence of his possession of the house; and the Court of Common 
 Pleas held, contrary to the opinions of Baron Pabke and Baron Aldek- 
 son (in their directions to the jury on two several trials of the case), 
 that the defence failed, because the defendant's entry was unlawful." 
 
 AMERICAN NOTES. 
 
 The doctrine of the principal case has very little prevalence in this country, 
 and generally, either by judicial departure from it, or by statutory enactment. 
 the contrary rule prevails. 
 
 In Alabama, the English doctrine is accepted ; Minion v. Bradley, 27 Ala- 
 bama, 610. 
 
 At an early day it was held that a civil injury included in a felony is merged 
 therein, ami so that assumpsit would not lie against a thief in respect to the 
 goods stolen. Foster v. Tucker, 3 Greenleaf (Maine), 458; 11 Am. Dec. 243. 
 And so in Boardman v. Gore, 15 Massachusetts, 331 : but a subsequent statute 
 removed the disability in each State. 
 
 It is now generally held that the civil remedy is not merged in nor 
 suspended by the criminal act. Alwood v. Fisk, 101 Massachusetts, 363 ; 
 Howk v. Minnick, 1!) Ohio St. 462; 2 Am. Rep. 413; Hyatt v. Adams, 10 
 Michigan, 180 (obiter)-, Thayer v. Boyle, 30 Maine, 17~> ; Newell v. Cowan, 30 
 Mississippi, 492; Branson v. Martin, 17 Arkansas. 270: Nowlan v. Griffin, 08 
 Maine, 235; 28 Am. Rep. 45; Cannon v. Burris,\ Hill (So. Carolina). 372 ; 
 Bailor v. Alexander, li Humphrey (Tennessee), 433; Patton v. Freeman, Coxe 
 (New Jersey). 113; Cook v. Darby, 1 Munford (Virginia), 111 ; White v. Fart. 
 :> Hawks (No. Carolina), 251 ; Nash v. Primm, 1 .Missouri. 178; Mitchell v. 
 Minis, 8 Texas, 6; Van Duzer v. Howe, 21 New York, 531, 538; Hepburn's 
 Case, 3 Bland (Maryland). 114; Lofton v. Vogles, 17 Indiana, 105; Pettingill v. 
 Hideout, New Hampshire, 454; 25 Am. Dec. 173; Quimby v. Blackey, 63 New 
 Hampshire, 77; Williams v. Dickenson, 28 Florida. 90. 
 
 In Connecticut the English doctrine is limited to capital felonies; Cross v. 
 Guthery, 2 Root. !)<> : in Georgia, to common-law felonies. Adams v. Barrett, 
 5 Georgia, 404. 
 
 Mr. Bishop says (1 Criin. Law, §271). that "in New Jersey, Virginia. 
 North Carolina. Missouri, Michigan, and Texas the question appears to be in 
 doubt, with perhaps a tendency against the English doctrine." 
 
 In Boston, 8fc, R. Co. v. Dana, 1 Gray (Mass.), 83, Bigelow, J., attributed 
 the policy of the English doctrine to the fact that in England there is no 
 public prosecutor for each county, and it becomes the duty of every sufferer
 
 SECT. II. — FOK CAUSE AFFECTING PUBLIC. 
 
 Nc. 6. — Attorney-General v. Shrewsbury Bridge Co. — Rule. 
 
 himself to trace the offender and prosecute him to conviction, and there- 
 fore Ins private interest should not l>c permitted to interfere with the 
 discharge of that public duty. "The whole system of the criminal admin- 
 istration of justice in England is made to depend very much upon the vigil- 
 ance and efforts of private individuals." But in this country no such public 
 necessity or policy exists, because every county has its public prosecutor and 
 its frequent grand juries. He also argues that the adoption of the English 
 rule here would furnish " a strong motive to stifle the prosecution and com- 
 pound with the felon." Also that it would be immoral " to suffer a party to 
 set up and maintain in a court of law a defence founded solely upon his own 
 criminal act." 
 
 Mr. Bishop expresses his own opinion, and not the judicial sense of this 
 country, when he says (1 Crim. Law, § 1272), that " witli us, the true rule is 
 believed to be that the party may institute the proceeding for damages as 
 promptly as lie chooses, only he must not bring on the trial in advance of his 
 public duty." 
 
 No. 6. — ATTORNEY-GENERAL v. SHREWSBURY 
 (KINGSLAND) BRIDGE CO. 
 
 (chancery div. 1882.) 
 
 RULE. 
 
 When an illegal act is being committed which in its 
 nature tends to the injury of the public, such as an inter- 
 ference with a public highway or a navigable stream, 
 the Attorney-General can maintain an action on behalf 
 of the public to restrain the commission of the act, with- 
 out adducing any evidence of actual injury to the public ; 
 and in such a case an injunction will be granted with 
 costs, although no evidence of actual injury is given. 
 
 Attorney-General v. Shrewsbury (Kingsland) Bridge Co. 
 
 21 Ch. D. 752 ; (s. c. 51 L. J. Ch. 740). 
 
 This was an action by the Attorney-General, at the relation of 
 two shareholders in the defendant company and by the two share- 
 holders as plaintiffs, claiming an injunction to restrain the com- 
 pany from proceeding with their works. 
 
 By the Shrewsbury (Kingsland) Bridge Act, 1873, the company 
 were incorporated, and were authorised to construct a bridge over 
 the River Severn, a road, and other works, and for this purpose
 
 568 ACTION (KIGHT (»F). 
 
 No. 6. — Attorney-General v. Shrewsbury Bridge Co. 
 
 t > purchase and hold certain lands, the Companies Clauses Con- 
 solidation Act, 1845, and the Lands Clauses Consolidation Acts 
 being incorporated with the special Act. The special Act pro- 
 vided that, if the undertaking should not be completed within 
 live years from the passing of the Act, then, on the expiration of 
 that period, the powers by the Act granted to the company for 
 making and completing the same, or otherwise in relation thereto, 
 .should cease to be exercised, except as to so much thereof as 
 should be then completed or executed. 
 
 The period of five years expired on the 15th. of May, 1878, and 
 the company had not within that period completed the works 
 authorised by their Act. 
 
 The statement of claim alleged that, notwithstanding the expira- 
 tion of the five years, the company were proceeding with the 
 construction of the road, bridge, and other works authorised by 
 the Act, and were interfering with roads and lands for that pur- 
 pose, and were expending the capital of the company in such 
 construction, and were threatening and intending to interfere 
 with public roads, ways, lands, and hereditaments in the same 
 manner as if they had parliamentary powers authorising such 
 interference. The plaintiffs further alleged that the company 
 were about to apply to Parliament to grant them new powers, 
 and to revive their lapsed powers, and that they had already 
 spent, and intended, before obtaining from Parliament powers in 
 that behalf, further to spend moneys raised under the Act of 
 1873, in and about their application to Parliament. The relators 
 were liable to pay further calls on their shares. 
 
 The plaintiffs claimed an injunction to restrain the company 
 from proceeding with the works originally authorised by the Act 
 of 1873, and from interfering with any roads, lands, or heredita- 
 ments for the purpose of the said works, or other purposes not 
 authorised by Parliament, and from applying any of the moneys 
 raised, or to be raised, under the Act of 1873 for the purposes 
 aforesaid, or in or about their contemplated application to Parlia- 
 ment, or for any other purpose not authorised 1)}' Parliament. 
 
 On the 30th of January, 1880, the plaintiffs moved before 
 JESSEL, M. II., for an interlocutory injunction in the terms of 
 their claim. There was evidence that the company had been, 
 since the expiration of the five years, driving piles into the River 
 Severn, and interfering with a public highway, and with the
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 569 
 
 No. 6. — Attorney-General v. Shrewsbury Bridge Co. 
 
 towing-path by the river; but there was no evidence of actual 
 damage to the public by reason of these acts. The motion was 
 ordered to stand to the trial, on the undertaking of the defendants 
 not to do any works off their own land, and nut to expend any 
 moneys of the company. In the session of 1880, the company 
 obtained another Act, which extended the time for tin; completion 
 of their works ; and thereupon the plaintiffs agreed that the com- 
 pany should be relieved from their undertaking. On the 17th of 
 April, 1881, the plaintiffs obtained an order giving them liberty 
 to discontinue so much of their claim in the action as related to 
 matters other than the claim to have the company restrained 
 before the passing of the Act of 1880 from executing works off 
 their own land according to the terms of their undertaking ; and 
 it was ordered that the relators should pay so much of the defen- 
 dants' costs of the action as had been occasioned by so much of 
 the claim as was discontinued, including the costs of the applica- 
 tion for the order of discontinuance, and liberty was given to the 
 plaintiffs to amend their statement of claim, if necessary. On the 
 16th of May, 1881, the plaintiffs amended their statement of claim, 
 and claimed only an injunction in the terms of the undertaking, so 
 far as it related to the execution of works off the defendants' own 
 land before the passing of the Act of 1880, and payment by the 
 defendants of the costs of the action, other than those already 
 ordered to be paid by the relators. 
 
 The action now came on for trial. The evidence was in sub- 
 stance the same as on the hearing of the motion for an injunction. 
 The only question was whether the defendants ought to be ordered 
 to pay the costs claimed. 
 
 W. Phipson Beale, for the relators and plaintiffs. 
 
 Langworthy, for the defendants. An injunction would not be 
 granted unless substantial injury to the public was proved, and 
 therefore the plaintiffs are not entitled to costs. Attorney- General 
 v. Great Eastern Raihvay Company, 11 Ch. D. 449; Attorney- 
 General v. Great Northern Railway Company, 1 Dr. & Sin. 154. 
 
 [Fry, J., referred to Attorney- General v. Ely, Haddenham, & 
 Sutton Railway Company, Law Eep. 4 Ch. 194; Attorney- General 
 v. Cockermouth Local Board, ib. 18 Eq. 172.] 
 
 Fry, J. (after stating the facts), continued: — 
 
 The question which has been mainly argued is this: Had the 
 Attorney-General a right under the circumstances to intervene
 
 .570 ACTION (ltlGHT OF). 
 
 No. 6. — Attorney-General v. Shrewsbury Bridge Co. 
 
 without showing substantial injury to the public ? It appears to 
 me that there is a conflict of authority on this point, or rather 
 some want of uniformity in the various authorities. But before 
 considering the authorities, I will make this observation. This is 
 clearly a case in which the defendant company, without any power 
 (for their powers had come to an end), thought tit to do certain acts 
 which undoubtedly tended in their nature to interfere with public 
 rights, and so tended to injure the public. The question is whether, 
 under such circumstances, the Attorney-General is justified in inter- 
 fering, though there is no evidence of actual injury to the public. 
 In my judgment he is entitled to do so, and the Court is bound to 
 attend to his interference. One of the earliest cases on the subject 
 is A ttomey- General v. Oxford, Worcester;^ Wolverhampton Railway 
 Company, 2 W. R. 330, 331. There, at the instance of the Attorney - 
 Genera], the Court restrained the opening of a railway not author- 
 ised by the Board of Trade; and Lord Romilly, M. R., said that 
 " the view he took of the case was this, that undoubtedly the 
 Attorney-General might apply to the Court in cases of nuisance. 
 It was properly said on the other side that in all such cases the 
 Court required that the nuisance should be proved. But lie was 
 also of opinion that the Attorney-General, as parens patriae" 
 (meaning thereby, I conceive, as the representative of the 
 parens putrid 1 ), " might apply to the Court to restrain the execu- 
 tion of an illegal act of a public nature, provided it was estab- 
 lished that the act was an illegal act and it affected the public 
 generally." Again, in Attorney-General v. Cockermouth Loral 
 Board, supra, Jessel, M. R., refused to grant an injunction on 
 the bill, because he came to the conclusion that there was no 
 evidence of any nuisance resulting to the plaintiffs from the 
 defendants' acts. Nevertheless, at the instance of the Attorney- 
 General; he granted an injunction to restrain the defendants from 
 polluting the water of the river, because that was expressly pro- 
 hibited by Act of Parliament, There, as in the present case, there 
 was no evidence of any actual injury, but there was evidence 
 that the defendants were doing certain illegal acts which tended 
 in their nature to injure the public, and, accordingly, the injunc- 
 tion was granted with costs. In the more recent case of Attorney- 
 General v. Great Eastern Railway Company, supra, the learned 
 Lords Justices appear to have differed somewhat in their opinions. 
 If they had expressed any decided view affecting the present case,
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 571 
 
 No. 6. — Attorney-General v. Shrewsbury Bridge Co. — Notes. 
 
 T need not say that I should have followed it But having regard 
 to that difference of opinion, it appears to me that that case fur- 
 nishes no distinct guide to me. But, when 1 examine the judg- 
 ment of Lord Justice James, who was the most adverse to the 
 rights of the Attorney-General, I think that, even according to his 
 view, the present action could he maintained ; fur, commenting on 
 Attorney-General v. Cockermouth Loral Board, lie said (11 Ch. D. 
 483), " The board were doing works which would or might probably 
 poison a running stream, in direct violation of the law which pro- 
 hibited them from committing a nuisance." Just as there the acts 
 which were restrained without proof of injury were acts which in 
 their nature tended to injure the public, so, in the present case, the 
 acts which the Attorney-General sought to restrain were in their 
 nature such as tended to injure the public. In coming, therefore, 
 to the conclusion that this action can be maintained without proof 
 of actual injury to the public, 1 think I am acting in accordance 
 with the view of Lord Justice James. There is, moreover, the author- 
 ity of Lord Hatherley in Attorney-General v. Ely, Haddenham, & 
 Sutton Railway Company, supra. He said (Law Rep. 4 Ch. 199) : 
 <: The question is, whether what has been done has been done in 
 accordance with the law; if not, the Attorney-General strictly 
 represents the whole of the public in saying that the law shall be 
 observed.'' Here the law has been broken in a manner tending 
 to injure the public; and, in my judgment, the relators are en- 
 titled to costs. The costs have not been increased by adding the 
 relators as plaintiffs, and I shall allow the whole of the costs now 
 in dispute. 
 
 ENGLISH NOTES. 
 The above decision of Fry, J., is referred to by Lord Justice Kay 
 in his judgment in London Association of Shipowners, &c. v. London. 
 &n. Dorks .Joint Committee (C. A. 1892), o Ch. 242, L'70, as an au- 
 thoritative decision in which the previous eases are collected. The 
 points of those cases are sufficiently stated in Mr. Justice Fry's judg- 
 ment. The actual decision in this case of London Association of Ship- 
 owners, &c. is more directly in point upon the next rule, and will he 
 further there noted (under No. 7. post). 
 
 AMERICAN NOTES. 
 
 Mr. Pomeroy undoubtedly expresses the doctrine correctly when lie savs 
 (3 Equity Jurisprudence, p. 2078) : "A court of equity has jurisdiction to
 
 572 ACTION (right of). 
 
 No. 6. — Attorney-General v. Shrewsbury Bridge Co. — Notes. 
 
 restrain existing or threatened public nuisances by injunction, at the suit of 
 the Attorney-General in England, and at the suit of the .State, or the people, 
 or municipality, or some proper officer representing the commonwealth, in 
 this country." Citing the principal case. Mr. Beach (1 Equity Jurispru- 
 dence, § 742) is to the same effect. This doctrine is declared in Newark 
 Aqueduct Board v. City of Passaic, 45 New Jersey Equity 393 ; 18 Atlantic Rep'r, 
 107 ; People v. Vanderbilt, 26 New York, 287; Attorney-General v. Eau Claire, 
 37 Wisconsin, 400; Pennsylvania v. Wheeling, fyc, Bridge Co., 13 Howard 
 (United States), 518; Craig v. People, 47 Illinois, 487; City of Newcastle v. 
 Raney, 130 Penn. St. 546 ; City of Demopolis v. Webb, 87 Alabama, 659. 
 
 "This court has jurisdiction to restrain any purpresture or unauthorised 
 appropriation of the public property to private uses, which may amount to a 
 public nuisance or may injuriously affect or endanger the public interest. And 
 where the officers intrusted with the protection of such public interests, acting 
 under the sanction of their official oaths, believe the intended encroachment 
 will prove injurious to the navigation of the canals, private persons should not 
 be permitted to interfere with the waters or embankments of the canals, con- 
 trary to law, upon a mere opinion, although under the sanction of an oath, 
 that the intended trespass upon the public rights would not be an injury to the 
 public." (This was a suit to restrain a cutting through a canal embankment.) 
 Citing Attorney-General v. Johnson, 2 Wils. Ch. 87 ; Attorney-General v. Cohoes 
 Co., 6 Paige Chancery (New York, A. D. 1836), 133; 29 Am. Dec. 755. 
 
 To the same effect, Ravenswood v. Flemings, 22 West Virginia, 52 ; 46 Am. 
 Rep. 485; Town of Burlington v. Sclacarzman, 52 Connecticut, 181 ; 52 Am. 
 Rep. 571 (fence across a highway); Attorney-General v. Williams. 140 Massa- 
 chusetts, 329; 54 Am. Rep. 468 (bay-window over street); in this case the 
 court observing: "It does not in this case appear affirmatively that the Com- 
 monwealth has sold all of its land in the neighbourhood of the premises in 
 question, and that it has no direct pecuniary interest in enforcing the stipula- 
 tion. But assuming the facts to be so, it still has a duty to perform in this 
 respect," etc. So in People v. Gold Mining Co., 66 California, 138; 56 Am. 
 Rep. 80 (obstructing navigable stream by mining); People v. Booth, 32 New- 
 York, 397 (erection in a bay). 
 
 In Burlington v. Schicartzman, supra, it is said that " the liability of the town 
 to pay damages in case a person is injured by the obstruction is a sufficient 
 interest to enable it to appear as plaintiff in a complaint in equity to prevent 
 the threatened obstruction." 
 
 But in the case of a stream already unnavigable by dams and bridges, the 
 addition of an erection, not in itself a material obstacle to navigation, may 
 not be restrained at the suit of the public. Slate v. Carpenter, 68 Wisconsin, 
 165 ; 60 Am. Rep. 848. The court say : " It seems that there have always been 
 grave doubts as to the interference by a court of equity to grant an injunction 
 against a threatened public nuisance. Angell's Water-courses, § 566; Attorney- 
 General v. N. J. Railroad §■ Trans. Co., 3 New Jersey Equity, 136. It is in case 
 of public nuisance requiring immediate suppression that the chancery courts 
 of the United States have jurisdiction. Georgetown v. Canal Co., 12 Peters, 
 91 : Rowe v. Granite Bridge Corp., 21 Pick. 344. In other cases, courts of law
 
 SECT. II. — FOH CAUSE AFFECTING PUBLIC. 
 
 No. 7. — Ricket v. Metropolitan Railway Co. — Rule. 
 
 should be appealed to when the fads can be passed upon by a jury. Angell 
 Highways, § 280. The jurisdiction of a court of equity to restrain public 
 nuisances at the suit of the Attorney-General is one of greal delicacy, and 
 should not be exercised except to arrest irreparable injury. Angell Highways, 
 ij l'sl*. So the sale of adulterated teas will not be restrained h\ injunction, 
 unless it appears to threaten serious danger to human life or serious del rimenl 
 to health. Health Department v. Pardon, 99 New York, 2-57; 52 Am. Hep. l'_'. 
 The doubts expressed by the Chancellor in Attorney-General v. Ni w Jem y 
 R. ; V Trails. Co., supra (A. 1). 1S:)1. case of a railroad bridge across a river), 
 and his assertion that the equity jurisdiction " has rarely been exercised," 
 have been dissipated and contradicted by the later course of adjudication. In 
 this case the bridge had been practically finished, and he held that it could 
 not be removed; but this doctrine does not now prevail. 
 
 No. 7.— RICKET v. METROPOLITAN RAILWAY CO. 
 (li. L. 1867.) 
 
 RULE. 
 
 (a) Where the loss sustained by an individual by reason 
 of an alleged public nuisance (for which an indictment 
 would lie) is not distinguishable in character from that 
 suffered by the public generally, the individual has not in 
 respect of that loss alright of action against the person 
 causing; the nuisance. 
 
 (b) Inconvenience suffered through erections of a tem- 
 porary character made on neighbouring premises, which are 
 necessary to the construction of lawful works there, does 
 not form an actionable ground of complaint at common 
 law. 
 
 (c) Held by the House of Lords (diss. Lord Westbury) 
 that, where damage sustained by operations, of a railway 
 company is such as would not have been actional tie at 
 common law, the compensation clauses (under the Lands 
 Clauses and Railways Clauses Consolidation Acts) for 
 lands, &c, "injuriously affected" do not give any right to 
 compensation.
 
 574 ACTION (right of). 
 
 No. 7. — Racket v. Metropolitan Railway Co. 
 
 Ricket v. Metropolitan Ry. Co. 
 
 L. R, 2 H. L. 175 (s. c. 3G L. J. Q. B. 205). 
 
 This was a proceeding in error upon a decision of the Exchequer 
 Chamber which had reversed a previous decision of the Court of 
 Queen's Bench. 
 
 Ricket was the occupier of a public-house, with the sign of the 
 Pickled Egg, situated in a place formerly called Pickled Egg Walk, 
 but now known as Crawford Passage; and he complained of injury- 
 occasioned to his business by the works of the defendants. The 
 position of the premises was this : The main thoroughfare, from the 
 top of St. John Street westward to Liquorpond Street, went along a 
 street called Bowling Green Lane, which, at its western extremity,, 
 came upon a broad road called Coppice Row. Opposite the end of 
 Bowling G-reen Lane was Clerkenwell workhouse, under one end of 
 which was a footway which led the foot-passenger to Crawford 
 Passage, at a spot directly in face of the Pickled Egg public-house,, 
 whence there was a descending pathway, made wide enough at 
 the bottom to admit carts, and opening upon Back Hill, which led 
 up to Liquorpond Street. The defendants, under the authority of 
 their Acts, blocked up the carriage-w T ay of Bowling Green Lane 
 and Coppice Row, and erected hoardings, but gave a passage to 
 foot-passengers by steps and a temporary bridge across Coppice 
 Row to the passage which led to the plaintiffs house, and at the 
 same time made another communication in a diagonal line, which 
 enabled any one to go by a shorter route from the end of Bowling 
 Green Lane to the foot of Back Hill. These hoardings and steps- 
 were continued for twenty months, and then the streets and 
 passages were restored to their original condition. 
 
 Ricket complained that his business- had been injured by the 
 obstructions, and, under the provisions of the 8 & 9 Vict., c, 18 and 
 c. 20 (the Lands Clauses and the Railways Clauses Acts), sought 
 compensation. 1 The case in the first instance was heard before 
 
 1 8 & 9 Vict. c. 18, § 68, contains these 8 & 9 Vict c. 20, § 6: The Railways 
 expressions: " If any party shall been- Clauses Consolidation Act, 1845. " In ex- 
 titled to any compensation in respect of ercising the powers, given to the company 
 any lands or of any interest, therein, which by the special Act, to construct the rail- 
 shall have been taken for, or injuriously way, and to take lands for that purpose-; 
 affected by, the execution of the works," the company shall be subject to the provis- 
 he is to follow the course therein directed ions and restrictions contained in this Act, 
 as to having a jury summoned, &c. That and in the said Lands Clauses Consolida- 
 had been done in this case- tf ' •■ -md the company shall make to-
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 575 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 the under sheriff and a jury, and the two questions left were 
 these: First, whether the structure of the house and premises, 
 or any part thereof, had heen injured or injuriously affected by 
 the railway works, or in the execution of any of these works. 
 Secondly, with respect to a claim for loss of profits, whether, by 
 reason of the obstruction of the carriage-way of Coppice Row, the 
 plaintiff had sustained any particular damage or injury. The jury 
 found that there was no damage done to the structure of the house 
 or premises, but that the plaintiff had sustained damage in respect 
 of the interruption to his business, and so gave a verdict for him 
 on that matter for the sum of £100. The case was afterwards 
 removed into the Court of Queen's Bench by certiorari. The facts 
 were turned into a special case, and the question for the opinion 
 of the Court was " whether the loss of customers by the plaintiff 
 in his trade, under the above circumstances, was such damage as 
 entitled him to recover from the company ? " The Court of 
 Queen's Bench, consisting of four judges, on the 22nd April, 1864, 
 unanimously gave judgment in favour of Eicket. The case was 
 taken on error to the Exchequer Chamber, where it was heard by 
 six judges, four of whom were for reversing, and two for affirming 
 the judgment of the Court below, 5 B. & 8. 149-156 ; 34 L. J. 
 (Q. B.) 257. It was therefore reversed. Error was then brought 
 to this House. 
 
 The case having been argued, 
 
 The Lord Chancellor (Lord Chelmsford), after fully stating 
 the case, said, It is most desirable, as Lord Chief Justice Erle said 
 in the case of Cameron v. The Charing Cross Railway Company, 16 
 C. B. (N. S.) 430, " that, if possible, some definite and precise rule 
 should be laid down as to the true limits within which claims 
 
 the owners and occupiers of, and all other tion to be ascertained as provided in The 
 parties interested in, any lands taken or Lands Clauses Consolidation Act. 
 used for the purposes of the railway or § 16, after giving powers to execute 
 injuriously affected by the construction works, goes on tints: "Provided always, 
 thereof, full compensation for the value of that in the execution of the powers by 
 fKe lands so taken or used, and for all this or the special Act granted, the corn- 
 damage sustained by such owners, occu- pany shall do as little damage as can be, 
 piers, and other parties, by reason of the and shall make full satisfaction in manner 
 exercise, as regards such lauds, of the herein, and in the special Act, and any 
 powers by this or the special Act, or any Act incorporated therewith provided, to 
 Act incorporated therewith, vested in the all parties interested for all damage by them 
 company," the amount of such compensa- sustained by reason of the exercise of suck 
 
 powers."
 
 576 ACTION (right of). 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 against railway and other companies for compensation in respect 
 of damage caused by their works are to be confined." 
 
 It appears to me to be a hopeless task to attempt to reconcile 
 the cases upon the subject, I must endeavour by an examina- 
 tion of them to determine which, in my judgment, are most in 
 accordance with principle. 
 
 I think that the criterion of a party's right to damages under 
 the clauses of The Eailway Companies' Acts, upon which this case 
 depends, is correctly stated by Lord Campbell in Re Penny & The 
 Soutli Eastern Railway Company, — 7 E. & B. 660, and that, 
 in his words, " unless the particular injury would have been 
 actionable before the company had acquired their statutory 
 powers, it is not an injury for which compensation can be claimed." 
 At the same time the observation of my noble and learned friend 
 Lord Cranworth, in the case of Ogilvy v. The Caledonian Railway 
 Company, 2 Macq. Sc. App. 235, must not lie lost sight of, 
 that " it does not follow that a party would have a right to com- 
 pensation in some cases in which, if the Act of Parliament had not 
 passed, there might have been not only an indictment but a right 
 of action." 
 
 In the first place, then, it is material to inquire whether the 
 plaintiff in error could have maintained an action against the com- 
 pany for the alleged consequences of their acts if they had been 
 done without the authority of Parliament. 
 
 As far as I have been able to examine the cases, in all of them 
 except two, in which an individual has been allowed to maintain an 
 action for damage which he has specially sustained by the obstruc- 
 tion of a highway, the injury complained of has been personal to 
 himself, either immediately or by immediate consequence. 
 
 The two excepted cases are those of Raker v. Moore, mentioned 
 by Gould, J., in Iveson v. Moore, 1 Ld. Eaym. 480, 41)1, and Wills 
 v. The Hungerford Market Company, 2 Bing. N. C. 281. In the 
 former of these cases the defendant had erected a wall across 
 a public way, in consequence of which several of the plaintiff's 
 tenants left his houses, and he lost the profits of them. In the 
 latter, the plaintiff, a bookseller, having a shop by the side of a 
 public thoroughfare, suffered loss in his business in consequence 
 of passengers having been diverted from the thoroughfare by the 
 defendant's continuing an authorised obstruction across it for an 
 unreasonable time. In both these cases it was held that the action
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 571 
 
 No. 7. — Rickst v. Metropolitan Railway Co. 
 
 was maintainable. The case of Baker v. Moore, supra, appears to me 
 to be even more doubtful than that of Wills v. The Hungerford Mar- 
 ket Company, supra ; and as to this latter ease, Erle, C. J., in deliv- 
 ering the judgment of the majority of the Judges in the present 
 
 rase, observed, 5 15. & 8. 161, " If the question were raised in an 
 action now, we think it probable that the action would fail, both 
 from the effect of the cases which preceded Wilks v. The Hunger- 
 ford Market Company, and also from the reasoning in the judgment 
 in Ogilvyv. The Caledonian Railway Company. In this observa- 
 tion upon Wilks's Case I entirely agree. An endeavour was made 
 by Lord Denman to reconcile that case with the decision which 
 he pronounced in the case of Rex v. The London Dock Company, 5 
 Ad. & E. 163, ITS ; hut', in my opinion, not very successfully. It is 
 impossible to discover any distinction between the consequential 
 damage which constituted the cause of action respectively in the 
 two cases. Lord Denman said, "In Wilks's Case the act produc- 
 ing the injury was unauthorised by any statute for the period 
 complained of ; it was a public nuisance, which might have been 
 indicted, and that was the difficulty cast upon the plaintiff. To 
 which a sufficient answer was given by showing that the specific 
 injury of which he complained was one felt by himself alone, 
 and beyond the common and public nuisance." If, however, the 
 consequential damage is too remote to be the foundation of an 
 action, — as it was held to be in the case oiRexv. The London 
 Docks Company, — it is quite immaterial whether no statutory 
 powers have been given, or the given statutory powers have been 
 exceeded. In neither case would an action lie. 
 
 My opinion being that the damage, which is the foundation of 
 the claim to compensation made by the plaintiff in error, is too 
 remote to be the subject of an action, I might be contented to re 4 my 
 judgment against him upon this ground alone. But the diversity 
 of opinion which has prevailed amongst the Judges as to the ap- 
 plication of the clauses of the Acts in question to such a claim as 
 is now under consideration renders it almost imperative upon the 
 House to pronounce an authoritative final decision upon the whole 
 case. 
 
 Before, however, expressing my opinion, I must shortly exam- 
 ine the leading cases which exhibit the variety of judgment in the 
 different courts upon the construction of the clauses in question. 
 
 It must be observed that the Judges in the Court of Queen's 
 vol. i.— 37
 
 578 ACTION (right of). 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 Bench, in the present case, confined their attention entirely to the 
 68th section of The Lands Clauses Consolidation Act, 1845, which 
 provides for the mode of assessing compensation ; while in the argu- 
 ment at your Lordships' bar, the claim of the plaintiff in error was 
 rested either upon the 6th or the 16th section of The Railways 
 Clauses Consolidation Act, 1845. There appears to me, however, to 
 be no substantial difference between the language of the 68th sec- 
 tion of the former and the 6th section of the latter Act. The 68th 
 section of the one Act applies to any party entitled to compensation 
 in respect of any lands, or of any interest therein, which shall have 
 been taken for, or injuriously affected by, the execution of the works ; 
 and the 6th section of the other Act compels a company to make 
 to the owners and occupiers, and all other parties interested in any 
 lands taken or used for the purposes of the railway, or injuriously 
 affected by the construction thereof, full compensation for the 
 value of the lands, and for all damage sustained by reason of the 
 exercise, as regards such lands, of the powers vested in the com- 
 pany. These sections appear to me to apply, not to temporary, but 
 to permanent works of companies. The 16th section of The Rail- 
 ways Clauses Consolidation Act, which I shall have occasion here- 
 after to consider, more particularly relates to the damage arising 
 during the execution of the works. 
 
 Upon an examination of the cases, it will be seen that in most 
 of them, where the claim to compensation was admitted, there 
 was an actual injury to the house or land itself, either immediate 
 or immediately consequential upon the acts done. Thus, in Reg. v. 
 The Eastern Counties Railway Company, 2 Q. B. 347, the Railway 
 Act provided that the company should make full satisfaction to 
 persons interested in lands taken, used, or injured, for all damages 
 sustained by executing the powers of the Act, The company had 
 lowered a road, whereby the claimant's land was injured and dete- 
 riorated, the access impeded, and additional fences rendered neces- 
 sary. In Clover v. The North Staffordshire Railway Company, lb 
 Q. B. 912, the plaintiff was the owner of land, appertaining to 
 which was a right of way over a road. The company, under the 
 provisions of their Act, constructed- a railway crossing the road on 
 a level, and erected gates on the road at each side of the railway, 
 which were kept locked, under the provisions of the Act, the ser- 
 vant of the company keeping the key and the plaintiff also hav- 
 ing a key. The plaintiff claimed compensation, and required the
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 579 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 company to issue, a warrant for a jury, and, upon their neglect, 
 brought debt for the amount claimed. The jury found the fads 
 specially, and also that the land was depreciated in value. The 
 Court held that the land was injuriously affected, within the mean- 
 ins of The Lands Clauses Consolidation Act and The Railways 
 Clauses Consolidation Act. It might appear at first sight that 
 the decision in the case of Ogilvy v. The Caledonian Railway 
 Company was opposed to this last case. There a public road was, 
 under the sanction of Parliament, crossed by a railway on a level, 
 and gates were placed across the road ; and it w T as held by this 
 House, reversing the interlocutor of the Court of Session, that the 
 owner of a house near the newly erected gates had no claim for 
 compensation for the inconveniencies occasioned to him. But, in 
 this last case, the owner of the house had no other right over the 
 road than that which belonged to the public generally, and the 
 erection of the gates across the road where the railway crossed it 
 upon a level was essential to the public safety. It is doubtful 
 whether the owner of the house sustained any injury different in 
 kind, though it might be greater in degree, from that of the rest 
 of the public, and therefore it was questionable whether he could 
 have maintained an action if the obstruction had been created 
 without the authority of Parliament. But in Glover v. The North. 
 Staffordshire Railway Company, the plaintiff had a private way 
 appurtenant to his farm, which was obstructed by the company's 
 works. His land, therefore, was injuriously affected, and as Mr. 
 Justice WlGHTMAN said, "Supposing no act of Parliament had 
 passed, and that had been done which was done, an action would 
 have been maintainable." The case of Reg. v. The Great Northern 
 Railway Company, 14 Q. B. 25, resembles the one last mentioned, 
 because the manner in which the land was alleged to be injuriously 
 affected was by the w r orks of the company obstructing the access 
 to a ferry which was appurtenant to the claimant's house. 
 
 The tw T o cases next to be considered are those upon the author- 
 ity of which the Court of Queen's Bench (or, at all events, the 
 Lord Chief Justice) decided the present case, Chamberlain v. The 
 West End of London and Crystal Palace Railway Company. 2 B. 
 & S. 605-617, and Senior v. The Metropolitan Railway Company, 
 2 H. & C. 258. Chamberlain' 's Case was a claim for compensation, 
 which was referred to arbitration under The Lands Clauses Con- 
 solidation Act. The award that the claimant was lessee
 
 580 ACTION (right of). 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 of four houses on the highway, across which the railway was con- 
 structed, and of 'eight other houses in the course of erection for 
 the purpose of being used as dwelling-houses fronting the new 
 road, running at right angles to the highway, and that by reason 
 of the obstruction of the highway by the construction of the rail- 
 way across the same, the access to the houses of the plaintiff was, 
 notwithstanding the substitution of the deviation road, rendered 
 less convenient for the occupiers ; and many persons would be 
 prevented from passing the same, and the houses had thereby 
 been rendered less suitable for being used and occupied as shops, 
 and the value of the houses had been greatly diminished. The 
 Court of Queen's Bench gave judgment for the plaintiff, without 
 saying upon which of the heads of damage they thought he was 
 entitled to compensation. But upon error in the Exchequer 
 Chamber, Chief Justice Erle, in delivering the opinion of the 
 Court of Error that the judgment of the Court below ought to lie 
 affirmed, relied entirely upon the facts found by the umpire, that 
 the value of the houses was depreciated because the highway was 
 stopped up, and the easy access which before existed to them was 
 taken away ; that the houses were therefore injuriously affected 
 within the words of the enactment referred to, and within the 
 principle of law which governs cases of this description. This 
 case must therefore be classed with the preceding cases, where 
 the house or land of the person claiming compensation was itself 
 injuriously affected by their works. But the case of Senior v. 
 The Metropolitan Railway Company cannot be otherwise regarded 
 than as precisely resembling the present. There the plaintiff 
 carried on the business of a tailor, selling ready-made clothes, 
 exhibited by him in a window of his shop in Kay Street. The 
 company, in the execution of works (in the neighbourhood of 
 those in the present case), stopped up a bridgeway, loading from 
 Bay Street to Warner Street, and blocked up the carriage-way, and 
 partially obstructed the footway of the street called Coppice Row, 
 and in consequence Bay Street was less used and frequented as a 
 thoroughfare, and the number of persons passing through the 
 street was considerably diminished. During this period the 
 plaintiff's business fell off, principally in respect of the sale in 
 the shop, and was less than it had been before the obstruction, 
 and less than since it had been removed. Upon the inquiry be- 
 fore the sheriff, the jurymen found (as in this case) that no struc-
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 581 
 
 No. 7. Ricket v. Metropolitan Railway Co. 
 
 tural damage had been sustained ; and they stated, in delivering 
 their verdict, that they assessed the compensation at the sum of 
 £60 for the loss Of trade by reason of such obstruction only, and not 
 for any other matter or cause. The Barons of the Exchequer agreed 
 that the plaintiff was entitled to judgment for the £60, but ap- 
 parently not exactly for the same reasons. The Chief Baron said 
 "that loss of trade was an injury to the value of the land itself, 
 and therefore the subject of compensation under The Lands Clauses 
 Consolidation Act." Baron Bramwell thought the case was de- 
 cided by the case of Chamberlain v. The West End of Land mi and 
 Crystal Palace Railway Company, from which it appears to me to 
 be distinguishable for the reasons which I have given. Baron 
 Channell, adverting to an argument for the company, that loss 
 of trade, though some evidence of injury to the plaintiffs interest, 
 might be counterbalanced by other considerations, said, " Those 
 considerations ought at least to have been stated in the case, so 
 as to enable us to deal with them. The present unqualified state- 
 ment shows that, in point of fact, the plaintiffs premises were 
 injuriously affected by the execution of the defendants' works." 
 Baron Wilde dealt only with the company's claim to a set-off, by 
 reason of the land being subsequently benefited, without adding a 
 word upon the main question. 
 
 This case, then, in which the judgments are not very satisfac- 
 tory, is the only direct authority against the judgment of the 
 Court of Exchequer Chamber under consideration. When I say 
 the only authority, I have not forgotten the case of Cameron v. 
 The Charing Cross Railway Company, where, upon a similar state 
 of facts, the Court gave judgment for the plaintiff. But the Chief 
 Justice stated that the Court decided against the argument on the 
 part of the company on the ground that the matter had already 
 undergone consideration in two Courts of co-ordinate jurisdiction, 
 by whose judgment they were bound, the Chief Justice being 
 evidently not satisfied with those decisions. 
 
 Thus the question stands upon the cases relied upon in the ar- 
 gument of the plaintiff in error, and if I am right in treating the 
 decision in Senior v. The Metropolitan Railway Company as the 
 only one which can be regarded as a direct authority in his favour, 
 there is opposed to that decision the case of Rex v. The London 
 Docks Company, 5 Ad. &E. 163, which is at least an equally strong 
 authority the other way. The words of the Act upon which the com-
 
 582 ACTION (RIGHT OF). 
 
 No. 7. — Kicket v. Metropolitan Railway Co. 
 
 pensation was claimed in that case appear to me not to make any- 
 substantial difference between the two cases. I-t was enacted that 
 if any person should be injured in his estate or interest by the mak- 
 ing of any cut, sluice, bridge, road, or other work, such person should 
 be compensated by the company for such injury. The company, un- 
 der the powers of their Act, pulled down a number of houses, and 
 made a cut which intercepted several thoroughfares, and obliged 
 those who had previously used them to take circuitous routes. 
 The tenants of a neighbouring public-hcuse demanded compensa- 
 tion for injury to their estate and interest, inasmuch as the pulling 
 down of premises and the obstruction of access had diminished 
 the direct and casual custom of the house, and also, as the occu- 
 piers of houses were cut off from thoroughfares to the houses 
 formerly used, and thereby the value of the premises to sell or 
 let as a public-house or shop, but not as a private residence, was 
 lessened. Lord DENMAN in delivering the judgment of the Court 
 of King's Bench, said, " It is distinctly stated that it is only to 
 sell or let as a public-house or shop, — in other words, in respect of 
 its goodwill, — that the pecuniary value of the house is diminished ;" 
 and added, "We are of opinion that the case of the complainant is 
 not brought within any reasonable construction of the section. 
 The inconvenience they complain of is not only one common in a 
 greater or less degree to every inhabitant in the neighbourhood, 
 but it is the necessary consequence of the lawful act done by the 
 company. It was impossible to make the basin and cut, which it is 
 the very object of the statute to enable the company to make, 
 without destroying the neighbourhood and stopping up these 
 thoroughfares." 
 
 Such was the state of the authorities when the present case was 
 decided, in which the four Judges of the Court of Queen's Bench 
 and two of the Judges in the Court of Error were opposed to the 
 majority, consisting of four Judges, in the Exchequer Chamber. 
 
 The question entirely depends upon the correct construction 
 of the compensation clauses of The Lands Clauses and Railways 
 Clauses Consolidation Acts. I have already observed that the 
 6th section of The Railway Clauses Act and the 68th section of 
 The Lands Clauses Act have the same object, and apply to the 
 permanent works of companies. The case was argued at your 
 Lordships' bar, both upon the Gth and 16th sections of The Bail- 
 ways Clauses Act ; but, in my opinion, the 6th section is inappli-
 
 SECT. II. — FOB CAUSE EFFECTING PUBLIC. 583 
 
 No. 7. — Kicket v. Metropolitan Bailway Co. 
 
 ■ •able. It relates to " owners and occupiers of, and all other persons 
 interested in, any lands taken or used for the purposes of the railway, 
 or injuriously affected by the construction thereof " (not in the 
 course of construction thereof), "and the company arc to make 
 full compensation for the value of the lands so taken or used, and 
 for all damages sustained by such owners, occupiers, and other 
 parties, by reason of the exercise, as regards such lands, of the 
 powers vested in the company." This evidently applies to lands 
 immediately affected by the permanent construction of the railway. 
 
 The 16th section is the one which, if any, must apply to the case 
 of the plaintiff' in error. That section empowers the company fer- 
 tile purpose of constructing the railway to execute certain speci- 
 fied works, and contains a proviso that in the exercise of the pow- 
 ers granted, "The company shall do as little damage as can he, 
 and make full satisfaction to all parties interested for all damage 
 by them sustained by reason of the exercise of such powers." 
 That the damage contemplated was not such a consequential dam- 
 age as that on which the plaintiff's claim is founded is at least 
 probable from the circumstances adverted to by Lord DENMAN in 
 Rex v. The London Docks Company, that as it was impossible to 
 make the railway without obstructing, at least temporarily, the 
 neighbourhood and stopping up the thoroughfares, that necessary 
 consequence must have been foreseen ; and if it had been intended 
 to give any compensation for it, that intention would have been 
 clearly and distinctly expressed. And a critical examination of 
 the words of the section leads to the conclusion that compensation 
 for remote consequences resulting from a company's works was 
 not intended. The words are, " shall do as little damage as can 
 be;" which, if applying to a consequential injury, would appear 
 to limit the resulting damage to an immediate consequence, and 
 not to extend to a remote one. 
 
 The case of The East and West India Docks and Birmingham 
 Junction Bailway v. Gattke, 3 Mac. & G. 155 ; 6 Railw. Cas. 371, 
 before Lord Truro, may seem at first sight to be an authority for a 
 party being entitled to compensation for the same sort of remote 
 damage as that in the present case. There the directors of the 
 company had commenced their works, and were, at the date of the 
 riling of the bill, in the course of constructing their railway ; and 
 one of the grounds of complaint was that the defendant's 
 customers had been compelled, by the obstruction occasioned by
 
 584 ACTION (right of). 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 the works, to quit the side of the road upon which the defendant's 
 shop was situated before the works arrived at his shop, and to 
 cross to the opposite side of the road in order to pass along; by 
 reason whereof, during several weeks, he had sustained a great 
 loss in his trade. The Lord Chancellor dissolved an injunction 
 which had been granted by Vice Chancellor Wigram, and allowed 
 the plaintiff in the action (the defendant before him) to proceed to 
 have the amount of compensation assessed by a jury. But in 
 addition to the above-mentioned ground of complaint, the plaintiff 
 in that case alleged that he had sustained injury in consequence 
 of the dust and dirt occasioned by the works having damaged his 
 goods ; and he also alleged that he had been injuriously affected 
 and injured by the company having stopped up a passage or lane, 
 along which he was entitled to a right of way or access to the 
 entrance at the back of his premises, both of which were direct 
 and not consequential injuries. And the Lord Chancellor, with- 
 out distinguishing the heads of claims, said, " I see no reasonable 
 doubt that if the defendant has, in fact, sustained damage from 
 the causes alleged, he is a person entitled to claim compensation, 
 and that he is entitled to have the question submitted to a jury." 
 Upon a review of all the authorities, and upon a consideration of 
 the sections of the statutes relating to this subject, I have satisfied 
 myself that the temporary obstruction of the highway which pre- 
 vented the free passage of persons along it, and so incidentally 
 interrupted the resort to the plaintiffs public-house, would not have 
 been the subject of an action at common law, as an individual injury 
 sustained by the plaintiff in error, distinguishing his case from that 
 of the rest of the public. That, therefore, he altogether fails to 
 bring himself within the general principle upon which a claim to 
 compensation under the Acts in question has been determined 
 to depend ; that, upon the construction of the clauses on which 
 his claim is rested, the 6th section of The Railways Clauses Act 
 and the 68th section of The Lands Clauses Act, are both inappli- 
 cable, as his damage arose from the temporary operations of the 
 company, and not from their permanent works. And upon the 
 16th section of The Railways Clauses Act, which 'does apply to his 
 case, his damage was not of such a nature as to entitle him to 
 compensation, the interruption of persons who would have re- 
 sorted to his house but for the obstruction of the highway being a
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 585 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 consequential injury to the plaintiff in error too remote to be 
 within the provisions of that section. 
 
 I should therefore advise your Lordsliips to affirm the judgment 
 of the Court of Exchequer Chamber. 
 
 Lord CRANWORTH. The jury in this ease found that the 
 appellant was entitled to recover from the respondents a sum of 
 £100 in compensation for damages sustained by tin/ exercise by 
 them of the powers of their Act. The only question is, whether 
 the facts stated in the special case as occasioning that damage are 
 such as warranted the finding of the jury. And that depends on 
 the true construction of two clauses of The Railways Clauses Act 
 (8 & 9 Vict. c. 20), the 6th and 10th, and clause 68 of The Lands 
 Clauses Act (8 & 9 Vict. c. 18) incorporated therewith. 
 
 The 6th section is prefaced by the words, " and with respect to 
 the construction of the railway and the works connected there- 
 with, be it enacted as follows;" and this preface must be taken as 
 relating to all the clauses which follow, up to and including 
 section 29. After this preface, the 6th section provides, among 
 other things, that the company shall make to the owners and 
 occupiers of, and all other parties interested in, any lands taken 
 for the purpose of the railway, or injuriously affected by the con- 
 struction thereof, full compensation for the value of the lands 
 taken, and for all damage sustained by such owners, occupiers, 
 and other parties by reason of the exercise as regards such lands 
 of the powers conferred by the company's Act, to be ascertained 
 in the manner there pointed out. 
 
 By the 16th section the defendants are empowered, for the 
 purpose of constructing the railway, amongst other things, to 
 make over any street such temporary bridges, and to divert the 
 course of any streets or ways, as they may think proper, provided 
 that there shall be made full satisfaction to all parties interested 
 for all damage by them sustained by reason of the exercise of 
 such powers. 
 
 It is not disputed that the defendants had properly and neces- 
 sarily obstructed by hoardings the free passage across Coppice 
 Row, and substituted the temporary bridge to enable foot- 
 passengers to cross over it; and it must lie taken to be proved 
 that by reason of this necessary obstruction, for the twenty 
 months during which it existed, the plaintiff had been deprived of 
 the custom of passengers so as to occasion to him a loss of £100.
 
 586 ACTION (RIGHT OF). 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 Is this a loss in respect of which the statute gives him a right 
 to compensation ? I think it is not. I have had considerable 
 doubt in the case, but that is the conclusion at which I have 
 eventually arrived. 
 
 It was argued that the 6th section does not refer to damage 
 occasioned by obstructions of a temporary character necessarily 
 made for the purpose of constructing the railway, but only to 
 damage occasioned by the railway itself when completed. It was 
 said that the case of such temporary damage as I have adverted to 
 was provided for by the 16th and not by the 6th section. I do 
 not think it material to determine by which of these sections the 
 present case is governed. The only material difference in the lan- 
 guage by which relief is given in the one section and in the other 
 is, that in the 6th section relief is in terms confined to the case of 
 lands injuriously affected, whereas in the 16th relief is given to all 
 parties interested for all damage by them sustained by reason of 
 the exercise of the powers thereby authorised. I cannot, however, 
 believe that the damage intended to be compensated in the latter 
 case is damage of a nature different from that contemplated in the 
 former case. I cannot believe that the legislature could have in- 
 tended to give relief in respect of acts done for a short and limited 
 period while works are in progress, and to refuse it in respect of 
 the same acts when they are to have effect permanently. The 
 damage contemplated in section 6, must, I think, be damnum cum 
 injuria. It must be damage occasioned by the land having been 
 injuriously affected. 
 
 Both principle and authority seem to me to show that no case 
 comes within the purview of the statute unless where some 
 damage has been occasioned to the land itself, in respect of which, 
 but for the statute, the complaining party might have maintained 
 an action. The injury must be actual injury to the land itself, as 
 by loosening the foundation of buildings on it, obstructing its light 
 or its drains, making it inaccessible by lowering or raising the 
 ground immediately in front of it, or by some such physical dete- 
 rioration. Any other construction of the clause would open the 
 door to claims of so wide and indefinite a character as could not 
 have been in the contemplation of the legislature. 
 
 The very existence of a railway must cause loss to many 
 persons in its neighbourhood. Every inn or posting-house at 
 which post-horses were kept, suffered, as is well known, grievous
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 587 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 loss by the first establishment of a railroad in its neighbourhood; 
 
 in fact, the business of such a house was often utterly destroyed. 
 But it was never contended that this was an injury to the house 
 under the 6th section for which compensation could lie demanded. 
 The house sustained no injury, though the profits of the occupier 
 were diminished or destroyed. Such a claim, if sustainable, would 
 admit of no limit. The railroad would, it is true, chiefly affect the 
 custom of posting-houses near to it, but it would or might diminish 
 the quantity of posting to an almost indefinite extent, and I can 
 discover no limit to the claims which, on the doctrine asserted, 
 might be successfully made. 
 
 Precisely the same observations may be made with reference to 
 the present claim. The loss occasioned by the obstruction now 
 under consideration may be greater to the plaintiff than to others, 
 but it affects more or less all the neighbourhood. He has no 
 ground of complaint differing, save in degree, from that which 
 might be made by all the inhabitants of houses in the part of the 
 town where the works for forming the railway were carried on. 
 
 It must be admitted that there have been decisions on this sub- 
 ject not easily to be reconciled. The plaintiff relied on the case of 
 Wilks v. The Hungcrford Market Company, 2 Bing. X. C. 281, and 
 on other decisions following upon it. What was ultimately de- 
 cided in that case was, that where a corporate body had, under 
 lawful authority, obstructed a public thoroughfare, but had con- 
 tinued the obstruction beyond the proper and necessary time, a 
 person living in a house bordering on the obstructed line might, in 
 respect of that prolonged obstruction, sustain an action on the 
 ground that in consequence of the prolonged obstruction passen- 
 gers had been unable to conveniently pass by his door, and so that 
 he had lost profit in his business. I confess that I have great 
 difficulty in agreeing with that decision, — a difficulty which, as I 
 collect from the language of Sir William Erle in delivering the 
 judgment of the Exchequer Chamber in the case now before us, 
 was felt by him and the Judges who concurred with him. But it 
 is enough to say that the relief to which the plaintiff' was there 
 held to be entitled was not founded on any suggestion of injury to 
 the land or to the house, — the sole ground on which there can be 
 any title to relief in this case, — but on an injury to the occupier, 
 which the Court must have held, in the language of Chief Justice
 
 588 ACTION (right of). 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 TlNDAL, to have been the direct, necessary, natural', and immediate 
 consequence of the obstruction. 
 
 A case bearing a much closer resemblance to that now before 
 the House is that of Rex v. The London Bocks Company, 5 Ad. & E. 
 163. There the Act under which compensation was claimed 
 authorised in the usual way the taking of lands and the making of 
 works necessary for the undertaking; and the 89th section of the 
 Act provided that if any person having an interest in any houses, 
 lands, or hereditaments not less than that of a tenancy from year 
 to year, should be injured in his said estate or interest by the 
 making of any cut, sluice, bridge, road, or other work, every such 
 person should be entitled to compensation for such injury, to be 
 ascertained by a jury. The persons claiming compensation there 
 were the owners and occupiers of a public-house, and the defen- 
 dants, in the exercise of their powers, made several cuts and other 
 works materially obstructing the access to the public-house, but 
 not otherwise injuring it. The question whether a peremptory 
 mandamus should issue, calling on the defendants to issue a pre- 
 cept to the sheriff to summon a jury to assess the damage to the 
 persons claiming compensation, depended on the question whether 
 the damage complained of was an injury contemplated by the 
 89th section of the Act. The case was elaborately argued, and the 
 Court, after time taken for consideration, held that there was no 
 title to compensation ; that the Act contemplated only direct 
 injury occasioned by some positive act of the defendants, — as, for 
 instance, if they had weakened the foundation, darkened the 
 lights, or obstructed the drains of the house. 
 
 I fully subscribe to that decision ; and though, according to the 
 language of the statute then under discussion, the compensation 
 was to be given for injury to be occasioned to any person in his 
 estate or interest in any lands or houses, and not, as in the present 
 case, under The Lands Clauses Act, in consequence of his interest 
 in any land being injuriously affected, yet the meaning of the 
 legislature in both cases seems to me to be the same. 
 
 This was certainly the view of your Lordships' House in the 
 rase of Ogilvy v. The Caledonian Railway, though the facts their 
 were not precisely the same as those which now call for decision. 
 
 This being my opinion, I think that your Lordships ought to 
 give judgment for the defendants in error. 
 
 L»rd Westbury. My Lords, this case was heard by six judges
 
 SHUT. II. — FOR CAUSE AFFECTING PUBLIC. 580 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 iii the Court of Exchequer Chamber, on a writ of error from the 
 Court of Queen's Bench. The six judges differed in opinion, four 
 being for reversing and two for affirming the judgment oi the 
 Court below. The four judges in the Queen's Bench were unani- 
 mous. Deducting, therefore, the two from the six judges in the 
 Exchequer Chamber, the unanimous judgment of the four judges in 
 the Queen's Bench has been annulled by two judges in the Exche- 
 quer Chamber. By the same majority the case of Senior v. Lhe 
 Metropolitan Railway Company, 2 H. & C. 258, decided by the Court 
 of Exchequer in 1863, and the case of Cameron v. The Clin nag 
 Cross Railway Company, 16 C. B. (N. S.) 430, decided by the Court 
 of Common Pleas in 1864 (which are the authorities for the judg- 
 ment in the Court of Queen's Bench in the present case), have also 
 been overruled. There are, therefore, the judicial opinions of ten 
 or twelve judges opposed to the present judgment, which is the 
 judicial opinion of four. 
 
 It is a matter of regret that our judicial institutions should 
 admit of these anomalies. It is also painful to observe the number 
 of conflicting decisions on the law of compensation by railway com- 
 panies, which is the subject of the present appeal. It is impossible 
 to reconcile these decisions by any sound distinctions, and the 
 result is, that to a great extent they neutralise each other. More- 
 over, it is distressing to be told (as we are in the judgment before 
 us) that the Court of Exchequer, in Senior v. Tlie Metropolita n 
 Railway Company, and the Court of Common Pleas in Cameron v. 
 The Charimj Cross Railvjay Company, founded their judgments on 
 the supposed effect of the judgment given by the Court of Exche- 
 quer Chamber so recently as in the year 1863, in the case of Cham- 
 berlain v. The London and Crystal Palace Railway Company, 2 B. 
 & 8. 605-617, but that both the Court of Common Pleas and the 
 Court of Exchequer did not understand the judgment on which 
 they so relied. It is a striking example of the uncertainty of the 
 law which rests on judicial decisions. 
 
 I turn from the cases, therefore, to the Acts of Parliament ; for 
 the question depends on the true meaning of two or three sections, 
 which do not appear to me to be hard to interpret. In the begin- 
 ning of railway legislation, Parliament, whilst conferring on rail- 
 way companies extraordinary powers over private property, felt 
 the justice of imposing on the companies the obligation of making 
 the fullest compensation for all property taken, and for all damage
 
 590 ACTION (right of). 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 sustained by individuals, through the exercise of such powers. 
 Care was used to provide that whenever damage was done to the 
 property of an individual in the exercise of the statutory powers, 
 compensation should be given, although the powers might have 
 been most properly and carefully exercised. 
 
 It is material to observe that compensation under these statutes 
 is given for damage resulting from lawful acts done by the com- 
 panies in the exercise of their powers. Such acts are not injuries 
 or grounds of action at law, although they may cause damage, and 
 consequently give a right to compensation under the statute. 
 When an act is done by a company in excess of its powers, or in a 
 wanton and careless use of them, there is an injury for which the 
 sufferer retains a remedy by an action at common law, or by suit 
 in equity for an injunction ; but things done by a company in the 
 due execution of its powers are lawful, being duly authorised, and 
 no action lies on account of them. When, therefore, the General 
 Eailway Acts use the term " injuriously affected," the word " injuri- 
 ously " does not mean " wrongfully " or " unlawfully ; " nor does it 
 imply that compensation is limited to cases where the act done is 
 such as, but for the powers given, would be a tort at common law. 
 The words mean " damnously affected " only ; and the consequen- 
 tial right to compensation is the creature of the statutes, to be 
 ascertained and measured by the positive language of the enact- 
 ments, and not by analogy to actions of tort or trespass. There is 
 nothing in the statutes to warrant the position that there shall be 
 no compensation where at common law there would have been no 
 right of action. 
 
 In the 16th section of The Railways Clauses Act two conditions 
 are imposed upon companies respecting the exercise of their statu- 
 tory powers. One is, that they shall do as little damage as can 
 be ; and the other that they shall make full satisfaction to all 
 parties interested for all damage by them sustained by reason of 
 the exercise of such powers. In an early stage of the judicial 
 exposition of statutes of this description, Lord Eldon decided that 
 they must be treated as contracts between the companies and the 
 legislature. And this is, no doubt, the true principle by which 
 they should be construed and applied. Liability to make compen- 
 sation, therefore, is the contract of the companies with the legisla- 
 ture ; and the right of the parties interested — that is, the parties 
 sustaining loss — results from that contract and the enactments
 
 SECT. II. — FOE CAUSE AFFECTING PUBLIC. 591 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 which give effect to it. It' this view he correct, it follows that it is 
 a mistake to lay down, as I find done in several eases, and in effect 
 in the judgment of the four judges in this ease, that the injury 
 intended by the words "injuriously affected" must he one in 
 respect of which, if there had been no statute enabling thecompany 
 to do the act, an action would have lain for the injury at common 
 law. Eight to compensation is a title introduced by and depen- 
 dent on the statutes; and it is only necessary to prove special 
 damage to the occupant of the property, occasioned by the con- 
 struction of the railway or its incidental works, and that the com- 
 plainant is a party interested within the meaning of that phrase 
 in the statute. 
 
 I use the words "special damage," or individual particular loss, 
 because I entirely concur with the doctrine that compensation 
 cannot he claimed by an individual for damage which is sustained 
 in common by all the subjects of the realm. Thus, if a public 
 highway be diverted, or crossed on a level, by a railway, the 
 inconvenience of having to wait whilst trains pass is common 
 to all the public ; and the benefit which it is considered results 
 to the public from the railway is the only compensation. Persons 
 dwelling in the neighbourhood may sustain this inconvenience 
 more frequently than the rest of the public ; but if the inconve- 
 nience is to be regarded as compensated by the public convenience, 
 it cannot be converted into a ground for compensation by reason 
 of certain persons having to sustain the inconvenience more 
 frequently than the rest of their fellow-subjects. 
 
 I agree also with the distinction that has been taken between 
 damage resulting from the railway when complete, or from the 
 act of making it, and damage occasioned by' the proper (not 
 negligent) user of the railway when made. No claim can be 
 made for loss resulting from the due user of a railway. Many 
 persons, such as the proprietors of stage-coaches, stage-waggons, 
 and the owners of posting-inns may be ruined by the user of the 
 railway by the public, but they have no claim to compensation. 
 Compensation is given by the statute only to individuals who, in 
 respect of the ownership or occupancy of lands or tenements, 
 sustain loss in or through the construction of the railway, or the 
 execution of the incidental works. 
 
 This will appear on a short examination of the several enact- 
 ments. By the 68th section of The Lands Clauses Act it is
 
 592 ACTION (UIGHT OF). 
 
 No. 7. — Ricket v. Metropolitan Railway Co. 
 
 enacted, that " if any party shall be entitled to any compensation 
 in respect of any lands, or of any interest therein, which shall 
 have been taken for, or injuriously affected by, the execution of the 
 works," &c., "such party may have the same settled either by 
 arbitration or by the verdict of a jury, as he shall think tit.'' 
 By the interpretation clause the word " lands " includes mes- 
 suages, tenements, and hereditaments ; and this enactment, there- 
 fore, treats the owner of any interest in a messuage, which is 
 damaged or injuriously affected by the execution of the works of 
 a railway, as entitled to compensation. 
 
 It seems difficult to deny that the occupier of a public-house, 
 the value of which depends on its custom, has his interest in that 
 house materially damaged by loss of custom. It may always 
 have been used as a public-house, and as such has been let to 
 the occupier, who takes it, and pays a high rent for it as a public- 
 house. When he took it, its value was ascertained, and the rent 
 fixed by reference to the custom it had ; and it seems in the 
 highest degree unreasonable to strip the house of its character, 
 and of the use and purpose for which it has been constructed, 
 fitted, and employed, and, having so done, to say that the interest 
 of the occupier has sustained no damage because the building or 
 structure has not been deteriorated. A man gives a rent of £100 
 per annum for a public-house with good custom, long established 
 in some much-frequented thoroughfare, which house, if not used 
 as a public-house, would not be worth £50 per annum. Suppose, 
 then, that the thoroughfare should be wholly or partially ob- 
 structed, and the custom of the house thereby diminished by 
 one-half, is it consistent with common sense to say that the 
 interest of the tenant in the house is not materially prejudiced ? 
 It is a fallacy, almost a mockery, to answer, " the custom is one 
 thing, and the house another, and the injury is to the custom, not 
 to the house." You cannot sever the custom from the house 
 itself, or from the interest of the occupier; for the custom is the 
 tiling appertaining to the house which gives it its special character, 
 and constitutes its value to the occupier, and for which he pays 
 in the high rent he has agreed to give. If you diminish the 
 custom of a public-house you diminish its value either to let or 
 sell, and therefore you deteriorate the public-house and the inter- 
 est of the tenant therein. 
 
 The true principle and the only rule is, that in the inquiry
 
 SECT.* II. — FOR CAUSE EFFECTING PUBLIC. 593 
 
 No. 7. — Rickct v. Metropolitan Railway Co. 
 
 whether the interest of the occupier of a messuage or building is 
 damaged, — that is, injuriously affected, — you should estimate the 
 value of the messuage or building to the occupier with refer- 
 ence to the use that he makes of it, and the beneficial purpose 
 for which he has hired it and fitted it up, and for which he has 
 paid and pays to the landlord a larger annual sum than the build- 
 ing, perse, would command ; and if you find this use and enjoyment 
 impaired by the works of the railway, you are bound to decide 
 that the interest of the occupier is pro tanto damaged, — that is, 
 injuriously affected. 
 
 It is clear that if the railway company, in the exercise of its 
 statutory power, took the public-house entirely, it would have to 
 pay for it according to its value as a public-house, and the interest 
 of the occupier therein would be estimated with reference to the 
 value of the custom of the public-house. But the same considera- 
 tion by which the value of the entirety is estimated must apply 
 and be taken into account when the question is, whether the value 
 of the public-house during a certain period of time has or has not 
 been deteriorated. 
 
 The trade or custom is a thing appertaining to the premises, and 
 not to the person of the occupier ; but all things appertaining to 
 the premises are part of the premises, and included in the interest 
 of the occupier, which word "interest" is a large and comprehen- 
 sive word. I adopt the observation of the Court of Exchequer, 
 " Loss of profits by loss of business is a loss to the goodwill of the 
 premises, and the goodwill is part of the value of the property." 
 
 The language of the 6th section of The Railways Clauses Act 
 is still more general and comprehensive than the words of the 
 6Sth section of The Lands Clauses Consolidation Act, to which 
 these observations have been hitherto confined, for by this 6th 
 section compensation is to be given to all owners or occupiers of, 
 and all other parties interested in, any lands taken or used for 
 the purposes of the railway, or injuriously affected by the con- 
 struction thereof, for all damage sustained by such owners, occu- 
 piers, and other parties, by reason of the exercise, as regards such 
 lands, of the powers by The Railways Clauses Act, or the special 
 Act or any Act incorporated therewith, vested in the company. 
 
 The 16th section is perhaps the most important, because it is 
 under this section (being incorporated into their special Act) that 
 the defendants have executed the works by reason of which the 
 vol. i.— 38
 
 >94 ACTION (right of). 
 
 No. 7. — Eicket v. Metropolitan Railway Co. 
 
 plaintiff has, as regards his interest in the public-house he occu- 
 pies, suffered the damage complained of. By the 16th section, 
 after conferring on the defendants various powers to execute works 
 incidental to the construction of the railway, it is provided that they 
 shall make full satisfaction to all parties interested for all damage by 
 them sustained by reason of the exercise of such powers. There 
 is m this section a material alteration in the language used. The 
 persons entitled are no longer described as the owners or occupiers 
 of, or parties interested in, lands taken or injuriously affected, but 
 as " parties interested ; " and the word " compensation," which is, 
 perhaps, more limited in meaning, is changed into the wide term, 
 " satisfaction." 
 
 I cannot at all agree with the remark that the reference made 
 by this section to the manner of ascertaining the satisfaction 
 de-cribed in other Acts limits the meaning of the words " parties 
 in erested ; " for the reference is merely for the purpose of incor- 
 porating into the 16th section the mode of procedure directed in 
 the Acts referred to, — viz., by arbitration or inquisition by a jury; 
 and has not the effect of controlling or altering the description of 
 the subject-matter or the parties, as contained in the section 
 making the reference. The object of the reference is quite plain, 
 — namely, to embody the directions elsewhere given as to the mode 
 of proceeding to ascertain the compensation to be paid. In my 
 opinion the term "parties interested" in this 16th section must 
 mean parties sustaining, in respect of property, a special and 
 individual loss by reason or in consequence of the accommodation 
 works which the company is by this section empowered to 
 construct, and therefore having an interest or right to require 
 satisfaction for damage of which the works are the immediate or 
 proximate cause. 
 
 It is singular that this 16th section of The Railways Clauses Act, 
 and the alteration of the language employed therein, are not 
 adverted to in the judgment of the Court of Exchequer Chamber. 
 Perhaps it was tacitly assumed (for it is not so expressed) that 
 the phrase ''■ parties interested " was equivalent to parties "inter- 
 ested in lands injuriously affected." This, however, would be a 
 strong and perhaps unwarranted assumption; for the general rule 
 is, that a deliberate change of expression must be taken primd 
 fat ie to import a change of intention. I do not, however, mean 
 to rest my opinion in this case on the construction I have put on
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 595 
 
 No. 7. — Ricket v. Metropolitan Railway Co. Notes. 
 
 this 16th section. On the contrary, I am content to take tin; 
 words " parties interested " as equivalent to the winds in the 6th 
 section of The Railways Clause's Act, and in the 68th section E 
 The Lands Consolidation Act, — viz., "owners or occupiers oi 
 parties having an interest in lands injuriously affected.'' 
 
 The error in the decision (for so I must respectfully deem it 
 be) which has led to the judgment now appealed from, and 
 others upon which that judgment is founded, appears to 
 to have arisen entirely from the meaning attributed to I .. 
 words " injuriously affected," which have been interpreted to i, 
 " affected in such a manner as but for the statutes would consl i 
 an injury at law, and would support an action for damages.'" I 
 there is not, in my judgment, any warrant for so interpreting 
 paraphrasing the words, which, in my opinion, are plainly used 
 in their ordinary and popular sense; for it is evident that lands 
 affected in the proper exercise of the statutory powers cannot, in 
 a legal sense, be said to be " injuriously affected." 
 
 For these reasons, which I have imperfectly stated, and which 
 might be much more cogently enforced, I have the strongest 
 opinion that the plaintiff in the present case is the occupier of a 
 messuage which has (according to the true meaning of the statute) 
 been injuriously affected by the works of this railway company ; 
 and I think, therefore, that judgment ought to be given for the 
 plaintiff. 
 
 Judgment of the Exchequer Chamber affirmed, with costs. 
 Lords Journals, 16th May, 1867. 
 
 ENGLISH NOTES 
 
 In the case of Iceson v. Moore (K. B. lf>99), Holt Rep. 10, 11, "it 
 was agreed by the whole Court (of the Kino-'s Bench) that where an 
 action arises from a public nuisance, there must be a special damage; 
 for he that did the nuisance is punishable at the suit of the public, by 
 indictment or information; and to allow all private persons their ac- 
 tions without special damage, would create an infinite multiplicating 
 of suits." The Court, however, were divided in opinion as to whether 
 such special damage existed in 'he case before the Court, which was an 
 action for the stopping up of a highway convenient to the plaintiff's 
 colliery, whereby he lost the profits, &c. Ultimately, the case having 
 been argued before all the Justices <>f the Common Pleas and the Barons 
 of the Exchequer, they were all of opinion for the plaintiff that the
 
 596 ACTION (right of). 
 
 No. 7. — Ricket v. Metropolitan Railway Co. — Notes. 
 
 action well lay (s. c. Lord Raymond, pp. 486, 495). The rule of the 
 King's Bench, in Iveson v. Moore, was applied in the case of Winter- 
 bottom v. Lord Derby (1867). L. R., 2 Ex. 316; 36 L. J. Exch. 194, 
 where the plaintiff, who was obstructed in using a public right of way, 
 was held not entitled to maintain an action; and, in order to claim 
 special damage, it was not enough to say that he had incurred expense 
 in repeatedly removing obstructions. 
 
 The case of Or/ilvy v. Caledonian Railway Co. (1867), 2 Macq. 229, 
 referred to by Lord Chelmsford in the principal case (p. 576, ante), 
 was a decision of the House of Lords on an appeal from Scotland. The 
 gist of the case is sufficiently stated by Lord Chelmsford. The in- 
 jury complained of was the inconvenience of a level crossing near the 
 lodge of the plaintiff's house, and across the public highway which 
 formed the chief access to it. The access to the plaintiff's house was not 
 cut off, nor was it in ordinary circumstances made more difficult; but 
 the plaintiff and his visitors had. like the rest of the public, to submit 
 to the inconvenience of waiting while the gates were shut for the pas- 
 sage of trains. 
 
 In two cases, both of which went up to the House of Lords, and 
 which are at first sight very like the principal case, and still more 
 perhaps like the case of Ogilry v. The Caledonian Raihray Co. the 
 owner or occupier of the property affected recovered compensation. 
 These are Metropolitan Board of Works v. McCarthy (1874), L. R., 
 7 H. L. 243 ; 43 L. J. C. P. 385 ; and Caledonian Rail tray Co. de- 
 fendants and appellants) v. Walker's Trustees (1882). 7 App. Cas. 
 259. In McCarthy's Case the plaintiff was lessee or occupier of a 
 house in close proximity to a draw-dnck opening into the Thames. 
 He had no right to the use of the draw-dock except as one of the 
 public, but he was in constant use of it for the purposes of the busi- 
 ness carried on on his premises. The dock was entirely destroyed 
 by the works of the Thames Embankment. In Caledonia)/. Ry. Co. v. 
 Walker's Trustees (1882), 7 App. Cas. 259, the company, by the exe- 
 cution of their works, cut off, permanently, the access to the plaintiff's 
 premises by one of two previously existing highways. The broad dis- 
 tinction in Ricket's Case was that the access, although made less con- 
 venient temporarily and during the construction of the works, was even 
 during that period preserved substantially in the original lines of com- 
 munication. The distinction between this case and the case of Ogilry 
 v. The Caledonian Ry. Co., so far as relates to the grounds on which 
 the decision in that case was rested, was more difficult; but Lord Sel- 
 borne ingeniously points out that the decision itself can be supported 
 on the grounds on which the House afterwards decided the case of 
 Hammersmith Ry. Co. v. Brand (p. 623, post). For the inconvenience
 
 SECT.IL — FOR CAUSE EFFECTING PUBLIC. 597 
 
 No. 7. - - Ricket v. Metropolitan Railway Co. - Notes. 
 
 complained of in Ogilvy's Case was not caused by the execution of the 
 works, but by the shutting of the gates on the approach of a train; and 
 was therefore occasioned by the lawful user of the railway, for which no 
 compensation was given by the Act of Parliament. 
 
 In his judgment in this case of Caledonian Ry. Co. v. Walkers Trus- 
 tees, Lord Selborne (7 App. Cas. 276) lays down the principles t > be 
 deduced from Caledonian Ry. Co. v.Ogilvy; Ricket v. Metropolitan Ry. 
 Co.; Metropolitan Board of Works v. McCarthy; and Hammersmith 
 Ry. Co. x. Brand (see p. GL'o, post), as follows : " 1. When a right of 
 action, which would have existed if the work in respect of which com- 
 pensation is claimed had not been authorised by Parliament, would 
 have been merely personal, without reference to land or its incidents, 
 compensation is not due under the Acts. 2. When damage arises, not 
 out of the execution, but only out of the subsequent use of the work, 
 then also there is no case for compensation. 3. Loss of trade or cus- 
 tom, by reason of a work nut otherwise directly affecting the house 
 or land in or upon which a trade has been carried on, or any right 
 properly incident thereto, is not by itself a proper subject for compen- 
 sation. 4. The obstruction by the execution of the work of a man's 
 direct access to his house or land, whether such access be by a public 
 road or by a private way, is a proper subject for compensation.'' Lord 
 Selborne also (7 App. ('as. 283) points out that Ricket's Case is not 
 satisfactorily explained by the distinction between temporary and per- 
 manent damage insisted on by Lord Chelmsford (p. 584, ante, L. R., 
 2 H. L. 194) as the criterion of compensation in regard to lands which 
 are not taken by the company. And Lord BLACKBURN (7 App. Cas. 
 296) shows that Lord Ckaxworth's dictum in Rickefs Case (p. 588, 
 ante, L. R., 2 H. L., at p. 198) — t<> the effect that the injury, to give 
 ground for compensation under the Acts, must be actual injury to the 
 land itself, as by loosening the foundations of buildings on it, obstruct- 
 ing their light, raising or lowering the ground immediately in front, or 
 by some such physical deterioration —cannot be supported; and that the 
 judgment arrived at by the House in this case of The Caledonian Ry, 
 Co. v. Walker's Trustees is inconsistent with that dictum. 
 
 The criticism by Lord SELBORNEof Lord Chelmsford's language just 
 referred to is repeated and enforced by the Lord .lust ices Lord Esher, 
 j\I. R., and Cotton and Bowen, L. JJ., in Ford v. Metropolitan and 
 District Ry. Companies (1880), 17 Q. B. D. 12, 20, 23, 28. The ques- 
 tion arose upon the award of an arbitrator as to damage to the plaintiff 
 by the execution of the works of the companies. There was permanent 
 damage by the destruction of certain buildings, the use of which the 
 plaintiff bad enjoyed as an easement to his business premises; but it
 
 598 ACTION (right of). 
 
 No. 7. — Ricket v. Metropolitan Railway Co. — Notes. 
 
 was (inter alia) objected that the award was bad, because the arbitra- 
 tor had taken into account damage done while the alterations were* 
 going on, such as damage to samples by dust, cutting off of water and 
 gas, and generally making a mess of the premises upon which the- 
 plaintiff had enjoyed the easement. The Court of Appeal, notwith- 
 standing, sustained the award. 
 
 In the case of London Association of Shipowners v. London, &c. 
 Docks Committee (C. A. 1892), 3 Ch. 242, 270, the substantial question 
 was whether certain by-laws as to the appropriation of berths in the- 
 docks, purporting to be issued under the special Act of the defendants 
 and the Harbour, &c. Act, 1847, were ultra vires. An incorporated 
 Association of Shipowners, &c, were plaintiffs in the action; but it 
 was held that such a corporation had clearly no locus standi, although 
 the individual members were shipowners. The Peninsular and Ori- 
 ental Company had been joined as plaintiffs. It appeared that all the- 
 business of the P. and O. Company was carried on under special agree- 
 ments not affected by the by-laws; and that the}', having failed to prove 
 special damage, had no locus standi in the action so as to obtain an in- 
 junction; but the Court exercised their jurisdiction under R. S. C. Ord. 
 XXV. R. 5, to make a declaratory judgment to the effect that the by- 
 laws were not binding on the P. and (). Company, and with that de- 
 claration dismissed the action without costs. 
 
 AMERICAN NOTES. 
 
 There can be no doubt that the doctrine of subdivision (a) of the rule is 
 universally accepted in this country. It will be sufficient to refer to the fol- 
 lowing cases : Burrows v. Pixley, 1 Root (Connecticut, A. D. 1792), 362 ; 1 Am. 
 Dec. 56, and note, 57 ; Abbott v. Mills, 3 Vermont, 521 ; 23 Am. Dec. 222, and 
 note, 230; Stetson v. Faxon, 19 Pickering (Mass.), 147; 31 Aid. Dec. 123, and 
 note, 132; Crommelin v. Coxe, 30 Alabama, 318; 68 Am. Dec. 120, and note,. 
 126; So. Carolina R. Co. v. Moore, 28 Georgia, 398; 73 Am. Dec. 77S, and 
 note, 785; Norcross v. Thorns, 51 Maine. 503; 81 Am. Dec. 588, and note, 591 ; 
 Francis v. Sclioellkopf, 53 New York. 152; 1 Beach Eq. Jur. §742: McDonald 
 v. City of Newark, (X. J. L ), 26 Atl. Rep. 82; Higbee v. Camden #■ Ambotj 
 R. Co., 19 New Jersey Equity, 270; 3 Pomeroy Eq. Jur. § 1319; Milhau v. 
 Sharp, 27 New York, 611 ; 81 Am. Dec. 314 ; Walker v. Shepardson, 2 Wiscon- 
 sin. 384; (.0 Am. Dec. 423; Low v. Knowlton, 26 Me. 128; 45 Am. Dec. 100; 
 Brown v. Watson, 47 Maine, 161 ; 71 Am. Dec. 482; School District v. Neil, 36 
 Kansas, 617; 59 Am. Rep. 575; Steamboat Co. v. Railroad Co., 30 So. Caro- 
 lina, 539; 14 Am. St. Rep. 923; Canton Cotton Warehouse v. Potts, 69 Missis- 
 sippi, 31 ; Price v. Grantz, 118 Penn. St. 402; 4 Am. St. Rep. 601 : Zettel v. 
 City of West Bend,79 Wis. 316; 24 Am. St. Rep. 715; Fossion v. Landry, 123 
 Indiana, 136; Plait v. Chicago, ^c. R. Co., 74 Iowa, 127; Fogg v. Nerada, §'a
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 599 
 
 No. 7. — Eicket v. Metropolitan Railway Co. — Notes. 
 
 Ry. Co., 20 Nevada, 429; Glaessner v. Ankeuser, Sfc. Ass'n., 100 Missouri, 508 ; 
 Sun Jose Co., v. Brooks, 74 California, 463 ; Reardon v. ('//// «//'/ County of 
 Son Francisco, 66 California, 492; 56 Am. Rep. 109, citing the principal case; 
 Houck v. PKacA/ei'j 34 Maryland, 265 ; Am. Rep. 332, counsel citing the prin- 
 cipal, case. 
 
 The special sufferer is not debarred from remedy because some others suffer 
 from the same cause. Seifried v. Hays, 81 Kentucky, :>77 ; •">(> Am. Rep. 167. 
 And in case of injury to private property or the impairment of individual 
 health and comfort by the carrying on of offensive trades or the creation 
 of noisome smells or disturbing noises, it is no matter how extensive or 
 numerous may be the instances of discomfort or injury to persons or prop- 
 erty thereby occasioned. Wesson v. Washburn Iron Co., 13 Allen (Mass.),. 
 95; 90 Am. Dec. 181 ; and to same effect, Lansing v. Smith, 4 Wendell (New 
 York), 9 ; 21 Am. Dec. 89 ; Wylie v. Elwood, 134 Illinois, 2S1 ; 23 Am. St. 
 Rep. 673. 
 
 In Marsan v. French, 61 Texas, 173; 48 Am. Rep. 272, it was held that one 
 may be restrained by an adjacent proprietor from renting a house with 
 knowledge that it has been and is to be used for prostitution ; so Cranfora v. 
 Tyrrell, 128 New York, 341 ; but the contrary was held in Hamilton v. Whit- 
 ridge, 11 Maryland, 128, and in Anderson v. Doty, 33 Hun (New York .Supreme 
 Ct.), 160, citing the principal case. 
 
 Subdiv. (b) There has been a great deal of judicial discussion in this- 
 country as to what constitutes a "taking" of land for public purposes, within 
 the constitutions of the States, and also as to what " damage " furnishes a 
 ground of action within constitutions which recognise damage as a ground of 
 relief. 
 
 It is held by the weight of authority in this country that an act done under 
 lawful authority, if done in a proper manner, can never subject the party 
 doing it to an action, whatever consequences may follow. By Bronson, C 
 J., in Radcliff's Executors v. Mayor, §•<?., 4 New York, 195. And so it was 
 there held that a city, acting under its charter authority in grading and level- 
 ling streets, and exercising proper care and skill in the execution of the work, 
 is not liable for consequential injury to owners of adjacent lands. The same 
 was held in Slatten v. Des Moines R. Co., 29 Iowa, 148; 4 Am. Rep. 205, the 
 court observing " the rightful and bond fide exercise of a lawful power or 
 authority cannot afford a basis for an action. If the power or right is exer- 
 cised carelessly, negligently, wrongfully, improperly, and may be maliciously, 
 the party so exercising it maybe liable to respond in damages for any injury, 
 direct or consequential, resulting to another from thus exercising the right or 
 power; but such liability can only arise upon and for the manner of doing the 
 act, and not for the act itself." 
 
 One specially injured by a common nuisance may maintain an action, no- 
 matter how inconsiderable the injury. Brown v. Watson, 47 Maine, 161; 71 
 Am. Dec. 482. But equity will not lend its aid when the injury is trifling oi 
 transient. 3 Pomeroy Equity Jur., §§ 1349, 1350. 
 
 A rare and trifling injury necessarily resulting from a lawful business 
 would not sustain an action at law. Price v. Grantz, 118 Renn. St. -10l> ; 
 4 Am. St. Rep. 601.
 
 GOO ACTION (right of). 
 
 No. 7. — Racket v. Metropolitan Railway Co. — Notes. 
 
 A street may be temporarily obstructed in the proper [prosecution of busi- 
 ness, without affording any- remedy to a person inconvenienced thereby. 
 Caltanan v. Gilvtan, 1<>7 New York, 360; 1 Am. St. Rep. 831, the case of a 
 bridge across a sidewalk to move goods from a shop to waggons ; and same 
 principle in Mathews v. Kelsey, 58 Maine, 56; 4 Am. Rep. 248. And so of a 
 temporary detention by the rebuilding of a railway bridge; Rhea v. Newport, 
 A c. R. Co., 50 Federal Reporter, 16. 
 
 In Richardson v. Vermont Cent. R. Co., 25 Vermont, 465, a leading case, 
 where the defendant in the construction of its road made an excavation upon 
 its own land so near the plaintiff's adjoining laud that it slid into the excava- 
 tion, the defendant was held liable. The court said: "They cannot justify 
 tin' removal of the plaintiff's soil by any powers attempted to be conferred 
 upon them, either by their charter or the general railroad law," To the same 
 effect; Baltimore, Sfc. R. Co. v. Reaney, 42 Maryland, 117. 
 
 In Memphis &f Ohio R. Co. v. Hicks. 5 Sneed (Tennessee), 427, it was held 
 that authority to erect a bridge over a navigable stream in such a way as not 
 to impede navigation does not justify even a temporary obstruction while 
 erecting the bridge. 
 
 In Hamden v. N. II. R. Co., 27 Connecticut, 158, it was held that a rail- 
 road company altering a highway for the purposes of its road is bound to 
 restore it to its former condition, and this liability continues until it is done. 
 
 In Georgetown, fyc. R. Co. v. Doyle, 9 Colorado, 549, it was held that the com- 
 pany was liable for injury to the plaintiff's adjacent land by rocks, etc., thrown 
 upon it by blasting in the construction of its road. 
 
 In Stodyhill v. Chicago, Sfc. R. Co., 42 Iowa, 26; 22 Am. Rep. 211, the same 
 was held as to the diversion of a natural stream of water, although necessary. 
 
 Subdiv. (e) The principal case is cited in Stewart v. Rutland, 58 Vermont, 
 12, holding that on an appraisal of damages for taking of land for a sewer, by 
 an incorporated village, consequential damages resulting from a nuisance 
 created by a discharge of sewage may not be allowed. The court said : " Xow, 
 in this State, the course is, when private property is taken for public use by 
 the exercise of the right of eminent domain, and no different rule is prescribed 
 by statute, to limit compensation to damages sustained by the actual taking 
 of the property, excluding all merely indirect and consequential damages. 
 . . . The same rule prevails generally in this country. Sedgwick Stat, and 
 Const. Law. 2d ed., 454, et seq., and Pomeroy's note. But a different rule pre- 
 vails in England," under The Lands Clauses Act. "But this section is held 
 to have reference only to cases in which a party is injuriously affected by 
 reason of acts unauthorised to be done by a public company in pursuance of 
 the provisions of its own private act, as inapplicable to cases in which the 
 injury complained of may be compensated by recourse to an action at law, as 
 it may be when resulting from acts not authorised by statute," citing Broad- 
 bent v. Imperial Gas-Light Co., 7 De G. M. & G. 436. " It is further held under 
 said section of The Lands Clauses Act, that in order to entitle a party to com- 
 pensation thereunder, the injury must he done to the land or to some interest 
 therein, and that a mere personal injury, though connected with the enjoy- 
 ment of particular land, is not a ground of compensation," citing the princi- 
 pal case. " This principle is applicable to the case at bar. The gist of the
 
 SECT. II. — FOIl CArUSE AFFECTING PUBLIC. 601 
 
 No. 8. — Mayor, &/C, of Lyme Regis v. Henley. — Rule. 
 
 petitioner's complaint is for a personal injury, in that the rest of their prem- 
 ises are rendered less enjoyable by reason of the noxious discharge of the 
 sewer. This is a damage ultra the taking' of land, for which compensation, it' 
 attainable, must be sought in some other way." 
 
 The principal case is also cited by Judge Dillon (2 Municipal Corporations. 
 878, 1231), in respect to indirect injury to trade by the lowering of a roadway, 
 or by the establishment of an elevated railway ; also in Lewis on Eminent 
 Domain, §229, and Redfield on Railways, § 82, subdiv. 15; also in a very 
 learned opinion, in Eaton v Boston, #y\ 11., 51 New Hampshire, 504; 12 Am. 
 Rep. 1-17, holding that the plaintiff might recover for flooding of his land by 
 the cutting of a protective ridge on the land of another, this being a " taking " 
 for which no compensation had been made ; also in note, 25 Am. Rep. 534. 
 
 No. 8.— MAYOK, &c, OF LYME REGIS v. HENLEY. 
 (h. l. error from k. b. 1834.) 
 
 RULE. 
 
 Where a corporation have a grant, made by lawful au- 
 thority for a public purpose, of premises on the seashore, 
 which declares that they are to repair the buildings, banks, 
 and seashores, &c. ; an individual specially damaged by omis- 
 sion to repair the sea-defences may maintain an action 
 against the corporation. 
 
 Mayor, &c, of Lyme Regis v. Henley. 
 
 2C1. &Fin. 331. 
 
 Action on the case by the defendant in error (Henley) against 
 the plaintiffs in error, for damages sustained by him through their 
 neglect to repair, according to their charter, certain sea-banks, &c. 
 The declaration in the first count stated that on the 20th of June, 
 in the 10th year of the reign of Charles I., that King by his letters- 
 patent did, for himself, his heirs, and successors (amongst other 
 things) give, grant, and confirm to the mayor and burgesses of 
 Lyme Regis, and their successors, the borough or town of Lyme 
 Regis, and also all that the buildings called pierquay or cob of 
 Lyme Regis, with all and singular the liberties, privileges, profits, 
 franchises, and immunities to the same town, or to the said pier- 
 quay or cob, in any wise belonging; to have, hold, and enjoy the 
 aforesaid, &c, to the said mayor and burgesses, and their succes-
 
 602 ACTION (right of). 
 
 No. 8. — Mayor, &,c, of Lyme Regis v. Henley. 
 
 sors, to the only and proper use and behoof of them and their 
 successors, in fee farm forever, yielding of fee farm to the said 
 sovereign lord Charles, his heirs and successors, of and for the 
 aforesaid borough or town, with its liberties and franchises, as in 
 the said letters-patent in that behalf mentioned. And the said sov- 
 ereign lord Charles did further, for himself, his heirs, and succes- 
 sors, pardon, remise, and release, to the said mayor and burgesses, 
 and their successors forever, twenty-seven marks, parcel of thirty- 
 two marks of the farm of the said borough, and the liberties thereof, 
 anciently by letters-patent, or in any other manner due, the said 
 lord King Charles willing not that the same mayor and burgesses, 
 or their successors, or either, or any of them, should be charged of 
 the further portion of the aforesaid farm of thirty-two marks, lie- 
 sides the aforesaid five marks; but that they and their successors, 
 against the said King Charles, his heirs and successors, should be 
 thereafter acquitted, and from time to time forever discharged of the 
 aforesaid yearly twenty-seven marks, any statute, act, ordinance, 
 provision, charters, or letters-patent theretofore made to the con- 
 trary thereof in any wise notwithstanding; and that the said 
 mayor and burgesses and their successors, all and singular of the 
 buildings, banks, seashores, and all other mounds and ditches 
 within the said borough of Lyme, or thereto in any wise belong- 
 ing, or situate between the same borough and the sea, and also the 
 said building called the pierquay or cob, at their own costs and 
 ■expenses thenceforth from time to time should well and sufficiently 
 repair, maintain, and support, as often as it should be necessary or 
 expedient; and the said King Charles, by his said letters-patent, 
 •did grant to the said mayor and burgesses, and their successors, 
 that the mayor of the same for the time being forever thereafter 
 should be clerk of the market within the said borough, and the 
 liberties and precincts of the same; and that the said mayor and 
 burgesses, and their successors, all and singular the fines, amerce- 
 ments, and sums of money before the said clerk of the market, by 
 either or any of the inhabitants of the borough or town aforesaid, 
 after the date and making of the said letters-patent, forfeited or 
 thereafter to be forfeited and assessed in the same borough, should 
 have and enjoy to the use of them and their successors forever, 
 without account, or any other thing for the same to the said King 
 < Jharles, his heirs or successors, in any wise to be rendered or 
 _paid; and the said King Charles, did, by the said letters-patent,
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. G(K> 
 
 No. 8. — Mayor, &-c, of Lyme Regis v. Henley. 
 
 for himself, his heirs, and successors, give and grant to the said 
 mayor and burgesses, and their successors, full power, authority 
 and license from time to time forever to dig stones and rocks in 
 any places whatsoever, within the borough and parish of the town 
 aforesaid, out of the sea and on the seashore, in the borough and 
 parish aforesaid, adjoining to the said borough or town, for the 
 reparation and amendment of the port and building called the 
 pierquay or cob, and other necessary reparations and comm< n 
 works of the same town and borough, and belonging and apper- 
 taining to the buildings aforesaid; and the said King Charles 
 did also, by the said letters-patent, will and grant to the said 
 mayor and burgesses, and their successors, that they should have, 
 hold, use, and enjoy, and might and should be able fully, freely, 
 and entirely to have, hold, use, and enjoy forever, all the liberties, 
 free customs, privileges, authorities, acquittances, and licenses 
 aforesaid, according to the tenor and effect of the said letters- 
 patent, without the let or impediment of the said King Charles 
 his heirs or successors, or his or their justices, sheriffs, escheators, 
 ■bailiffs, or ministers. Which said letters-patent the mayor and 
 burgesses aforesaid duly accepted, and the same thence hitherto 
 have been, and still are, one of the governing charters of the said 
 borough ; and the said mayor and burgesses, from the time of 
 their acceptance of the said letters-patent, hitherto have had, held, 
 received, and enjoyed all the benefits, profits, and advantages 
 granted to them by the said letters-patent. 
 
 The declaration further stated in the first count, that before and 
 at the time of the committing of the grievances as thereinafter 
 mentioned, the said plaintiff (the defendant in error) was lawfully 
 possessed of and in divers messuages, buildings, and closes of land, 
 with the appurtenances, situate in the borough aforesaid, and was 
 entitled in reversion to divers other messuages, buildings, and 
 closes of other land, with the appurtenances; all which several 
 messuages, &c., with the appurtenances, before and at the times of 
 the committing of the several grievances thereinafter mentioned, 
 were abutting in or near the seashore, at the parish aforesaid ; and 
 that before and at the time of sealing of the said letters-patent, 
 and acceptance thereof, as aforesaid, by the said mayor and bur- 
 gesses, and also at the time of the committing of the several 
 grievances by the snid defendants (plaintiffs in error) as therein- 
 after next mentioned, divers buildings, banks, seashores, and
 
 604 ACTION (eight of). 
 
 No. 8. — Mayor, &,c, of Lyme Regis v. Henley. 
 
 mounds, had been, and were then respectively standing and being 
 within the borough of Lyme Regis aforesaid ; and divers other 
 buildings, banks, seashores, and mounds, had been and respectively 
 were belonging and appertaining to the said borough ; and divers 
 other buildings, banks, seashores, and mounds, had been and were 
 at those times respectively standing and being and situate between 
 the said borough and the sea, in the borough aforesaid ; all which 
 said buildings, banks, seashores and mounds respectively, at the 
 times of the committing of the several grievances by the said 
 defendants (plaintiffs in error), were near to, and then and there 
 constituted and formed, and were a protection and safeguard, and 
 still of right ought to form and be a protection and safeguard to 
 the said several messuages, buildings, and closes of land, with the 
 appurtenances aforesaid, and then and there hindered, prevented, 
 and still of right ought to hinder and prevent, the sea, and the 
 waves and waters thereof, from running or flowing in, upon, 
 against, or over the said several messuages, buildings, and closes of 
 land ; and all which buildings, banks, seashores, and mounds, the 
 said defendants (plaintiffs in error), at the times of the committing 
 of the several grievances by them as thereinafter mentioned, were 
 under and by virtue and in pursuance of the aforesaid letters- 
 patent, and the acceptance thereof as aforesaid, liable, and ought, 
 at their own proper costs and charges, well and sufficiently to 
 have repaired, maintained, and supported, and still are liable, and 
 ought, at their own proper costs and charges, well and sufficiently 
 to repair, maintain, and support, when and so often as it should or 
 might have been, or shall or may be necessary or expedient so to 
 do, so as to prevent damage or injury to the said messuages, build- 
 ings and closes of the said plaintiff, by the sea, or the waves or 
 the waters thereof. 
 
 Breach : that the said defendants, well knowing the premises, 
 and not regarding the said letters-patent, nor their duty in that 
 behalf, but contriving, and wrongfully and unjustly intending to 
 injure, prejudice, and aggrieve the said plaintiff, and to deprive 
 him of the use and benefit of his several messuages, buildings, and 
 closes ; and also to injure, prejudice, and aggrieve him, the said 
 plaintiff, in his reversionary interest of and in the said messuages, 
 buildings, and closes above-mentioned, wrongfully and unjustly 
 suffered and permitted the said buildings, banks, seashores, and 
 mounds to be and continue ruinous, prostrate, fallen down, washed
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. Oil,") 
 
 No. 8. — Mayor, &c., of Lyme Regis v. Henley. 
 
 down, out <>f repair, ami in great decay, for want of due, needful, 
 proper and necessary repairing, maintaining, and supporting of the 
 same; by means of which said several premises, the sea, and the 
 waves and waters thereof, ran and flowed with great force and 
 violence in, upon, under, over, and against the said several mes- 
 suages, buildings, and closes of the said plaintiff, in which he was 
 so interested as aforesaid, and thereby greatly inundated, damaj 
 injured, undermined, washed down, heat down, prostrated, levelled, 
 and destroyed the said several messuages and buildings; and the 
 materials of the same, together with divers cart-loads of earth and 
 soil, and divers acres of the said several closes, were washed and 
 carried away ; by means of which said several premises, the said 
 plaintiff not only lost and was deprived of the use, benefit, ami 
 enjoyment of his said messuages, buildings, and closes in this 
 count first above mentioned, but was also thereby greatly injured, 
 prejudiced, and aggrieved in his reversionary estate and interest of 
 and in the said several messuages, buildings, and closes in this 
 count secondly above mentioned. 
 
 There were other counts stating a liability to the same repairs 
 by prescription, and others stating it by reason of the possession of 
 certain closes. The defendants below pleaded the general issue. 
 
 The cause came on to be tried before Mr. Justice Littledale, 
 at the spring assizes for the county of Dorset, in 1828, when the 
 jury found a verdict for the (plaintiff') defendant in error, on the 
 first count, with £100 damages, and were discharged from giving 
 any verdict upon the other counts. In the following Easter Term, 
 a motion in arrest of judgment was made in the Court of Common 
 Pleas, but judgment was given for the plaintiff below, 5 Bing. 91. 
 
 The defendants below thereupon brought a writ of error in the 
 Court of King's Bench, where the judgment of the Court of Common 
 Pleas was affirmed, 3 Barn. & Ad. 77 ; and upon that judgment the 
 present writ of error was brought in the House of Lords. 
 
 The following Judges of the Common Law Courts, besides Lord 
 Denman, attended in the House when the case was argued, viz., 
 Chief Justice Tindal, Mr. Justice Park, Mr. Baron Bayley ; Jus- 
 tices BOSANQUET, GASELEE, TAUNTON, J. PARKE, PATTESON, and 
 Alderson ; Barons VAUGHAN and Gurney. 
 
 Mr. Serjeant Merewether, for the plaintiffs in error. There is 
 nothing on the face of this record to show that the defendants 
 below were liable, by reason of tenure, to the repairs of the sea-
 
 606 ACTION (right of). 
 
 No. 8. — Mayor, &.c, of Lyme Regis v. Henley. 
 
 shore. The passages cited from Callis, in his treatise on Sewers r 
 and urged in the Court below, with a view to fix the liability of the 
 defendants rat lone tenurce, are doubtfully expressed and cannot be 
 deemed authority. He says, " in cases of the sea and royal rivers, 
 the property of the banks and grounds adjoining belong to the 
 subject whose lands do butt and bound thereon, but the soil of 
 the sea and royal rivers appertains to the King," &c. " and it seems 
 that the frontages are bound to the repairs, and that he whose* 
 grounds are next adjoining to a highway is bound to repair the 
 same." The last clause of the sentence is stated too broadly., 
 and is not the law ; and the former part of it, which applies to> 
 this question, is an expression of doubt, and is much weakened by" 
 passages in other pages. See Callis, pp. 2, 115, 117, 118. 
 
 The chief question here is, whether the King can, by his letters- 
 patent or charter, create a new duty. It does not appear who, or 
 that any one, was compellable to repair those walls and banks 
 before the date of Charles the First's charter. Did the King's 
 charter create a new duty, and impose on the corporation of Lyme 
 the charge of repairing the sea-walls, subjecting them to an in- 
 dictment or action at the suit of any person whose property in 
 Lyme might be damaged in consequence of the non-repair ? The 
 liability to such action or indictment could arise only in one of 
 four ways, — viz., by reason of prescription, tenure, acts of Parlia- 
 ment, or nuisances to public rights. There is no case or other 
 authority to show it could arise from the acceptance of a grant 
 from the King. The cases cited in the Court below, in the judg- 
 ment for the defendant in error, applied to liability by prescrip- 
 tion, tenure, act of Parliament, or public nuisance; such as Rex 
 v. Kerrison, 1 M. & S. 435, and 3 M. & S. 526: Paine v. Partridge, 
 Carth. 191 ; s. c. Show. 255, 12 Hen. VII., fol. 18 ; Rex v. Inhabitants 
 of Kent, 13 East, 220 ; Rex\. Inhabitants of Lindsay, 14 East, 317 ; 
 Rex v. Stoughton, 2 Saund. 157, 160. If the charter annexed to- 
 the grant an obligation to repair the sea-walls, the King may with- 
 draw the grant if the grantees do not perform the condition, (Roll. 
 Abr. tit. Franchise, Com. Dig. Franchises) ; so that the obligation 
 is not a matter of public duty, but a covenant between the King 
 and the corporation, which a stranger to it cannot have a right to* 
 enforce by action or by indictment. The liability of the plaintiffs 
 in error to an indictment for nnn-rerformance of the repairs in 
 question is assumed in the i ' nt below as the ground on.
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 607 
 
 No. 8. — Mayor, &C.7 of Lyme Regis v. Henley. 
 
 which the right of action for special da mane rests, 3 Barn. & Ad. 
 93. According to Callis, p. 115, the occupiers of lands abutting 
 on the sea are primarily liable to protect them from the sea, and 
 the liability of the plaintiffs in error to protect the defendant, if 
 such exists, arises from their agreement, implied from their accep- 
 tance of the charter of Charles the First; but no agreement t<> 
 become liable to do that for which others are primarily liable will 
 subject a party to an indictment, though the party be a corporation 
 aggregate, and though a sufficient consideration for the agreement 
 be shown, and the public interest be concerned (Rex v. Mayor of 
 TAverpool, 3 East, 86) ; nor will such agreement release those in 
 whom such primary liability exists (Bcgina v. Duchess of Buccleugh, 
 1 Salk. 358). The charter here is at most only a covenant between 
 the King and the corporation. It is not denied that an obligation 
 is thereby imposed on the corporation, but there is no duty of a 
 public nature imposed, so as to render the corporation liable to an 
 indictment for neglect. There is no authority for holding that 
 any one of the King's subjects who may sustain damage by rea- 
 son of the non-repair, can indict the corporation for their neglect, 
 or have an action against them for the damage. The claim of the 
 defendant in error is new and unwarranted bylaw; and that no 
 precedent is found for the right claimed by him is a matter which 
 ought to have great weight. The case of Popham v. Prior of-Brea- 
 morc, 11 Hen. IV. 82, and Kcirjldcys Case, 10 Co. Rep. 139 a , do 
 not appear to sustain this action, as they turned on the principle 
 of liability by prescription. In the case of The Mayor of Lynn v. 
 Turner, Cowp. 87, on which reliance was placed on behalf of the 
 plaintiff below, and which was a writ of error to the King's Bench. 
 the corporation of Lynn was sued for not repairing a creek of the 
 sea, being charged to be liable thereto by prescription and by imme- 
 morial usage, — two material distinctions between that and this case. 
 More weight has been given to the words of Lord Maxsfield, in 
 giving judgment in that case than is properly due to them. It 
 would appear from the argument in Churchman v. Tunstal, Hardr. 
 162, that an action or indictment lies against a common ferryman 
 if he does not keep his ferry in good repair, but that a private 
 ferryman is not so liable, — a distinction which is analogous to this 
 case. But that case and Paine v. Partridge, Show. 255 ; Carth. 191, 
 were cases of liability from prescription in respect of ancient fer- 
 ries, which most materially distinguished them from this case. It
 
 008 ACTION (RIGHT OF). 
 
 No. 8. — Mayor, &,c, of Lyme Regis v. Henley. 
 
 may be supposed from an expression used in Russell v. The Men of 
 Devon, 2 T. II. 067 (1 R. R. 585), that the action there for not 
 repairing a county bridge would well lie if the defendants had 
 been a corporation. That was a mere diction, urged in that case 
 beyond its merits, and it is opposed to The King v. The Mayor of 
 Liverpool, 3 East, 86 (6 R. R. 546), and to Harris v. Baler, 4 
 M. & S. 27. 
 
 There was another class of cases cited below, relating to the 
 liability of officers in public offices, as the bank, post-office, &c. ; but 
 as the liability of these officers arises under acts of Parliament, it 
 is not necessary to examine such cases, which have no bearing 
 upon the liability to which it is attempted to subject the plaintiffs 
 in error, by virtue of the King's charter within time of memory. 
 
 The proper remedy for the injury sustained here would be by 
 information at the suit of the Attorney-General, or by application 
 to the Court of Chancery, under the Act 4.'-! Eliz. c. 4, which 
 enables the Lord Chancellor, where lands have been granted for 
 reparation of sea-walls, &c, to issue a commission to inquire and 
 direct the funds to be appropriated to the purposes to which the 
 grant was destined ; or by proceeding on the part of the King for 
 a forfeiture. 4 Vin. 476 ; Com. Dig. tit. Franchises. 
 
 Mr. Erie rose to argue on the same side, but the Lord Chancel- 
 lor suggested that the House should hear the counsel for the 
 defendant in error, and Mr. Erie should have the reply. The 
 counsel agreed to that course, and Mr. Bere, who was second 
 counsel on the other side, did not address the House. 
 
 Mr. Follet, for the defendant in error. The first point made 
 in the argument fur the plaintiffs in error is, that no condition to 
 repair was imposed as a matter of public duty on the mayor and 
 burgesses by the grant; and that the charter contained merely an 
 expression of the King's will that they should repair and maintain 
 the banks and seashore. It is impossible for any person, attend- 
 ing to the nature of the grant, the remission of twenty-seven 
 marks of the ancient rent, the grant of the fines and amercements, 
 and the license to dig stones within the town for the reparation 
 of the port and pier, to hold that the charter did not annex to 
 these grants the obligation to repair. The corporation having 
 accepted the charter, and having ever since enjoyed the privileges 
 conferred by it, must also take the burden imposed. The benefits 
 that were granted were the consideration for the performance of
 
 SECT. II. — FOR CAUSli! AFFECTING PUBLIC. 609 
 
 No. 8. — Mayor, &,c, of Lyme Regis v. Henley. 
 
 the duty. The corporation shall not he at liberty to accept the 
 grant, and refuse the burden; King v. Westwood, 4 Barn. & 
 C. 781; Brett v. Cumberland, Cro. Jac. 399, 521. Lord Ten- 
 terden, after citing this last ease in his judgment in the Court 
 below, adds, "So here, though the letters-patent import only thai 
 it he the King's will that the corporation should repair, yel they, 
 having accepted the letters-patent, and enjoyed the benefits and ad- 
 vantages granted thereby, have testified their assent that this shall 
 be considered as a condition or obligation, and must be hound accord- 
 ingly; and in that view it becomes immaterial to inquire whether 
 or not, before the grant, the King himself was bound to keep the 
 banks and seashores in repair." 3 Barn. & Ad. 92. 
 
 The plain argument upon which the defendant in error relies is, 
 that where the King by his grant imposes a public duty on a 
 corporation or on an individual, the public become interested, and 
 have a right to see that the duty is performed, and an indictment 
 will lie for the neglect ; or an individual, if a direct injury is in 
 consequence sustained by him, has a right of action. This last 
 position was admitted in the case of Paine v. Partridge, Show. 
 255 ; s. c. Carth. 191, and is well warranted by the cases of 
 Churchman v. Tunstal, Hardr. 163; Herbert v. Paget, 1 Lev. 64; 
 Mayor of Lynn v. Turner, Cowp. 86; Lane v. Cotton, 1 Salk. 17; 
 and Comyn's Digest, title Action on the Case, A 2, A .3. The 
 recent case of Peter v. Kendal, 6 Barn. & C. 703, applies to every 
 oM'ence and grant of a public nature, and shows that wherever 
 such a grant is made,, there a duty is imposed ; and an indictment 
 will lie against the grantee for a public injury arising from his 
 neglect or non-performance of the duty ; or an action on the case 
 may be brought against him by any individual sustaining a par- 
 ticular injury. The doctrine laid down in these cases is not 
 shaken, but rather confirmed, by the case of Russell v. The Men of 
 Devon, 2 T. R. 667, which was an action against the inhabitants 
 • if a county for an injury sustained by an individual in conse- 
 quence of the non-repair of a county bridge, and it was held not 
 to be maintainable; but it was there said that such an act inn 
 would well lie against a corporation. 
 
 The next question for consideration is, whether the declaration 
 
 here sufficiently alleges that the defendants below were bound to 
 
 repair ratione tenures. There is no magic in these words. They 
 
 were in possession of the borough, and of the walls and hanks; 
 
 vol. i. — 39
 
 610 ACTION (RIGHT OF). 
 
 No. 8. — Mayor, &-<:., of Lyme Regis v. Henley. 
 
 that cannot be denied after the verdict. By reason of their own- 
 ership and possession they became liable to the repairs (Callis, 
 115, 117); and the declaration sufficiently alleges that liability to 
 have been created by the charter, and does not aver an obligation 
 more extensive than the duty required by the charter. The case 
 of Rex v. Kerrison, 1 M. & S. 435, cited on the other side, favours 
 the defendant in error. The indictment there charged the owner 
 of a navigation with the liability to repair a bridge by reason of 
 ownership, without showing any contract or obligation annexed 
 to the grant of the navigation, to induce a liability to repair. But 
 here the grant, and the condition on which the charter was 
 granted, are set forth in the declaration ; and whether the duty is 
 cast on a party by prescription, which supposes a consideration, or 
 by an existing grant showing the consideration, if the party bound 
 do not repair, an action equally lies at the suit of the party injured 
 by the neglect. Keighlcy Case, 10 Co. Eep. 139 a. These cases are 
 strongly applicable to this, and they, as well as most of the au- 
 thorities to be found in the old books of reports, are against the 
 interpretation which was given by the counsel for the plaintiffs in 
 error to the Statute of Sewers (23 Hen. VIII.). There is a case in 
 Hardr. p. 169 (The Earl of Devonshire v. Gibbons and others). 
 referring to that Statute,- — it was a bill reciting articles of as^ree- 
 ment, made between the Kins; and others, for draining Hatfield- 
 level, by which the King was to have a third part of the lands 
 obtained, the drainers a third, and the tenants and commoners 
 a third. The plaintiff, who was not a party, or deriving from a 
 party, to the articles, was assessed towards maintenance of a cer- 
 tain sewer for his lands in Yorkshire, and his bill prayed relief from 
 the assessment, according to the equity of the statute of Hen. VIII. 
 on the ground that he was "aggrieved by the assessment, 
 through those not repairing the banks, who were obliged to repair 
 by the articles." And the Court seemed to lie of this opinion, 
 " because in effect the articles were made for the relief of all that 
 were to receive any damage by the draining, and being made pro 
 bono publico, all persons are parties ; as if one man should take 
 upon himself to repair a public causeway which the country 
 ought to repair, by this means he makes himself liable to the 
 whole county if he do it not." There is a clear distinction between 
 the liability of an individual and of a corporation ; that is laid 
 down in Callis, p. 117 (where it is said an obligation may exist by
 
 SECT. IT. —FOR CAUSE AFFECTING PUBLIC Gil 
 
 No. 8. — Mayor, &c, of Lyme Regis v. Henley. 
 
 covenant as well as by tenure), and is noticed by Lord MANSFIELD 
 in his judgment in the Mayor of Lynn v. Turner. An individual 
 is bound by reason of tenure of his land; but a corporation accept- 
 ing a grant is bound to perform the duty annexed to it, without 
 any land. It is not therefore necessary that the obligation to 
 repair should lie in this case coupled with land ; but if it were, 
 the charter does grant land: it grants the borough and cob; so 
 that if it were necessary to prove that the corporation are bound 
 ratione tennrcr, that proof is not wanting. 
 
 Mr. Erie, in reply. The plaintiffs do not contend that the 
 covenant contained in the letters-patent did not, by the acceptance 
 of them, impose an obligation on the corporation ; there may be a 
 process against them for the forfeiture of the franchise, or other 
 proceedings before referred to, but they are not liable to an indict- 
 ment or action at the suit of an individual who is a stranger to the 
 covenant. There is no case, though many have been cited, to show 
 that any one of the King's subjects can have an action against a 
 corporation for not repairing sea-walls, through the non-repair of 
 which his property sustained damage. The case of The King v. 
 The Mayor of Liverpool shows that an agreement to repair a road 
 did not subject a corporation to an indictable liability to repair. 
 That case is a sufficient answer to the inferences drawn from Callis 
 and from the old authorities. In all the cases respecting the duty 
 of public officers there were known relations and duties between 
 them and the public, defined by acts of Parliament, and they have 
 no analogy with this case. The charter here cannot have a greater 
 force than an act of Parliament ; but if this duty was imposed in 
 those general terms by act of Parliament, the corporation would 
 not be indictable for an injury to a private individual. The banks 
 and mounds in question were stated in the declaration to have 
 been a protection to Mr. Henley's property, and not to the houses 
 and property of the public. It was scarcely possible at any expense 
 to repel the encroachments of the sea on these banks ; if the funds 
 of the corporation were to be applied to the protection of one indi- 
 vidual,, they would not be sufficient for that purpose, and the other 
 inhabitants would be without protection. 
 
 The Lord Chancellor suggested a question for the learned 
 Judges, and the further consideration of the case was adjourned. 
 
 Mr. Justice Park delivered the following opinion of the 
 Judges : —
 
 612 ACTION (RIGHT OF). 
 
 No. 8. — Mayor, &-c, of Lyme Regis v. Henley. 
 
 The question proposed by your Lordships fur the opinion of the 
 Judges is as follows : " The declaration in an action on the case 
 against the. corporation states, that before the committing of the 
 grievances by the said defendants, the King, by his letters-patent, 
 duly sealed, did give, grant, and confirm to the corporation and 
 their successors the borough or town of Lyme Regis ; also all that 
 the building called the pierquay or cob of Lyme Eegis, with the 
 liberties, franchises, privileges, and immunities to the same town, 
 pierquay, or cob, in any wise belonging, to the only proper use and be- 
 hoof of the corporation, in fee farm forever, yielding of fee farm to the 
 Kim>- as in the letters-patent mentioned; and that the King thereby 
 released to the corporation part of an ancient farm of a sum of 
 money due from them annually, willing that the corporation should 
 be thereof acquitted, and that the corporation and their successors 
 all and singular of the buildings, banks, seashores, and all other 
 mounds and ditches within the said borough, or to the said 
 borough in any wise belonging or appertaining, or situate between 
 the said borough and the sea, and also the said building called the 
 pierquay or the cob, at their own costs and expenses thenceforth 
 from time to time forever should well and sufficiently repair, maintain, 
 and support, as often as it should be necessary or expedient. That 
 the King also, by the same charter, granted fines and amercements 
 before the clerk of the market, without account; and a license to 
 dig stones within the borough and parish of the town, out of the 
 sea and on the seashore, for the reparation and amendment of the 
 port, and the said pierquay or cob, and other necessary reparations 
 and common works of the same town and borough, and belonging 
 and appertaining to the buildings aforesaid. The declaration then 
 avers that the charter was duly accepted, and from thence hath 
 been and still is a governing charter of the borough, and that the 
 corporation from the time of that acceptance hitherto have had, 
 held, received, and enjoyed all the benefits, profits, and advan- 
 tages granted to them by the said letters-patent. It then proceeds 
 to state that the plaintiff was, at the time of the committing of 
 the grievances, lawfully possessed of a messuage and land in the 
 county aforesaid, to wit, in the said borough, which were before 
 and at those times abutting on or near the seashore. That a 
 building, bank, and seashore within the borough, a building, bank, 
 or seashore belonging and appertaining to the borough, and a 
 building, bank, or sea-shore situate between the said borough and
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 613 
 
 No. 8. — Mayor, &,c, of Lyme Regis v. Henley. 
 
 sea, all which were there at the time of the sealing ami accep- 
 tance of the letters-patent, and at the time of the committing of 
 the grievances, and at the last-mentioned time, were near to, and 
 constituted and funned, and were a protection and safeguard, and 
 still of right ought to be so, to the plaintiffs messuage and land 
 aforesaid, and then hindered the sea from flowing upon and over 
 that messuage and land ; t and which buildings, bank, seashores, 
 and mounds the defendants were at those times, by virtue of the 
 said letters-patent and acceptance, liable to repair at their own 
 proper costs and charges, as often as it might be necessary and 
 expedient to do so. 
 
 " A breach is then assigned, that the corporation wrongfully 
 permitted the said buildings, banks, seashores, and mounds to be 
 out of repair, for want of due, proper, and necessary repairing of 
 the same ; by means of which the plaintiffs house and land was 
 inundated and injured. 
 
 "After a verdict upon a plea of not guilty, is this declaration 
 good, and does it disclose a sufficient cause of action by the plain- 
 tiff against the corporation ? " 
 
 In order to make this declaration good, it must appear, first, 
 that the corporation are under a legal obligation to repair the 
 place in question ; secondly, that such obligation is matter of so 
 general and public concern that an indictment would lie against 
 the corporation for non-repair ; thirdly, that the place in question 
 is out of repair ; and lastly, that the plaintiff has sustained some 
 peculiar damage beyond the rest of the King's subjects by such 
 want of repair. 
 
 The third and last requisites are admitted to he averred in this 
 declaration, and with sufficient words, at least after verdict. The 
 doubt in the case arises upon the first and second requisites. 
 With regard to the first, it is argued that the corporation have not, 
 by the acceptance of the charter stated in the declaration, incurred 
 any legal obligation whatever as to the repair of the place in 
 question ; that the charter does not contain a grant on condition 
 that the corporation shall repair, but merely an expression of the 
 King's will that they shall repair. 
 
 Looking at the words of the charter, as stated in this declaration, 
 we are of opinion that it does cast upon the corporation an obliga- 
 tion to repair, which they, by accepting the charter, have adopted. 
 The King grants and confirms to the corporation the town, or
 
 614 ACTION (RIGHT OF). 
 
 No. 8. — Mayor, &c, of Lyme Regis v. Henley. 
 
 borough, and pier, with the liberties, franchises, and privileges, and 
 immunities to the same belonging, in fee farm forever, yielding of 
 fee farm to the King as therein mentioned ; and the King remits 
 part of an ancient rent, willing that the corporation should be 
 thereof acquitted ; and then the charter goes on in these words: 
 " And that the corporation and their successors, all and singular of 
 the buildings, banks, seashores, and all other mounds and ditches 
 within the said borough, or to the said borough in any wise belong- 
 ing or appertaining, or situate between the said borough and the 
 sea, and also the said building called the pierquay or the cob, at 
 their own proper costs and expenses thenceforth from time to time 
 forever should well and sufficiently repair, maintain, and support 
 as often as it should be necessary or expedient." 
 
 Now, these words are undoubtedly an expression of the King's 
 will that the corporation should repair; but they are not the less 
 a condition on that account. On the contrary, they show the con- 
 sideration for the grant, the motive inducing the King to make the 
 grant, and, consequently, the terms and conditions on which the 
 grant was to be accepted. What effect such words might have in 
 a grant from one subject to another it is not necessary to deter- 
 mine. Such a grant between subjects is a matter of contract and 
 bargain, strictly so speaking; but a grant from the King to a 
 subject is a matter of favour, and the language used will be found 
 to vary accordingly. Independently of authorities we should have 
 come to this conclusion, but the case of St7' JoJni Brett v. Cumber- 
 land, Cro. Jac. 521, seems to us to be decisive of the question. 
 That was an action of covenant by the assignee of King James I. 
 against the executors of the lessee of a mill under letters-patent of 
 Queen Elizabeth, sealed with her seal only, and containing these 
 words: " Et pnedictus Willielmus, executores et assignati sni, 
 prsedicturii molendinum et domus et sedificia hide sufficienter 
 reparabunt." The first question was, whether these words in the 
 letters-patent to which the Queen's seal only was affixed, shall 
 enure as a covenant to bind the lessee and his assigns; and it was 
 resolved " that it should, for the lessee takes thereby, because it is 
 a matter of record: although in show they be the words of the 
 lessor only, yet he accepting thereof and enjoying it, it is as well 
 liis covenant in fact, and shall bind him as strongly as if it had 
 been a covenant by indenture." So in the charter in question, the 
 words are in show the words of the King only, but the corporation
 
 SECT. II. FOR CAUSE AFFECTING PUBLIC. G15 
 
 No. 8. — Mayor, &,c, of Lyme Regis v. Henley. 
 
 having accepted the charter and enjoyed the benefits of it, as is 
 
 averred in the declaration, they are as strongly bound as if they 
 had covenanted expressly by an indenture. 
 
 The second requisite is, in truth, that upon which this case 
 wholly turns, — viz., that the obligation must be matter of so 
 general and public concern that an indictment will lie for the 
 breach of it. Now, this depends principally upon the construction 
 which ought to be put upon the words of the charter. They are 
 undoubtedly of a very general nature: "All and singular the 
 buildings, banks, seashores, and all other mounds and ditches 
 within the said borough, or* to the said borough belonging, or 
 situate between the said borough and the sea." It is asked, do 
 these words embrace every little ditch or bank within the limits 
 of the borough, whether public or private; and if not, where is the 
 limit? The answer is, that they embrace only, such buildings, 
 banks, seashores, mounds, and ditches, within or belonging to the 
 borough, or situate between the borough and the sea, as form part 
 of the defences and safeguards of the borough against the encroach- 
 ments of the sea. This may be gathered from the context, from 
 the word "seashores," from the expression "situate between the 
 borough and the sea," and from the obvious intention and scope of 
 the charter, as stated in the declaration. It seems to us that such 
 construction and limitation of the words is necessary in order to 
 give this part of the charter any meaning, and that no violence is 
 done either to the grammatical or reasonable sense of the words by 
 .such construction. 
 
 If so, the next question which arises is, whether the keeping up 
 the sea defences of a town or borough is a matter of general and 
 public concern. It is said that the repair of a highway or a bridge 
 is matter of public concern, because all the King's subjects may 
 have occasion to use it. And why may not all the King's subjects 
 have occasion to reside in, or to pass through, the borough of 
 Lyme? It may be difficult to define precisely over what quantity 
 >f land, or to how large a district, any benefit must be extended in 
 order to render such benefit a matter of general and public concern ; 
 but surely no danger or inconvenience can arise from holding 
 that it is sufficient if such benefit extended to a whole town or 
 borough. 
 
 But it is said that, even if the repair of the sea-defences of a 
 town or borough be matter of general and public concern, yet that
 
 GIG ACTION (right of). 
 
 No. 8. — Mayor, &-c, of Lyme Regis v. Henley. 
 
 the declaration in this case does not show that the particular 
 " buildings, hanks, seashores, mounds, or ditches," alleged to he 
 out of repair, are part of the sea-defences of the borough, nor is it 
 expressly averred that the public had any interest in them. The 
 answer is, that the buildings, banks, seashores, mounds, or ditches 
 in question are described in the declaration in the very words used 
 in the charter, as set out in the declaration, and are expressly 
 averred to have been in existence at the time when the charter 
 was granted and accepted ; and it is also expressly averred that 
 the corporation were liable under the charter to repair them. 
 Now, these words in the averments of the declaration must be 
 understood in the same sense as the same words in the charter ;. 
 and as we are of opinion that the true construction of them in the 
 charter is to understand them as limited to the sea-defences of the 
 borough, so we think they are to be taken to have the same 
 meaning in the declaration, and to have the same effect as if the 
 buildings, banks, seashores, mounds, or ditches in question were 
 expressly averred to be part of the defences and safeguards of the 
 borough and town against the encroachments of the sea. And this 
 opinion is further strengthened by the circumstance that the 
 present objection arises after verdict, The effect of a verdict in 
 curing defects in the pleadings at common law is stated correctly 
 in one of the last cases on the subject, — viz., that of Jackson 
 v. Pcskcd, 1 Maule & S. 234. There Lord Ellenborough said: 
 " Where a matter is so essentially necessary to be proved, that had 
 it not been given in evidence, the jury could not have given such 
 a verdict, there the want of stating that matter in express terms 
 in a declaration, provided that it contains terms sufficiently gen- 
 eral to comprehend it in fair and reasonable intendment, will be 
 cured by verdict; and where a general allegation must, in fair 
 construction, so far require to be restricted, that no judge and no 
 jury could have properly treated it in an unrestrained sense, it un- 
 reasonably be presumed, after verdict, that it was so restrained at 
 the trial ; but unless the allegation is of such a nature that it 
 would have been doing violence to the terms, as applied to the 
 subject-matter, to have treated it as unrestrained, we are not aware 
 of any authority which will warrant us in presuming that it was 
 considered as restrained merely because, in the extreme latitude of 
 the terms, such a sense might be affixed to them." Here we think 
 that the allegations of the declaration, as applied to the subject-
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. 617 
 
 No. 8. — Mayor, &c, of Lyme Regis v. Henley. 
 
 matter, do by reasonable intendment show that the buildings, 
 banks, mounds, and ditches in question were part of the defenci s 
 and safeguards of the town and borough against the encroachments 
 of the sea, and particularly of that part of the town and borough 
 
 in which the plaintiff's property is situated. The declaration, 
 therefore, shows a charter casting an obligation on the corporation 
 to do repairs of general and public concern, and avers that they 
 have omitted to do such repairs, and that the plaintiff has thi reby 
 sustained special damage. It is not, indeed, shown that the 
 plaintiffs house existed at the time when the charter was granted; 
 neither can this be necessary; for if the obligation to repair be of 
 a public nature concerning the whole borough, the whole borough 
 has a right to be protected, and it is immaterial whether the inun- 
 dation affects the lands, or houses at any time erected on those 
 lands. 
 
 It is, however, further urged, that whatever engagement the 
 corporation may be under as between them and the Crown, so as 
 to render them liable either to forfeiture of their charter, or any 
 other proceeding by the Crown, yet that no stranger can take 
 advantage of such engagement and maintain an action. It is 
 admitted that if their liability arose by prescription, they would 
 be indictable, and also an action would lie for special damage, as 
 in The Mayor, &c, of Lynn v. Turner, Oowp. 86; Churchman v. 
 Tunstali Show. 255; Carth. 199; Paine v. Partridge, Hardr. 162, 
 and many other authorities, which it is unnecessary to cite, because 
 it is clear and undoubted law that, wherever an indictment lies 
 for non-repair, an action on the case will lie at the suit of a 
 party sustaining any peculiar damage. Now, we are unable 
 to see any sound distinction between a liability by prescription 
 and a liability arising within time of memory, but legally created. 
 We do not say that prescription necessarily implies a charter or 
 grant, but it necessarily implies some legal origin, and charter 
 would be a legal origin. Suppose that a prescriptive obligation 
 were alleged, and that a charter granted before time of memory 
 were produced, and so the legal origin were shown, would that 
 destroy the prescription? Certainly not, Would the obligation 
 arising from that charter have been less binding within a few 
 years after it was granted than it is now, after a great lapse of 
 time? Certainly not. If, then, the origin be legal, how can it be 
 important when it took place ? We do not go the length of say-
 
 618 ACTION 1 (right of)! 
 
 No. 8. — Mayor, &/C, of Lyme Kegis v. Henley. 
 
 ing that a stranger can take advantage of an agreement between 
 A. and B., nor even of a charter granted by the King, where no 
 matter of general and public concern is involved ; but where that 
 is the case, and the King, for the benefit of the public, has made 
 a certain grant, imposing certain public duties, and that grant has 
 been accepted, we are of opinion that the public may enforce the 
 performance of those duties by indictment, and individuals pecu- 
 liarly injured, by action. If it were otherwise, many inconven- 
 iences would follow ; and among them, in the case in question, is 
 this : that as the duty and the right to repair the sea-defences of 
 the town and borough are cast upon the corporation, no other 
 person would be justified in interfering and doing repairs, however 
 necessary ; or, at all events, not until the corporation had been 
 called upon, and neglected to do them; The Earl of Lonsdale v. 
 Nelson, 2 B. & C 302 ; s. c. 3 Dowl. & R. 556 ; and it is doubtful 
 whether he would be justified even then, the proper remedy being, 
 as there stated, by indictment or action ; for nuisances of omission 
 cannot in general be abated. 
 
 Two of the Judges have entertained considerable doubts whether 
 the declaration contains sufficient words in this case to show that 
 the mounds or banks were of such public benefit as that an indict- 
 ment would lie for not repairing them : but agreeing in the general 
 view of the law, they, as well as the rest of the Judges who heard 
 the argument, are of opinion that the question proposed by your 
 Lordships must be answered in the affirmative, and that the decla- 
 ration is sufficient. 
 
 The Lord Chaxcellor said, after the unanimous judgment of the 
 Court of Common Pleas, and the concurring judgment of three of 
 the Judges in the Court of King's Bench upon the writ of error 
 brought there, the fourth Judge giving no opinion, it was matter 
 of satisfaction to him that all the Judges now agreed in the opinion 
 which their Lordships heard now delivered. Two of the learned 
 Judges entertained some doubt upon the pleadings, in respect to 
 a point which did not affect the main question. He should move 
 that the judgment of the Court below be affirmed ; but although 
 the two Courts below concurred in the judgment, yet it w r as not 
 a case in which costs ought to be charged against the plaintiffs 
 in error, as there was some doubt, and the question was one of 
 difficulty. 
 
 Lord Wyxford concurred in these observations. 
 
 The judgment of the Court below was affirmed, without costs.
 
 SECT..II. — FOR CAUSE AFFECTING PUBLIC. 619 
 
 No. 8. -- Mayor, &c . of Lyme Regis v. Henley. — Notes. 
 
 ENGLISH NOTES. 
 
 For the general principle that the plaintiff, who has suffered special 
 damage from an indictable nuisance, may maintain an action for the 
 damage, the primary authority is the final decision by the consulted 
 judges of the Common Pleas and Exchequer in the case of Iveson v. 
 Moore (cited on p. 595, supra) as reported by Lord Raymond, 486, 1 95. 
 This general principle is assumed throughout the cases collected under 
 the last preceding rule (No. 7, p. 573, et set/., ante). In Fritz v. Hobson 
 (1880), 14 Ch. D. 542, 555; 49 L. J. Ch. 321, Fry, J., cited the decision 
 in Iveson v. Moore as one of great authority, and applied it to the case 
 in point, where the plaintiff complained that the access to his shop was 
 unnecessarily and unreasonably interfered with, and frequently blocked 
 up by the defendant during certain building operations. The learned 
 Judge in this case came to the conclusion on the evidence, that the in- 
 terference with the access by the defendant was unreasonable, and so 
 distinguished the case from those cases where by a lawful work a slight 
 inconvenience is necessarily caused to the public. 
 
 AVhat is an inconvenience which the public, as well as any indi- 
 vidual, must temporarily submit to, is a point illustrated by the obser- 
 vations of Lord Ellknborough in R. v. Jones (1812), 3 Camp. 230, — 
 a case where the defendant (a timber merchant) had over-stepped the rea- 
 sonable limit by using the public highway as part of his timber-yard. 
 He says: "A cart or waggon may be unloaded at a gateway; but this 
 must be done with promptness. So as to the repairing of a house: the 
 public must submit to the inconvenience occasioned necessarily in re- 
 pairing the house; but if this inconvenience is prolonged for an unrea- 
 sonable time, the public have a right to complain, and the part}' may 
 be indicted for a nuisance." And by the same authority in R. v. Cross 
 (1812), 3 Camp. 224, 227, — a case where the defendant constantly kept 
 his coaches standing on the public highway: "No one can make a 
 stable-yard of the King's highway." Another case where the defen- 
 dant was held to have over-stepped the reasonable limit was R. v. Russell 
 (1805), 6 East, 427; 8 E, E. 506. The defendant in a public street 
 kept waggons loading and unloading for several hours at a time, day 
 and night. He was held indictable, although there was always room 
 for two carriages to pass on the opposite side of the street. An instruc- 
 tive case on the other side is Original Hartlepool Co. v. Gibb (1877). 
 5 Ch. D. 713; 4G L. J. Ch. 311, where the Master of the Rolls de- 
 cided that, where a riparian owner has a wharf on the bank of a navi- 
 gable river (which is a public highway), he is entitled to moor a vessel 
 of ordinary size alongside his wharf for the purpose of loading or un- 
 loading, at and for a reasonable time.
 
 620 ACTION (right of). 
 
 No. 8. — Mayor, &c, of Lyme Regis v. Henley. ■ — Notes. 
 
 The above ruling case applies the general principle to a case where 
 the obligation to the public is incurred ratione tenant', and by reasoc 
 of the privileges conferred by the authority (lawfully exercised) of a 
 Crown grant. A similar principle is well established in cases where 
 statutory privileges have been conferred upon a body incorporated for 
 public purposes, and entitled to take tolls for the use of their works. 
 < >f this class of cases The Mersey Dock Trustees v. G'tbbs (H. L. 1866), 
 L. K., 1 H. L. 93; 35 L. J. Ex. 225. is an example. It was an action 
 of damages by the shipowner whose ship had been damaged by an ob- 
 struction consisting of an accumulation of mud, cvc. negligently left by 
 the servants of the docks trustees at the entrance of one of their docks. 
 The decision of the House of Lords (after verdict and a bill of excep- 
 tions) was that the defendants were liable. The decision is rested on a 
 principle somewhat different to that of the ruling case, — namely, that 
 the special Act by which the docks trustees were entitled to take tolls 
 for the use of their works created an obligation quasi ex contractu be- 
 tween them and the persons using the works; and that there was a 
 duty, under such contractual relation, to take care that their docks were 
 kept in a tit state for the use of the ships entering them. The same 
 principle is followed and applied to a harbour authority neglecting to 
 buoy a wreck, in Dormant v. Furness By. Co. (Kay, J., 1883), 11 Q. B. D. 
 496; 52 L. J. Q. B. 331; and, by the Judicial Committee of the Privy 
 Council, to the executive government of a colony in its character of a 
 harbour authority (the government being, by an Act of the Legislature 
 of the colon^y, amenable to an action in the form of a petition of right;; 
 The Queen v. Williams (1884), 9 App. Cas. 418; 53 L. J. P. C. 64. 
 
 In Coe v. Wise (Ex. Ch. from Q. B. 1866), L. B., 1 Q; B. 711; :;7 
 L. J. Q. B. 262, the same principle is applied to an action against 
 statutory drainage and navigation commissioners, by a landowner whose 
 land was flooded and damaged by a negligent defect in their works. 
 Ami in this case it does not appear that there was any quasi-contrac- 
 tual relation between the defendants and the plaintiff by reason of 
 his paying tolls, or being rated, for the defendant's works. But with 
 this case may be contrasted that of Sanitary Commissioners of Gibral- 
 tar v.Orfila (P. C. 1890), 15 App. Cas. 400; 59 L. J. P. C. 95, where 
 sanitary commissioners had certain old highways vested in them with 
 the duty to control, manage, and maintain them; and the fall of a 
 retaining wall through faults in the original construction caused dam- 
 age to the adjoining property of the plaintiff. It was not proved that 
 the commissioners were negligently ignorant of the defect, which 
 could not have been ascertained without a special survey of the ori- 
 ginal structure; and the Judicial Committee of the Privy Council 
 decided that the commissioners were not liable. the question was
 
 SECT. II. — FOR CAUSE AFFECTING PUBLIC. G21 
 
 No. 8. -Mayor, &,c, of Lyme Regis v. Henley. — Notes. 
 
 whether there had been neglecl of a duty expressly or impliedly imposed 
 on the commissioners by the statute or order which constituted them; 
 and the Judicial Committee held there was nut. 
 
 AMERICAN NOTES. 
 
 The doctrine of the principal case has been generally adopted in this country 
 in respect to municipal corporations charged by their charters with a special 
 duty and injuries resulting from their negligent failure to discharge that 
 duty. To this point the principal case is cited by Harris (1 Damages by Cor- 
 porations, 128) ; Dillon (1 Municipal Corporations, 242) ; Beach (1 Public Cor- 
 porations, 129). 
 
 The prevalent doctrine is well and sufficiently expressed in Welsh v. Village 
 of Rutland, 56 Vermont, 228; 48 Am. Rep. 762, 766, as follows: — 
 
 " When, however, municipal corporations are not in the exercise of their 
 purely governmental functions for the sole and immediate benefit of the pub- 
 lic, but arc exercising, as corporations, private franchise powers and privi- 
 leges, which belong to them for their immediate corporate benefit, or dealing 
 with property held by them for their corporate advantage, gain, or emolu- 
 ment, though inuring ultimately to the benefit of the general public, then 
 they become liable for negligent exercise of such powers precisely as are indi- 
 viduals. Hill v. Boston, 122 Mass. 344; 102 id. 499; s. c. 2:5 Am. Rep. 332; 
 Eastman v. Meredith, 36 X. H. 284; Providence v. Clapp, 17 How. 161. So of 
 the construction and maintenance of waterworks : Murphy v. Lo/cell, 128 Mass. 
 396 ; s. c. 35 Am. Rep. 381 ; City of Dayton v. Pease, 4 Ohio St. 80; Gibson 
 v. Preston, L. R.,.5 Q. B. 219; Southcote v. Stanley, 1 Hurlst. & N". 217; 2 id. 
 20 1; 1 id. 67; of ditches or drains: Chicago v. Langlass, 52 111. 256; s. c. i 
 Am. Rep. 603; 44 111. 295; of bridges or culverts, and in respect of struc- 
 tures which may obstruct the flow of natural watercourses and of the pol- 
 lution of them by sewage and the like: Hill v. Boston, supra: Wheeler v. 
 Worcester, 10 Allen, 591; 4 id. 41 ; Parker v. Lowell, 11 Gray, 353; Conrad 
 v. Ithaca, 16 X. Y. 158; Merri field v. Worcester, 110 Mass. 216; Hazelfine 
 v. Case, 46 Wis. 391; s. c. 32 Am. Rep. 715; High Waterc. 96; Wood 
 Nuis. § 688; and public works and improvements generally: Lyme Reqis 
 v. Henley, 3 B. & Ad. 77; Nebraska City v. Campbell, 2 Black, 590; 1 id. : '»'» : 
 Dai/'on v. Pea^e, 4 Ohio St. SO; Bigelow v. Randolph, 14 Gray, 543; < 'hild 
 v. Boston, 4 Allen, 41. This rule has been held to apply to the discharge of 
 sewage or other noxious substances in such manner as to pollute the surface 
 water and damage the property of individuals. Winn v. Rutland, 52 Vt. 181 : 
 Gale Easem. 308 ; Merrifield v. Lombard, 13 Allen, 16 ; Johnson v. Jordan, 2 Mete. 
 234 ; and if a plan adopted for public works must necessarily cause injury or 
 peril to private persons or property, though executed with due care and skill, 
 the law regards the execution of such a plan as negligence. 2 Thoinp. Neg. 
 742; Haskell v. New Bedford, 108 Mass. 208; 30 Ind. 235; 35 Mich. 296; 33 
 Ala. 116; 3 N. Y. 163." 
 
 In Conrad v. Ithaca, 16 New York, 163, the court said: "The principle 
 which really lies at the basis of the case of Henley v. Mayor, Sfc, of Lyme Regis
 
 622 ACTION (right of)- 
 
 No. 8. — Mayor, &.c, of Lyme Regis v. Henley. — Notes. 
 
 and of the series of English cases upon the authority of which that case was 
 decided, is this: That whenever an individual or a corporation, for a consid- 
 eration received from the sovereign power, has become bound by covenantor 
 agreement, either express or implied, to do certain things, that individual or 
 corporation is liable, in case of neglect to perform such covenant, not only to 
 a public prosecution by indictment, but to a private action at the suit of any 
 person injured by such neglect. In all such cases the contract made with the 
 sovereign power is deemed to inure to the benefit of every individual inter- 
 ested in its performance. That this is the true doctrine on the subject, may, 
 I think, be conclusively shown." etc. And so the commissioners of highways 
 of a village were there held liable for the negligent construction of a bridge 
 by reason of which the plaintiff's real property was injured. 
 
 The principal case is cited with approval also in Foster v. Lookout M'xter 
 Co., 3 Lea (Tennessee), 42 ; 33 Am. Rep. 8, note; Toicn of Waltham v. Kem- 
 per, 55 Illinois, 340 ; 8 Am. Rep. G55. 
 
 See also as declaring the same doctrine, Starrs v. City of Utica, 17 New 
 York, 104; Mills v. City of Brooklyn, 32 New York, t89 ; Meares v. Town of 
 Wilmington, 9 Iredell (No. Carolina). 7:!; Pittsburgh v. drier, 22 Penn. St., 
 54; Smoot v. Mayor, 24 Alabama, 112; Barnes v. District, 91 United States, 
 540, citing the principal case; Richmond v. Long, 17 Grattan, 375; Ward v. 
 Jefferson, 24 Wisconsin, 342; McCombs v. Akron, 15 Ohio, 476; Uannon v. St. 
 Louis Co., 62 Missouri, 313; Anne Arundel Co. v. Duckett, 20 Maryland, 468; 
 Browning v. Springfield, 17 Illinois, 143; Jones v. New Haven, 34 Connecticut, 
 1 ; Aldrich v. Tripp, 11 Rhode Island, 141 ; 23 Am. Rep. 431 ; Helena v. Thomp- 
 son, 29 Arkansas, 509; Galveston v. Posnainsky, 02 Texas, US; Oliver v. Wor- 
 cester, 102 Massachusetts, 489; 3 Am. Rep. 485; Osage City v. L.arkin, 40 
 Kansas. 206; 10 Am. St. Rep. 186; OWeil v. City of New Orleans, 30 
 Louisiana Animal, 220; 31 Am. Rep. 221; Albrittin v. Mayor, 60 Alabama, 
 486 : 'M Am. Rep. 46 ; Sherwood v. District of Columbia, 3 Mackey (Dist. Col.), 
 276; 51 Am. Rep. 776. 
 
 The contrary was held in Chope v. Eureka, 78 California, 588; 4 Lawyers' 
 Rep. Annotated, 325, with notes, the Chief Justice and another dissent- 
 ing; in Detroit v. Blakeby, 21 Michigan, 81; 4 Am. Rep. 450, Cooley, J., 
 dissenting; Lansing v. Toolan, 37 Michigan, 1 52 ; Gibbes v. Beaufort, 20 So. 
 Carolina, 213 ; Young v. City Council, 20 So. Carolina, 110; 47 Am. Rep. 827. 
 
 The majority of the decisions are grounded on the distinction, early made 
 by Nelson, C. J., in Bailey v. New York, 3 Hill (New York). 531, between the 
 public and the private capacity of municipal corporations, and recognised by 
 Dillon (2 Municipal Corporations, § 907), and Cooley (Constitutional Limita- 
 tions, 217). And the ingredient of negligence is essential. Radcliff v. 
 Mayor, 4 New York, 195; 53 Am. Dec. 357, and so it was there held that 
 there is no liability on the part of the city for consequential injury from the 
 slitting down of a street, when skilfully performed.
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 623 
 No. 9. — Hammersmith Railway Co. v. Brand. — Rule. 
 
 Section III. — WJiere adeemed or abridged by Statute. 
 
 No. 9 —HAMMERSMITH RAILWAY CO. v. BRAND. 
 
 (ii. l. 1869.) 
 
 RULE. 
 
 An action will not lie for damage necessarily resulting 
 from the exercise of the powers of an Act of Parliament, 
 in a case for which no provision as to compensation or 
 liability is made. Such damage is damnum absque injuria. 
 No such provision is made by The Lands Clauses Con- 
 solidation and Railways Clauses Consolidation Acts in 
 regard to the detriment to neighbouring houses by the 
 vibration caused, not immediately by the construction of 
 the works, but by the running of trains upon the railway. 
 So decided by the House of Lords, reversing the judgment 
 of the Exchequer Chamber, and affirming the original 
 judgment of the Court of Queen's Bench. 
 
 Hammersmith Ry. Co. v. Brand. 
 
 L. R., 4 II. L. 171 (s. c. 38 L. J. Q. B. 265). 
 
 This was a proceeding in error against a judgment, on a special 
 case, given in the Exchequer Chamber, which had reversed a pre- 
 vious judgment of the Court of Queen's Bench, Law Rep. 1 Q. B. 
 130 ; Law Rep. 2 Q. B. 223 ; 7 B. & S. 1. The facts, as set forth, of 
 the special case were these: — 
 
 Mr. Robert Monkhouse Piper was in his lifetime seized in fee of 
 certain property at Hammersmith, and resided there in a house 
 known as Cumberland House. He died in October, 1863, having 
 made a will, by which his widow, Mary Catherine Louisa, became 
 entitled to the property. 
 
 The "Hammersmith and City Railway Act" (24 & 25 Vict. 
 c. clxiv.) had been passed in the year 1861, and empowered certain 
 persons therein named to make and maintain a railway. The
 
 624 
 
 ACTION (RIGHT OF). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 Lands Clauses Consolidation Act, 1845, and The Railways Clauses 
 Consolidation Act, 1845, were incorporated in this special Act. 1 
 
 The railway was constructed under this Act, and was completed 
 about August, 1863, and was opened for public traffic in June, 1864. 
 It was then used, not by the defendants who constructed the line, 
 but by the Great Western Railway Company. No part of Cum- 
 berland House, or of the lands or premises belonging to it, was 
 taken for the purposes of the railway. Mrs. Piper continued after 
 the death of her husband to reside in Cumberland House, and on 
 the 9th of July, 1864, caused to be served on the directors of 
 the Hammersmith Railway a notice claiming compensation " for 
 
 1 8 Vict. c. 18 (Lands Clauses Con- 
 solidation Act, 1845) § 48; "jury to 
 inquire "I' and assess the damage or coih- 
 pensation in respect of which " &c. Jurors 
 to take oath that they will " faithfully 
 inquire and assess such compensation or 
 damage " 
 
 § 49 distinguishes between verdict for 
 money to he paid for the purchase of 
 lauds required for the works, or any 
 interest therein, and the compensation 
 "for the damage, if any, to be sustained 
 by the owner of the lands," by severance, 
 or by otherwise injuriously affecting such 
 lands In/ tlit exercise of the powers of this or 
 of the special Act," &C. 
 
 5j 63. " Iu estimating the purchase- 
 money or compensation, regard shall be 
 had not only to the value of the land, but 
 also to the damage, if any, to be sustained 
 by the owner of the lands "by reason of 
 the severing. &c. "or otherwise injuriously 
 affecting such other Iain's In/ reason of the 
 exercise of the powers of this or the special 
 Act." &c. 
 
 § 68. " If any party shall be en- 
 titled to any compensation in respect of 
 any lands or of any interests therein, 
 which sha.ll have been taken for, or injn- 
 riousli/ averted by, the execution of the 
 works,'' &c, the mode of proceeding is 
 directed. 
 
 § 69 provides for limited interests of 
 "persons not entitled to sell or convey 
 the lands." 
 
 The Railways Clauses Consolidation 
 Act, 1845 (8 Vict. c. 20), has this heading: 
 " And with respect to the construction of 
 Hie railway and the works connected 
 therewith.be it enacted as follows: (§ 6). 
 
 In exercising the powers given by the spe- 
 cial Act to construct the railway and to 
 take lands for that purpose, the company 
 shall lie subject to the provisions and re- 
 strictions contained in this Act and in The 
 Lands Clauses Act, and " shall make to 
 the owners and occupiers of, and all other 
 parties interested in, any lauds taken or 
 used for the purposes of the railway. 
 or injuriously affected by the construction 
 thereof, full compensation for the value 
 of the land so taken or used and for all 
 damage sustained by such owners, occu- 
 piers, and other parties by reason of the 
 exercise as regards such lands of the 
 powers by this or the special Act or any 
 Act incorporated therewith, vested in the 
 company," and then follows provisions 
 as to the mode of ascertaining the 
 compensation. 
 
 § 10. "Subject to the provisions in 
 this and the special Act, &c, contained, 
 the company may, for the purpose of con- 
 structing the railway, &c, execute the 
 following works." The works are then 
 mentioned. "They may do all other acts 
 necessary for making, maintaining, alter- 
 ing, or repairing and using the railway," 
 provided that, in the exercise of these 
 powers, "the company shall do as little 
 damage as can be, and shall make full 
 satisfaction in manner herein and in the 
 special Act, &c, provided, to all parties 
 interested for all damage by them sus- 
 tained by reason of the exercise of such 
 powers." 
 
 § 86 gives authority to a company to 
 employ locomotive power, carriages, &c, 
 and to charge tolls for the carriage of 
 passengers and goods.
 
 SECT. III. — WHERE ADEEMED OK ABRIDGED BY STATUTE. 625 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 damage and injury done, or caused to be done, and which will 
 hereafter arise and be occasioned to my property, by the exercise 
 by you of the powers conferred on you by the several acts of 
 Parliament relating thereto, and in the course of, and in, and by, 
 
 the making' and execution by you of the said railway, and of the 
 works connected therewith, and by the working and use of the said 
 railway and consequential thereon," and the notice went on in lie- 
 usual form to state the particulars of the compensation claimed. 
 The directors issued their warrant to summon a special jury, and 
 on the inquiry taking place, Mrs. Piper claimed compensation in 
 respect of the following matters: "1. For the obstruction of light 
 and air and way. 2. For damage to the garden by lime dust and 
 smoke, in the course of construction of the railway in the lifetime 
 of E. M. Piper. 3. For the working of the railway and the run- 
 ning of trains over it after it had been constructed and opened for 
 traffic, which had occasioned and always would occasion vibration, 
 noise, and smoke ; the said premises, by reason of their being sub- 
 jected to such vibration, noise, and smoke from passing trains, 
 were, and always would be affected and further depreciated in 
 value." Evidence was given under all these heads of claim. The 
 case stated that " It did not appear that any structural injury was 
 caused to the house or out-buildings by the construction of the 
 railway ; but it did appear, and it was admitted for the purposes 
 of this case, that, by reason of the working of the railway after it 
 had been opened for traffic, the house and buildings were, and 
 would be subjected to vibration, noise, and smoke from passing 
 trains, and were and always would be affected and depreciated and 
 lessened in value thereby." The evidence in support of this part 
 of the claim was admitted under protest. The defendants for- 
 mally objected that the plaintiff was not entitled to any compensa- 
 tion under the third head of claim, and in order that the question 
 might be conveniently raised, it was agreed that the amount of 
 compensation should be assessed under each head of claim, and this 
 was done accordingly. The third head of claim was thus assessed 
 in the verdict : " For vibration from the use of the railway, after 
 construction as before mentioned, £272." 
 
 Judgment was entered up for the whole sum assessed, of which 
 this last item formed part. 
 
 Mrs. Piper afterwards married Mr. G. Horatio Brand. She 
 received the other sums, and her husband and herself, after the 
 vol. i. — 40
 
 626 ACTION (eight of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 marriage, brought an action of debt in the Queen's Bench for 
 payment of the £272. 
 
 A special case was prepared under The Common Law Procedure 
 Act, 1852, for -the opinion of the Court of Queen's Bench, and the 
 question was stated to be : " Whether the said plaintiff is entitled 
 to have compensation made to her by the defendants in respect of 
 the matters falling under the third head of claim?" 
 
 The case was argued before Mr. Justice MELLOR and Mr. Justice 
 Lush, who held that the claim was not in law sustainable, and 
 that judgment must be entered for the defendants. It was carried 
 to the Exchequer Chamber, where it was fully argued before Lord 
 Chief Justice Erle, Lord Chief Baron Pollock, Mr. Baron Bram- 
 well, Mr. Baron Channell, Mr. Justice Keating, and Mr. Justice 
 Montague Smith. Before the judgment was delivered, the Lord 
 Chief Justice and the Lord Chief Baron resigned their offices, and 
 judgment was finally pronounced by the remaining Judges, when 
 the judgment of the Court of Queen's Bench was (diss. Mr. Baron 
 ( iiaxxel) reversed. 1 
 
 The case was then brought up to this House on error. The 
 Judges were summoned, and Mr. Justice AVilles, Mr. Baron BRAM- 
 well. Mr. Justice Blackburn, Mr. Justice Keating, Mr. Baron 
 Pigott and Mr. Justice Lush attended. 
 
 The case having been argued, 
 
 The Lord Chancellor (Lord Cairns) proposed the following 
 question to the Judges : — 
 
 Were the defendants in error entitled to have compensation 
 made to them by the plaintiffs in error for the vibration in respect 
 of which damages were assessed by the jury as mentioned in the 
 special case? 
 
 This question was answered by five of the Judges, Mr. Justice 
 Willes, Mr. Baron Bramwell, Mr. Justice Keating, Mr. Baron 
 Pigott, and Mr. Justice Lush, in the affimative ; and by Mr. Jus- 
 tice Blackburn in the negative. The reasons given by Mr. Baron 
 Bramwell on the one side and Mr. Justice Blackburn on the 
 other are here given, as fairly representing these divergent views. 
 
 BRAMWELL, B. Tn this case it must be taken that the jurors 
 have found that by the ordinary working of a railway line, by the 
 
 1 Mr. Justice Byles and Mr. Baron its conclusion, and did not deliver any 
 Pigott heard part of the argument in opinion, 
 the Exchequer Chamber, but left before
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED l;V STATUTE. 627 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 passing of trains, without negligence of design, by what, in short, 
 is practically necessary (as we arc told) for the using of the line 
 by the defendants below and those who pay them for its use, a 
 nuisance will be caused to the occupiers of the premises of the 
 plaintiffs below by vibration to such an amount that the o en 
 piers, if without remedy, will pay the plaintiffs for the occupa- 
 tion from time to time a less sum than they otherwise would, 
 the fee simple or capitalised value of which is £272. For tlii 
 nuisance, the occupiers would from time to time be entitled to 
 maintain actions {Jones v. The Festiniog Railway Company, Law 
 Rep. .'! Q. B. 733) unless some statute has legalised the nuisance 
 with or without compensation, by which I mean the statutory 
 •compensation they have claimed. If the nuisance is so legalised, 
 no action is maintainable, whether or not then 1 is a right to such 
 •compensation. On the other hand, if it is not legalised, an action 
 is maintainable; and it is agreed on all hands that, if an action is 
 maintainable, the defendants in error are not entitled to have com- 
 pensation made to them by the plaintiffs in error for the vibration 
 in respect of which' damages were assessed by the jury, as men- 
 tioned in the special case. 
 
 But for the cases I shall refer to, I should be of opinion that 
 such nuisance was not legalised, that the occupiers would be 
 entitled from time to time to maintain actions for the nuisance, 
 that consequently the plaintiffs below would not be entitled to com- 
 pensation, and that your Lordships' question should be answered 
 in the negative. 
 
 It is for those who say that this nuisance is legalised and the 
 right of action taken away to show it. For this purpose reliance 
 is placed on the clauses of The Railways Clauses Act, 8 Vict. c. 20, 
 and especially on section 86, authorising the use of locomotives 
 and carriages which will cause the vibration in question. It is 
 said that these clauses show that locomotives and carriages may 
 be used, and consequently that no action nor indictment lies for 
 their use; and no doubt this has been so held in Bex v. Pease, 
 4 B. & Ad. 30 ; s. c. 2 Law J. Rep. (x. s.) M. C. 26 ; and in Vauglian 
 v. The Tiff Vale Hallway Company, 5 Hurls. & N. 679, ("Acci- 
 dent " No. 8, p. 296 supra). With great respect, I think those cases 
 clearly wrong, and that they have proceeded on an inadvertent 
 misapprehension of the object and effect of the clauses in question. 
 What that object and effect are I will proceed to point out.
 
 628 ACTION (RIGHT OF). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 The private Act of a railway company whereby it is constituted 
 is its deed of settlement declaring what are the purposes and 
 objects of the company. It always begins by erecting a corpora- 
 tion for the purpose of making a certain railway. If it stopped 
 there, the company could not act as carriers, nor furnish locomo- 
 tive pow T er, nor do more than make their railway and receive tolls 
 for its use. Anything else would be ultra fires, as would now 
 be their keeping an hotel or having steamboats without special 
 powers for that purpose. Moreover, the courts of common law- 
 have held that the powers of these statutory corporations are 
 limited to the purposes for which they are created, and that an 
 agreement for anything else entered into by them is not merely 
 ultra vires and void, but illegal. See The East Anglian Railway 
 Company v. The Eastern Counties Railtray Coin pan//, 11 Com. B. 
 Eep. 775; s. c. 21 Law. J. Rep. (x. s.) C. P. 23; Gage v. The New- 
 market Railway Company, 18 Q. B. Rep. 457; s. c. 21 Law. J. Rep. 
 (N. S.) Q. B. 398, and many other cases. Your Lordships are aware 
 that, for the same reasons, canal companies could not act a.= car- 
 riers on their own canals till an Act of Parliament enabled them to 
 do so. This would have been the situation of the railways but for 
 the clauses in question. Those clauses have no other object or 
 effect, as I submit, than to obviate the objection I have referred to. 
 
 Your Lordships will find that they begin with a general heading, 
 "With respect to the carrying of passengers and goods upon the 
 railway, and the tolls to be taken thereon." All that follows this 
 heading is to be construed in reference to it. See The E> stern 
 Counties Railway Company v. Marriage, 9 H. L. Cas. 32; s. c. 31 
 Law. J. Rep. (x. s.) Exch. 73. There is not a word in this head 
 ing as to the legalising or allowing of nuisances. The first of the 
 following clauses, section 86, allows the companies to be carriVr? 
 on their own line, and limits the charges they may make. r J . 
 "company" wanted no law to enable them to use a locomotive, ai v 
 more than it did to use "other moving power and carriages ; 
 waggons," except to avoid the objection of ultra vires. A m 
 may use a locomotive on his soil and freehold, and so may a cm 
 poration. They do want — that is to say, unless given, they do net 
 possess — the power to use it so as to be a nuisance to their neigh- 
 bours. But if this were intended to be given, where are the 
 words ? The w r ords are sufficient if meant to give vires ultra those 
 of a company to make a railway, but insufficient if meant to
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 6_!9 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 •authorise the doing of damage. Besides, the use of other moving 
 power, and of carriages and waggons, is authorised. In what sense '. 
 That a nuisance may he committed by their use without remedy \ 
 Impossible, for it was never contemplated they would be a nuisance. 
 Section 87 clearly also gives power of contracting with other 
 companies, and has no thought of authorising nuisances. So sec- 
 tions 88 and 89, 9i) and 91. Section 92 gives other companies and 
 persons a right to use the railway with engines and carriages 
 "properly constructed as by this and the special Act directed." 
 The object of this was to define the rights of the public over the 
 line as against the company, not to authorise nuisances. All these 
 sections, down to and including section 113, have the same object, 
 — -namely, regulating the use of the railway by the company and 
 others. 
 
 But it is said that section 114 shows that the interests of others 
 were in view of the legislature, and that they made thereby what 
 they thought was sufficient provision for that object. The argu- 
 ment is, with all submission, bad. They provided for this matter 
 certainly. They said, " We will not let it be discussed whether 
 this is a nuisance." Did they, therefore, say, nothing else shall he, 
 or, if it is, it shall be remediless ? Certainly not. 
 
 Further, the statutes, The Lands and Railways Clauses Acts, 
 themselves recite that such clauses as are contained in them 
 usually appear in Acts of Parliament authorising the taking of land 
 and the construction of railways, and that it is desirable to avoid 
 the necessity of repeating them. They ought to have, therefore, 
 no greater or other effect in the general and public Acts than they 
 had in the particular and private. Now, it is not supposable that in 
 a private Act for a particular company an anomaly so great was to 
 be introduced as that an actionable nuisance might be committed 
 with no common-law remedy, and for the benefit of the company, 
 that the profits might be larger if the nuisance was left without 
 compensation. If it is said that compensation is given, then it is 
 most surprising that in such private Act there is no provision for 
 it in express words. And the same remark may be made on these 
 general Acts. Why, if the common-law remedy was to 1c taken 
 away, are there not express words to that effect ? Why, if there 
 is to be a remedy by compensation, are there not express words to 
 that effect? Why, if there is to lie no action and no compensation, 
 is so gross and anomalous an injustice inflicted when such pains
 
 630 ACTION (right of). 
 
 No. 9. — Hammersmith Kailway Co. v. Brand. 
 
 are taken to give compensation for the slightest injury occasioned 
 by the very fabric of the railway ? It seems to me impossible 
 that it can have been intended that this damage can be done 
 without any compensation. 
 
 One reason only for such a state of things is given. It is said 
 that the railway and the working of it are for the public benefit, 
 and therefore the damage must be done, and be uncompensated. 
 Admitting that the damage must be done for the public benefit, 
 that is no reason why it should be uncompensated. It is to be 
 remembered that that compensation comes from the public, which 
 gets the benefit. It comes directly from those who do the dam- 
 age, but ultimately from the public in the fares they pay. If the 
 fares will not pay for this damage and a fair profit on the com- 
 pany's capital, the speculation is a losing one, as all the gain does 
 not pay all the loss and leave a fair profit. Either, therefore, the 
 railway ought not to be made, or the damage may well be paid 
 for. But, further, though if it were the law and practice to do 
 individuals a damage for the benefit of the public without compen- 
 sation, no one in particular could complain when it happened to 
 him, as every one would know that he held his property subject 
 to being deprived of it or having it injured when it suited the 
 public ; still, such a law and practice would be highly inconvenient 
 and mischievous. It is, however, idle to discuss such a question, 
 as the legislature has acted under no such considerations. For if 
 the public benefit is a good reason for damaging a man's property 
 without compensation, so would it be for taking it without com- 
 pensation. The legislature has made the most careful and minute 
 provisions for the payment of compensation for everything taken, 
 and, indeed, for everything injuriously affected. And it is absurd 
 to suppose that it was intended that if a house was damaged to 
 the extent of £1 a year by its light and air being diminished, com- 
 pensation should be given, and that it should not be given where 
 the damage was ten times as great, but was caused by the noise 
 and vibration of the trains. Surely, when a reasonable meaning 
 can be given to the clauses relied on, it should be adopted rather 
 than one so unreasonable. 
 
 It is said that a man might dedicate land as a highway, and 
 no action would lie for the nuisance occasioned by its user. In 
 addition to the other answers given to this, I may add, that the 
 ordinary use of a highway is not a nuisance affecting either the
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 631 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 building or its occupants to such an extent and in such a way ;i- 
 to be actionable. But if any one continually used the highway 
 with a very heavy vehicle, so as to cause such a vibration as is 
 experienced in this case, I apprehend an action would lie against 
 him. 
 
 If there is to be a remedy, and it is to be by compensation and 
 not by action, how is the compensation to be calculated "'. The 
 line may not be used; its traffic may double; branch lines may be 
 made. Further, it is not contended by those who say that the 
 common-law remedy is gone, that there is an unlimited right to 
 damage, but only a right to do reasonable mischief, or a reasonable 
 right to do mischief. That is to say, if by going a little slower, or 
 being at a little more expense, or some other inconvenience, mis- 
 chief can be avoided, it must be. But on what principle is this to 
 be settled? Ten trains a day at twenty miles an hour might be no 
 nuisance ; this might accommodate the public and pay a dividend. 
 But fifty trains a day at thirty miles an hour might be a grievous 
 nuisance, though much better for the public and the company. 
 Where is the line to be drawn ? Take the case of the plaintiff 
 in Vavghaii v. The Taff Vale Railway Company, supra. There 
 the defendants declared that they went as slowly as they could, and 
 with every contrivance for safety. But they might have had one 
 servant, or ten, or a thousand at the spot in question to prevent 
 the grass catching fire and burning the plaintiff's wood. This 
 would have cost them money ; and it was cheaper to burn the 
 wood, or, at all events, on a calculation of chances, better to risk 
 doing so, than to have a sufficient number of servants. But how 
 is compensation to be calculated for such a matter ? Moreover, 
 if these plaintiffs are entitled to compensation, so is the owner of 
 every piece of land near the railway. For though there may be 
 no house on it now, it is possible there would have been ; but 
 that is now prevented by the railway, — at least to the same 
 advantage as before. Therefore such land is injuriously affected, 
 if this is. 
 
 In the result, then, the right of action is not taken away in 
 terms; the right to compensation is not given in terms. The prin- 
 ciple on which compensation should be given would be most diffi- 
 cult to settle. Though given, the companies would still be liable 
 to actions for excess, which it would be difficult to define, leaving 
 scope for continual litigation. It is impossible that all remedy
 
 632 ACTION (right of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 and redress are taken away ; and the only clauses supposed to 
 indicate this are shown to have another and different object and 
 effect. 
 
 For these reasons I think the right of action not taken away, 
 and the remedy by compensation not given, and that the two 
 cases I have referred to were erroneously decided. I may 
 observe, however, as to Rex v. Pease, supra, that it was not one 
 of private wrong, but of public nuisance. In the later case, if 
 what was done was for the public benefit, the public is at once the 
 gainer and loser, and the one may in some sense be set against 
 the other; and so it might have been that without an Act of 
 Parliament the matter complained of there would have been no 
 public nuisance. But the present is not the case of a public but 
 of a private nuisance, where the loser and gainer are not the same 
 to the same extent. In that case, also, the point I present to your 
 Lordships was not mooted. It was nut noticed that the clause 
 was necessary to avoid the objection of ultra circs. Nor was it 
 used by the counsel for the plaintiffs in error before your Lord- 
 ships, because, though it would relieve them from the present 
 claim, it would do so at the expense of leaving them subject to 
 actions from time to time. 
 
 It is said that Ilex v. Pease, supra, has been so long decided, 
 and so many railways have been made on the supposition that it 
 was law, that it must be set right, if wrong, by legislation only. 
 That it gives rise to great difficulties, I think 1 have shown. I 
 believe it has not been acted on ; compensation under the compen- 
 sation clauses has not been given as it ought to have been if Pa 
 v. Pease, supra, is law. This is the first time the question comes 
 before your Lordships, and it cannot be said that railway com- 
 panies have allowed such compensation to be awarded against 
 them without appeal. So, also, juries in actions have found 
 negligence in railway companies as they ought not to have done 
 if that case is not law, and compensation ought to have been 
 given. As to railway traffic being stopped by injunction, I appre- 
 hend injunctions would not be granted in such cases. 
 
 I have deemed it my duty to bring these cases before your 
 Lordships. If your Lordships hold them to have been rightly de- 
 cided, or think they are so far-settled law that they must be acted 
 on, then it seems to me they show that the judgment below was 
 light, and that your Lordships' question should be answered in the
 
 SECT. III. —WHERE ADEEMED OR ABRIDGED BY STATUTE. 633 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 affirmative. Because, for the reasons T have given, I am sure the 
 legislature did not mean to leave persons whose property will be 
 injured, as in this case, without remedy by action or claim for com- 
 pensation ; and I think it right to hold any words that are capable 
 of it to mean to give a remedy by implication. Of course we must 
 not put a meaning on words which they cannot bear to remedy an 
 injustice, however gross. But I think the words "injuriously 
 affected by the construction thereof " and " full compensation for 
 all damage sustained by reason of the exercise as regards such 
 land of the powers," &c, may, and where it is established there is 
 no right of action must, have the effect of giving compensation for 
 the damage. For, according to the case of Vaughan v. The Taff 
 Vale Railway Company, supra, immediately on the construction of 
 the railway, and "by the construction thereof," a right accrued to 
 do this damage. How, then, can it be said that the lands are not. 
 injuriously affected " by the construction thereof " if they thereby 
 became subject to this ? They immediately come under a servi- 
 tude, as Mr. Mellish put it in the Court below. Suppose it had 
 been enacted expressly that on the construction of the railway 
 there should be a right to use it so as to create a nuisance action- 
 able at common law, would not that have been matter for com- 
 pensation as much as if it had been enacted that the owner should 
 make a grant of such a servitude? But it makes no difference 
 whether it is expressly or otherwise enacted, if it is enacted as 
 Vaughan v. The Taff Vale Railway Company, supra, shows it is. 
 
 As to the argument that the premises are none the worse, but 
 only the occupiers, it is enough to say that the same thing might 
 be said in answer to a claim for compensation for diminished light. 
 It is to be observed that the word is not "in," or "during," but 
 "by" the construction of the railway. Besides, this is a damage 
 sustained by occupiers by an exercise, as regards these lands, of 
 the powers of the Act. 
 
 The opinions I have expressed here I entertained and expressed 
 in the Court below. But feeling there that I was bound by the 
 case oi. Vaughan v. The Taff Vale Railway Company, supra, I 
 thought the then plaintiffs entitled to judgment in their favour. 
 ►Should your Lordships hold those cases to have been well decided, 
 or too settled to be overruled, then, for the reasons I have given, I 
 think the then plaintiffs entitled to judgment in their favour, 
 otherwise not. I have necessarily repeated what I said there,
 
 634 ACTION (RIGHT OF). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 because I am unable to offer anything better to your Lordships, 
 and because I desired to save your Lordships the trouble of refer- 
 ring to what I then said, had your Lordships been minded so 
 far to honour me. 
 
 Blackburn, J. I have come to the conclusion that the plaintiffs 
 below have no right to compensation for the vibration mentioned 
 in the special case. I need not say that, finding that I stand 
 alone amongst the Judges consulted by your Lordships, I give 
 this opinion with diffidence. My reasons are as follows : — 
 
 I think it is agreed on all hands that if a person, not authorised 
 by Act of Parliament so to do, erected a railway or any other 
 private road on his own land, and then worked it by running loco- 
 motives and trains or any other species of carriages upon it, so 
 that the vibration and noise was to such an extent as really to be 
 annoying to a neighbour, that injury would be a nuisance, and 
 that neighbour would have a fresh cause of action against the 
 maintainer of the way every time the way was so worked as to 
 give rise to the nuisance; and he might, I apprehend, obtain 
 an injunction to prevent the continuance of the nuisance. lint 
 if, instead of making and maintaining a private way of his own, 
 the owner of the land dedicated it as a public highway, and the 
 public brought traffic on it to such an extent that the noise and 
 vibration seriously affected the neighbours, I apprehend they would 
 be without remedy. The common law would leave them suffering 
 a private hardship for the public benefit. 
 
 This distinction may have some bearing on the construction of 
 the statutes -(8 Vict. c. 18, and 8 Vict. c. 20), on the true meaning 
 of which I think the present case depends. 
 
 And I think that it is agreed on all hands that if the legislature 
 authorise the doing of an act (which, if unauthorized, would be a. 
 wrong and a cause of action) no action can be maintained for that 
 act, on the plain ground that no court can treat that as a wrong 
 which the legislature has authorized, and consequently the person 
 who has sustained a loss by the doing of that act is without 
 remedy, unless in so far as the legislature have thought it proper 
 to provide for compensation to him. He is, in fact, in the same 
 position as the person supposed to have suffered from the noisy 
 traffic on a new highway is at common law, and subject to the 
 same hardship. He suffers a private loss for the public benefit. 
 
 Now, the legislature have thought fit to authorize the defendants
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. G35 
 
 No. 9. - Hammersmith Railway Co. v. Brand. 
 
 to make a railway, ami by 8 Vict. c. 20, § 86, " to use and employ 
 
 locomotive engines and other moving power, and carriages and 
 waggons to be drawn or propelled thereby." And the first ques- 
 tion is, whether this is such a legislative authorization of the use 
 of such power as to render all such consequences as inevitably 
 attend it no longer wrongful. 
 
 If this were a new matter, I should think there was a great dea] 
 in what is thrown out by Baron BRAMWELL in his judgment in the 
 Exchequer Chamber in this case; but the contrary was held in 
 Rex v. Pease, supra, so long ago as 1832, and acted on in Vaughan 
 v. Tlie Tuff Voh 1 Railvjay Company, supra. And it' your Lord- 
 ships were to reverse those decisions, the consequence would follow 
 that any owner of a house or Held so adjacent to a railway that 
 the inevitable disturbance from the working of the line amounted 
 to a nuisance might (at least where the railway has not been 
 opened for twenty years) stop the working of the line. So large 
 an amount has been invested in the belief that the trains might 
 be run, even though some mischief to others was inevitable, 
 that I think your Lordships will hold that, even if the principle 
 of Bex v. Pease, sii>>i'i', was originally an error, it has long become 
 •communis error, and ought to be held to have made the law. 
 
 I come, therefore, to the conclusion that but for the statutes the 
 plaintiff's would have had a right of action for the vibration arising 
 from the .working of the defendants' line, and that the statutes 
 have taken away that right of action. The question then arises, 
 whether the legislature have given the plaintiffs any com- 
 pensation ; and that' must be a question depending on the 
 construction of the statutes. 
 
 It has been argued with great force that it is so unjust to take away 
 private rights without compensation that it should be supposed that 
 the legislature at least wished to give compensation in every case 
 where there was a private injury. But I think it is clear that the 
 legislature have not adopted this principle. In such a ease as that 
 of The London a ml North-western Railway Company v. Bradley, 3 
 Mac. & G. 336, where the beer in vaults adjoining to the railway 
 turned sour in consequence of the vibration, the owner of the vaults 
 may or may not have had a right to compensation for the injury to 
 his vaults; but the owner of the beer, if a different person from 
 the occupier of the vaults, could have none, for the right to com- 
 pensation is strictly confined to interest in lands injuriously
 
 636 ACTION (RIGHT OF). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 affected. See The Caledonian Railway Company v. Ogilvy, 2 Macq. 
 So. App. 229; and Rickets v. The Metropolitan Railway Company, 
 L. R. 2 H. L. 175 ; 36 Law J. Q. B. 205. 
 
 The reason why the legislature so narrowed the claim to com- 
 pensation is probably that stated by Lord CltANWORTH, in Rickets 
 v. The Metropolitan Railway Company, supra, " that any other 
 construction of the clause would open the door to claims of so 
 wide and indefinite a nature." But whatever be the reason, I 
 think it clear that no compensation is given to those whose inter- 
 est in goods or whose personal interests are injuriously a fleeted, 
 except where it can in some way be annexed to the compensation 
 for an injury to land. 
 
 No doubt it is often very difficult to say whether an interest in 
 land is or is not injuriously affected. In the present case, however, 
 I assent to the argument so neatly expressed in the reasons in the 
 appellants' case, that the plaintiffs' house has " become subject to 
 a perpetual servitude," and so their interest in it is injuriously 
 affected. 
 
 In my mind, therefore, the question is narrowed to this : Do the 
 compensation clauses in the statutes extend to the consequences 
 of working the railway, and using the statutable powers for that 
 purpose ? Or are they confined to the making and maintaining of 
 the railway and the works, and the using the statutable powers 
 for that purpose ? 
 
 I can see many plausible reasons why the legislature might 
 think fit to adopt the narrower construction. There is the analogy 
 to the hardship which, for the public good, is imposed by the 
 common law on the owner of a quiet villa if his neighbour 
 dedicates the land close under his windows to the public as a 
 highway, it may be, leading to Smithfield Market. Or they 
 might have thought, as Lord Cranworth expresses it, that claims 
 in respect of such damage would be of "a very wide and indefinite 
 character." But I must own that on reading the statutes I do not 
 think that the legislature deliberately excluded such claims. I 
 think they were not in the contemplation of those who framed 
 the statutes at all ; and that if there are words used sufficiently 
 large to embrace such a case, it is by an unintended accident. My 
 opinion is based on what may be thought the narrow ground, that 
 no right to compensation exists unless given by the legislature, 
 and that 1 can find no sufficient expression of an intention on the
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 637 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 part of the legislature to give compensation for the consequences 
 of exercising' the powers given by the 8 Vict. c. 20, §86. 
 
 I am relieved from the necessity of going through the different 
 sections of the Acts, because Baron Channell in his judgment in 
 the Court of Exchequer Chamber, L. K., 2 Q. B. 2o5, lias said every- 
 thing I could wish to say on that head. I will only add in 
 reference to the argument used in the Exchequer Chamber by Ah. 
 Justice Montague Smith, derived from the general words "they 
 may do all other acts necessary for making, maintaining, altering 
 or repairing, and using the railway," which occur in the middle of 
 the 16th section of 8 Viet. c. 20, that in -Jones v. The Fediniog 
 Railway Company, supra, the Court of Queen's Bench (then con- 
 sisting only of my brother Lush and myself) thought that similar 
 general words in a Railway Act, which did not contain any express 
 authority to use locomotive power, left the company at liberty, no 
 doubt, to use locomotives, but on the common-law terms that they 
 must keep in the fire at their own peril. So far as it goes, this 
 confirms the reasoning of Baron Channell on this part of the 16th 
 section. 
 
 I regret that I am obliged to come to such an unsatisfactory 
 termination ; but I think the whole depends on the construction 
 of enactments not sufficiently considered when penned. Opinions 
 will differ on such a point, and it is not capable of much illus- 
 tration from argument. I can only repeat that in my opinion the 
 onus lies on the plaintiffs below to show that the legislature have 
 given compensation; and I cannot find in the statutes any language 
 which, in my mind, expresses an intention to give compensation 
 for such an injury. 
 
 On the 13th July, I860, the judgment of the House was pro- 
 nounced, reversing the judgment of the Exchequer Chamber, and 
 affirming the judgment of the Queen's Bench in favour of the defend- 
 ants. The learned Lords present gave their reasons as follows : — 
 
 Lord Chelmsford : — 
 
 My Lords, this is a proceeding in error upon a judgment of the 
 Court of Exchequer Chamber, reversing a judgment of the Court of 
 Queen's Bench, in favour of the plaintiffs in" error, upon a special 
 case. 
 
 The question raised for the opinion of the Court below was, 
 whether the plaintiffs in the action, who are owners of a house
 
 633 action (right of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 adjacent to the Hammersmith and City Railway, were entitled to 
 compensation from the railway company for injury to their house 
 from the vibration caused by the passage of trains over the line in 
 the ordinary use of the railway without negligence, whereby the 
 house was depreciated in value to the extent, as found by a jury, 
 of £272. 
 
 It is necessary, in the outset of the consideration of this case, to 
 point out that the question is confined to the injury arising from 
 vibration, because Mr. Justice Lush, in the Court of Queen's Bench, 
 stated that the question was whether the owners of the house were 
 entitled to compensation " for vibration, noise, and smoke;" and 
 Sir William Erle, who heard the whole of the argument in the 
 Exchequer Chamber, but retired from the Bench before the judg- 
 ment was delivered in that Court (whose opinion, however, is added 
 to the report of the case in the Court below, L. R., 2 Q. B. 24G ; 36 
 Law J. Q; B. 150, assumed that the compensation was given for 
 noise and smoke as well as for vibration, and stated that " there 
 was nothing to indicate what was the degree of noise, smoke, or 
 vibration, or what was the amount assessed for either of these 
 causes separately, and that there was no evidence of any damage to 
 the realty, either in structure or otherwise, from these causes, so> 
 that the compensation must be taken to have been given for the 
 supposed discomfort of the inmates of the house." The special case r 
 however, expressly states, with reference to this head. of claim, that 
 the jury assessed the amount of compensation " for vibration from 
 the use of the railway after construction," at £272. 
 
 There has been great difference of opinion amongst the Judges 
 in the Courts below upon this case, and those whose assistance your 
 Lordships had are not unanimous in their answers to the question 
 proposed to them. Tt must therefore be regarded as one of nicety 
 and difficulty. 
 
 It must be borne in mind that this is not a case in which it was; 
 possible to claim compensation before the construction of the rail- 
 way, nor, indeed, till after its working had commenced, because till 
 then it could not be known whether there would be any vibration? 
 injurious to the house occasioned by the passing of the trains. The 
 simple question, therefore, is whether the legislature has provided 
 compensation for any damage to land or houses not arising from? 
 negligence, but the inevitable consequence of the proper and 
 ordinary use of the railway.
 
 SECT. III. — WHERE ADEEMED Oil ABRIDGED BY STATUTE. 639 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 As an introduction to this question, I must repeat what I said in 
 Ricket v. The Directors, dr., of the Metropolitan Railway Company, 
 supra: "The criterion of a party's right to damages under the 
 clauses of the Kail way Companies' Acts is correctly stated by 
 Lord Campbell in Penny v. The Southeastern Railway Company, 
 7 EL & B. 660 ; s. c. 26 Law J. Q. B. 25, that unless the par- 
 ticular injury would have been actionable before the company had 
 acquired their statutory powers, it is not an injury for which 
 compensation can be claimed." To which I must add, as I added 
 there, the observation of my late noble and learned friend Lord 
 CRANWORTH, in the case of The Caledonian Com pany v. Ogilvy, 
 2 Alacq. Sc. App. Cas. 229. " That it does not follow that a party 
 would have a right to compensation in some cases in which, if the 
 Act of Parliament had not passed, there might have been, not 
 only an indictment, but a right of action." 
 
 Assuming that before the passing of their Act the company would 
 have been liable to an action for the injury caused to the plaintiffs' 
 house, it is necessary for the plaintiffs in the first place to establish 
 that the company's Act has taken away the remedy by action in 
 order to open the way to their claim to compensation. 
 
 If the cases of Rex v. Tease, supra, and Vaughan v. The Toff 
 Vale Railway Company, supra, were rightly decided, this question 
 has been determined. It was established by those cases, " that 
 when the legislature has sanctioned the use of a locomotive engine 
 there is no liability for any injury caused by using it so long as 
 every precaution is taken consistent with its use." Mr. Baron 
 BRAMWELL, in his answer to the question put by your Lordships to 
 the Judges, adverting to the above case, said, "With great respect., 
 I think those cases clearly wrong, and that they have proceeded on 
 an inadvertent misapprehension of the object and effect of the 
 clauses in question." And he then reasoned from the Act of the 
 company in this manner (p. 628 supra): "The 86th section of 
 the 8 & 9 Vict. c. 20, which gives the company the right to be car- 
 riers on their own line, is preceded by a heading, ' With respect to 
 the carrying of passengers and goods upon the railway, and the tolls 
 to be taken thereon.' There is not a word," said the learned Baron, 
 " in this heading as to the legalising or allowing of nuisances. The 
 company wanted no power to enable them to use a locomotive. A 
 man may use a locomotive on his soil and freehold, and so may a 
 corporation. They do not possess the power to use it so as to be a
 
 640 ACTION (right of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 nuisance to their neighbours. If this were intended to be given, 
 where are the words? The words are sufficient if meant to give 
 vires ultra those of a company to make a railway, but insufficient 
 it meant to authorize the doing of damage." 
 
 With great respect to the learned Baron, we do not expect to find 
 words in an Act of Parliament expressly authorizing an individual 
 or a company to commit a nuisance or to do damage to a neighbour. 
 The 8Gth section gives power to the company to use and employ 
 locomotive engines, and if such locomotives cannot possibly be used 
 without occasioning vibration and consequent injury to neighbour- 
 ing houses, upon the principle of law that cuicunque aliquis quid 
 concedit concede re videtur et id sine quo res ij>*a esse non potuit, it 
 must be taken that power is given to cause that vibration, without 
 liability to an action. The right given to use the locomotive would 
 otherwise be nugatory, as each time a train passed upon the line 
 and shook the houses in the neighbourhood, actions might be brought 
 by their owners, which would soon put a stop to the use of the rail- 
 way. I therefore think, notwithstanding the respect to which every 
 opinion of Mr. Baron Bramwell is entitled, that the case of Bex v. 
 Pease, supra, and Vaughan v. The Tuff Vale Railway Company, 
 supra, were rightly decided. 
 
 The plaintiffs' remedy by action being taken away, the question 
 remains whether they are entitled to receive compensation from the 
 company for the injury done to their house, a question which must 
 be decided entirely by the provisions of the Acts of Parliament re- 
 lating to the subject. It must be taken as an established fact, that 
 by the use of the railway the plaintiffs' house has been depreciated 
 in value to the extent of £272, and as they cannot recover the 
 damage they have thus sustained by action, one naturally feels a 
 wish to find that the legislature has not left them remediless, but 
 has provided for them the means of redress in the shape of com- 
 pensation, to be paid by tic company as the. price of the right given 
 to them to injure the plaintiffs' property. It is with this disposi- 
 tion that I entered upon an examination of the clauses of the Acts 
 to which your Lordships' attention was called in the argument; 
 and I may say that it was with regret I was unable to find any- 
 thing in them upon which, in my opinion, the claim to the com- 
 pensation can be established. It is not that the legislature has 
 excluded compensation for injury arising as the necessary conse- 
 quence of using the railway, but that it has not, as far as I can
 
 SECT. III. — WHERE ADEEMED OB ABRIDGED BY STATUTE. G41 
 No. 9. — Hammersmith Bailway Co. v. Brand. 
 
 discover, given any right to claim compensation for this species of 
 injury. 
 
 The sections of The Railways Clauses Act which appear to me to 
 be alone necessary to be considered are the 6th and the 16th sec- 
 tions. I do not think that the sections of The Lands Clauses Act 
 which were referred to in the argument are applicable. 
 
 The sections of The Railways Clauses Act are, as your Lordships 
 know, arranged in order under different heads, which indicate the 
 general object of the provisions immediately following ; and these 
 may be usefully referred to to determine the sense of any doubtful 
 expression in a section ranged under a particular heading. 
 
 The heading to the 6th, and all the subsequent sections down to 
 the 30th, and including of course the 16th, is "And with respect 
 to the construction of the railway and the works connected there- 
 with, be it enacted as follows." Therefore, all the sections to which 
 the heading applies must be taken to have been intended by the 
 legislature to provide for matters relating to " the construction of 
 the railway and the works connected therewith." 
 
 The 6th section seems more closely to confine its provisions to 
 these objects, for it begins by enacting that " in exercising the 
 power given to the company to construct the railway, and to take 
 lands for that purpose, the company shall be subject to the provis- 
 ions and restrictions contained in this Act and in The Lands Clauses 
 Consolidation Act;" and then it goes on "and the company shall 
 make to the owners and occupiers of and all other persons inter- 
 ested in, any lands taken or used for the purposes of the railway, 
 or injuriously affected by the construction thereof, full compen- 
 sation for the value of the lands so taken or used, and for all 
 damage sustained by such owners, occupiers, and other parties, by 
 reason of the exercise, as regards such lands, of the powers by 
 this or the special Act, or any Act incorporated therewith, vested 
 in the company." 
 
 It was argued for the plaintiffs that the injury occasioned to the 
 house from the vibration caused by the use of the railway came 
 within -the words "injuriously affected by the construction thereof," 
 or, at all events, that it was a "damage sustained by reason of the 
 exercise of the powers vested in the company." 
 
 Now, as to the words " by the construction thereof," it seems to 
 me that "it would be doing violence to language (even without the 
 limitation which is placed upon these words by the general heading 
 
 VOL. I. — 41
 
 642 ACTION (right of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 to the 6th and the following sections and the context of the section 
 itself) to extend them to any injury which is not the immediate 
 consequence of the construction of the railway. An instance of 
 damage of this sort occurs in this very case, for the jury gave the 
 plaintiffs compensation to the amount of £836 for obstruction of 
 light, air, and doorway. 
 
 To argue that, as the injury could not have occurred unless the 
 railway had been previously constructed, therefore it was caused 
 " by the construction thereof," is certainly a strong example of 
 illogical reasoning of post hoc ergo propter hoc, and would extend to 
 every accident or injury occurring upon the railway after its con- 
 struction, which, of course, could not have happened if it had not 
 been constructed. 
 
 With respect to the subsequent words in the 6th section, " damage 
 sustained by reason of the exercise of the powers vested in the com- 
 pany," it was argued that they embrace the claim of the plaintiffs, 
 because the powers vested in the company are not merely for the 
 construction of a railway, but also for the use of it after its construc- 
 tion, being the end and object for which it is made. But again we 
 must refer to the heading of this and the following sections, which 
 limit the provisions they contain " to the construction of the rail- 
 way and the works connected therewith." And reading the words 
 of the section witli reference to these objects, we find that compen- 
 sation is to be made to the owners, &c, of lands taken or used for 
 the purposes of the railway, or injuriously affected by the construc- 
 tion thereof, for damage sustained, not as regards such lands, but 
 " by reason of the exercise as regards such lands of the powers 
 vested in the company." Now, the powers vested in the company 
 " as regards such lands " are to take and use the lands for the pur- 
 poses of the railway ; and to say that the use of the railway after 
 its construction is one of the powers vested in the company in re- 
 gard to the lands, conveys to my mind no intelligible meaning. 
 
 The 6th section of The Eailways Clauses Act being inapplicable 
 to the plaintiffs' claim, we must turn to the 16th section, to see 
 whether it affords any countenance to it. The 16th section, as 
 already observed, is one of the sections ranged under the heading 
 which immediately precedes the 6th section. As the words " using 
 the railway " are found in it, great stress is laid upon it in favour 
 of the plaintiffs' claim to compensation. Now, it must be observed 
 that this section begins with the words " It shall be lawful for the
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 64o 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 company, for the purpose of constructing the railway, or the accom- 
 modation works connected therewith, hereinafter mentioned, to 
 execute any of the following works;" and then follows a specifi- 
 cation of different works in detail empowered to be done for the 
 purposes mentioned, ending with a general power to do "all other 
 acts necessary for making, maintaining, altering or repairing, and 
 using the railway." The section then provides that, in the exer- 
 cise of the powers by this or the special Act granted, the company 
 shall do as little damage as can be, and shall make full satisfaction 
 to all parties interested " for all damage by them sustained by rea- 
 son of the exercise of such powers." 
 
 The counsel for the respondents argued that the proviso compre- 
 hended every description of damage sustained by reason of the exer- 
 cise of the powers vested in the company ; that power is given to 
 them by the 86th section of the Act, to use and employ locomotive 
 engines upon the railway ; and that injury to the plaintiffs' house 
 arose from the use of such locomotive engines, and therefore was 
 sustained by reason of the exercise of the company's powers. 
 
 It appears to me that this argument claims for the proviso in the 
 16th section a wider application than is warranted by the purview 
 of the section. The powers specifically conferred by it are expressly 
 referred and limited to " the purpose of constructing the railway.'' 
 The general power to do all other acts, &c, must be read with refer- 
 ence to this object. If this mode of construing the section by the 
 context is adopted, there will be no difficulty in understanding the 
 words "all other acts necessary for using the railway" to mean, 
 that, for the purpose of constructing the railway, the defendants may 
 do all acts necessary to enable them to use the railway. This con- 
 struction appears to me to be aided by the words which are found 
 in juxtaposition with the word " using," — viz., " making, maintain- 
 ing, altering, and repairing ; " and it seems to me rather a forced in- 
 terpretation of language to say that the words " the defendants may 
 do all acts necessary for using the railway " mean they may do all 
 necessary acts in using the railway. I think that the proviso 
 must be limited to the powers conferred by the section, and that 
 it is only if, in the exercise of those powers, damage is sustained 
 that satisfaction is to be made. The section itself having em- 
 powered the defendants to perform certain works for the purpose 
 of constructing the railway, the proviso enacts that, " in the exer- 
 cise of the powers, &c, they shall do as little damage as can be,"
 
 6-44 ACTION (right of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 clearly pointing to the execution of the works to which this section 
 relates, and confining the satisfaction to be made for damage done 
 in exercising those powers. It appears to me that, in the reason- 
 able construction of this section, it is impossible to hold that it 
 gives any remedy to the plaintiffs for damage occasioned to their 
 house in the course of using the railway. And there being no 
 other legislative provisions upon which the plaintiff's' claim to 
 compensation can be founded except the 6th and 16th sections of 
 The Railways Clauses Act, which 1 have fully considered and shown 
 not to apply to that species of injury of which they complain, I am 
 compelled, very reluctantly, in a case where real damage has been 
 sustained, though not to a very large amount, to come to the con- 
 clusion that the Legislature has not provided for the case of these 
 respondents, but has left them without remedy ; and that the 
 judgment of the Court of Exchequer Chamber ought therefore to 
 be reversed. 
 
 Lord Colonsay. My Lords, I have, I confess, found this case 
 to be attended with much difficulty, and I think I need not refrain 
 from stating that, when I find that there has been so much differ- 
 ence of opinion in regard to it among the judges who have decided 
 it in the other Courts, and that there is even a difference of opinion 
 among your Lordships. 
 
 The case arises out of a claim made by a party for injury 
 to her property, resulting from vibration caused by the use of 
 the railway belonging to the defendants. The claim is rested 
 on the provisions contained in certain statutes, and depends on 
 the construction to be put on those provisions. Two general 
 Acts and the special Act for this railway have been referred 
 to, but I do not understand that under the special Act there 
 is any particular clause that can affect the judgment to be 
 pronounced in this case. The two general Acts are The Lands 
 Clauses Consolidation Act and The Railways Clauses Consolidation 
 Act, both of which are held to be incorporated in the special Act. 
 It is, I think, upon the provisions of the two general Acts that the 
 question depends. One of those general Acts — to wit, The Lands 
 Clauses Act — has, I humbly venture to think, only an indirect 
 bearing on the question. No land belonging to the plaintiffs, or in 
 which they were interested, was taken or touched by the railway. 
 Their case is not directly within the provisions, as I read them, of 
 that Act. I think it is very clear that unless the case comes
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 645 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 within the provisions of the 68th section of that Act it is not within 
 the provisions of that Act at all. Nevertheless, in reading The Rail- 
 ways Clauses Act, on which I think the claim of the plaintiffs must 
 be rested, it is not illegitimate to borrow such light as can be got 
 from the language of The Lands Clauses Act, passed at the same 
 time, and intended to be co-operative with The Railways Clauses 
 Act, repeatedly referred to in it and intended to be incorporated 
 in the special Act for making the railway. 
 
 Now, when I have said that I do not think The Lands Clauses 
 Act bears on this claim otherwise than indirectly, I may explain 
 that it appears to me that the object of The Lands Clauses Act 
 is to give a power to parties engaged in this species of public 
 undertakings to acquire lands. The preamble of the Act says, 
 "Whereas it is expedient to comprise in one general Act sundry pro- 
 visions usually introduced into Acts of Parliament relative to the 
 acquisition of lands required for undertakings or works of a public 
 nature and to the compensation to be made for the same, and that 
 as well for the purpose of avoiding the necessity of repeating such 
 provisions in each of the several Acts relating to such under- 
 takings as for insuring greater uniformity in the provisions them- 
 selves." Then it goes on to enact certain things with regard to 
 the purchase of lands for such undertakings. The provisions of 
 the Act are classified under various subdivisions, with appropriate 
 headings indicating the objects of the clauses in each subdivision. 
 The first of these is, " With respect to the purchase of lands by 
 agreement." That begins with the 6th section and ends with the 
 15th section. Then there is another heading: " And with respect 
 to the purchase and taking of lands otherwise than by agreement, 
 be it enacted as follows." Then comes another heading : "With 
 respect to the purchase-money or compensation coming to parties 
 having limited interests or prevented from treating or not making 
 title, be it enacted as follows." Then another heading: "And 
 with respect to the conveyances of lands, be it enacted as follows." 
 Then another heading : "And with respect to the entry upon lands 
 by the promoters of the undertaking, be it enacted as follows." 
 And so on, with regard to various matters as to the taking of 
 lands. I am not speaking at present of the 68th section ; but 
 all the other clauses are applicable only to the promoters of the un- 
 dertaking and to the persons interested in lands to be taken. There 
 is no other class of persons contemplated in that statute. It is
 
 046 ACTION (RIGHT OF). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 not a statute authorising the execution of any particular kind of 
 works, — that is left to other legislation. It is a statute only as 
 to the taking of land. It is intended to regulate the interests of 
 the parties who take the lands, and of the parties to whom the 
 lands belong or who are interested in the lands to be taken. It 
 provides on behalf of the parties whose lands are to be taken, not 
 only that they are to receive the value of the lands so taken from 
 them, but it provides also that they are to be compensated for the 
 injury done to any lands held along with such lands, whether by 
 severance or any other injury done to them ; but all this has refer- 
 ence only to the parties whose lands are to be taken, or who are 
 interested in lands to be taken. 
 
 The sections which were specially referred to in the argument 
 were the 18th, 21st, 38th, 40th, 63rd, and 68th ; and it will be 
 seen that throughout the whole of them, unless the 68th is an 
 exception, the matter to be dealt with is, the interests of the parties 
 from whom lands are taken or who are interested in such lands, 
 and the interests of the railway company or of the promoters of 
 the undertaking, whatever it may be. 
 
 Then I come to the 68th section, which is the only one founded 
 on as of wider application. Now, that section is one of the series 
 of clauses placed under the heading, "With respect to the purchase 
 and taking of lands otherwise than by agreement, be it enacted as 
 follows." That heading covers the sections beginning with the 15th 
 section and ending with the 68th ; and then follow the sections, 
 " With respect to the purchase-money or compensation coming to 
 parties having limited interests." Section 68 says that, " If any 
 party shall be entitled to any compensation in respect of any lands, 
 or of any interest therein, which shall have been taken for or inju- 
 riously affected by the execution of the works, and for which the 
 promoters of the undertaking shall not have made satisfaction 
 under the provisions of this or the special Act, or any Act incor- 
 porated therewith, and if the compensation claimed in such case 
 shall exceed the sum of £50, such party may have the same settled 
 either by arbitration or by the verdict of a jury, as he shall think 
 fit." Upon this clause I would in the first place observe, that the 
 object in contemplation appears to have been, to prescribe the 
 manner in which claims brought forward under certain circum- 
 stances are to be investigated, not to introduce a new class of 
 parties who were not entitled to come in under the previous sec-
 
 SECT. III. — WHERE ADEEMED OK ABRIDGED BY STATUTE. 647 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 tions : " If any party shall lie entitled to compensation," he may, 
 iu certain circumstances, adopt a particular course ; but it is only 
 by reference to the previous sections that you can find out whether 
 he is a party entitled to any compensation; and these previous 
 s ictions, as I have already shown, do not recognise a title to com- 
 pensation as belonging to any person situated as this claimant is. 
 No doubt, with reference to the parties who by the previous 
 sections are recognised as entitled to compensation, — namely, 
 the owners or occupiers of or parties interested in lands taken 
 or used, — this section contemplates compensation in respect of 
 land injuriously affected by the execution of the works. But 
 these expressions, "injuriously affected by the execution of the 
 works," occur repeatedly in the previous clauses of the statute, 
 where they are throughout confined to the persons who are to get 
 notice and from whom lands are taken, or who have other lands 
 which may be affected by such proceedings. I therefore think 
 that this section of the statute must be read as a part of that class 
 of sections which have reference to the person and subjects men- 
 tioned under the heading prefixed to that class of sections, and 
 must be limited in its operation to the persons and matters with 
 which it is immediately connected. In the second place, even if 
 it were to be read otherwise, it will be observed that there is a 
 limitation involved in the expression, "affected by the execu- 
 tion of the works." I shall afterwards notice the import and 
 effect of such a limitation ; but in the mean time, it appears to me 
 that this section is one of those which have reference to the taking 
 of lands otherwise than by agreement, and has reference only to 
 parties who, under the other sections of the statute to which I 
 have referred, would be entitled to compensation, but who have 
 been omitted or overlooked in the proceedings that may have 
 taken place. It may very well be that parties having certain 
 interests in lands taken, or in lands severed by reason of the 
 taking, may not have been found out at the time, and may have 
 come forward afterwards to make a claim. Notice is required to 
 lie given to owners and occupiers and to all parties known to be 
 interested, but there may happen to be parties interested who have 
 not had notice, or whose interests may not have been known; and 
 it is right that such parties, if they turn up, should have an oppor- 
 tunity of coming forward and making a claim. That this was 
 intended further appears from the circumstances of the section
 
 648 ACTION (right of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 being applicable only to claims exceeding £50 in value. Why 
 should claims of smaller amounts be excluded, if the purpose was 
 to give rights of compensation to an additional class of persons ? 
 In the preceding sections there are modes given of opening up 
 other claims of absent parties, and settling them by arbitration ; 
 but here, when the claims are above £50, the parties are to have 
 the choice of arbitration or a jury. That goes, I think, to confirm 
 the view that this is a clause providing machinery in connection 
 with the previous sections. 
 
 But it appears to me that The Kailways Clauses Act stands 
 upon a different footing. That Act has reference to that particular 
 species of undertaking called a railway ; and I think it is in that 
 Act that we may expect to find the materials for dealing with 
 claims in reference to such undertakings. It provides for compen- 
 sation, not referring to The Lands Clauses Act as containing the 
 rule for compensation, but only referring to that Act for the 
 machinery by which compensation is to be adjudged. It does not 
 take The Lands Clauses Act as giving the rule in regard to the 
 parties to whom or the matters for which compensation is to be 
 given. On the contrary, it contains its own provision with regard 
 to the matter, including such cases as w T e are here dealing with, in 
 so far as compensation was contemplated. 1 think The Kailways 
 Clauses Act is of wider application than The Lands Clauses Act, 
 as regards the parties entitled to compensation, and also as regards 
 the matters for which compensation may be given. 
 
 The important sections are the 6th and the 16th. Both of these 
 sections are under the heading, " With respect to the construction 
 of the railway, and the works connected therewith." The 6th sec- 
 tion appears to me to be on the whole the most important and the 
 most general. It says that, " in exercising the power given to the 
 company by the special Act to construct the railway, and to take 
 lands for that purpose, the company shall be subject to the pro- 
 visions and restrictions contained in this Act and in the said 
 Lands Clauses Consolidation (Scotland) Act ; and the company 
 shall make to the owners and occupiers of, and all other parties 
 interested in, any lands taken or used for the purposes of the rail- 
 way, or injuriously affected by the construction thereof, full com- 
 pensation for the value of the lands so taken or used, and for all 
 damage sustained by such owners, occupiers, and other parties, by 
 reason of the exercise, as regards such lands, of the powers by this
 
 SECT. III. — WHERE ADEEMED OK ABRIDGED BY STATUTE. 649 
 No. 9. — Hammersmith Rrilway Co. v. Brand. 
 
 or the special Act, or any Act incorporated therewith, vested in 
 the company." 
 
 Under this clause companies are to make compensation to cer- 
 tain parties for certain things. They are to make compensation to 
 the owners and occupiers, and other parties interested m any lands. 
 What lands? "Lands taken or used for the purposes of the rail- 
 way." So far clear, but it does not stop there. They are to make 
 compensation to the owners and occupiers of lands "injuriously 
 affected by the construction thereof." Now, 1 think it is very 
 clear that among the owners and occupiers to whom compensation 
 is to be made are the owners and occupiers of lands injuriously 
 affected by the construction of the railway. The plaintiffs in this 
 case are the owners and occupiers of land injuriously affected by 
 the construction of the railway, and are therefore parties compre- 
 hended within the class of persons who are entitled to claim com- 
 pensation. Then, what is the matter for which compensation is to 
 be made ? It is to be made for "the value of the lands so taken 
 and used." That does not apply to the plaintiffs' case. But the 
 section goes on, " and for all damage sustained by such owners and 
 occupiers by reason of the exercise, as regards such lands" (which 
 includes the lands of the plaintiffs), "of the powers by this or the 
 special Act, or any Act incorporated therewith, vested in the 
 company." 
 
 Now, the claimants of compensation here are owner and occu- 
 pier of lands injuriously affected by reason of the exercise of the 
 powers vested by the Act in this company. It is very clear that 
 their property has been injuriously affected by the exercise of the 
 powers vested in the company. It has been injuriously affected 
 by the construction of the railway, — the very words of the clause 
 being "by the construction thereof." Therefore, they are persons 
 who under this clause are entitled to come forward and make a 
 claim. Their property was in the predicament which this clause 
 contemplates as property "injuriously affected," and therefore they 
 are persons entitled to Compensation. 
 
 Then the question arises, how far that compensation is to go? 
 Is it to go beyond the measure in which they are injuriously 
 affected " by the construction " of the railway ? Is it to be extended 
 to any injury which their property has sustained by the use of the 
 railway? Compensation has been awarded to them for the injury 
 done by " the construction of" the railway as affecting the access to
 
 650 ACTION (right of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 their property, and the lights, and so forth. The sum of £800 and 
 odd has been assessed for that. But the question remains whether 
 the statute by this enactment provides for compensation to be 
 given for damage sustained, not only by reason of the construction 
 of the railway and the works connected therewith, but by reason of 
 the subsequent use of the railway by the running thereon of loco- 
 motives causing vibration. I mean, of course, the vibration un- 
 avoidable in the fair and proper use of the railway. 
 
 Before expressing any opinion on that question, I should like to 
 refer to the terms of the other section of the statute which has 
 been founded upon in support of the claim. It is the ICth section, 
 and it says that, " subject to the provisions and restrictions in this 
 and the special Act, and any Act incorporated therewith, it shall be 
 lawful for the company, for the purpose of constructing the rail- 
 way, or the accommodation works connected therewith, hereinafter 
 mentioned, to execute any of the following works." Then the 
 things allowed to be done are specially enumerated: to construct 
 inclined planes ; to alter the course of rivers, &c, ; to make drains ; 
 to erect warehouses, &c. ; and to make alterations and repairs. And 
 then there is this general clause: "They may do all other acts 
 necessary for making, maintaining, altering, or repairing and using 
 the railway." And then, as part of the same section 16, there is a 
 clause of compensation in these terms: "Provided always, that in 
 the exercise of the powers by this or the special Act granted, the 
 compauy shall do as little damage as can be, and shall make full 
 satisfaction in manner herein and in the special Act, and any Acts 
 incorporated therewith, provided, to all parties interested, for all 
 damage by them sustained by reason of the exercise of such 
 powers." 
 
 Now, it appears to me that this provision for compensation has 
 reference to matters such as are comprehended in that same sec- 
 tion 1(3. The question, therefore, comes to be, whether the general 
 expression that they may do "all other acts necessary for making, 
 maintaining, altering, or repairing and using the railway" compre- 
 hends the claim now made for vibration in respect of the railway 
 being used. I confess it does not appear to me to comprehend this. 
 I think this 16th section has reference altogether to the construc- 
 tion of the railway, and to certain things being done to enable the 
 company to construct and repair the railway and to make it ready 
 or fit for use. I think it has reference to all the acts mentioned in
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 651 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 it, — the making of drains and inclined planes, altering and repairing 
 the works, and all other acts necessary fur making or maintaining, 
 altering or repairing, and necessary for using the railway ; that is 
 to say, the acts or operations enumerated and all other such acts of 
 construction as may be necessary for putting the railway in a con- 
 dition to be used. That is the interpretation I put on these words 
 and on the 16th section. I do not think that "acts done for using 
 the railway " is the same thing as consequences resulting from the 
 use of the railway. 
 
 Then, when I go back to the 6th section, I think that it points 
 in the same direction ; that is, that the right to compensation given 
 by it is limited to compensation for the injury done by the con- 
 struction of the railway. It contains nothing whatever as to com- 
 pensation for the use to be made of the railway. That is not 
 alluded to. If compensation had been intended to be given for 
 any injury of this kind incident to the subsequent using of the 
 railway by locomotives or otherwise, I should have expected some- 
 thing to be said with reference to it ; I should not expect to find in 
 The Lands Clauses Acts anything with reference to the use to be 
 made of any particular kind of works, because that Act has nothing 
 to do with the kind or character of works to be constructed, or of 
 the uses that may be made of them. But in the other Act, in which, 
 we have statutory enactments with regard to a particular class of 
 public works, — namely, railways, — I should have expected to find 
 something expressed with regard to claims for compensation, not 
 merely for injury done by the construction, but also for injury 
 resulting from the subsequent use of locomotives, if such compen- 
 sation had been intended to be given. I think one can see reasons 
 why such a wide claim should not have been given ; but, however 
 that may be, I can look only at the statute itself, and state the 
 construction which I feel myself bound to put upon the statute. 
 This question is no way affected by the circumstance of the par- 
 ticular lands being or not being within the limits of deviation in 
 the special Act. The claim, if maintainable at all, could not have 
 been confined to lands within the limits of deviation, because injury 
 by vibration might equally be done to lands more remote, and the 
 claim would be equally well founded if at all tenable. I think that 
 when the legislature gives powers under a particular Act, the pro- 
 vision for compensation in so far as intended would be expressed in 
 that Act, and might with propriety be different, according to the
 
 G52 ACTION (right of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 nature of the works to be constructed and the use to be made of it. 
 The legislature has not yet made clauses in regard to all kinds of 
 public works. It has made such an Act with regard to railways, 
 and I do not find within that Act what I consider as a right to 
 claim compensation for vibration by reason of the subsequent use 
 of the railway when made. T therefore feel myself under the 
 necessity of concurring in the judgment that has been suggested by 
 my noble and learned friend. 
 
 Lord Cairns. My Lords, in a case which certainly is not without 
 difficulties, and which has caused much difference of opinion in the 
 Courts below and among the learned Judges who have assisted your 
 Lordships, it is not perhaps surprising that the same difference of 
 opinion should reach your Lordships' House ; and I regret very much 
 that I am unable to concur in the views of my noble and learned 
 friends who have just spoken. 
 
 On one part of the case I do entirely concur with them. It 
 appears to me that the effect of the legislation on this subject is to 
 take away any right of action on the part of the landowner against 
 the railway company for damage that the landowner has sustained. 
 It must be taken, I think, from the statements in this case, that the 
 railway could not be used for the purpose for which it was in- 
 •tended without vibration. It is clear to demonstration that the 
 intention of Parliament was that the railway should be used. If, 
 therefore, it could not be used without vibration, and if vibration 
 necessarily caused damage to the adjacent landowner, and if it was 
 intended to preserve to the adjacent landowner his right of action, 
 the consequence w T ould be that action after action would be main- 
 tainable against the railway company for the damage which the 
 landowner sustained ; and after some actions had been brought and 
 had succeeded, the Court of Chancery would interfere by injunction 
 and would prevent the railway being worked, which of course is a 
 reductio ml absurdum, and would defeat the intention of the legis- 
 lature. I have, therefore, no hesitation in arriving at the con- 
 clusion that no action would be maintainable against the railway 
 company. 
 
 That fact alone would certainly predispose the mind to find in 
 the enactments upon the subject compensation given in some form 
 or other for the loss which, beyond all doubt, the landowner in 
 such a case sustains. I do not mean to say that it would be safe 
 to strain the words of an Act of Parliament on account of consider-
 
 SECT. III. — WHERE ADEEMED OK ABRIDGED BY STATUTE. 653 
 No 9. — Hammersmith Railway Co. v. Brand. 
 
 ations of that kind; but if there be any doubt or ambiguity in the 
 words, the consideration ought not to be overlooked that, beyond 
 all doubt, the intention of legislation of this kind is that, in some 
 shape or other, eompensation should be made to those who sustain 
 loss or harm by the operation of the parliamentary powers. 
 
 It appears to me that it is not necessary in any way to strain 
 the words of the Acts of Parliament in this case ; but it is neces- 
 sary in the first place to be perfectly clear as to what Acts of 
 Parliament and what clauses apply. In my opinion there are two 
 Acts of Parliament which must be looked at for this purpose, both 
 The Lands Clauses Consolidation Act and The Railways Clauses 
 Consolidation Act. My Lords, with regard to The Lands Clauses 
 Act, there is no doubt that it is mainly conversant with regard to 
 the taking and purchase of land ; but it would be a great mistake 
 to suppose, and it would be at variance with the well settled 
 practice upon the subject, to hold that the Act is confined to the 
 taking Qf land, and in fact the frame of The Lands Clauses Act 
 shows that it is even dangerous to trust to the headings which 
 occur at the commencement of these fasciculi of clauses for the 
 purpose of restraining or confining the natural operation of the 
 words which you find in the various clauses under those headings. 
 I will illustrate what I mean by one fasciculus of clauses in The 
 Lands Clauses Act. The 16th clause is prefaced by these words, 
 "With respect to the purchase and taking of lands otherwise than 
 by agreement, be it enacted as follows." The bundle of clauses 
 which occurs under that heading runs on to the 68th section ; and 
 if you were to take the literal meaning of the words of the heading, 
 you might expect to find nothing in the clauses that follow except 
 with regard to the purchase and taking of land, and you might 
 perhaps say that you must interpret every clause that follows as 
 relating to the taking of land and not to the affecting in any way 
 of land which is not taken. But when we turn to the 22nd clause 
 we find this enactment: "If no agreement be come to between the 
 promoters of the undertaking and the owners of, or parties by this 
 Act enabled to sell and convey or release, any lands taken or re- 
 quired for or injuriously affected by the execution of the under- 
 taking, or any interest in such lands as to the value of such lands, 
 or of any interest therein, or as to the compensation to be made in 
 respect thereof, and if in any such case the compensation claimed 
 shall not exceed £50 the same shall be settled by two Justices."
 
 654 ACTION (right of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 It is evident that various classes of land are there spoken of; 
 not merely land which is taken or land which is required, but also 
 land which is injuriously affected by the execution of the under- 
 taking. And when we come to the 68th clause the language is 
 still more significant. The enactment is, " If any party shall be 
 entitled to any compensation in respect of any lands, or of any 
 interest therein, which shall have been taken for or injuriously 
 affected by the execution of the works and for which the promoters 
 of the undertaking shall not have made satisfaction under the 
 provisions of this or the special Act or any Act incorporated there- 
 with ; and if the compensation claimed in such case shall exceed 
 the sum of £50 " then it is to be settled by arbitration or by a jury 
 in the way pointed out. 
 
 I need not remind your Lordships that under this Act of Parlia- 
 ment, passed as it was many years ago, many hundreds of thousands 
 of pounds — I might perhaps say millions of pounds — have been 
 paid to persons not one inch or one yard of whose land has been 
 taken by the railway company, but whose land has been (in the 
 Avoids of the section)" " injuriously affected" by the execution of 
 the works (whatever that may mean is another point), but "injuri- 
 ously affected" as a matter entirely distinct from the taking of the 
 land. That shows, I think, that the headings of these clauses are 
 not to be relied upon, — and many other instances might be given 
 of the same kind inside the clauses themselves, — something show- 
 ing, in the same way that an Act of Parliament often goes beyond 
 the preamble, that provisions have been introduced in the progress 
 of the clauses going somewhat beyond the short and summary 
 definition in the heading of the clauses. In fact, one of these Acts 
 of Parliament shows that these short headings were introduced 
 merely to ear-mark a set of clauses and t<> afford a short and 
 summary way by which they might lie introduced by reference as 
 enactments into other Acts of Parliament, 
 
 I have gone through the sections in The Lands Clauses Act 
 which seem to me to be relevant to this matter, and all that I 
 would say more with regard to them is this: As to the 68th 
 section, to which I have referred, I agree that that section does 
 not define the conditions under which the person whose land has 
 become injuriously affected is to be entitled to compensation. It 
 rather assumes that the right to compensation has been given in 
 some other enactments, and it contents itself with pointing out the
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 655 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 manner in which that compensation shall be obtained; and 1 may 
 observe that in the present rase the whole of the proceedings have 
 
 been taken under The Lands Clauses Act, and indeed it is only 
 under The Lands Clauses Act that a jury can be summoned or the 
 aid of arbitration invoked. I therefore commence with The Lands 
 Clauses Act as the mode in which compensation is to he obtained 
 if the landowner is entitled to compensation under any other 
 provision. 
 
 I now turn, for the purpose of finding the kind of compensation 
 to he given, to The Railways Clauses Act. 1 will only ask your 
 Lordships to hear in mind the words, in the 68th section of the Act 
 we are leaving : " If any party shall be entitled to any compensation 
 in respect of any lands which shall have been injuriously affected 
 by the execution of the works." Now let us turn to The Railways 
 Clauses Act in the fasciculus of clauses, which I agree commences 
 with these words : '• And, with respect to the construction of the 
 railway and the works connected therewith, be it enacted as 
 follows. 1 ' The 6th section is in these words: "In exercising the 
 power given to the company by the special "Act to construct the 
 railway, and to take lands for that purpose, the company shall lie 
 subject to the provisions and restrictions contained in this Act and 
 in the said Lands Clauses Consolidation Act" (that is, in the 68th 
 section among others) ; " and the company shall make to the 
 owners and occupiers of, and all other parties interested in, any 
 lands taken or used for the purposes of the railway, or injuriously 
 affected by the construction thereof, full compensation for the 
 value of the lands so taken or used, and for all damage sustained 
 by such owners, occupiers, and other parties, by reason of the 
 exercise, as regards such lands, of the powers by this or the special 
 Act, or any Act incorporated therewith, vested in the company." 
 And then it proceeds to say that the compensation shall he ascer- 
 tainecl under The Lands Clauses Act. My Lords, I desire, in 
 passing, to point out to your Lordships that the words are evidently 
 to be read reddendo singula singulis. If the land be taken or used, 
 full compensation is to be. made for the value of the land. If the 
 land be not taken or used, but be injuriously affected by the con- 
 struction of the railway, then compensation is to be made for the 
 damage sustained by the owner or occupier or other party interested, 
 by reason of the exercise, as regards such lands, of the powers by 
 this or the special Act vested in the company.
 
 G56 ACTION (RIGHT OF). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 Then the 16th section I may also refer to, — and that will com- 
 plete the enumeration of the enactments with which we have to 
 deal. It is as follows: "Subject to the provisions and restrictions 
 in this and the special Act, and any Act incorporated therewith " 
 (that is to say, subject to the provisions and restrictions in 
 The Lands Clauses Consolidation Act), " it shall be lawful for 
 the company, for the purpose of constructing the railway, or the 
 accommodation works connected therewith, hereinafter mentioned, 
 to execute any of the following works." Then follows an enumer- 
 ation of what I may call structural works, such as turning the 
 course of rivers, making railways across streets, and so on ; and 
 then comes this final power: "They may do all other acts neces- 
 sary for making, maintaining, altering or repairing, or using the 
 railway." Then comes what appears to me to be of great import- 
 ance, — the term and condition upon which alone they are authorized 
 and empowered to make these structural works; and the condition 
 is, not that, in the exercise of those structural powers, they are to 
 make certain compensation, but " that in the exercise of the 
 powers" (that is, of all the powers) "by this or the special Act 
 granted, the company shall do as little damage as can be, and 
 shall make full satisfaction in manner herein and in the special 
 Act, and any Act incorporated therewith, provided, to all parties 
 interested, for all damage by them sustained by reason of the 
 exercise of such powers," — that is ; of all the powers vested in the 
 company. 
 
 My Loids, I venture to think that it would be too narrow a 
 construction of these words to say that the powers here mentioned 
 are simply those powers which are immediately before enumerated. 
 If that had been the intention of the legislature, nothing could 
 have been easier than to say, and indeed it would have been much 
 shorter to say, " Provided always, that, in the exercise of such 
 powers, they shall make full compensation to the persons inter- 
 ested." Then we should have known exactly that what was 
 intended was, that if, by reason of the exercise of those structural 
 powers, any damage was done, they should make compensation. 
 But, on the contrary, the provision is in substance this : We, the 
 legislature, will authorize you to make these structural works, 
 but the term and condition upon which we authorize you to make 
 them is, that if by reason of the exercise of any of the powers 
 by this or the special Act given to you you do any damage, you
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 651 
 
 No. 9. — Hamm3rsmith Railway Co. v. Brand. 
 
 shall make compensation for that damage. In other words, we 
 will authorize the railway to be made, with certain powers appen- 
 dant and annexed to the making of the railway, one of the main 
 and special ones of which is, that the railway shall he used as ;i 
 passage for locomotive engines; hut if, by reason of the exercise 
 of any of the powers we give you, you do damage, you shall him. 
 full compensation for that damage to the persons injured. 
 
 Now, having taken the liberty of pointing out to your Lord- 
 ships the sections with which we have to deal, I shall sum up 
 what appears to me to be the true and proper construction, even 
 if we were dealing with the 6th section alone of The Railways 
 Clauses Act, of those words which have been referred to already, 
 "injuriously affected by the construction of the railway." Even 
 if we were dealing with that section alone, it would appear to me 
 that those words, "by the construction of the railway," are just 
 the same words and intended to denote the same idea as the words 
 in the 68th section of The Lands Clauses Consolidation Act, 
 " injuriously affected by the execution of the works;" and that, 
 even dwelling upon those two sections alone, and not praying in 
 aid at all the 16th section, the position of things would be this : 
 Parliament authorizes the construction of the railway, but Parlia- 
 ment does not look upon those words, " the construction of the 
 railway " or " the execution of the works authorized," as meaning 
 the digging out so much land, the putting so much brick and 
 mortar together, the making a viaduct or the making an embank- 
 ment, or the mere structural aspect of the work; it looks upon 
 the railway as an undertaking, — as a going concern, if I may 
 so call it, — as a thing which is to be there for a certain purpose 
 and to fulfil a certain end which the legislature has held in its 
 view ; and when it uses the terms " the execution of the works " 
 and "the construction of the railway" it appears to me to point 
 to a living and active thing which, placed on the spot where 
 Parliament authorizes it, may possibly have an injurious effect on 
 some circumjacent land. And then, pointing to that parliamen- 
 tary power which is given to construct that railway or to execute 
 that work, Parliament says : " If by the construction of this 
 railway with these incidents, if by the execution of these works 
 there he a consequence in the shape of damage to those who are 
 in the neighbourhood, that damage must be atoned for by 
 compensation." 
 vol. i. — 42
 
 658 ACTION (right of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 This case might be illustrated very easily by putting another 
 case, not the instance of a railway. The Lauds Clauses Consolida- 
 tion Act applies to works of all kinds, not merely to a railway. 
 Suppose that, under a special Act of Parliament, persons were 
 authorized to take lands for the purpose of making in a particular 
 locality gas-works, or were authorized to make on a particular 
 spot copper-smelting works, either of which, we know, when they 
 came to be worked, would most probably produce injury to the 
 circumjacent land, although the land around may not be taken by 
 the company. Supposing Parliament authorized the gas-works 
 or the copper-smelting works to be conducted, by. words of enact- 
 ment which would make it impossible for the owner of the 
 adjacent land to maintain an action for the injury sustained, and 
 then Parliament said, " If by the execution of these works the 
 neighbouring owners sustain any damage, you shall pay for such 
 damage," I should understand by an enactment of that kind, not 
 that the neighbouring owner is supposed to be likely to sustain 
 damage by the construction of the building, by putting the bricks 
 and mortar together, but to sustain damage by those works as 
 active, going works, which were there for the purpose of manufac- 
 turing gas or smelting copper, as the case may be, and that when 
 Parliament said, "If by the execution of these works damage is 
 done," Parliament meant to say, "If by the execution of these 
 works, qua gas-works or qua copper-smelting works, continuing to 
 exist and actively proceeding, any damage is done," that damage 
 shall be paid for. 
 
 I may remind your Lordships that this question was very 
 near having to be decided once in your Lordships' House, although 
 from circumstances the decision became unnecessary. In the 
 case of Broadbeni v. The Imperial Gas Company, 7 De G. M. & G. 
 436, 447-448 ; see also 7 H. L. C. 600, the case which I have 
 supposed was very near happening. The company was authorized 
 to make a gas-w T orks in a particular place, and The Lands Clauses 
 Act was incorporated to a certain extent in the provisions of the 
 special Act; but there was a clause in The Gas Clauses Act, also 
 incorporated, which provided that in carrying on their works ami 
 making gas no nuisance or injury should be occasioned to any of 
 the surrounding land. And it was held by this House, as might 
 be expected, that the consequence of that section being introduced 
 was, that the right of action was not taken away"; and therefore
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 659 
 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 it was not necessary to consider the case T have suggested. But 
 
 if you had a case where the right of action was taken away, and 
 where Parliament had provided that compensation should be made 
 for injury dune by the execution of the works, then, in my opinion 
 :at least, it would mean and imply the execution of the works of 
 the undertaking as an active and going concern. That would ba 
 the opinion which I should entertain of the 6th section alone, even 
 without the 16th section. 
 
 As it appears to me, Mr. Justice Lrsii has expressed with gr :a! 
 felicity the same idea winch I have entertained, I cannot do bed r 
 than remind your Lordships of what Mr. Justice LUSH says: "The 
 Lands Glauses Act is designed, not for railways only, but for 
 ^ill undertakings for which compulsory powers of taking lands are 
 given. And every special Act which incorporates its provisions 
 designates and fixes the purpose for which the land is to be taken, 
 and the use to which it is to be permanently appropriated ; and 
 the company who are empowered to take it are bound to apply it 
 to that purpose, and to that purpose only. So much of the general 
 Act as is incorporated becomes part of the special Act, and its 
 language, as part of that Act, becomes pointed to the particular 
 work or undertaking specified, whatever it may be, whether a 
 railway, a dock, a canal or any other undertaking. It there 
 authorizes the taking of the land for the purpose of, and its con- 
 version into, the particular railway, dock, or canal, in order that 
 it may be used as such. The undertaking is regarded as a working 
 -concern, and the idea of its use as a railway, dock, or canal is in 
 the mind of the legislature inseparable from that of its con- 
 struction. In professing to give compensation for all damage 
 sustained by the owners of the adjacent land by the execution of 
 the works, or the exercise of the powers of the Act as regards such 
 lands, the legislature must, as it appears to me, have had in view 
 the ultimate object aimed at, the works when complete and in 
 operation, — the dock, railway, or canal, — not abstractedly as a 
 mere excavation, embankment, or reservoir, but in connection with 
 its appropriate traffic, and with the ordinary incidents of a business 
 undertaking." 
 
 It appears to me that if it is necessary to go beyond that, and to 
 make the case still clearer, the case is made clearer by the 16th 
 section, because, as I interpret that section, it gives a number of 
 powers, structural powers I agree ; but to make it the term and condi-
 
 660 action (right of;. 
 
 No. 0. — Hammersmith Railway Co. v. Brand. 
 
 tion of exercising those structural powers — of interfering with rivers 
 and with roads, and exercising those other, which may be termed 
 violent powers, which are given by that Act or by the special Act — 
 that the company shall make full satisfaction to every person for 
 all damage sustained by reason of the exercise of such powers, 
 that is, of all the powers given by the Act to the company. 
 
 Now, my Lords, that being certainly the view which I should 
 take of the construction of these Acts of Parliament, the only 
 other matter which T have. to refer to is what appears to have 
 weighed in the minds of some of the learned Judges who were 
 unable to adopt this view. I observe that some of those learned 
 persons say that there would be very great difficulty in estimating 
 the compensation, because the damage could not be ascertained 
 until the undertaking became what I may call a going concern, 
 and until by experience you had ascertained exactly what the 
 amount of damage or injury actually was. Now, I do not think 
 there is any difficulty at all on that head. In the first place, in 
 the present case which we have here before us, no difficulty seems 
 to have occurred. A sum has been found by the jury, nut re] re- 
 senting merely the past damage, but representing the whole 
 damage which, in the opinion of the jury, both had been sus- 
 tained and would be sustained by the exercise of the pn rs 
 given to the company. In addition to that, the problem which 
 has to be solved appears to me not to be at all beyond the powers 
 or the province of a jury. What you have to find is, what is the 
 actual deterioration in value. You have a certain house, and near 
 it what I may call a vibrating railway, — I mean a railway in the 
 use of which there cannot fail to be vibration; the house was of 
 a certain value before the railway was put there. If the railway 
 causes vibration, evidence can easily be obtained to prove what 
 the amount of deterioration in value is, and the sum can be awarded 
 accordingly. The subject may be illustrated further by supposing 
 a house used for a particular trade, — say that of a watch or clock 
 maker, which requires particular steadiness ; serious injury might 
 be done there, and the house might become useless for the par- 
 ticular purpose for which it was used before. 
 
 But in addition to that, it is said that you ought to know how 
 many trains a day there will be running, and the weight of them.. 
 and the speed at which they will pass. There is a well-known 
 principle which applies to such cases, which is, that if the persons
 
 SECT. III. — WHKRK ADEEMED OK ABRIDGED BY STATUTE. 661 
 No. 9. — Hammersmith Railway Co. v. Brand. 
 
 against whom the claim is made are not willing to bind themselves 
 
 as to the maximum number of trains, or the weight, or the speed, 
 then the sum must be taken most strongly against their company, 
 upon the principles enunciated in the well-known old case of 
 Armorie v. Delamirie, 1 Strange, 504. And the largest amount 
 of injury which can be sustained would probably be considered to 
 be the amount to be awarded by the tribunal which has to award 
 compensation. 
 
 I might mention another case in which every one would admit 
 that compensation would have to be assessed at the commence- 
 ment; and where the same difficulty might occur. Your Lordships 
 will recollect cases which have come before this House, arising 
 upon questions of which Sprott v'. The Caledonian Railway Com- 
 pany, 2 Macq. Sc. App. Cas. 449, may be taken as an instance. In 
 those cases it was held that a landowner selling a strip of land to 
 the railway company is bound to give lateral support to resist the 
 pressure which a heavy train passing over the land might occasion. 
 Now, in that case there must be compensation assessed and paya- 
 ble for the land taken in the first instance ; yet at the time when 
 that compensation was so assessed it might not be known what 
 the number of trains passing along the railway, or the weight or 
 speed of them, would be, and therefore it might not be possible 
 to say with mathematical exactitude what would be the precise 
 amount of support which would have to be given to the land on 
 each side. In such a case the landowner would make his claim; 
 he would show that the nature of the ground was such that 
 lateral support would be particularly desirable ; he would show 
 that he might have to support the land against the pressure that 
 would be created by a great number of trains passing every day; 
 and he would claim, and probably would recover, compensation 
 for the maximum amount of support which the land might require. 
 I therefore cannot accept the suggested difficulty as to ascertain- 
 ing the amount of compensation as any reason why the Act of 
 Parliament should be taken as having a meaning other than what 
 appears to me to be the plain meaning of the words. 
 
 My Lords, [ regret very much to say that I am afraid that the 
 result will be, that although a (dear injury and damage has been 
 sustained, and although a substantial sum has been awarded by 
 a jury to the landowner, that sum will not be recovered. But I 
 have been unable to do otherwise than to express t" your Lord-
 
 662 ACTION (right of). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. — Notes. 
 
 ships the view which I entertain as to the construction of these* 
 statutes in a case which, as it appears to me, may he one of great 
 importance. 
 
 Judgment of the Exchequer Chamber reversed. 
 
 Lords Journals, 13th July, 1869. 
 
 ENGLISH NOTES. 
 
 The former branch of the rule is, in effect, the same as the rule m 
 Vaughanv. Toff Vale Ry. Co. (Accident, No. 8, p. 296, sujira), and 
 the relevant English cases will be found collected in the English note- 
 there. By the decision of the House of Lords, in the principal case, 
 this rule is, for English purposes, conclusively settled. 
 
 As to the second branch of the rule, it will be observed that the judg- 
 ments are based upon a minute criticism of the English Acts, Briefly 
 thus: The Lands Clauses Consolidation Act, 1845, is outside the ques- 
 tion, because it only provides compensation to owners or occupiers of 
 land taken. The Railways Clauses Consolidation Act, 1845, however, 
 by § 6, gives a right of compensation, not only to owners and occupiers 
 of land taken, but also to owners and occupiers of land injuriously 
 affected "by the construction" of the railway. The plaintiff in tin- 
 case in question was not the owner or occupier of lands taken. But 
 neither was he owner or occupier of land injuriously affected "by the 
 construction" of the railway; for the nuisance of which the plaintiff 
 complained — the vibration like the shock of an earthquake, recurring 
 every five or ten minutes — was caused, not by the construction of tin- 
 railway, hut by the running of trains under the powers of the 86th 
 section of the last-mentioned Act. And, even if the plaintiff's house 
 had sustained some injury by the construction, the (5th section of the 
 Act would not, according to the judgment of Lord Chelmsford, p. 641 
 supra, have aided the owner to recover damage sustained by the 
 running of the trains. Eor, although in such a case he would be en- 
 titled, under § 6, to compensation "by reason of the exercise of the 
 powers" of the Act, that expression in this section is (according to this 
 judgment) to be read as limited by the introductory words of the section : 
 "And with respect to the construction of the railway and the works 
 connected therewith, be it enacted." 
 
 The case is entirely different where compensation is claimed by a 
 landowner under the 63rd section of The Lands Clauses Consolidation 
 Act, 1845. His right to full compensation ••by the exercise of the 
 powers " of the Act has been liberally construed, and has been decided 
 by the highest authority to include everything arising out of the user,
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 663 
 No. 9. — Hammersmith Railway Co. v. Brand. — Notes. 
 
 as well as out of the construction, of the railway. Re Stockport Ry. 
 Co. (1864), 33 L. J. Q. B. 251; Duke of Buccleuch v. Met?. Board of 
 Works (Ex. Ch. 1870), L. R, 5 Ex. 221, per Blackburn, -I., p. 2:!5; 
 and in House of Lords (1872), L. R., 5 H. L. 418; 41 L. J. Ex. 137; 
 Cowper-Essex v. Local Hoard of Acton (H. L. 1889), 14 App. ('as. 153, 
 58 L. J. Q. B. 594. This last-mentioned case arose out of a notice by 
 the local board to take, under their compulsory powers, certain land of 
 the appellants for the purpose of sewage works. In assessing compen- 
 sation, the jury gave a verdict for the value of the land taken, and a fur- 
 ther sum for damage sustained or to be sustained by injuriously affecting 
 the appellants' other lands by the exercise of the statutory powers. And 
 they took into consideration the prospective damage by the use of the 
 sewage works, as to which the evidence was that, although they might 
 possibly be conducted so as not to create an actionable nuisance, their ex- 
 istence would depreciate the value of the land for building purposes. The 
 House of Lords, reversing the decision of the Court of Appeal, affirmed 
 the judgment of the Court of first instance, giving full effect to the verdict. 
 
 Where the owner's land is not taken, but his land is injuriously 
 affected by the construction of the railway within the 6th section of The 
 Railways Clauses Consolidation Act, 1845, the full claim is let in for all 
 damage sustained by the exercise, as regards such lands, of the powers 
 — i. e., at all events of the constructive powers — of the Act. Thus 
 in the arbitration case of London and Tilbury, &c. Ry. Co. and Trustees 
 of Goiver's Walk Schools (1889), 24 Q. B. D. 326, 59 L. J. Q. B. 162, 
 where land of the trustees had not been taken, but their land had been 
 injuriously affected in respect of ancient lights, by a building erected by 
 the railway company, — being a work within their statutory powers, — 
 the Court of Appeal, following the principle laid down by the House of 
 Lords in the case of Cowper-Essex, confirmed an award giving compen- 
 sation not only in respect of the trustees' strict legal right to their 
 ancient lights, but also for the further deterioration which the same 
 erection caused by obstructing the lights of their modern windows. 
 
 Some reference seems necessary here to a Scotch case which was 
 decided by the House of Lords in 1870, although the grounds of the 
 decision are by no means clear. This is City of Glasgow Union Ry. 
 Co. v. Hunter (1870), L. R., 2 H. L. Sc. 78. Mr. Hunter, some of 
 whose land had been taken, claimed compensation (inter alia) in re- 
 spect of an apprehended and prospective damage "caused by noise 
 and smoke of trains and general nuisance; " and an award had been 
 made assessing separate damage under this head. The House of Lords, 
 reversing the judgment of the Scotch Courts, decided that this was not 
 a subject for compensation. Lord Chelmsfokd rests his judgment.
 
 064 ACTION (RIGHT OF). 
 
 No. 9. — Hammersmith Railway Co. v. Brand. — Notes. 
 
 and the Lord Chancellor (Hatherley) and Lord Coloxsay partly 
 rest theirs, on the not very intelligible ground that the supposed nui- 
 sance was expected to arise from the user of a part of the line not con- 
 structed upon the land taken. But in the two last-mentioned judgments 
 the view is also indicated that the damage by " noise and smoke and 
 general nuisance " was not to be presumed as an appreciable item of com- 
 pensation; and Lord Westbury's judgment is on the narrow ground 
 that such an item ought not to form a separate head of compensation. 
 In the case of Cowper-j&ssex v. Local Bonn] of Acton, Lord Watson 
 accepts the former view as giving the ratio decidendi, and regards it 
 as binding on the house; but Lord Macnatshtex, in his judgment in 
 the same case (14 App. Cas. 170). takes a broader view of the intention 
 of the legislature. "I think it impossible."' he says, ''to read The 
 Lands Clauses Consolidation Act without seeing that it was the inten- 
 tion of the legislature that full compensation should be given in all 
 cases where lands are taken under the powers of the Act for the purpose 
 of a public undertaking." 
 
 As contrasted with the narrow provisions as to compensation in The 
 English Railways Clauses Consolidation Act may be mentioned the 
 cognate legislation of Lower Canada, as pointed out by the judgment 
 of the Judicial Committee of the Privy Council, in North Share Ry. 
 Co. v. Pion (1889), 14 App. Cas. 612, 59 L. J. P. C. 25. It is hen- 
 observed that The Railway Act in force in Lower Canada — The Quebec 
 Railway Consolidation Act of 1880 — is so framed as not to authorize 
 any damage to land (whether any land of the owner is taken or not) by 
 the exercise of the powers, &c, without making compensation. So that 
 there is no distinction in this respect between damage done by the con- 
 struction of the works and damage done by the use of the railway. 
 
 AMERICAN NOTES. 
 
 It seems that the doctrine of the principal case has been accepted in this 
 country so far as it relates to mere inconvenience or slight annoyance, where 
 no land is taken, but not in respect to serious detriment to property or results 
 amounting to a nuisance. Mr. Pierce says (Railroads, p. 217) : "The autho- 
 rises tend to tliis result. — that inconveniences not involving any immediate 
 physical injury, such as smoke, vibration, and noise caused by passing trains, 
 are not an independent ground fur compensation." 
 
 In Tomlin v. Dubuque, Ac. R. Co., 32 Iowa, 106; 7 Am. Rep. 176, it was 
 held that a riparian proprietor cannot recover damages for being deprived of 
 access to a navigable river by reason of the building of a railroad along its 
 banks below high-water mark. Citing Stevens v. Railroad Co., 31 New Jer- 
 sey Law, 532: 3 Am. Rep. 269; Gould v. Hudson R. R. Co., G New York, 
 ~)22. It should be noted, however, that the last case has been generally dis-
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 665 
 
 No. 9. — Hammersmith Railway Co. v. Brand. — Notes. 
 
 approved in this country, and has been overruled in Rumsey v. N. ).. <\r. /.'. 
 Co., 133 New York, 70, which holds that the owner of lands on the shore of a 
 navigable river lias rights in land under water in front thereof which may not 
 be taken by the legislature or otherwise without compensation. 
 
 "If a railroad be built upon a highway, after acquiring the public right, 
 and the private property, if any, in the street or t he soil thereof, then the 
 owners thereof are not responsible for any damages necessarily result inn' from 
 the construction or operation of the railroad to private property adjacent or 
 near to the road." This was an action for damage by the raising of the grade 
 of the street and sidewalk in front of the plaintiff's city lots, (/line v. X. }'., 
 Spc, R. Co., 101 New York, 98; 53 Am. Rep. 123. 
 
 In Hatch v. Vermont Cent. R. Co., 25 Vermont, 10, it was held that the 
 defendant was liable for diverting a natural stream to the injury of a neigh- 
 bouring proprietor. Chief Justice Redki eld observed, however: "But in the 
 absence of all statutory provision to that effect, no case, and certainly no 
 principle, seems to justify the subjecting a person, natural or artificial, in the 
 prudent pursuit of his own lawful business, to the payment of consequential 
 damages to other persons in their property or business. . . . One mill, or one 
 store or school, often injures another. One's dwelling is undermined or its 
 lights darkened or its prospect obscured, and thus materially lessened in 
 value, by the erection of other buildings upon lands of other proprietors. 
 One is beset with noise or dust or other inconvenience by the alteration of a 
 street, or more especially by the introduction of a railway, but there is no 
 redress in any of these cases. The thing is lawful in the railroad, as much as 
 in the other cases supposed." But in Bellinger v. A r . 1'. Cent. R. Co., 2-5 New 
 York, 42, it was held that the defendant was not liable for an occasional 
 flowing of the plaintiff's lands by means of its embankment and bridge across 
 a natural stream. To the same effect, Slatten v. Des Moines R. Co., 20 Iowa. 
 148. The Bellinger Case is distinguished in Cogswell v. N. Y., fyc. R. Co.. 103 
 New York, 21, on the grounds that the line of the road was fixed by the char- 
 ter, that the flooding was an unusual occurrence, and the evidence was slight 
 that it was caused by the defendant's structures. 
 
 In Struthers v. Dunkirk; frc. Rg. Co., 87 Penn. St. 282, an action for dam- 
 ages for the inconvenience and annoyance caused to plaintiff's premises by 
 the operation of the defendant's railway in a public street in front thereof. 
 the court said: "There is no principle of law better settled in Pennsylvania 
 than that a common-law action does not lie against a corporation for conse- 
 quential injuries occasioned by the construction and operation of its works." 
 But in Chicago, fre. R. Co. v. Hall, 00 Illinois, 42, an exactly similar case, it 
 was held that there could be a recovery for jarring, cinders, smoke, etc., de- 
 preciating the value of the property. This is also the doctrine of the cases of 
 the elevated street railways in the city of New York, whether the fee of the 
 streets is in the plaintiff or in the city. Storg v. N. Y. El. R. Co., 90 New 
 York, 122 ; 43 Am. Rep. 140 ; Lahr v. Met. El. R. Co., 104 New York. 268. 
 
 In regard to municipal constructions, essential to the health and convenience 
 of the citizens, although immediately designed for private gain, the rule of the 
 principal case is the law in this country. An instructive recent case is Daniels
 
 666 ACTION (right of). 
 
 No. 9. — Hammersmith Kailway Co. v. Brand. — Notes. 
 
 v. Keokuk Water Works, bT Iowa, 54!), holding that city waterworks .should 
 not be enjoined from using their machinery, whereby the plaintiffs' premises 
 were subjected to smoke, soot, &c, there being no allegation (if detriment to 
 health nor of destruction of property, but only of "damage, detriment, incon- 
 venience, and annoyance." The court said: "While there is no doubt the 
 defendant was organised with a view of proving a pecuniary benefit to the 
 stockholders, yet this was not the only purpose of its organisation. The bene- 
 fit to the public — that is, to the citizens of Keokuk — is immediate and direct. 
 . . . The injury caused the plaintiffs is not irreparable. Their inconvenience 
 and annoyance must yield to the public good in so far as the interposition of 
 equity is concerned." 
 
 But in respect to railway companies, it has been held that their charters do 
 not protect them from liability for acts inseparable from their management 
 which amount to an injurious nuisance. Thus in Cogswell v. N. V.. fyc. B. 
 Co., 103 New York, 10; 57 Am. Rep. 701, it was held that an engine-house, 
 erected by defendant railroad company adjacent to plaintiff's dwelling-house, 
 and so used as practically to deprive plaintiff of the use of the house as a 
 residence, and by filling it with smoke and dust, and corrupting the air with 
 offensive gases, to make life therein uncomfortable and unsafe, is a palpable 
 nuisance for which an action of damages will lie, and a court of equity will 
 restrain the same. Andrews, J., said : " The principle upon which the court 
 below jiroceeded was that what the legislature has authorised the defendant 
 to do can neither be a public nor private wrong. . . . We place our judgment 
 in this case on the ground that the legislature has not authorised the wrong 
 of which the plaintiff complains. ... It is no doubt a settled principle of the 
 law that many things may be done by the owner of land, causing consequen- 
 tial damage to his neighbour, for which the law affords no remedy," as where 
 the act was lawful and reasonable or the damage was too remote. " The case 
 before us belongs to neither of these categories. ... It is undoubtedly true 
 that there are cases in which the legislature in the public interest may author- 
 ise and legalise the doing of acts resulting in consequential injury to private 
 property, without providing compensation, and as to which the legislative 
 sanction may be pleaded in bar of any claim for indemnity. Indeed, such is 
 the transcendent power of Parliament that it is the settled doctrine of the 
 English law that no court can treat that as a public or private wrong which 
 Parliament has authorised," citing the principal case. " The legislative power 
 in tins country is subject to restriction, but, nevertheless, private property is 
 frequently subjected to injury from the execution of public powers conferred 
 by statute, for which there is no redress. The case of consequential injuries 
 resulting from street improvements authorised by the legislature is a familiar 
 example." To the doctrine that a nuisance cannot be justified by statutory 
 authority, the court cite Hill v. Managers, &,'c, 4 Q. B. Div. 433 ; App. 
 Cas 93, and Truman v. By. Co., 25 Ch. Div. 423; also Baltimore, Sfc. R. Co. 
 v. Fifth Baptist Church, 108 United States, 317, a case of a similar nuisance 
 creating a constant disturbance of religious exercises in a church, in which 
 the court granted an injunction, citing Crump v. Lambert, L. P., 3 Eq. 409. 
 These two cases cite all the American authorities necessary to the establish-
 
 SECT. III. — WHERE ADEEMED OK ABRIDGED BY STATUTE. G67 
 No. 10. — Bradlaugh v. Clarle. — Rule. 
 
 merit of this doctrine, but reference may usefully be had to /'inn. 11. Co. v. 
 Angel, 41 New Jersey Equity. 316; 56 Am. Rep. 1, holding that a railroad 
 company, using a public street for a terminal yard, without having made com- 
 pensation to the adjoining- landowners, and thereby causing a nuisance to 
 neighbouring dwellings, may be restrained by injunction, although such use is 
 authorised by the legislature and is uecessarj to the business. The court 
 cite McAndrews v. Collerd, 13 Vroom (New Jersey). l^!t ;. :)ii Am. Rep. 508, 
 to the proposition "that there is an obvious distinction between the liability 
 of a private corporation to public prosecution for a legalised nuisance, and its 
 liability to a private action for damages arising from such nuisance; that in 
 the one case the legislative authority is a protection, and in the other it is 
 not;" citing Railroad Co. v. Church, 10 Wall. (U. S.) 02, to the same effect. 
 
 The general subject is learnedly examined in the Supreme Court of New 
 Jersey in Tinsman v. Be.lvid.ere, tifc. R. Co., 2 Dutch. 148; 09 Am. Dec. 505, 
 which was an action for consequential injury to a saw-mill right by the con- 
 struction of an embankment (and so not exactly analogous to the principal 
 case), holding that public corporations are equally liable for injuries in- 
 flicted where the powers conferred are not strictly for the public benefit, and 
 if the grant is a special franchise, made as well for private advantage as for 
 public good. 
 
 No. 10. — BBADLAUGH v. CLARKE. 
 
 (id l. 1883.) 
 
 RULE. 
 
 Where a penalty is created by statute, and nothing is 
 said as to who may recover it, and it is not created for the 
 benefit of a party grieved, and the offence is not against 
 an individual, it belongs to the Crown, and the Crown 
 alone can maintain a suit for it. 
 
 The mere statement in a statute that the penalty is to 
 be recovered by action in one of Her Majesty's superior 
 courts, does not make it recoverable by the common 
 informer. 
 
 Bradlaugh v. Clarke. 
 
 8 App Cas. 354 (s. c 52 L. J. Q. R. D. 505). 
 
 Appeal by the defendant from two orders of the Court of Appeal 
 (Bramwell, Bago allay, and Lush, L. JJ.) 7 Q. B. P. 38, 61, 02. 
 The pleadings are fully set out in the report of the case below.
 
 668 ACTION (eight of). 
 
 No. 10. — Bradlaugh v. Clarke. 
 
 The only questions raised by this appeal were whether the 
 plaintiff, as a common informer, was entitled to sue for the penalty 
 imposed by The Parliamentary Oaths Act, 1S66 (29 & 30 Vict. 
 c. 19) § 5, — it being admitted by the pleadings that the defendant 
 had voted as a member of the House of Commons and sat during 
 a debate, after the Speaker had been chosen, without having made 
 and subscribed the oath by that Act appointed, — and whether the 
 courts below had power to order costs to be paid by the defendant 
 to the plaintiff, and if so whether the power had been rightly 
 exercised. The question mainly discussed in the courts below, 
 whether the defendant was entitled to affirm, was not now raised, 
 the defendant having (as he alleged during the argument) under- 
 taken not to raise it. 
 
 March 5. The appellant in person : — 
 
 This action cannot be maintained by the plaintiff. All penalties 
 imposed by statute belong to the Crown alone, unless given in 
 precise terms to an individual, — e.g., to the party aggrieved or " to 
 him or them who shall sue for the same." Tomlin's Law Diet. ; 
 Jacob's Law Diet. "Penal Laws;" 16 Vin. Abr. p. 566, Prerog. 
 t. 2 § 21; Com. Dig. Forfeiture (C); R. v. Malland, 2 Str. 828; 
 R. v. Hymen, 7 T. R 536. The Crown cannot be deprived of its 
 right to a penalty by words of implication, but only by express 
 words of enactment. Where the method of recovery is left in 
 doubt, the Crown, and none other, can sue. Penal statutes must be 
 construed strictly as between an informer and a defendant and 
 nothing extended against the defendant. The previous Act (1 
 Geo. I. st. 2 c. 13 § 17) imposed the penalty "to be recovered by 
 him or them that shall sue for the same." This Act was repealed 
 by the Act of 1866, and those words omitted purposely; but 
 whether purposely or not, the effect is the same. The Crown could 
 bring every civil suit at its pleasure in any court, — any informa- 
 tion for debt, — though the Exchequer is the natural court. The 
 words " by action " may and here must include " information by 
 the Crown ; " and an information lies in all the superior courts. 
 4 Com. Dig. Information A. 3, p. 559; A. 1, p. 557, and the 
 authorities there cited. See also R. v. Clark,'! Cowp. 610; and 
 Chitty's Prerog. Crown, c. 12 p. 244, and the authorities there 
 cited. 31 Eliz. c. 5 § 5, which is limited to suits by the Crown, 
 uses the word " action " advisedly. Therefore the Crown can sue ; 
 and if the words include the Crown, they do not include a common
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. G69 
 No. 10. — Bradlaugh v. Clarke. 
 
 informer. The king, by his prerogative, may sue in what court 
 he pleases (6 Com. Dig. Prerog. D 85), and cannot be deprived of 
 
 his privileges but by express and clear words; 16 Yin. Abr. 
 Prerog. T. 2 §§ 28, 33, Z. 4, p. 572, citing 11 Rep. 74 b, 75 a ; Mag- 
 dalen College Case; 6 Bac. Abr. Prerog. E. §§ 5, 7, p. 472. See 
 also 9 Geo. III. c. 16 § 1 ; 18 & 19 Vict. c. 90 § 1 and 28 & 29 Yict. c. 
 104, as to " actions " by the Crown. But even if a common informer 
 could sue a peer, the judgment appealed against is wrong, because 
 the words "a like penalty" mean only a penalty of a like amount, 
 and do not apply to the mode of recovery. Lastly, the courts 
 below had no power to give the plaintiff costs. A common in- 
 former has no right to costs unless given by statute, and these 
 costs are not given by the statute.' The right to the penalty does 
 not vest till the action is brought, and there are therefore no 
 damages for detention, and consequently no costs ; Jacob's Law 
 Diet. " Costs," and Gray on Costs, p. 6, and the authorities there 
 cited: This was so before the Judicature Acts, and they have not 
 altered the law in this respect. Even if the court had a discretion, 
 it is a judicial discretion, and not absolute; Foster v. Great Western 
 Railway Company, 8 Q. B. D. 25, 30 ; reversed, p. 515, C. A. 
 
 [The Lord Chancellor referred to Order lv. ; Garnett v. Brad- 
 ley, 3 App. Cas. 944; and Myers v. Defries,5 Ex. D. 180, 184; and 
 informed the respondent's counsel that the House did not require 
 any argument from them on the question of costs.] 
 
 Sir H. Giffard, Q. C. (Kydd with him), for the respondent: — 
 
 The judgment below was right. The words "to be recovered by 
 him or them that shall sue for the same " were omitted from the 
 Act of 18(36, not accidentally, but because the other words pro- 
 vided for the same effect. It would be strange if the Crown was 
 meant to be the only plaintiff, since the words ordinarily used 
 when the Crown is intended are omitted. The word "action" 
 admittedly includes a suit by a common informer, whether it also 
 includes information by Crown may be doubtful. But for the 
 penalty, the offence would be an indictable misdemeanour. It is 
 absurd to suppose that the legislature meant to take away the 
 consequences of a misdemeanour and yet give the penalty only to 
 the Crown. 
 
 March 6. The appellant replied. 
 
 The House took time for consideration. 
 
 April 9. Earl of Selborne, L C. My Lords, the single ques-
 
 670 ACTION (right of). 
 
 No. 10. — Bradlaugh v. Clarke. 
 
 tion to be decided upon this appeal is, whether a common informer 
 can sue for the penalties imposed by the statute 29 & 30 Vict- 
 c. 19, upon a member of the House of Commons sitting and voting. 
 in that House without having taken the oath prescribed by that 
 Act. The words of the material clause (§ 5) are these : " If any 
 member of the House of Peers votes, by himself or his proxy, in the-. 
 House of Peers, or sits as a Peer during any debate in the said 
 House, without having made and subscribed the oath hereby- 
 appointed, he shall for every such offence be subject to a penalty 
 of £500, to be recovered by action in one of Her Majesty's supe- 
 rior courts at Westminster ; and if any member of the House of 
 Commons votes as such in the said House, or sits during any 
 debate after the Speaker has been chosen, without having made 
 and subscribed the oath hereby appointed, he shall be subject to> 
 a like penalty for every such offence ; and, in addition to such 
 penalty, his seat shall be vacated in the same manner as if he 
 were dead." 
 
 It was argued that the words " a like penalty" meant only a 
 penalty of like amount, and not a penalty of like amount to be 
 recovered in like manner. With that view I cannot agree ; and 
 in all that I say I shall assume that there is no difference as to- 
 the right of action for the recovery of the penalty between the 
 case of a member of the House of Peers and that of a member of 
 the House of Commons. 
 
 All previous enactments relating to the oaths to be taken by 
 Peers and members of the House of Commons (beginning with 
 30 Car. II. st. 2 c. 1, and ending with 23 & 24 Vict. c. 63) were 
 repealed by this statute, which is, therefore (except as to the form 
 of the oath, which was altered by The Promissory Oaths Act, 1868,, 
 §§ 2, 14), the only law now in force on that subject. The question- 
 was considered and determined in the Court of Appeal (where 
 alone it was raised and argued) without reference to any of the 
 repealed statutes, in the same way as if there had been no prior 
 legislation upon the subject. It will be convenient first to exam- 
 ine, from the same point of view, the reasons assigned by the 
 Court of Appeal for their judgment in the respondent's favour. 
 
 It was acknowledged, as an incontestable proposition of law., 
 that " where a penalty is created by statute, and nothing is said 
 as to who may recover it, and it is not created for the benefit of 
 a party grieved, and the offence is not against an individual, it
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 671 
 No. 10. — Bradlaugh v. Clarke. 
 
 belongs to the Crown, and the Crown alone can maintain a suit 
 for it." Lord Justice Bramwell referred to Comyns's Digest, 
 "Forfeiture" (C), as correctly laying down that doctrine. If it 
 were necessary, many other authorities to the same effect might 
 he mentioned. It rests on a very plain and clear principle. No 
 man can sue for that in which he has no interest; ana a common 
 informer can have no interest in a penalty of this nature, unless 
 it is expressly, or by some sufficient implication, given to him by 
 statute. The Crown, and the Crown alone, is charged generally 
 with the execution and enforcement of penal laws enacted by 
 public statutes for the public good, and is interested, jure imblico, 
 in all penalties imposed by such statutes, and therefore may sue 
 for them in due course of law, where no provision is made to the 
 contrary. The onus is upon a common informer to show that 
 the statute has conferred upon him a right of action to recover 
 the particular penalty which he claims. 
 
 I do not agree with the argument of the appellant, that for such 
 a purpose express words are necessary. If an intention to confer 
 such a right ought to be implied from what the legislature has 
 said, upon any sound principle of construction, that implication 
 cannot, in my opinion, be excluded by reasons derived from the 
 special prerogatives of the Crown. 
 
 Express words, giving a right of action to any one who may sue 
 for the penalty, are certainly not found in this statute. Nor is 
 there anything from which, upon ordinary principles of construc- 
 tion, such a right of action can be implied, unless the words, " to 
 be recovered by action in one of Her Majesty's superior courts at 
 Westminster " are, wholly or in part, inapplicable to the Crown. 
 
 It appears by the report of the opinions of the learned Judges 
 in the Court of Appeal that they were disposed to think (though 
 they did not decide the point, and Lord Justice Bramwell ex- 
 pressed himself more doubtfully upon it than Lord Justice Lush) 
 that if the words had simply been " by action," the penalty would 
 have belonged to the Crown alone, " because the word ' action ' 
 is a generic term, and may be used as a general term." But they 
 thought it proved by the context, " in one of Her Majesty's 
 superior courts at Westminster," that the word " action " was here 
 used " in the popular sense of a proceeding by writ," because 
 the option of suing in any one of those courts was given ; and 
 they assented to the contention of the plaintiffs counsel that the
 
 672 ACTION (right of). 
 
 No. 10. — Bradlaugli v. Clarke. 
 
 sovereign could only sue by information in the Court of Exchequer, 
 and could not sue in the Court of Queen's Bench or in the Court 
 of Common Pleas for such a penalty. Lord Justice Bramwell 
 referred to a note by Mr. Hammond, the editor of the 5th edition 
 of Comyns's Digest (published in 1822), to the passage " For- 
 feiture " (Cj, which speaks of the right of the Crown to recover 
 unappropriated penalties. That note rests upon the case of Rex 
 v. Mallancl, 2 Str. 828, and is in these words: " Where the statute 
 does not express how it shall be recovered, it must be sued for in 
 the Exchequer." The learned Judge quoted the terms of the 
 report of Rex v. Mallancl, supra, and of the reporter's marginal 
 note to that case (in which, however, it is not said that the Crown 
 could not sue for an unappropriated penalty elsewhere than in the 
 Exchequer, but only that such a penalty " was suable for in a Court 
 of Revenue, and not by indictment ") ; and he added, " On the 
 principle established by these authorities it is argued that, as this 
 penalty may be recovered by action in any one of Her Majesty's 
 superior courts at Westminster, it is not the Crown who is to sue 
 for the penalty, but the common informer, including the plaintiff. 
 By that reasoning I own that I am convinced ; and therefore I 
 think this action maintainable by the plaintiff." In the sequel of 
 his judgment, the same very learned Judge made it plain that his 
 conclusion was, not that either the Crown or a common informer 
 might sue, but that the Crown could not sue for this penalty ; 
 and therefore that, unless the common informer could sue, the 
 legislature would have "created a penalty not recoverable by any- 
 body." Lord Justice Lush expressed himself very much to the 
 same effect, and Lord Justice Baggallay concurred. 
 
 The argument at your Lordships' bar has satisfied me that the 
 ground on which the judgment appealed from was thus rested 
 cannot be maintained, and that (unless the word "action" is 
 inappropriate with respect to a suit by the Crown) there would 
 have been in 1866 no legal impediment to a suit for this penalty 
 by the Crown in the Court of Queen's Bench or the Court of 
 Common Pleas; and that Mr. Hammond's note to Comyns's Digest, 
 " Forfeiture " (C), if its meaning really is that the Crown could 
 not sue for a penalty elsewdiere than in the Court of Exchequer, is 
 incorrect. It has been repeatedly laid down by high authority, as 
 a rule of the common law, that the king, by his prerogative, may 
 sue in what court he pleases. Magdalen College Case, 11 Co. Rep.
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. < > t 3 
 No. 10. — Bradlaugh v. Clarke. 
 
 75 a; Brownloe v. Mitchell, 1 Roll. Eep. 290; Fitzherbert's Natura 
 Brevium, 7 B & 32 E; tfw^ess v. W^afe, 1 W. Bl. 131, 132; 
 
 and see Bacon's Abridgment, " Prerogative," ed. 1832, vol. vi. 
 p. 472, and Chitty on Prerogative, p. 244. Fitzherbert (32 E), 
 when speaking of quare impedit, says, "The king may sue this 
 writ and every writ in what court he will." In Burgess v. Wheate, 
 supra, Sir Thomas Clarke, Master of the Rolls, meeting the objec- 
 tion that the Court of Chancery was not a proper court for the 
 Crown " to sue in " (for an escheat), " but it should have been a 
 Court of Revenue," said, " Though the Crown may insist on being 
 sued in its own proper court, yet it may sue in what court it 
 pleases," citing Finch, 84 (1 William Blackstone, 131, 132). In 
 Rex v. Clark, 2 Cowp. 610, and Rex v. Hymen, 7 T. R. 53G, the 
 Crown did sue for and recover in the Court of King's Bench, pen- 
 alties incurred under two Revenue Acts, — 8 Geo. I. c. 18 §§ 23 
 & 25, and 24 Geo. III. st. 2 c. 47 § 38,— both which expressly- 
 enabled a common informer to sue. and only mentioned the Crown 
 as entitled to a moiety of the penalties and forfeitures incurred. 
 As to the manner of suit, the earlier of those Acts provided that 
 such penalties and forfeitures "should and might be prosecuted and 
 determined by bill, plaint, or information in any of His Majesty's 
 courts of record at Westminster, or in the Court of Exchequer at 
 Edinburgh, respectively ; " the later, that "all the same penal- 
 ties and forfeitures should and might be prosecuted and sued for, 
 and the causes and controversies arising thereupon tried, heard, 
 and determined in any of His Majesty's courts of record at 
 Westminster, or in the Court of Exchequer at Edinburgh, respec- 
 tively." In the latter of those cases (Rex v. Hymen, supra), after 
 conviction " a doubt arose whether the king could sue for the 
 whole penalty, and, if he could, whether it should not be by a 
 prosecution in the Exchequer." The counsel for the prosecution 
 on a later day referred to Rex v. Clark, supra, and stated "that 
 there were many precedents in the Crown Office of similar pro- 
 ceedings." The court was satisfied with those authorities, and 
 ordered the defendant (for whom Mr. Erskine was counsel) to 
 pay the whole penalty. 
 
 These authorities appear to me to prove that a suit to recover 
 
 such a penalty as that incurred by the appellant might, in and after 
 
 1866, have been brought by the Crown in any one of the Superior 
 
 Courts at Westminster, and consequently that the option given to 
 
 vol. i. — 43
 
 674 ACTION (eight of). 
 
 No. 10. — Bradlaugh v. Clarke. 
 
 sue in any one of those courts cannot be a sufficient reason for 
 letting in a common informer under a statute by which a right of 
 action is not otherwise given to him. I am also satisfied, after full 
 consideration, that the word " action " is (as Lord Justice Lush 
 said) a generic term, inclusive, in its proper legal sense, of suits by 
 the Crown, and, therefore, not furnishing any sufficient ground 
 for implying a right of action in a common informer. That it is 
 used as nomen generalissimum in this particular statute seems 
 probable, from the fact that it stands there alone, without having 
 superadded to it a number of other technical terms, which are 
 usually found associated with it in earlier statutes. Lord Coke 
 (Coke Littleton, 284 b, 285 a, and Eeports, pt. 8, 151 a) adopts 
 Bracton's definition of an " action " : "Actio nihil aliud est quam jus 
 prosequcndi in judicio quod alicui debetur ; also giving (in the 
 former of those places) its equivalent in Norman-French : 
 Action n'est aider chose que loyall demande de son droit." In 
 the third Institute (p. 136) he says: "The king may have an 
 action for such wrong as is done to himself, and whereof none 
 other can have any action but the king, without being apprised 
 by indictment, presentment, or other matter of record, as a quare 
 impedit, quare incumbravit, a writ of attaint, of debt, detinue of 
 ward, escheat, scire facias pur repealer patent," &c. So also Fitz- 
 herbert (Fitzherbert, Natura Brevium, page 200, I.) : " The king 
 shall have an action of trespass." In Comyns's Digest, "Action" 
 (B) the term is applied to various rights of suit by the Crown, writ 
 of right, writ of escheat, and other civil remedies, including debt 
 and trespass; and in " Action" (D) it is extended even to placita 
 coronas, or criminal proceedings; as it is also in Bacon's Abridg- 
 ment ("Actions in general," A). In the same Abridgment 
 (" Prerogative," F, 7), it is said: "The king, though the head and 
 chief of his kingdom, may redress any injuries he may receive 
 from his subjects by such usual common-law actions as are con- 
 sistent with the royal prerogative and dignity;" and in Chitty, 
 " Prerogative," p. 245 : " The general rule is, that the king may 
 waive his prerogative remedies, and adopt such as are assigned to 
 his subjects ; he may maintain the usual common-law actions, as 
 trespass quare clausum /regit, or for taking his goods." 
 
 These statements of the law are in accordance with the language 
 of the statute, 31 Eliz. c. 5, "Concerning Informers" (§ 5), which 
 speaks of "Actions, suits, bills, indictments, and informations,"
 
 SECT. III. — WHERE ADEEMED OH ABRIDGED BY STATUTE. G75 
 
 No. 10. — Bradlaugh v. Clarke. 
 
 with express reference to " any forfeiture upon any statute penal, 
 made or to be made, whereby the forfeiture is or shall be limited 
 to the queen, her heirs, or successors only." Considering the 
 nature of the subject with which that statute deals, I am not sur- 
 prised at the reference which the appellant made to it in his 
 argument at your Lordships' bar. 
 
 The conclusion to which I have been brought is, that there is 
 no difficulty in applying any part of the language of the clause in 
 the Act of 1866, which creates the penalty sued for in the present 
 action, to a suit by the Crown ; and, therefore, that no part of that 
 language affords any sufficient ground for implying an intention 
 on the part of the legislature to give a common informer, as well 
 as the Crown, a right of action for that penalty. 
 
 One of my noble and learned friends is, however, as I under- 
 stand, 'of opinion, that although the words of the Act of 1866 
 might not by themselves afford any sufficient ground for such an 
 implication, it may, nevertheless, be derived (according to those 
 principles applicable to the construction of statutes, which are 
 stated in Heydons Case, 3 Co. Eep. 7 b, and in Hawkins v. Gather- 
 cole, 6 D. M. & G. 1) from a comparison of the policy and provi- 
 sions of that Act with those of the former enactments in pari 
 materia, which were thereby repealed. 
 
 In the application of those principles of construction it is essen- 
 tially needful to remember that the office of a Court of Justice is 
 to interpret the law, and not to make it. In ancient times the 
 provinces of the Judge and of the legislator were not unfrequently 
 confounded under colour of those principles. They afford useful 
 aids for the resolution of doubts, when (as in Hawkins v. Gather- 
 cole, 6 D. M. & G. 1) the question is how far, if at all, an earlier 
 statute has been indirectly repealed or overridden by a later, which 
 does not expressly mention or refer to it; or when difficulties 
 arise out of the apparently conflicting language of several laws 
 concurrently in operation ; or when the words of a statute are 
 susceptible of divers constructions, one of which may be recom- 
 mended and another repelled by considerations derived from the 
 known policy of the law, or from general reason and justice. In 
 the present case there is no question as to the total and absolute 
 repeal of the former enactments ; and if the w r ord " action " has 
 really that sense which' I suppose it to have, there appears tn be 
 no uncertainty, or room for doubt, as to the proper meaning of the
 
 676 ACTION (right of). 
 
 No. 10. — Bradlaugh v. Clarke. 
 
 words which the legislature has used. They mean that the 
 penalty is to be recovered by proceeding in due coarse of law in 
 any one of the superior courts at Westminstei ; that, and nothing 
 else. Their silence as to the person who is to recover the penalty 
 creates no more difficulty or uncertainty than if the statute had 
 simply imposed the penalty and had said nothing at all about the 
 manner of recovering it. It must be recovered by him to whom 
 it is due; and it is due to the Crown, and not to the informer, 
 unless there is enough in the statute to show affirmatively, by 
 words pointing to the informer, or negatively by words exclusive 
 of the Crown, that the informer was meant to have it. I think it 
 would be legislation, and not interpretation, to import into this 
 Act, by any inference from the repealed enactments, provisions in 
 favour of a common informer which the Act does not itself 
 contain. 
 
 The intention of the repealed statutes, in this respect, did not 
 depend upon any uncertain implication. Of the two earliest, one 
 (30 Car. II. st. 2), which imposed the oath against transubstantia- 
 tion, applied to members of the two Houses of Parliament only ; 
 the other (13 Wm. III. c. 6), which imposed the first oath of abjura- 
 tion, was applicable also (as was the third, 1 Geo. I. st. 2 c. 13, 
 imposing a like oath, and also an oath against the deposing power 
 of the Pope) to all holders of public offices of every kind, and 
 members of the universities and learned professions, &c, through- 
 out the kingdom. All those Acts placed the person who omitted 
 to take the oaths prescribed by them under heavy civil disabilities ; 
 and the two earlier provided, especially, that every peer or member 
 of the House of Commons offending against them should be 
 "deemed and adjudged a popish recusant convict," and should he 
 disabled from sitting or voting in either House of Parliament, and 
 in other respects practically outlawed. By the Act of Charles II. 
 the seat of an offending member of the House of Commons was 
 also declared void. The pecuniary penalty of £500, imposed by 
 the two earlier of those Acts on members of either House, was " for 
 every wilful offence" against the Act; and was "to lie recovered 
 and received by him or them that should sue for the same, and to 
 be prosecuted by any action of debt, suit, bill, plaint, or informa- 
 tion in any of His Majesty's courts at Westminster." The sever- 
 ity of those Acts was mitigated by 1 Geo.' I. st. 2 c. 13 § 17, to this 
 extent only, that offenders against that statute were no longer
 
 SECT. 111. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 677 
 No. 10. — Bradlaugh v. Clarke. 
 
 made "popish recusants convict," and (singularly enough) the 
 incapacity to sit or vote in Parliament was omitted. The pecu- 
 niary penalty of £500 was no longer imposed "for every wilful 
 offence against the Act," but (apparently, though the point may 
 admit of doubt) only once. The other disabilities and incapacities 
 were substantially the same as under the Act of William III., and 
 the £500 penalty was recoverable "by him or them that should sue 
 for the same, to be prosecuted by action of debt, suit, bill, plaint, 
 or information, in any of His Majesty's courts at Westminster, 
 . . . and by way of summary complaint before the Court of Ses- 
 sions, or prosecution before the Court of Justiciary in Scotland." 
 
 By all these three Acts, members of either House of Parliament 
 were prohibited, not only from voting, but also from sitting in 
 Parliament during any debate (in the House of Lords generally, in 
 the House of Commons after the choice of a Speaker), and by the 
 Act of Charles II. the disabilities and the penalty were made co- 
 extensive with the prohibition. But in the Acts of William III. 
 and George I. (for whatever reason) the only offence for which the 
 disabilities and the pecuniary penalty were imposed was that of 
 voting without having taken the prescribed oath. It may be that, 
 under these two Acts, a member of Parliament who had not taken 
 the oath, if he sat in either House during debate (though he did 
 not vote) might have been prosecuted for a misdemeanour; but he 
 certainly did not thereby incur the £500 penalty, and he could 
 not have been sued for that offence by a common informer. 
 
 All the later enactments mentioned in the schedule to the Act 
 of 1866 had for their object to change either the matter or the 
 form of the prescribed oaths, sometimes generally, sometimes as 
 to particular classes of persons ; and they are all thereby repealed, 
 so far (and so far only) as they relate to oaths required to be taken 
 by members of the two Houses of Parliament. Most of them 
 extended also to other holders of offices, &c, for the time being 
 required by law to take the prescribed oaths, as to whom the Acl 
 of 1866 did not repeal them. In those later Acts there was 
 nothing new as to penalties ; the provisions on that subject of 
 1 Geo. I. st. 2 c 13 were applied by them to any neglect to take 
 the altered oaths, in terms of reference which it is sufficient to 
 quote from 21 & 22 Vict. c. 48. That Act substituted for the 
 oaths of allegiance, supremacy, and abjuration, in all cases in 
 which they were previously by law required, a new oath to the
 
 678 ACTION (eight of). 
 
 No. 10. — Bradlaugh v. Clarke. 
 
 following effect, — viz., (1) that the person taking it would bear 
 true allegiance to the queen ; (2) that he would do his utmost to 
 disclose all conspiracies, &c. ; (3) that he would maintain to the 
 utmost of his power the succession to the Crown, as settled by- 
 law ; (-1) that he disowned all obedience or allegiance to all pre- 
 tenders; and (5) that he rejected all claims to jurisdiction, &c, 
 by foreign princes or others within this realm. The neglect to 
 take that oath was to be " attended with the like disabilities, in- 
 capacities, penalties, liabilities, and consequences as then " (i.e., in 
 1858) " by law provided in the case of refusal, neglect, or omission 
 to take, or take and subscribe respectively, the oaths of allegiance, 
 supremacy, and abjuration ; and all provisions then in force were 
 to be construed and take effect accordingly." This is the latest of 
 the repealed enactments in which penalties are mentioned. 
 
 If it were proper on this occasion for your Lordships to enter 
 into considerations of policy not apparent upon the face of the 
 Act of 1866, which might possibly be collected or inferred from 
 the prior enactments thereby repealed, I should, for my own part, 
 be unable to found upon the provisions of those prior enactments 
 any safe or satisfactory conclusion that the reasons which may 
 have led the legislature in 1677, 1701, and 1714 to make the 
 pecuniary penalties then imposed recoverable by popular actions 
 (i.e., by a common informer) were also applicable to the legisla- 
 tion of 1866. It is obvious that the provisions (in this and some 
 other respects) of the Acts of Charles II., William IU., and 
 George I. may have been, and probably were, influenced by con- 
 siderations, some of which have now lost their force, — in the first 
 of those reigns, by the want of confidence then felt in the Crown 
 upon the particular subject to which the oath then imposed 
 related ; and in the two latter, by the serious danger to the peace 
 of the realm from the claims and designs of pretenders. What 
 was done under such influences might remain, after those parti- 
 cular considerations had ceased to operate, till the whole law on 
 the subject was deliberately reviewed by the legislature ; but on 
 such a review it might, not improbably, be changed. It is also, 
 to say the least, reasonably probable that motives might exist for 
 giving a right of action to a common informer, when the object 
 was to secure the taking of the prescribed oaths, not only by 
 members of the two Houses of Parliament, but by many official 
 and other persons dispersed throughout the whole community.
 
 SECT. III. — WHERE ADEEMED OH ABRIDGED BY STATUTE. 679 
 
 No. 10. — Bradlaugh v. Clarke. 
 
 which might not have the same force when the oaths to be taken 
 by the members of the two Houses of Parliament were (as they 
 were in the Act of 1866) alone in view. 1 also believe it to he 
 true, as was stated at the bar, that it was much more generally 
 the policy of the legislature in former than in recent times to 
 give penalties imposed by public statutes to common informers. 
 
 When the particular provisions of the Act of 1866 are examined, 
 the danger of importing into them for this purpose a policy 
 supposed to be gathered from the provisions in pari materia of the 
 repealed Acts, becomes, to my mind, still more apparent. In the 
 first place, the test imposed on members of the two Houses of Par- 
 liament was then, for the first time, reduced to the simple oath of 
 allegiance and a promise to maintain the succession to the Crown 
 as settled by law. In the next place, the penal clause (§ 5) of 
 the Act of 1866, itself affords conclusive .proof of, at least, some 
 intentional change of policy. It differs from the corresponding- 
 clauses of the former Acts, not only by omitting the words which 
 in those Acts gave a common informer the right to sue, but also 
 in other most material respects, which cannot be accounted for 
 upon any theory of inadvertence or oversight. The civil disabili- 
 ties and incapacities of 13 Will. III. c, 6 and 1 Geo. I. st. 2 c. 13 
 are not re-enacted ; the forfeiture of £500 is now the sole penalty, 
 with a provision (which was found in the Act of 1677, but not in 
 that of 1701 or 1714) for vacating the seat of an offending 
 member of the House of Commons. The £500 penalty is, under 
 this Act, still made recoverable in any one of the superior courts 
 at Westminster; but not (as under the Act of George I.) in 
 any Scottish court. And this penalty is imposed by the Act of 
 1866 toties guoties for every act of sitting or voting in Parliament 
 without having taken the oaths, which was not done at all as to 
 sitting, and was, at least, not clearly done toties quoties as to 
 voting, by that Act. 
 
 The words of 1 Geo. I. st. 2 c. 13 § 17 are, "If any member 
 of the House of Peers or member of the House of Commons, in 
 this or any succeeding Parliament presume to vote or make his 
 proxy, not having taken the said oath and subscribed the same, 
 every such peer or member so offending . . : shall forfeit the sum 
 of £500," &c. The words of the Act of 1866 are, " If any member 
 of the House of Peers rotes, by himself or his proxy, in the House cf 
 Peers, or sits as a peer during any debate in the said House.
 
 680 ACTION (right of). 
 
 No. 10. — Bradlaugh v. Clarke. 
 
 without having made and subscribed the oath hereby appointed, 
 he shall, for every such offence, be subject to a penalty of £500, 
 &c, and if any member of the House of Commons votes as suclt in 
 the said House, or sits during any debate after the Speaker has been 
 chosen, without, &c, he shall be subject to a like penalty for every 
 such offence,'" The difference between a single penalty (assuming 
 that to have been the proper construction of the Act of George I.) 
 for neglecting to take the oath before voting, and a penalty toties 
 quoties for every act of voting or sitting without having taken the 
 oath, is enormous ; and it may be illustrated by the facts which 
 were before the courts in the present case. The present appellant 
 claimed to be by law entitled to sit and vote after making an affir- 
 mation ; and on the 2nd of July, 1880, he was permitted by the 
 House of Commons to do so, " subject to any liability by statute," 
 7 Q. B. D. 42. The judgment of the Queen's Bench Division, hold- 
 ing that he was bound to swear and was not entitled to affirm, was 
 not pronounced till the 11th of March, 1881. It is, therefore, con- 
 ceivable (whether the fact be so or not) that the appellant might 
 have sat (voting or not voting) in the. House of Commons on every 
 day when that House met during the whole interval between the 
 2nd of July, 1880. and the 11th of March, 1881, which would be 
 about ninety days, making the cumulative penalties incurred by 
 him not less than £45,000. The legislature might well have hesi- 
 tated to place it in the power of every common informer to enforce 
 fines of such enormous amounts as might be incurred under the 
 Act of 18G6, either through some such controversy as that which 
 occurred in the present case, or when (as happened to certain peers 
 who obtained Acts of Indemnity) the necessity for a repetition of 
 the oath by a peer in every new Parliament was not understood. 
 
 The legislature, when making these material and important 
 changes in the provisions and terms of the penal section of the 
 Act of 1866, must, I think, be taken to have had under its eyes 
 the provisions and terms of the penal clauses of the former 
 statutes, and to have deliberately departed from them ; and that 
 with knowledge of the law that every unappropriated penalty goes 
 to the king, and that a common informer cannot have any right 
 to, or interest in, a penalty imposed by a public statute, unless it is 
 given to him either expressly or by a just and reasonable implica- 
 tion from the words which the legislature has used. The whole 
 provisions of the earlier Acts, as to the manner of recovering pen-
 
 SECT. III. — WHERE ADEEMED OR ABRIDGED BY STATUTE. 681 
 
 No. 10. — Bradlaugh v. Clarke. — Notes. 
 
 alties, might easily have been kept alive by proper words of refer- 
 ence, and applied to the new form of oath, as had been done by 
 6 Geo. Ill c. 53, 10 Geo. IV. c. 7^4, and L'l & 22 Vict. c. 48, if that 
 were the intention ; and this, although the civil disabilities and 
 incapacities might have been removed. But it was not done ; new 
 words, omitting the grant of the penalty " to him or them that 
 should sue for the same," were (designedly, as I must take it) used ; 
 and all the former Acts, so far as they related to the oaths to be 
 taken by members of either House of Parliament, were absolutely, 
 and without reservation, repealed. 
 
 I am, for these reasons, of opinion that your Lordships ought to 
 construe the words of the penal clause of the Act of 1866 as they 
 stand, without importing into them any considerations of policy 
 from the provisions of the former Acts as to popular actions, which 
 are not in terms re-enacted. It follows that, in my judgment, the 
 present appeal ought to succeed, and I shall humbly move your 
 Lordships that the judgment appealed from be reversed and the 
 action of the respondent against the appellant be dismissed with 
 costs, and that the respondent do pay the costs of this appeal. 
 
 Lords Blackburn, Watson, and Fitzgerald concurred in the 
 judgment proposed by Lord Selborne, and delivered their reasons 
 at some length. These are for the most part substantially embod- 
 ied in the judgment of Lord Selborne. 
 
 The orders appealed from w r ere accordingly reversed, the actiou 
 dismissed with costs, the respondents to pay the costs of this 
 appeal ; and the cause was remitted to the Queen's Bench Division. 
 
 Lords' Journals, 9th April, 1883. 
 
 ENGLISH NOTES. 
 
 So in Vallance v. Falls (1884), 13 Q. B. D. 109; 53 L. J. Q. B. 459, 
 it was held by a divisional Court of the Queen's Bench Division, that 
 an action cannot be maintained by a seaman against the master of a 
 ship for a refusal to give him a certificate of discharge under the 172nd 
 section of the Merchants Shipping Act, 1854, the only remedy for such 
 refusal being the penalty provided by that section; — and it being pro- 
 vided by another section, that all penalties under the Act may be 
 directed by the court or magistrate imposing them to be applied in 
 compensation of the party injured, and in default of that direction 
 are to be paid into the Exchequer. 
 
 But where an Act of Parliament contains a provision for the special
 
 682 ACTION (kight of). 
 
 No. 11. — St. Pancras v. Batterbury. — Rule. 
 
 protection or benefit of an individual, he may enforce his rights there- 
 under by an action, without either joining the Attorney-General as a 
 party, or showing that he has sustained any particular damage. So in 
 Mayor, &c. of Devonport v. PI //month, &c. Tramways Co. (1884), 52 
 L. T. 161, the Devonport Corporation were held entitled to bring an 
 action for an injunction to restrain the Tramways Company from open- 
 ing or using for public traffic a tramway which, under the Special Act, 
 was not to be opened or used without the consent of that corporation. 
 
 AMERICAN NOTES. 
 
 When a statute does not in terms declare in whose name a suit shall be 
 conducted for the recovery of a penalty, the suit must be in the name of the 
 people. People v. Young, 72 Illinois, -ill; Caroon v. Rogers, 6 Jones Law 
 (Xo. Carolina), 2i0. 
 
 In Slate v. Smith, 49 New Hampshire, 155; 6 Am. Rep. 480, it is said : "In 
 this country the several statutes creating the rewards for the conviction of 
 criminals also often designate the just mode of their distribution. But in this 
 case the statute is silent on this point. It is therefore left for the court to 
 establish a rule of practice that shall do substantia] justice to all in interest. 
 It is very manifest that the court can obtain correct knowledge of the true 
 prosecutor for offences under this Act, in each particular case, only through 
 the medium of the prosecuting officer. In some cases there may be more 
 than one claimant to the same reward. Without specific knowledge, the court 
 will naturally stand on the Massachusetts rule of practice, assuming, until 
 otherwise informed by record testimony, that the State is entitled to the whole 
 of the statute penalty." Citing Commonwealth v. Frost, 5 Massachusetts, 53. 
 
 No. 11. — ST. PANCRAS (VESTRY) v. BATTERBURY. 
 
 (c. p. 1857.) 
 
 RULE. 
 
 Where an Act of Parliament creates a pecuniary obliga- 
 tion, and directs that the amount due shall be ascertained 
 and recovered in a prescribed summary manner, an action 
 does not lie for its recovery. 
 
 St. Pancras (Vestry) v. Batterbury. 
 
 26 L. J. C. P. 243 (s. C. 2 C. B. N. S. 477). 
 
 The declaration stated in effect that a certain sum was due by 
 the defendants to the plaintiffs, as vestryman elected under the
 
 SECT. III. — WHERE ADEEMED OK ABRIDGED BY STATUTE. 683 
 No. 11. — St. Pancras v Batterbury. 
 
 Metropolitan Management Act, 1855 (18 & 19 Vict. c. 120), in 
 respect of the non-repair of a certain new street laid out as therein 
 stated. The defendant demurred ; and supported the demurrer on 
 the ground " that the action is for expenses by Statute 18 & 19 
 Vict. c. 120 directed to be paid, and that a special remedy is pro- 
 vided by §1225 of the said Act, and therefore an action does not 
 lie for them." 
 
 This section (225) is as follows : " In every case where the 
 amount of any damage, costs, or expenses is by this Act directed 
 to be ascertained or recovered in a summary manner, or the amount 
 of any damage, costs, or expenses is by this Act directed to be 
 paid, and the method of ascertaining the amount or enforcing 
 the payment thereof is not provided for, such amount shall in case 
 of dispute be ascertained and determined by, and shall be recovered 
 before, two Justices." 
 
 The question on the demurrer having been argued : — 
 Cockburn, C. J. I am of opinion that this action will not lie, 
 and that the proper remedy is under the 225th section. Where 
 an Act creates a pecuniary obligation and gives a remedy by a 
 particular mode of proceeding, a question, no doubt, will arise 
 on the particular terms in which it is given, whether it is exclu- 
 sive or cumulative. But the language of this section (225) is very 
 peremptory. It says that where the amount of any damage, costs, 
 or expenses is by this Act directed to be ascertained or recovered 
 in a summary manner, or the amount of damage, costs, or expenses 
 is by this Act directed to be paid, and the method of ascertaining 
 the amount or enforcing the payment thereof is not provided for, 
 such amount shall in case of dispute be ascertained and deter- 
 mined by, and shall be recovered before, two Justices. Then the 
 Act, having created a pecuniary obligation, points out in the most 
 positive and peremptory manner the mode in which the obligation 
 shall be enforced, and the amount of the expenses recovered. 
 That clearly points out the way in which the proceedings are 
 to be taken, and one can well understand why. It may be a case 
 in which the owners of a hundred houses are called on to con- 
 tribute to the expense of paving, and disputes may arise where a 
 number may be interested as to the amount which each is to 
 contribute. In such case no question of law can arise, but the 
 question is simply, how much each is to pay. There is no ques- 
 tion of law or of fact requiring the intervention of a jury, and
 
 684 ACTION (right of). 
 
 No. 11. — St. Pancras v. Batterbury. — Notes. 
 
 therefore there cannot be a better tribunal than the one pointed 
 out. On the other hand, if the vestry were to have to issue that 
 number of writs, it would be very inconvenient. 
 
 Cresswell, J. I am of the same opinion, — viz., that the pecuni- 
 ary obligation and the mode of enforcing it are indissolubly united 
 in this act of Parliament. 
 
 Williams, J. I am of the same opinion, for the reasons pointed 
 out by my Lord. Where an act of Parliament creates a right and 
 points out a remedy, no other remedy exists. As to the case in 
 the Exchequer, Sheppard v. Hills (1856), 11 Ex. Rep. 55 ; 25 L. J. 
 Ex. 6, that went on the ground that the particular process did not 
 cover the whole right, and therefore could not have been the 
 remedy which the statute meant to direct. 
 
 WiLLES, J., concurred. Judgment for the defendant. 
 
 ENGLISH NOTES. 
 
 For comparison witli this rule, the judgment of Lord Campbell in 
 Couch v. Steel, cited under Ashby v. White (No. 1, p. 521, 528, ante), 
 may be usefully referred to. 
 
 In Evans v. Manchester, &c. By. Co. (1887). 36 Ch. D. 626; 57 L. 
 J. Oli . 153, it was held by Kekewich, J., that although the company, 
 to whom had been transferred the undertaking of a canal company, were 
 liable for neglect in not repairing the canal after a subsidence caused by 
 mines (which the company might have bought up but did not), and 
 consequent damage to a mill-owner by leakage, yet, as a special mode of 
 obtaining compensation was directed by the old Canal Act, the plaintiff 
 could not maintain an action for an injunction and damages. 
 
 The same principle has been applied to cases where a new statutory 
 jurisdiction has been created, with specific means of enforcing it by the 
 court having the jurisdiction. The judgment of such a court does not 
 create a debt on which an action can be maintained. So it has been 
 decided in regard to the county courts, Berkeley v. Elderhin (1853), 1 
 E. & B. 805; 22 L. J. Q. B. 281. And in regard to an order for 
 alimony made by the Probate Division of the High Court under the 
 jurisdiction created by the Divorce Act, 20 & 21 Vict. c. 85 (§§ 6, 52), 
 Bailey v. Bailey (1884), 13 Q. B. D. 855; 53 L. J. Q. B. 583. In the 
 last-mentioned case it is pointed out by Bowex, L. J., that the de- 
 cision was in accordance with the principle laid down in Hutchinson 
 v. Gillespie (1856), 11 Ex. 798; 25 L. J. Exch. 103, which was an 
 action to recover costs awarded by a final order of the Judicial Com- 
 mittee of the Privy Council. The Statute in that case, 3& 4 Win. IV.,
 
 SECT. III. — WHERE ADEEMED OK ABRIDGED BY STATUTE. 685 
 No. 11. — St. Pancras v. Batterbury. — Notes. 
 
 c. 41. directs that such costs shall be paid as the Judicial Committee 
 direct, but does not give a specific remedy; and the Court held thai they 
 might be recovered in an action for debt. " It is a well known rule," 
 says Baron Martin (11 Ex. 814), "that, it' a statute directs a sum of 
 money to be paid, unless a specific remedy be given, debt may lie main- 
 tained for its recovery." A similar point came into question in West' 
 moreland Green, &c, Blue Slate Co. v. Fielden (C. A. 1891), 3Ch. 15; 
 (Id L. ,1. Ch. 680, where the company (in liquidation) sued for calls, 
 and a defence was raised on the ground that the liquidator had, in re- 
 spect of the calls, already obtained a balance order under the provisions 
 of The Companies Act, 186L\ It was held that the summary order was 
 not prescribed as the only mode of recovering the calls, nor could the 
 debt he merged in the order as if it were a final judgment; and that the 
 action might be maintained. 
 
 AMERICAN NOTES. 
 
 Where by a statute a new offence is created, and a penalty is given for it, 
 or a new right and specific relief given for the violation of such right, the pun- 
 ishment or remedy is confined to that given by the statute. Andooer ; V Med ford 
 Turnpike v. Gould, li Massachusetts, 44 ; Bangor House Proprietary v. Hinckley, •'! 
 Fairfield (Maine), 388; Moncriefv Ely, 19 Wendell (New York), 405 ; C rosin/ 
 v. Bennett, 7 Metcalf (Mass.), 17; Smith v. Lock-wood, 13 Barbour (New York 
 Supreme Ct.), 209; Dudley v, Mayhew, 3 New York, 9. In the latter case it 
 was held that the Federal courts alone have jurisdiction to restrain infringe- 
 ments of patents. The court said: "The remark made by Lord Holt in 
 Eiver v. Jones, 2 Salk. 415, that whenever a statute gives a right the party 
 shall by consequence have an action at law to recover it, is undoubtedly cor- 
 rect when applied to cases where the statute does not give any remedy to the 
 proprietor for the invasion of his property or right. The principle that where 
 a statute confers a right and prescribes adequate means for jirotecting it, the 
 proprietor is confined to the statutory remedy, is conformable to the manifest 
 intention of the legislature in such cases, and has therefore been properly 
 settled in the courts of England and in this country." See Smith v. City of 
 Albany, 7 Lansing (New York Supreme Ct.), 17; Calking v. Baldwin, 4 Wen- 
 dell (New York), 667. The last was an action for flowing lands by means of 
 a dam, and it was held, that as the dam was erected by virtue of the Act of 
 the legislature for the improvement of the navigation of the river, and the Act 
 provided for compensation for damages, the party injured was restricted to the 
 statutory form of remedy. Marcy, J., said : " The rule of construction, that 
 if a statute gives a remedy in the affirmative, without a negative expressed 
 or implied, for a matter which was actionable at common-law, the party is not 
 deprived of his common-law remedy, but may elect to take it or that offered 
 by the statute, does not, I apprehend, apply to acts done by the express au- 
 thority of the legislature for a public purpose. The legislature have prescribed 
 the mode in which the damages of the plaintiff shall be ascertained, and in 
 that mode only can they properly seek compensation."
 
 686 ACTION (lllGHT OF). 
 
 No. 12. — Lloyd's v. Harper. — Rule. 
 
 Section IV. — Arising out of Contract ivith Third Person. 
 
 No. 12. — LLOYD'S v. HARPER. 
 
 (c. a. 1880.) 
 
 No. 13. — In re EMPRESS ENGINEERING Co. 
 
 (c. a. 1880.) 
 
 RULE. 
 
 It is an established rule of law that where a contract is 
 made between A. and B., whereby B. promises payment or 
 performance to A. for the benefit of C, A. can sue on the 
 contract and recover all that C. could have recovered if 
 the contract had been made with C. himself. 
 
 And, A. being in such a case a trustee for C, C. is, in a 
 court of equity, himself entitled to sue as plaintiff. 
 
 But where there is a mere contract between A. and B. 
 that one of them shall pay a sum of money to C, that gives 
 no right of action to C. either at law or in equity. 
 
 Lloyd's v. Harper. 
 
 16 Ch. D. 290 (s. c. 50 L. J. Ch. 140). 
 
 In May, 1863, Robert Henry Harper was a candidate for election 
 as an underwriting member of Lloyd's, and on the 19th of May, 
 1863, his father, Samuel Harper, who had been himself a member 
 of Lloyd's for many years, wrote a letter to the committee of Lloyd's 
 as follows : — 
 
 " My son, Mr. Robert Henry Llarper, being a candidate for admis- 
 sion to Lloyd's as an underwriting member, I beg to tender my 
 guarantee on his behalf, and to hereby hold myself responsible for 
 all his engagements in that capacity." 
 
 R, H. Harper was thereupon elected by the committee, and ad- 
 mitted as an underwriting member of Lloyd's, and he thenceforth 
 proceeded to contract engagements in that capacity, by underwriting 
 and becoming liable upon policies of marine insurance to various
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 687 
 
 No. 12. — Lloyd's v. Harper. 
 
 persons, until he stopped payment in November, 1878. The busi- 
 ness of underwriting members of Lloyd's consisted to a great extent 
 in underwriting policies of insurance in favour of merchants and 
 others who were not members of Lloyd's, such policies being effected 
 through the agency of insurance brokers who were members or 
 subscribers. 
 
 The preamble of Lloyd's Act, 1871, contained a recital that the 
 society was regulated by a deed of association of the 30th of Au- 
 gust, 1811, " which deed, or a deed of accession referring thereto, 
 has usually been from time to time executed by the several 
 members of the society," and the Act contained {inter alia), the 
 following provisions : — 
 
 Sect. 1 provided that on the passing of the Act the deed of the 30th 
 of August, 1811, and any deed of accession thereto, should be an- 
 nulled. Sect. 2 provided that the then members of the committee 
 and all persons admitted as members of Lloyd's before or after the 
 passing of the Act should be thereby united into a society and corpo- 
 ration for the purposes of the A.ct, and for those purposes should be 
 thereby incorporated by the name of " Lloyd's," and by that name 
 should be one body corporate with perpetual succession. 
 
 Sect. 4. " All property and rights of or to which the committee 
 for managing the affairs of Lloyd's, or any person on their behalf, 
 or any trustee for that committee or for the members of Lloyd's, 
 are or is possessed or entitled at law or in equity at the passing of 
 this Act, shall, by virtue of this Act, belong to the society to the 
 same extent and for the same estate and interest as the same re- 
 spectively is and are at the passing of this Act vested in that com- 
 mittee, person, or trustee, and may be held, used, and enjoyed 
 accordingly; and all trustees for the establishment or society as it 
 existed before the passing of this Act, or for that committee, shall 
 be and continue trustees for the society, as nearly as may be as if 
 this Act has not been passed." 
 
 Sect. 5. " Notwithstanding the annulling by this Act of the afore- 
 said deeds of association and accession, and the incorporation by this 
 Act of the society, all deeds of trust, leases, mortgages, bonds, con- 
 tracts, agreements, securities, transfers, and other acts and; things 
 before the passing of this Act made, entered into, executed,jor done 
 by or with the committee for managing the affairs of Lloyd's or any 
 person or trustee as aforesaid, shall be as good, valid, and effectual 
 to all intents for, against, and with reference to the society, as they
 
 688 ACTION (right of). 
 
 No. 12. — Lloyd's v. Harper. 
 
 would have been for, against, or with reference to such committee 
 if this Act had not been passed, and may be proceeded on, executed, 
 used, dealt with, and enforced accordingly, the society being only 
 substituted in or in relation' thereto respectively for such com- 
 mittee." 
 
 Sect. 22. " If any member of the society becomes bankrupt or 
 insolvent, or suspends payment, or places his affairs in the hands of 
 inspectors or trustees, or proposes any composition with his credi- 
 tors, he shall thereupon cease to be a member." 
 
 Sect. 25. " No by-law shall be made by the society providing 
 for exclusion from membership of the society for any cause." 
 
 Sects. 36 and 37 contained provisions for the indemnity of the 
 trustees of the corporation out of its capital stock and by the mem- 
 bers similar to the provisions for that purpose contained in the deed 
 of the 30th of August, 1811. The Act also provided that the affairs 
 of the society should be managed by a committee. 
 
 Samuel Harper died on the 15th of September, 1876, and notice 
 of his death was shortly afterwards given to the committee of 
 Lloyd's. 
 
 This action was commenced in March, 1879, by Lloyd's and a 
 firm of R. S. Jones, Price, & Co., as plaintiffs, against the executors 
 of Samuel Harper (of whom R. H. Harper was one) as defendants. 
 R. S. Jones, Price, & Co. were insurance brokers, to whom at the 
 time of his failure R. H. Harper was indebted in the sum of £134 
 8s. 5d. on the balance of an account in respect of policies under- 
 written by him after the death of Samuel Harper. 
 
 The plaintiffs alleged that R. H. Harper had also, as a member 
 of Lloyd's, underwritten policies effected by other persons to a 
 large amount, and that considerable sums of money were due and 
 owing from him upon such policies, and that some of the persons 
 to whom those sums were due had called upon the plaintiffs, 
 Lloyd's, to enforce for their benefit the guarantee given by Samuel 
 Harper. 
 
 The plaintiffs claimed a declaration that the death of Samuel 
 Harper did not operate to revoke the guarantee, and that the de- 
 fendants might be ordered to pay to R. S. Jones, Price, & Co. the 
 amount due to them under the guarantee, and that the persons 
 entitled to the benefit of the guarantee and the amounts of their 
 claims respectively might be ascertained and determined, and that 
 the defendants might be ordered to pay the same, and that their
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. G89 
 
 No. 12 — Lloyd's v. Harper. 
 
 liability upon the guarantee might be discharged. Also that the 
 defendants might admit assets of their testator, or else that his 
 estate might be administered by and under the direction of the 
 court. 
 
 By their statement of defence the defendants insisted that, at 
 any rate from the time when the committee of Lloyd's became 
 aware ^f the death of the testator, no liability was incurred by his 
 estate under the guarantee in respect of any contract afterwards 
 entered into by 11. H. Harper; that Lloyd's were under no liability 
 in respect of any of the policies underwritten by R. H. Harper ; 
 and that the persons to whom moneys were due in respect of 
 policies underwritten by R. H. Harper had no right to require 
 Lloyd's to enforce for their benefit the testator's guarantee. The 
 defendants also insisted that there was no privity of contract between 
 the testator's estate and the firm of Jones, Price, & Co., or any of 
 the members thereof. 
 
 On the trial before Fry, J., evidence was given as to the practice 
 of the committee of Lloyd's (previously to their incorporation) as 
 to obtaining guarantees; and the question of the plaintiff's right 
 to recover upon the guarantee having been argued, and reserved 
 for further consideration, judgment was given as follows: — 
 
 Fry, J. I reserved this case for further consideration on one 
 point, — viz., how far substantial damages can be recovered by the 
 plaintiffs, Lloyd's, with whom the engagements against which 
 the indemnity was given were not contracted. In my opinion the 
 action can be maintained for the whole amount covered by the 
 guarantee. It appears to me from the cases which were cited in 
 the course of the argument, especially Tomlinson v. Gill, Amb. 330; 
 and Lamb v. Vice, 6 M. & W. 467, that where a contract is made for 
 the benefit and on behalf of a third person, there is an equity in 
 that third person to sue on the contract, and the person who has 
 entered into the contract may be treated as a trustee for the person 
 for whose benefit it has been entered into. 
 
 In the present case I think the application of that principle is 
 particularly clear. The contract was made with the committee 
 of Lloyd's, — that is, with the agents of the subscribers to Lloyd's. 
 Now, all the engagements which are covered by the guarantee 
 are either engagements with subscribers to Lloyd's or engage- 
 ments with strangers, hut made through the intervention of sub- 
 scribers to Lloyd's. Now, in the first case, that of engagements 
 vol. i. — 44
 
 690 ACTION (right of). 
 
 No. 12. — Lloyd's v. Harper. 
 
 with subscribers to Lloyd's, it appears to me to be clear that the 
 subscribers have a right to call on their agents, the committee or 
 the corporation, to enforce the contract which they entered into 
 with the testator for the benefit of those subscribers. In the 
 second case, that of engagements with strangers effected through 
 the intervention of subscribers, I think that each outsider has a 
 right to require his agent, the insurance broker, to call upon his 
 agents, the committee or corporation, to enforce the bargain for 
 the benefit of the outsider. In that way, it appears to me that 
 all those persons for whose benefit the contract was really entered 
 into are entitled to call on Lloyd's, to enforce it. Lloyd's, there 
 fore, are trustees, and are entitled to judgment for the entire sum 
 covered by the guarantee. 
 
 There will therefore be a declaration that, according to the true 
 construction of the guarantee, the estate of Samuel Harper is 
 liable to satisfy all engagements contracted by Eobert Henry 
 Harper, in his character of an underwriting member of Lloyd's, 
 down to the time of his suspension of payment, and not satisfied 
 by him, whether such engagements were contracted with members 
 of or subscribers to Lloyd's, or with any other persons, and whether 
 during the life of Samuel Harper or after his death. Then there 
 will be an inquiry as to the amount of those engagements and 
 what is payable in respect to them, and to whom, and a direction 
 for payment accordingly. 
 
 The defendants appealed from this judgment, and the appellants, 
 having been heard before the Lords Justices James, Cotton, and 
 Lush, they delivered judgment as follows : — 
 
 Nov. 15, 1880. James, L. J. We have had an opportunity of 
 considering this case since it was on before, and we need not call 
 on the respondents. 
 
 The facts of the case are these : A gentleman of the name of 
 Harper was minded to be introduced as what was called an under- 
 writing member of Lloyd's Association, and in accordance with 
 the custom which had been introduced some years before, and 
 was in existence at that time, the committee before they admitted 
 him to that position required a guarantee. His father, who was 
 at that time, I believe, himself an underwriting member of Lloyd's, 
 gave the guarantee to the committee in the following words: 
 "My son, Eobert Henry Harper, being a candidate for admission to 
 Lloyd's as an underwriting member, I beg to tender my guarantee
 
 SKCT. IV. — CONTRACT WITH THIRD PERSON. 691 
 
 No. 12. — Lloyd's v. Harper. 
 
 on his behalf, and to hereby hold myself responsible for all his 
 
 engagements in that capacity," 
 
 The first question which was raised on this appeal was, that 
 *ipon the construction of that guarantee it did nut extend to any 
 liability under which the son might conic to the outside world, 
 but was confined to engagements which he might be under to in- 
 demnify the society itself, — i. e., to what might be called internal 
 engagements. It appears to us to be impossible to put that con- 
 struction on the guarantee. The words are "engagements in that 
 capacity." In what capacity ? In the capacity of an underwriting 
 member. As it seems to me, neither the committee nor Mr. Harper, 
 the father, who gave the guarantee, nor the son, could at the time 
 doubt that what were meant to be guaranteed were the engage- 
 ments the son might enter into as underwriter with the outside 
 world, so as to prevent any default which would have redounded 
 to the injury and discredit of the association ; and it is clear to my 
 mind that such is the true construction of the guarantee. 
 
 That being so, is there any limit to the guarantee ? It was con- 
 tended that it was limited to the lifetime of the guarantor. It 
 appears to me impossible to say that it was so limited. It applies 
 in terms to "all engagements in that capacity." Whether the en- 
 gagements were entered into before or after the death of the 
 father, it appears to me utterly impossible to say they were not 
 engagements entered into by the son in the capacity of an under- 
 writing member. The representatives of Mr. Harper are bound by 
 Air. Harper's guarantee, just as if he had entered into a covenant 
 to indemnify a lessor .against the breach by the lessee of the 
 covenants of a lease. In order to support the contention that the 
 guarantee was ipso facto determined at the death of the guarantor, 
 it was contended that the guarantor could himself in his life- 
 time have revoked the guarantee, and that therefore it must be 
 assumed that his death would operate in the same manner, — that is 
 to say, it is said we must assume that the executors, as it was their 
 duty to do, have revoked the guarantee, and that matters are to be 
 ■on thesame footing as if the testator had exercised the option to 
 determine it. Now, the foundation of that contention appears to 
 me utterly to fail. The testator, in my opinion, could not have 
 determined the guarantee, and in that respect the case differs es- 
 sentially from the case of Coulthart v. Clementson, 5 Q. B. J). 42, 
 in which Mr. Justice Bowen followed the decision in Harriss v.
 
 692 ACTION (right of). 
 
 No. 12. — Lloyd's v. Harper. 
 
 Fawceit, Law Kep. 15 Eq. 311 ; ib. 8 Ch. 866, with regard to the 
 effect of death in determining a guarantee. In those cases there is 
 this distinction (whether it is sufficient to sustain them or not), 
 that each advance of goods was a separate consideration. It may 
 be considered equitable and right that where a man is not under 
 any obligation to make further advances or to sell further goods, 
 a person who has guaranteed repayment of such advances or pay- 
 ment of the price of the goods, may say, " Do not sell any further 
 goods or make any further advances ; I give you warning that you 
 are not to rely upon my guarantee for any further advances which 
 you make, or for any further goods you sell." That might be in 
 many cases a very equitable view. It perhaps might be hardly 
 equitable for a banker or merchant to go on making advances after 
 receiving a distinct notice from the guarantor that he would not 
 be further liable. But here the consideration is given once for all, 
 just as in the case of the granting a lease in which a third party 
 guarantees the payment of the rent and the performance of the 
 covenants. The father undertakes that if the son is admitted to 
 the status of an underwriting member, he, the father, will guarantee 
 all the son's engagements as such member. The moment the son 
 was admitted to that status he became entitled to retain it until 
 he had done some act which under tie rules deprived him of his 
 right to retain it. If the testator could at any time have deter- 
 mined the guarantee, he could have determined it the next day. The 
 moment the son was admitted to the status of an underwriting 
 member with all its privileges, if the father was at liberty to say ? 
 " I withdraw the guarantee," then the guarantee would have been 
 utterly futile and idle. If it could not be determined by him the 
 next day, there would be no time at which he could have a power 
 of determining it. That being so, it appears to me that his estate 
 is still liable for all the engagements which the son entered into 
 with the persons who effected policies of insurance with him. 
 
 The only other point was one of a rather technical character. 
 The defendants say, " You Lloyd's have sustained no loss, and can 
 only recover nominal damages, because you can only recover for 
 your own loss and not for the losses sustained by other persons." 
 That might be true if Lloyd's were not trustees, but I am of opin- 
 ion that Mr. Justice Fry was well warranted in the conclusion at 
 which he arrived, that the engagement was made with the com- 
 mittee as trustees for and on behalf of the persons beneficially in-
 
 SECT. IV. — CONTRACT WITH THIRD PKRSON. 693 
 
 No. 12. — Lloyd's v. Harper. 
 
 fcerested. That brings the case within the authorities, of which there 
 are more than one, — viz., Gregory v. Williams, •'! Mer. 582, before 
 Sir William Grant, Lamb v. Vice, 6 M. & W. 4(17, and many other 
 oases which proceed on an obvious principle, that if A. is trustee 
 for B., A. can sue on behalf of B. It is a very common case for a 
 person to enter into a policy of insurance with a broker on behalf 
 of the persons interested, — it is one of the common forms of policy 
 of Lloyd's itself, — and nobody ever supposed that a broker could 
 not sue on such a policy for the benefit of the persons interested. 
 It appears to me, therefore, that that contention fails. 
 
 Then it was said that Lloyd's cannot sue because they are not 
 the persons with whom the contract was made ; but the act of 
 Parliament has transferred to Lloyd's as a corporation all the en- 
 gagements which were entered into with the committee, or any 
 person on their behalf. It is said that this enactment only ap- 
 plied to the committee existing at the time the Act was passed ; 
 but the old committee, in whom the right was vested, held it on 
 behalf of the new committee, and it appears to me that, according 
 to the plain meaning of the Act, the right was transferred to and 
 vested in the corporation as the successor of the managing bodies 
 which existed before their incorporation. Therefore, it appears to 
 me that every contention on the part of the appellants lias failed, 
 and that the judgment of Mr. Justice Fry must be affirmed with 
 costs. 
 
 Cotton, L. J. I am of the same opinion. The last point men- 
 tioned by Lord Justice James, if it was a good one, went entirely 
 to the root of the action, — viz., that the plaintiffs could not sue at 
 all, because the right under the guarantee was not vested in them. 
 But the 4th section of the act of Parliament, which incorporated 
 the present Lloyd's Association, provides that "all property and 
 rights of or to which the committee for managing the affairs 
 of Lloyd's, or any person on their behalf, are or is possessed or 
 entitled at law or in equity " shall be transferred to the cor- 
 poration. Now, although the committee at the time when this 
 guarantee was entered into were not the committee at the time the 
 Act was passed, the surviving members had this right of action 
 vested in them on behalf of the then committee, and therefore the 
 right of suing under this guarantee became vested in the plaintiffs, 
 Lloyd's. 
 
 The first point to be considered is the construction of the guar-
 
 694 ACTION (right of). 
 
 No. 12. — Lloyd's v. Harper. 
 
 antee. I have hardly anything to add upon that. There were two* 
 sets of members of Lloyd's, — underwriting and subscribing mem- 
 bers. Here the guarantee recites or states that the son proposes, 
 or desires to be admitted as an underwriting member, and it is a 
 guarantee for all his engagements in that capacity. It was said 
 that this was limited and confined to his engagements with mem- 
 bers of the society, but there is nothing so to limit it. It refers, 
 to all his engagements in the capacity of an underwriting member- 
 Were not his engagements on the policies which he underwrote as 
 an underwriting member of Lloyd's engagements in his capacity of 
 an underwriting member ? In my opinion they were. 
 
 Then it was said that this was a contract only with a committee 
 managing the affairs of Lloyd's, and was to be taken as only guar- 
 anteeing the son's engagements with that committee. But — and 
 this is material on another point — the committee were, in my 
 opinion, obtaining this guarantee not only on their own behalf (for 
 of course this guarantee would cover all engagements with them 
 made by Mr. Harper, Jan., as an underwriting member), but for the 
 benefit of all those with wjiom Mr. Harper, Jun., should enter into 
 contracts of insurance; and, that being so, the words cannot De- 
 limited so as to confine them to engagements with the managing 
 committee of Lloyd's. 
 
 I will next take the question of damages. It is said that, as- 
 suming this guarantee to apply to all the son's engagements as an 
 underwriting member, yet the plaintiffs can get nominal damages 
 only. The answer is this, that the plaintiffs are suing here as trus- 
 tees for the benefit of all those with whom Mr. Harper, Jan., entered 
 into contracts of insurance. That is quite supported by the cases re- 
 ferred to in the judgment of Mr. Justice Fry, — Gregory v. Williams, 
 3 Mer. 582, before Sir William Grant, and the older case of Tom- 
 linson v. Gill, Amb. 330, before Lord Hardwicke. It appears from 
 the note to 3 Mer. that in Tomlinson v. Gill the plaintiff was a cre- 
 ditor, and Lord Hardwicke puts his decision upon the ground 
 that the person with whom the contract was entered into must be 
 treated as a trustee for all the creditors, and that therefore the ces- 
 tuisque trust could sue in equity. Lord Hardwicke is represented 
 as saying, " The plaintiff is proper for relief here for two reasons. 
 He could not maintain an action at law, for the promise was made 
 to the widow ; but he is proper here, for the promise was for the 
 benefit of the creditors, and the widow is a trustee for them."
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 695 
 
 No. 12. — Lloyd's v. Harper. 
 
 This principle is, I think, a good and sound one, and one upon which 
 we can properly act, and are bound to act in the present case, treat- 
 ing the plaintiffs, Lloyd's, as trustees for those fur whose benefit 
 this contract was entered into. 
 
 There is only one other point, and that partly turns upon the 
 construction of this document and partly on what was said to be 
 the law as regards guarantees. It was said that this guarantee was 
 determinable, and was determined by notice of the death of Mr. 
 Harper, Sen. In my opinion that cannot prevail. When we look 
 at the contract itself, it is in its terms entirely unlimited as regards 
 the time during which the engagements guaranteed were to be en- 
 tered into. It is a guarantee given in consideration of an act once for 
 all done by the persons to whom the guarantee was given, — that 
 is to say, it was a guarantee given in the event of Lloyd's admitting 
 the son into their association. That is a thing which is done once 
 for all ; and if the guai'antee was recalled or put an end to the son 
 could not, under any of the rules of Lloyd's, be turned out of the 
 association because the guarantee was determined. Such determi- 
 nation was not provided for by the rules, and the association could 
 not say that by reason of it the son had ceased to be a member of 
 Lloyd's. In fact, it appears that at that time there was not a uni- 
 versal practice that there should be such a guarantee. 
 
 Now, how is it made out that the guarantee was determined by 
 notice of death ? It is said that the authorities have established 
 this, that where there is a continuing guarantee for advances from 
 time to time to be made to another person, that guarantee can be 
 determined by the grantor during his life and is put an end to by 
 notice of his death. I give no opinion upon the question how far 
 that is a correct statement of the law, because the point may come 
 before the Court of Appeal, and I do not wish to fetter myself by 
 saying anything on the subject in a case where the point does not 
 arise ; but, assuming that the law is so, it must be on the ground 
 that under such a guarantee the advances are not made in pursuance 
 of a request made once for all by the parties who give the guaran- 
 tee, but in pursuance of a request supposed to be made by them 
 from time to time as the advances are made, and that if before any 
 particular advance is made the person giving the guarantee informs 
 the person making the advance that he withdraws the guarantee, 
 the advance is not made at his request, and he therefore is not liable 
 for it. It may in such a case be, although I give no opinion upon
 
 696 ACTION (right of). 
 
 No. 12. — Lloyd's v. Harper. 
 
 it, that death and notice of death are sufficient to determine a guar- 
 antee as regards subsequent advances. That, however, will have no 
 application to a case where the consideration given by Lloyd's com- 
 mittee was given once for all by admitting the son into this associa- 
 tion. When that was done there was no power on the part of Mr. 
 Harper, who gave the guarantee in consideration of their so admit- 
 ting the son, to withdraw from the contract he had entered into to 
 be answerable for all engagements entered into by his son as an 
 underwriting member. In my opinion none of the objections can 
 prevail, and this appeal must be dismissed. 
 
 Lush, L. J. The primary and substantial ground of defence put- 
 forward here is that the guarantee given by Mr. Samuel Harper in 
 consideration of his son being admitted as an underwriting member 
 of Lloyd's expired with his death on notice of the death being com- 
 municated to the committee. Now, it will be found, I think, that 
 guarantees may, for the purpose of this case, be divided into two 
 classes, the one in which the consideration is entire, and the other 
 in which the consideration is fragmentary, supplied from time to 
 time, and therefore divisible. An instance of the first is where a 
 person enters into a guarantee that in consideration of the lessor 
 granting a lease to a third person he will be answerable for the 
 performance of the covenants. The moment the lease is granted, 
 there is nothing more for the lessor to do ; and such a guarantee as 
 that of necessity runs on throughout the dtiration of the lease. The 
 lease was intended to be a guaranteed lease, and it is impossible to 
 say that the guarantor could put an end to the guarantee at his 
 pleasure, or that it could be put an end to by his death, contrary to 
 the manifest intention of the parties. Another illustration of it is 
 found in the case upon which Mr. Justice Fey relied (of Calvert v. 
 Gordon, 3 Man. & Ry. 124), which is one of a precisely similar kind 
 There the defendant, in consideration that the plaintiff would take 
 into his service a given individual as collector and clerk in a re- 
 sponsible position, guaranteed that he would be answerable for his 
 fidelity as long as he continued in that service. It was held, and, 
 as I think, rightly, by the Court of Queen's Bench, that that guar- 
 antee could not be put an end to as long as the service continued. 
 The consideration there was admitting the young man into the 
 service of the plaintiff in that capacity, and that being done, it was 
 to be a guaranteed service as long as he remained there. The guar- 
 antee, therefore, necessarily continued until the service ended.
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 691 
 
 No. 12. — Lloyd's v. Harper. 
 
 Instances of the second class are more familiar. They are where 
 a guarantee is given to secure the balance of a running account at 
 a banker's, or a balance of a running account for goods supplied. 
 There the consideration is supplied from time to time, and it is 
 reasonable to hold, unless the guarantee stipulates to the contrary, 
 that the guarantor may at any time terminate the guarantee. He 
 remains answerable for all the advances made or all the goods sup- 
 plied upon his guarantee before the notice to determine it is given ; 
 but at any time he may say, " I put a stop to this ; I do not 
 intend to be answerable any further, therefore do not make any 
 more advances or supply any more goods upon my guarantee." As 
 at present advised, I think it quite competent for a person to do 
 that where, as I have said, the guarantee is for advances to be 
 made or goods to be supplied, and where nothing is said in the 
 guarantee about how long it is to endure. In that case, as at 
 present advised, I cannot entertain a doubt that the judgment of 
 Mr. Justice Bowen in Coulthart v. Clemcntson, 5 Q. B. D. 42, is 
 perfectly right, that notice of the death of the guarantor is a notice 
 to terminate the guarantee, and has the same effect as a notice 
 given in the lifetime of the guarantor that he would put an end 
 to it. 
 
 Now, the question is, to which class does the guarantee in ques- 
 tion here belong ? Mr. Harper was to be admitted an under- 
 writing member at Lloyd's. At that time Lloyd's was not an 
 incorporated body, but the by-laws then in force made no provision 
 whatever for Lloyd's expelling an underwriting member when once 
 admitted, except for some default or crime of his own ; there was 
 not a word about guarantee, and the Act which incorporates Lloyd's 
 in 1871 itself specifies the contingencies upon which members may 
 be expelled, and every one of them is for some act or default of the 
 underwriting member himself. The Act authorises the society to 
 admit a member upon any terms they think proper, but it does not 
 authorise them to expel a member when once admitted, except, as 
 I have said, for the specified defaults or misdeeds enumerated in the 
 Act; and the Act expressly says that no by-laws shall be made by 
 the society providing for exclusion from membership of the society 
 in any case. It followed, therefore, that as soon as this young gen- 
 tleman was admitted he acquired a right to remain an underwrit- 
 ing member until by some act or default of his own he forfeited his 
 right to that position. The withdrawing of the guarantee would
 
 698 ACTION (right of). 
 
 No. 12. — Lloyd's v. Harper. 
 
 not alter his status ; the association could not turn him out on that 
 ground, and that enables us to put a meaning upon the guarantee. 
 The guarantee says, " I beg to tender my guarantee on his behalf, 
 and to hereby hold myself responsible for all his engagements in 
 that capacity." The association had no power to put an end to the 
 son's position as an underwriting member until he had by some act 
 forfeited his right to that position. Of necessity, therefore, the 
 guarantee must endure as long as he continued an underwriting 
 member, because the manifest intention of the parties was that all 
 his enfrayeinents as an underwriter should be guaranteed en<>ac;e- 
 ments. Therefore, I conclude without a particle of doubt that this 
 was a guarantee which the guarantor himself could not put an end 
 to, and which, consequently, was not put an end to by his death, 
 but that it must endure as long as the status of Robert Henry 
 Harper as an underwriting member continues. 
 
 Then the next question which, no doubt, is a very important and 
 substantial one, is, that Lloyd's, having sustained no damage them- 
 selves, could not recover for the losses sustained by third parties 
 by reason of the default of Robert Henry Harper as an underwriter. 
 That, to my mind, is a startling and an alarming doctrine, and a 
 novelty, because I consider it to be an established rule of law that 
 where a contract is made with A. for the benefit of B., A. can sue 
 on the contract for the benefit of B., and recover all that B. could 
 have recovered if the contract had been made with B. himself. 
 The books afford innumerable instances of the application of this 
 doctrine. Lloyd's policies, from the time that Lloyd's was estab- 
 lished, have been always made in the name of the insurance broker 
 on printed forms. The broker insures for the benefit of all whom 
 it may concern, and the broker can bring an action, and is the per- 
 son to sue and recover according to the interest of the parties. It 
 is true that the person who employed him has a right, if he pleases, 
 to take action himself and sue upon the contract made by the 
 broker for him, for lie is a principal party to the contract. If the 
 subject-matter of the policy is sold with the benefit of the policy, 
 the purchaser cannot sue, because he was not a party to the con- 
 tract ; but the assured, the assignor, may in this case sue upon the 
 policy for the benefit of the person to whom he assigned it. That 
 is the doctrine which runs through the whole of our law. I con- 
 fess 1 heard the point pressed with something like surprise. I 
 have not the slightest doubt that in this case Lloyd's could recover.
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 699 
 
 No. 13. — In re Empress Engineering Co. 
 
 The very object of making them the parties to the contract was 
 that they should recover for the benefit of all the persons who had 
 sustained losses upon the default of Robert Henry Harper. 
 
 Then there were other questions which were hardly, I think, 
 seriously pressed. It was argued that "all" engagements here did 
 not include engagements as an underwriter, although the words are 
 " all his engagements in that capacity," — that is, the capacity of an 
 underwriter, — but that the words only meant the obligations which 
 every member incurs; viz., to pay dues and subscriptions to the 
 committee. I do not think that this argument needs any further 
 answer than that which has been given to it in the co.urse of the 
 argument. 
 
 There is this one other point as to the right of the corporation 
 of Lloyd's to sue. I think what Lord Justice Cotton has already 
 said, referring to the terms of the act of Parliament, is enough to 
 make it, to my mind, perfectly clear that all the rights of action 
 which at the time the Act passed were vested in Lloyd's committee, 
 or in the survivors of those gentlemen who formed the committee 
 when this contract was made, passed over to the body corporate, 
 and that they have a right to bring an action. 
 
 I think, therefore, on every ground, the judgment of Mr. Justice 
 Fry ought to be affirmed. 
 
 In re Empress Engineering Co. 
 10 Ch. 1). 1:25. 
 
 This was an appeal by -Jones & Pride from a decision of the 
 Vice-Chancellor of the Court of Chancery of the County Palatine 
 of Lancaster. 
 
 By an agreement dated the 2nd of May, 1879, made between 
 Glasier and Archer of the one part, and J. H. T. Cottier, for and 
 on behalf of a company intended to be registered as a limited 
 company and to be called "The Empress Engineering Company," 
 of the other part, reciting that Glasier and Archer had acquired 
 the right of manufacturing "the Empress water motor" and had 
 for some time past carried on the manufacture thereof upon the 
 premises therein mentioned, and that the memorandum of associa- 
 tion of the company had been prepared and that the nominal capital 
 was to be £10,000 in 2000 shares of £5 each, it was agreed that 
 <21asier and Archer should sell and the company should purchase
 
 700 ACTION (right of). 
 
 No. 13. — In re Empress Engineering Co. 
 
 for £3000, to be discharged in 600 fully paid-up shares of £5 each 
 in the company, all the right of the vendors to manufacture " the 
 Empress water motor," and the assets of the business. By clause 
 8 it was stipulated that the costs of and incidental to the agree- 
 ment, and all preliminary and other costs, charges, and outgoings, 
 disbursements, and expenses, either before or after the company 
 should have been registered, should be borne and paid by the 
 company. Clause 9 : " The sum of sixty guineas shall be paid to 
 Messrs. Jones & Pride, solicitors, Liverpool, by the company for 
 the incorporation thereof, such sum to include only the prepara- 
 tion of the necessary documents and printing thereof for registration 
 and registration fees and London agents' charges." This agreement 
 was duly registered. 
 
 The company was incorporated without articles under a memo- 
 randum of association, dated the 9th of May, 1879, which stated 
 its object to be, (1) to give effect to and carry into execution the 
 above agreement of the 2nd of May, 1879 ; (2) to carry on the 
 business mentioned in the agreement and generally to carry on 
 the business of engineers and machine makers. Certain further 
 purposes were mentioned, to which it is not necessary to refer. 
 The liability was limited, and the capital was fixed at £10,000, 
 divided into 2000 shares of £5 each. 
 
 At a meeting of the directors, held on the 23rd of June, 1879, 
 at which the said agreement of the 2nd of May was produced and 
 read, a resolution was carried " that the agreement of purchase be 
 ratified." 
 
 Messrs. Jones & Pride, named in the agreement, acted as 
 solicitors to the promoters in the formation of the company, and 
 after its registration acted as solicitors to the company. 
 
 On the 10th of December, 1879, a compulsory order for winding 
 up the company was made on the petition of Jones and Pride in 
 the Court of the County Palatine. 
 
 Under the winding-up, Jones & Pride carried in a claim for 
 £92 5s. 6d., being the amount of the above-mentioned £63 and 
 £29 5s. 6d. for business done by them as solicitors to the company 
 after its registration. The latter amount was not disputed, but 
 the £63 was objected to. The matter was adjourned to be heard 
 before the Vice Chancellor, who disnllowed the £63 and admitted 
 the claim for £29 5s. 6<1. only. Jones & Pride appealed. 
 
 Snow, for the Appellants. I submit that Jones & Pride can
 
 SECT. IV. — CONTKACT WITH THIRD PERSON. 701. 
 
 No. 13. — In re Empress Engineering Co. 
 
 claim the benefit of this contract, on the ground that the promoters 
 were trustees of it for them. 
 
 [Jessel, M. R. Jones & Pride were not parties to the con- 
 tract, and were not hound by it. How can they chain the benefit 
 of it?] 
 
 The circumstances in Gregory v. Williams, 3 Mer. 582, were 
 almost identical with those of the present case. 
 
 [Jessel, M. R. In that case Sir W. Grant appears to have 
 considered that there was a declaration of trust. I know of no 
 case where, when A. simply contacts with B. to pay money to C, 
 C. has been held entitled to sue A. in equity.] 
 
 In .Touche v. Metropolitan Railvjay Warehousing Company, 
 Law Pep. 6 Ch. 671, the person for whose benefit the agreement 
 was entered into was held entitled to sue. 
 
 [Jessel, M R. In that case the Lord Chancellor finds, as a 
 fact, that Walker was to receive the money as a trustee for the 
 plaintiffs. If you can make out that Jones & Pride are cestuis que 
 trust, that alters the case. It appears to me that they are not. 
 The promoters were liable to Jones & Pride, who are simply their 
 creditors. A. being liable to B., C. agrees with A. to pay B. 
 That does not make B. a cestui que trust.] 
 
 The cases as to the third party suing are collected in Pollock on 
 Contracts, 1st Ed. pp. 191, 192. 
 
 [Brett, L. J. How do you make out any contract by the 
 company ?] 
 
 This agreement was adopted by the memorandum of association 
 and ratified by the directors. 
 
 [Brett, L. J. As to ratification of an agreement made before 
 the company was in existence, you are met by Melhado v. Porto 
 Alegre, &c. Railway Com pan//, Law Rep. 9 C. P. 503.] 
 
 Vice Chancellor Malixs, in Spiller v. Paris Skating Rink Com- 
 pany, 7 Ch. D. 368, held that the doctrine of that case was not 
 accepted in Courts of Equity. 
 
 [Jessel, M. R. In Gregory v. Williams, 3 Mer. 582, it appears 
 that the agreement was that the defendant would, " out of the 
 produce " of the property, pay what was due to Gregory on the 
 promissory note, and apply the residue, so far as the same would 
 extend, in satisfaction of the defendant's demand, and pay the sur- 
 plus (if any) to Parker. It was a parol agreement part performed, 
 and it created a trust of property.]
 
 702 ACTION (right of). 
 
 No. 13. — In re Empress Engineering Co. 
 
 If the court is against me on that ground, I submit that the 
 claimants can make out their case on the principle of In re 
 Hereford and South Wales Waggon and Engineering Company* 
 2 Ch. D. 621, where it was held that there was a good equitable 
 claim for services rendered before the formation of the company, 
 of which the company had the benefit. 
 
 [James, L. J. The question has never been tried whether the 
 company has had the benefit of the claimant's services. 
 
 [Jessel, M. Pi. That is a question of quantum meruit, and the 
 subject for a distinct application.] 
 
 Gazdar, for the liquidator, was not called upon. 
 
 Jessel, M. R. I must say that I do not see how it was possible 
 for the Vice Chancellor to have decided otherwise than he did_ 
 The contract between the promoters and the so-called agent for 
 the company of course was not a contract binding upon the com- 
 pany, for the company had then no existence, nor could it become 
 binding on the company by ratification, because it has beers 
 decided, and, as it appears to me, well decided, that there cannot 
 in law be an effectual ratification of a contract which could not 
 have been made binding on the ratifier at the time it was made,, 
 because the ratifier was not then in existence. It does not follow 
 from that that acts may not be done by the company after its 
 formation which make a new contract to the same effect as the 
 old one, but that stands on a different principle. I am of opinion, 
 therefore, that there was no contract binding the company to pay 
 this £63 to Messrs. Jones & Pride. 
 
 Supposing, however, that there was, it is then contended that a 
 mere contract between two parties that one of them shall pay a 
 certain sum to a third person, not a party to the contract, will make 
 that third person a cestui que trust. As a general rule that wilt 
 not be so. A mere agreement between A. and B. that B. shall pay 
 C. (an agreement to which C. is not a party either directly or 
 indirectly) will not prevent A. and B. from coming to a new agree- 
 ment the next day, releasing the old one. If C. were a cestui que 
 trust, it would have that effect. I am far from saying that there- 
 may not be agreements which may make C. a cestui que trust- 
 There may be an agreement like that in Gregory v. Williams, % 
 Mer. 582, where the agreement was to pay out of property, and 
 one of the parties to the agreement may constitute himself a 
 trustee of the property for the benefit of the third party. So,.
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 703 
 
 No. 13. — la re Empress Engineering Co. 
 
 again, it is quite possible that one of the parties to the agreement 
 may be the nominee or trustee of the third person. As Lord 
 Justice James suggested to me in the course of the argument, a 
 married woman may nominate somebody to contract on her behalf, 
 hut then the person makes the contract really as trustee for some- 
 body else; and it is because he contracts in that character that the 
 cestui que trust can take the benefit of the contract. It appears 
 to me, therefore, that on both the grounds mentioned by the Vice 
 Chancellor this claim cannot be supported. 
 
 There is another ground suggested, — namely, that as the company 
 has had the benefit of the registration they ought to pay for it. 
 But the answer to that is this : that was not the claim brought 
 forward. The claim brought forward was for an agreed sum of 
 £63, and any order we make (I do not know whether it is neces- 
 sary to express it) will not prejudice that claim, which is merely 
 for an amount due for services, the benefit of which has been taken 
 by the company. 
 
 James, L. J. I am entirely of the same opinion. 
 I think it is perhaps as w r ell that we should say that Gregory 
 v. Williams seems to be misunderstood. "When that case is con- 
 sidered with the careful criticism with which the Master of the 
 Eolls has examined it, it appears quite clear that there was there 
 a transfer of property with a declaration of trust in favour of a 
 third person, which was a totally different thing from a mere 
 covenant to pay money to that person. As regards the other 
 point, notwithstanding what was said by Vice Chancellor Malins 
 in Spillerv. Paris Ska ting Rink Company, 7 Ch. D. 368, it appears 
 to me that it is settled, both in the Courts of Law and by us in 
 the Court of Appeal in that case to which we have been referred 
 (of In re Hereford and South Wales Waggon and Engineering Com- 
 pany, 2 Ch. D. 621), that a company cannot ratify a contract made 
 on its behalf before it came into existence, — cannot ratify a 
 nullity. The only thing that results from what is called ratifica- 
 tion or adoption of such a contract is not the ratification or 
 adoption of a contract qua contract, but the creation of an equita- 
 ble liability depending upon equitable grounds. It is inequitable 
 for a man not to pay for the services of which he has taken the 
 benefit. That was the only ground upon which we held that, in 
 that case, Walter and Head would have had a claim for services 
 before the registration of the company, had not an equitable
 
 704 ACTION (right of). 
 
 Nos. 12, 13. — Lloyd's v. Harper, &c. — Notes. 
 
 defence been effectually set up on the ground of a fraudulent con- 
 cealment of the agreement. 
 
 Brett, L. J. I am of the same opinion. 
 
 James, L. J. The appeal will be dismissed with costs. It will 
 be without prejudice to any equitable claim on a quantum meruit. 
 I may add, as the Master of the Rolls pointed out to me in the 
 eourse of the argument, that in Gregory v. Williams, 3 Mer. 582, 
 the man with whom the contract was made was one of the plain- 
 tiffs ; and the only defence there would have been misjoinder of 
 plaintiffs, and that is a defence which the court was not likely to 
 view with much favour. 
 
 ENGLISH NOTES. 
 
 The judgment of Lord Justice James in Lloyd's v. Harper, on the 
 point of substantial damages, is cited at length by North. J., in a judg- 
 ment affirmed by the Court of Appeal, in In re Flavell, Murray v. Flavell 
 (1883), 25 Ch. D. 89, 97; 53 L. J. Ch. 185,— a case in which, under 
 a partnership deed, executors of a deceased partner were to receive out of 
 the profits of the business a certain annual sum, to be applied as the de- 
 ceased should direct for benefit of his widow; and it was held that there 
 was a trust, so that the widow was entitled to the annuity free from the 
 claims of creditors. 
 
 In Gandy v. Gandy (C. A. 1881), 30 Ch. D. 57; 54 L. J. Ch. 1154, 
 both the ruling cases were cited and considered. The question arose 
 upon a separation deed, whereby the husband covenanted with the trus 
 tees to pay them an annuity for the use of his wife and two eldest daugh- 
 ters, and also to pay to the trustees the expenses of the maintenance and 
 education of the two youngest daughters. In an action by one of the 
 youngest daughters against the husband, who had refused any longer to 
 maintain her, it was held that there was not, under the covenant, a trust 
 in favour of the plaintiff so as to entitle her to maintain the action; but, 
 the wife having been afterwards joined as a co-plaintiff (the trustees 
 refusing to be so joined), it was held that by the intention of the deed 
 the trustees were trustees for her. and that she was in equity entitled 
 to call upon the husband for the performance of the covenants, and to 
 maintain the action accordingly. 
 
 The observations of the Lord Chancellor (Campbell) in Robertson 
 v. Fleming (a Scotch Appeal. 1861), 4 Macq. 177, though not cited in 
 the reports of either of the above ruling cases, seem relevant to the sub- 
 ject. "I never had any doubt.'' he says, "of the unsoundness of the 
 doctrine . . . that A. employing lb. a professional lawyer, to do any 
 act for the benefit of C., if, through the gross negligence or ignorance
 
 SECT. IV. CONTRACT WITH THIRD PERSON. 705 
 
 Nos. 12, 13. — Lloyd's v. Harper, &,c. — Notes. 
 
 of B. in transacting the business, C. loses the benefit intended 
 for him by A.. C. may maintain an action against 15. and recover 
 damages for the loss sustained. If this were law, a disappointed 
 legatee might sue the solicitor employed by a testator to make a 
 will in favour of a stranger^ whom the solicitor never saw or before 
 heard of, if the will were void for not being properly signed and at- 
 tested. . . . But if in a transaction of borrowing and lending money 
 on security, A., the borrower, employs B., a professional lawyer, to 
 transact the business, in which both A., the borrower, and C, the 
 lender, have their separate interests, and for which A. alone is to pay 
 B., although C. has no personal intercourse with B., if from the instruc- 
 tions expressly given by A. to B., or from the usual course in which 
 such business is conducted, B. knows that he, and no other professional 
 lawyer, is employed in the transaction, and that B. is to act both for A. 
 and for C. in preparing the security, I apprehend that a jury, from this 
 employment of B., might infer an undertaking from B. to C. to conduct 
 the transaction on his part with reasonable skill and diligence. And so 
 if, in the transaction of a loan on security, C. was a surety for the 
 borrower, and, according to the transaction, as explained by A. to B., 
 0. was to have a counter security from A. to be prepared and completed 
 by B. for C, as the only lawyer to be employed between them, a simi- 
 lar undertaking from B. to C. may be inferred." 
 
 AMERICAN NOTES. 
 
 The doctrine declared by the jirincipal cases was adopted in most of the 
 early cases and in a few recent cases in this country, hut has been discarded 
 in most of the recent decisions. The early doctrine is found substantially in 
 Juiss v. Milne, 12 Leigh (Virginia), 204; 37 Am. Dec. (546; Seaman v. Whitney, 
 24 Wendell (New York), 260; 35 Am. Dec. 618; Haskett v. Flint, 5 Blackford 
 (Indiana), 69; 33 Am. Dec. 452; Hall v. Carpen, 27 Illinois, 386; 81 Am. Dec. 
 234; Rossman v. Townsend, 17 Wisconsin, 98; 84 Am. Dec. 733; Tuttlev. Cat- 
 lin, 1 D. Chipman (Connecticut), 366; 12 Am. Dec. 691 ; Fugure v. Mut. Soc, 
 4(5 Vermont, 362; Mellen v. Whipple, 1 Gray (Mass.), 317; Exchange Bant v. 
 Rice, 107 Massachusetts, 37 ; 9 Am. Rep. 1 ; Roger* v. Union Stone Co., 1:50 
 Massachusetts, 581 ; 39 Am. Rep. 478; Meech v. Ensign,49 Conn. 191 ; 44 Am. 
 Rep. 225. 
 
 Mr. Lawson, the latest writer on contracts, says (Contracts, § 113 (d)): 
 " The modern American rule is that where a person makes a promise to 
 another for the benefit of a third person, the latter may maintain an action 
 upon it." This is supported by Schermerhorn v. Vanderheyden, 1 Johnson 
 (New York), 139: 3 Am. Dec. 304 (A. I). 1806), and has been adopted in Law- 
 rence v. Fox, 20 New York, 268, the leading American case on the subject. 
 The doctrine of this case, although laid down by a divided court, and although 
 the decision has been distinguished and limited, was affirmed unanimously in 
 Burr v. Beers, 21 New York, 178; 80 Am. Dec. -'527, and must be regarded as 
 vor.. i. — 45
 
 706 ACTION (RIGHT OF). 
 
 No. 14. — Lumley v. Gye. — Rule. 
 
 settled in that State. See Barlow v. Myers, 64 New York, 41 ; 21 Am. Rep. 
 5S2. The facts in Lawrence v. Fox were these: Holly lent Fox money, which 
 Fox, in consideration of the loan, agreed at the time of the loan to pay the 
 next day to Lawrence upon a debt which Holly owed him. It was held that 
 Lawrence could sue Fox upon that agreement, although he was in no way 
 privy to it. The court said: " The consideration received, and the promise 
 to Holly made, it as plainly his duty to pay the plaintiff as if the money had 
 been remitted to him for that purpose, and as well implied a promise to do so 
 as if he had been made a trustee of property to be converted into cash with 
 which to pay." The argument that Holly could have discharged the defen- 
 dant from his promise was practically answered by the statement that he did 
 not release him, and that he could not do so if Lawrence had taken action on 
 the promise. Comstock and Grovkr, J. J., dissented. See Little v. Banks, 
 85 New York, 258; Hand v. Kennedy, 83 id., 150; Seward v. Huntington, 91 
 id., 104 ; Wheat v. Rice, 97 id., 296 ; Campbell v. Smith, 71 id., 26 ; 27 Am. Rep. 5 ; 
 Hutchings v. Miner, 46 New York, 456 ; 7 Am. Rep. 309. 
 
 This doctrine is also the rule in Mason v. Hall, 30 Alabama, 601 ; Treat v. 
 Stanton, 14 Connecticut, 451; Morgan v. Overman Co., 37 California, 537; 
 Arnold v. Lyman, 17 Massachusetts, 400; 9 Am. Dec. 151 ; Johannes v. Phenix 
 Ins. Co., 66 Wisconsin, 50 ; 57 Am. Rep. 249 ; Joslin v. Car Co., 36 New Jersey 
 T >a\v, 141 ; Jones v. Thomas, 21 Grattan (Virginia), 101 ; Bristoio v. Lane, 21 Illi- 
 nois, 194; Bohanon v. Pope, 42 Maine, 96 ; Blymire v. Boistle, Watts (Penn.), 
 162 ; 31 Am. Dec. 458 ; Cox v. Skeen, 2 Iredell (No. Carolina), 220 ; 38 Am. Dec. 
 691; Brewer v. Maurer, 38 Ohio St. 513; 43 Am. Rep. 437 ; Brown v. O'Brien, 
 1 Richardson Law (So. Carolina), 268; 44 Am. Dec. 254; Bobbins v. Ayres, 10 
 Missouri, 538 ; 47 Am. Dec. 125; Allen v. Thomas, 3 Metcalfe (Kentucky), 198; 
 77 Am. Dec. 169; West v. West. Un. Tel. Co., 39 Kansas, 93; 7 Am. St. Rep. 
 530. See also duplicate cases, with notes, 6 Am. Dec. 708 ; 15 id. 172 ; 17 id. 
 206; 24 id. 325; 26 id. 107; 44 id. 137 : 45 id. 727; 58 id. 713. 
 
 The only very influential State manifesting any tendency to adhere to the 
 common-law ride is Massachusetts, in which it will be seen that fine distinc- 
 tions are drawn and the general proposition is mooted. 
 
 No. 14 — LUMLEY v. GYE. 
 
 (q. b. 1853.) 
 
 No. 15. — BOWEN v. HALL. 
 
 (C. A. FROM Q. B. D. 1891.) 
 RULE. 
 
 Wiiere there is a contract between two persons for 
 exclusive personal service to be rendered by the one to the 
 other, an action lies against a third person (not a party to
 
 SECT. IV. — CONTRACT WITH THIRD PEBSON. 707 
 
 No. 14. — Lumley v. Gye. 
 
 the contract) who intentionally induces the former party 
 to break his contract so as to cause, as the natural conse- 
 quence of the breach, loss to the other. 
 
 Lumley v. Gye. 
 
 •2 E. & B. 216. 
 
 The first count of the declaration stated that plaintiff was 
 lessee and manager of the Queen's Theatre, for performing operas 
 for gain to him ; and that he had contracted and agreed with 
 Johanna Wagner to perform in the theatre for a certain time, with 
 a condition, amongst others, that she should not sing nor use her 
 talents elsewhere during the term without plaintiffs consent in 
 writing: yet, defendant, knowing the premises, and maliciously 
 intending to injure plaintiff as lessee and manager of the theatre, 
 whilst the agreement with Wagner was in force, and before the 
 expiration of the term, enticed and procured Wagner to refuse to 
 perform; by means of which enticement and procurement of 
 defendant, Wagner wrongfully refused to perform, and did not 
 perform during the term. 
 
 Count 2. For enticing and procuring Johanna Wagner to continue 
 to refuse to perform during the term, after the order of Vice 
 Chancellor Parker, affirmed by Lord St. Leonards, see Lumley 
 v. Wagner, 1 De G. McN. & G. 604, restraining her from perform- 
 ing at a theatre of defendants. 
 
 Count 3. That Johanna Wagner had been and was hired by 
 plaintiff to sing and perform at Ins theatre for a certain time, as the 
 dramatic artiste of plaintiff, for reward to her, and had become and 
 was such dramatic artiste of plaintiff at his theatre : yet defendant, 
 well knowing, &c, maliciously enticed and procured her, then being 
 such dramatic artiste, to depart from the. said employment. 
 
 In each count special damage was alleged. 
 
 Demurrer. Joinder. 
 
 The demurrer was argued in the sittings after Hilary Term last, 
 February 4 and 5, 1853, before Coleridge, Wightman, Erle, and 
 Crompton, JJ. 
 
 Willes for the defendant. The counts disclose a breach of 
 contract on the part of Wagner, for which the plaintiff's remedy is 
 by an action on the contract against her. The relation of master 
 and servant is peculiar; and, though it originates in a contract
 
 708 ACTION (right of). 
 
 No. 14. — Lumley v. Gye. 
 
 between the employer and the employed, it gives rise to rights 
 and liabilities, on the part of the master, different from those which 
 would result from any other contract. Thus, the master is liable 
 for the negligence of his servant, whilst an ordinary contractor is 
 not liable for that of the person with whom he contracts. And a 
 master may lawfully defend his servant when a contractor may not 
 defend his contractee. And so a master may bring an action for 
 enticing away his servant. But these are anomalies, having their 
 origin in times when slavery existed. They are intelligible on the 
 supposition that the servant is the property of his master ; and, 
 though they have been continued long after all but free service has 
 ceased, they are still confined to cases where the relation of master 
 and servant, in the strict sense, exists. In the present case, Wag- 
 ner is a dramatic artiste, not a servant in any sense. (It is unnec- 
 essary to report the argument for the defendant further in detail, 
 as the points made in it, and the authorities relied upon, are fully 
 stated in the judgments of CROMPTON, J., and WlGHTMAN, J.) 
 
 Cowling, contra. The general principle is laid down in Corny ns's 
 Digest, Action upon the Case (A). " In all cases, where a man 
 has a temporal loss, or damage by the wrong of another, he may 
 have an action upon the case, to be repaired in damages." In 
 Comyns's Digest, Action upon the Case for Misfeasance (A 6), an 
 instance is given : " If he threaten the tenants of another, whereby 
 they depart from their tenures," citing 1 Eol. Abr. 108, Action 
 sur Case (N) pi. 21. An action lies for procuring plaintiff's wife 
 to remain absent; Winsmore v. GreenhanJc, Willes, 577. An action 
 lay for ravishment of ward; and, if "a man procureth a ward to 
 go from his guardian, this is a ravishment in law;" 2 Inst. 440. 
 Now, as neither the tenants, the wife, nor the ward are servants, 
 it cannot be said that the action for procurement is an anomaly 
 confined to the case of master and servant. "Every master has 
 by his contract purchased for a valuable consideration the services 
 of his domestics for a limited time ; the inveigling or hiring his 
 servant, which induces a breach of this contract, is therefore an 
 injury to the master; and for that injury the law has given a 
 remedy by a special action on the case; and he may also have an 
 action against the servant for the non-performance of his agree- 
 ment;"' 3 Bl. Com. 142. Blachstone thus treats the action by a 
 master as an example of a general rule that " inducing a breach of 
 contract " is an injury for which an action lies. And surely, any
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 709 
 
 No. 14. — Lumley v. Gye. 
 
 one, not a lawyer, would agree that the malicious and intentional 
 procurement of a breach of contract was a wrong, and that the 
 breach of contract intended to be procured was the direct conse- 
 quence of that wrongful procurement. Green v. Button, '1 C. M. 
 & R. 707, is apparently an authority for that larger proposition ; 
 and so is Sheperd v. Wakeman, 1 Sid. 79. It is not accurate to 
 say that the remedy for breach of contract is confined to those 
 privy to the contract, — Levy v. Langridge, 4 M. & W. 337, affirm- 
 ing the judgment of the Exchequer in Langridge v. Levy, 2 M. & 
 W. 519. In that case the son recovered though the warranty was 
 to the father. It is true that the damage to the plaintiff must be 
 the natural and immediate consequence of the wrong of the defen- 
 dant, and that it is not often that the unjustifiable act of an inde- 
 pendent party is the natural consequence of that wrong ; but, 
 when, as on this demurrer must be taken to be the fact, the 
 defendant uses the contracting party as his tool to break the con- 
 tract to the damage of the plaintiff, why should he not be an- 
 swerable for the damage he thus intentionally produces? The 
 procurement may in some cases be privileged, just as a libel or 
 slander may be ; but here it is malicious. It is, however, unneces- 
 sary to go so far in this case, as the contract is for exclusive 
 personal services, and the authorities are clear that in such cases 
 the action lies. (The arguments for the plaintiff on this part of 
 the case, and the authorities cited, are so fully stated in the 
 judgments that it is unnecessary to repeat them here.) 
 
 Willes, in reply. The averment of malice can make no differ- 
 ence. If the action does not lie without malice, it does not lie 
 with it ; and malice is never averred in actions for seducing 
 servants. The passage cited from Comyns's Digest, Action upon 
 the Case (A), does not throw much light on the matter. It is not 
 disputed that damage resulting from a wrong gives a cause, of 
 action ; but the defendant's point is that the act complained of is 
 not a wrong within the technical meaning of the word: and this 
 is an instance of the rule, "ex damno sine injuria non oritur actio." 
 The instances cited, as supporting the general proposition, all 
 range themselves under some well known class of wrongs. The 
 reference in Comyns's Digest, Action upon the Case for Misfeasance 
 (A 6), is to 1 Roll. Ad. 108, Action sur Case (N), pi. 21, where it 
 appears that the menaces were to "tenants at will, of life and 
 limb." The tenants, therefore, were not hound to remain ; and
 
 710 ACTION (RIGHT CF). 
 
 No. 14. — Lumley v. Gye. 
 
 the threats of life and limb must have been an interference with 
 the plaintiff's property. Ravishment of ward also proceeds on the 
 ground that the guardian had a property in his ward. Winsmore 
 v. Greenbank, Willes, 577, extends the law as to enticing servants 
 to enticing a wife ; but the principle is the same. The common 
 law considers the wife the property and servant of the husband. 
 In Sheperd v. Wakeman, 1 Sid. 79, the action was for asserting 
 that the plaintiff was already married, per quod she lost her 
 marriage ; but to assert that a woman is about to commit bigamy 
 is actionable per se. Levy v. Larigridge, -i M. & W. 337, was decided 
 on the ground that there was what was equivalent to a fraudulent 
 representation to the plaintiff as to an article which he was to use. 
 The act complained of in Green v. Button, 2 C. M. & R 707, was 
 also a wrong in itself. The injury done was analogous to slander 
 of title. (The argument in reply, as to the effect of the contract 
 being for exclusive service, is sufficiently shown by the judg- 
 ments.) Cur. adv. vult. 
 
 The Court were divided in opinion, and delivered their opinions 
 seriatim ; Wightman, J., Ei;le and Crompton. J.T., holding that all 
 the counts were good; Coleridge, J., on the contrary, being of 
 opinion that the action could not be maintained. In accordance 
 with the opinion of the majority, judgment was given for the 
 plaintiff. The reasons of the opinions of the majority sufficiently 
 appear from the judgment of 
 
 Crompton, J. The declaration in this case consisted of three 
 counts. The two first stated a contract between the plaintiff, the 
 proprietor of the Queen's Theatre, and Miss Wagner, for the per- 
 formance by her for a period of three months at the plaintiff's 
 theatre; and it then stated that the defendant, knowing the 
 premises and with a malicious intention, whilst the agreement was 
 in full force, and before the expiration of the period for which 
 Miss Wagner was engaged, wrongfully and maliciously enticed 
 and procured Miss Wagner to refuse to sing or perform at the 
 theatre, and to depart from and abandon her contract with the 
 plaintiff and all service thereunder, whereby Miss Wagner wrong- 
 fully, during the full period of the engagement, refused and 
 made default in performing at the theatre ; and special damage 
 arising from the breach of Miss Wagner's engagement was 
 then stated. The third count stated that Miss Warnier had been
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 7ll 
 
 No. 14. — Lumley v. Gye. 
 
 hired and engaged by the plaintiff, then being the owner of Her 
 Majesty's Theatre, to perform at the said theatre for a certain 
 specified period as the dramatic artiste of the plaintiff for reward 
 to her in that behalf, and had become and was such dramatic 
 artiste for the plaintiff at his said theatre for profit to the plaintiff 
 in that behalf; and that the defendant, well knowing the premises 
 and with a malicious intention, whilst Miss Wagner was such 
 artiste of the plaintiff, wrongfully and maliciously enticed and 
 procured her, so being such artiste of the plaintiff, to depart from 
 and out of the said employment of the plaintiff, whereby she 
 wrongfully departed from and out of the said service and employ- 
 ment of the plaintiff, and remained and continued absent from 
 such service and employment until the expiration of her said 
 hiring and engagement to the plaintiff by effluxion of time; and 
 special damage arising from the breach of Miss Wagner's engage- 
 ment was then stated. To this declaration the defendant de- 
 murred: and the question for our decision is, Whether all or any 
 of the counts are good in substance ? 
 
 The effect of the two first counts is, that a person under a bind- 
 ing contract to perform at a theatre is induced by the malicious 
 act of the defendant to refuse to perform and entirely to abandon 
 her contract; whereby damage arises to the plaintiff, the proprietor 
 of the theatre. The third count differs in stating expressly that 
 the performer had agreed to perform as the dramatic artiste of the 
 plaintiff, and had become and was the dramatic artiste of the plain- 
 tiff for reward to her; and that the defendant maliciously procured 
 her to depart out of the employment of the plaintiff as such 
 dramatic artiste ; whereby she did depart out of the employment 
 and service of the plaintiff; whereby damage was suffered by the 
 plaintiff. It was said, in support of the demurrer, that it did not 
 appear in the declaration that the relation of master and servant 
 ever subsisted between the plaintiff and Miss Wagner ; that Miss 
 Wagner was not averred, especially in the two first counts, to have 
 entered upon the service of the plaintiff; and that the engagement 
 of a theatrical performer, even if the performer has entered upon 
 the duties, is not of such a nature as to make the performer a ser- 
 vant, within the rule of law which gives an action to the master 
 for the wrongful enticing away of his servant. And it was laid 
 down broadly, as a general proposition of law, that no action will 
 lie for procuring a person to break a contract, although such pro-
 
 ACTION (RIGHT OF). 
 
 No. 14. — Lumley v. Gye. 
 
 curing is with a malicious intention and causes great and imme- 
 diate injury. And the law as to enticing servants was said to be 
 contrary to the general rule and principle of law, and to be anoma- 
 lous, and probably to have had its origin from the state of society 
 when serfdom existed, and to be founded upon, or upon the -equity 
 of, the Statute of Labourers. It was said that it would be danger- 
 ous to hold that an action was maintainable for persuading a third 
 party to break a contract, unless some boundary or limits could be 
 pointed out ; and that the remedy for enticing away servants was 
 confined to cases where the relation of master and servant, in a 
 strict sense, subsisted between the parties ; and that, in all other 
 cases of contract, the only remedy was against the party breaking 
 the contract. 
 
 Whatever may have been the origin or foundation of the law as 
 to enticing of servants, and whether it be, as contended by the 
 plaintiff, an instance and branch of a wider rule, or whether it 
 be, as contended by the defendant, an anomaly and an exception 
 from the general rule of law on such subjects, it must now be 
 considered clear law that a person who wrongfully and maliciously, 
 or, which is the same thing, with notice, interrupts the relation 
 subsisting between master and servant by procuring the servant to 
 depart from the master's service, or by harbouring and keeping 
 him as servant after he has quitted it and during the time stipu- 
 lated for as the period of service, whereby the master is injured, 
 commits a wrongful act for which he is responsible at law. I 
 think that the rule applies wherever the wrongful interruption 
 operates to prevent the service during the time for which the par- 
 ties have contracted that the service shall continue ; and I think 
 that the relation of master and servant subsists, sufficiently for the 
 purpose of such action, during the time for which there is in exist- 
 ence a binding contract of hiring and service between the parties ; 
 and I think that it is a fanciful and technical and unjust distinction 
 to say that the not having actually entered into the service, or that 
 the service not actually continuing, can make any difference. The 
 wrong and injury are surely the same, whether the wrong-doer 
 entices away the gardener, who has hired himself for a year, the 
 night before he is to go to his work, or after he has planted the 
 first cabbage on the first morning of his service ; and I should be 
 sorry to support a distinction so unjust, and so repugnant to com- 
 mon sense, unless bound to do so by some rule or authority of
 
 SECT. IV. — CONTRACT WITH THIHD PERSON. 713 
 
 No. 14. — Lumley v. Gye. 
 
 law plainly showing that such distinction exists. The proposition 
 of the defendant, that there must be a service actually subsisting, 
 s iems to be inconsistent with the authorities that show these 
 fictions to be maintainable fur receiving or harbouring servants 
 after they have left the actual service of the master. In Blake v. 
 Lanyon, 6 T. R 'I'll, it was held by the Court of King's Bench, 
 in accordance with the opinion of Gawdy, J., in Adams v. Bafeald, 
 1 Leon. 240, and against the opinion of the two other Judges who 
 delivered their opinions in that case, that an action will lie for 
 continuing to employ the servant of another after notice, without 
 having enticed him away, and although the defendant had received 
 the servant innocently. It is there said that " a person who con- 
 tracts with another to do certain work for him is the servant of 
 that other till the work is finished, and no other person can 
 employ such servant to the prejudice of the first master ; the 
 very act of giving him employment is affording him the means of 
 keeping him out of his former service." This appears to me to 
 show that we are to look to the time during which the contract 
 of service exists, and not to the question whether an actual service 
 subsists at the time. In Blake v. Lanyon, supra, the party, so far 
 from being in the actual service of the plaintiff, had abandoned 
 that service and entered into the service of the defendant, in 
 which he actually was ; but, inasmuch as there was a binding con- 
 tract of service with the plaintiffs, and the defendant kept the 
 party after notice, he was held liable to an action. Since this 
 decision, actions for wrongfully hiring or harbouring servants after 
 the first actual service had been put an end to have been frequent. 
 See Pilkington v. Scott, 15 M. & W. 657 ; Hartley v. Cummings, 5 
 Com. B. 247. In Sykes v. Dixon, 9 A. & E. 693, where the distinc- 
 tion as to the actual service having been put an end to was relied 
 upon for another purpose, it does not seem to have occurred to the 
 bar or the court that the action would fail on account of there 
 having been no actual service at the time of the second hiring or 
 the harbouring ; but the question as to there being or not being a 
 binding contract of service in existence at the time seems to have 
 been regarded as the real question. 
 
 The objection as to the actual employment not having com- 
 menced would not apply in the present case to the third count, 
 which states that Miss Wagner had become the artiste of the 
 plaintiff, and that the defendant had induced her to depart from
 
 714 ACTION (right of). 
 
 No. 14. — Lumley v. Gye. 
 
 the employment. But it was further said that the engagement, 
 employment, or service, in the present case, was not of such a 
 nature as to constitute the relation of master and servant, so as to 
 warrant the application of the usual rule of law giving a remedy 
 in case of enticing away servants. The nature of the injury and of 
 the damage being the same, and the supposed right of action being 
 in strict analogy to the ordinary case of master and servant, I see 
 no reason for confining the case to services or engagements under 
 contracts for services of any particular description ; and I think 
 that the remedy, in the absence of any legal reason to the contrary, 
 may well apply to all cases where there is an unlawful and ma- 
 licious enticing away of any person employed to give his personal 
 labour or service for a given time under the direction of a master 
 or employer who is injured by the wrongful act, — more especially 
 when the party is bound to give such personal services exclusively 
 to the master or employer; though I by no means say that the ser- 
 vice need be exclusive. Two Nisi Prius decisions were cited by the 
 counsel for the defendant in support of this part of the argument. 
 One of these cases, Ashley v. Harrison, 1 Peake's N. P. C. 194 ; s. c. 
 1 Esp. N. P. C. 48, was an action against the defendant for having 
 published a libel against a performer, whereby she was deterred 
 from appearing on the stage : and Lord Kenyon held the action not 
 maintainable. This decision appears, especially from the report of 
 the case in Espinasse, to have proceeded on the ground that the 
 damage was too remote to be connected with the defendant's act. 
 This was pointed out as the real reason of the decision by Mr. 
 Erskine in the case of Tarleton v. M^Gawley, 1 Peake's N. P. C. 
 207, tried at the same sittings as Ashley v. Ha r rrison, 1 Peake's N. 
 P. C. 194 ; s. c. 1 Esp. N. P. C. 48. The other case, Taylor v. Neri, 
 1 Esp. N. P. C. 386, was an action for an assault on a performer, 
 whereby the plaintiff lost the benefit of his services ; and Lord 
 Chief Justice Eyre said that he did not think that the court had 
 ever gone further than the case of a menial servant ; for that, if a 
 daughter had left the service of her father, no action per quod 
 servitium amisit would lie. He afterwards observed that, if such 
 action would lie, every man whose servant, whether domestic or 
 not, was kept away a day from his business could maintain an 
 action ; and he said that the record stated that Breda was a servant 
 hired to sing, and in his judgment he was not a servant at all ; and 
 he non-suited the plaintiff. Whatever may be the law as to the
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 715 
 
 No. 14. — Lumley v. Gye. 
 
 class of actions referred to, for assaulting or debauching daughters 
 or servants per quod servitium amisit, and which differ from actions 
 of the present nature for the wrongful enticing or harbouring with 
 notice, as pointed out by Lord Kenyon in Fores v. Wilson, 1 Peake's 
 N. P. C. 55, it is clear from Blake v. Lanyon, 6 T. R. 221, and other 
 subsequent cases (Sykes v. Dixon, 9 A. & E. 693 ; PilJcington v. Scott, 
 15 M. & W. 657; and Hartley v. Cummings, 5 Com. 15. 247), that 
 the action for maliciously interfering with persons in the employ- 
 ment of another is not confined to menial servants, as suggested in 
 Taylor v. Neri, supra. In Blake v. Lanyon, supra, a journeyman 
 who was to work by the piece, and who had left his work unfin- 
 ished, was held to be a servant for the purposes of such an action ; 
 and I think that it was most properly laid down by the court in 
 that case, that a person who contracts to do certain work for 
 another is the servant of that other (of course with reference to 
 such an action) until the work be finished. It appears to me that 
 Miss Wagner had contracted to do work for the plaintiff within 
 the meaning of this rule; and I think that, where a party has con- 
 tracted to give his personal services for a certain time to another, 
 the parties are in the relation of employer and employed, or master 
 and servant, within the meaning of this rule. And I see no reason 
 for narrowing such a rule ; but I should rather, if necessary, apply 
 such a remedy to a case " new in its instance, but" "not new in the 
 reason and principle of it," per Holt, C. J., in Keeble v. HicJceringill, 
 11 East, 573, 575 ; note (a) to Carrington v. Taylor, 11 East, 571, 
 — that is, to a case where the wrong and damage are strictly analo- 
 gous to the wrong and damage in a well recognised class of cases. 
 In deciding this case on the narrower ground, I wish by no means 
 to be considered as deciding that the larger ground taken by Mr. 
 Cowling is not tenable, or as saying that in no case except that 
 of master and servant is an action maintainable for malicious/// 
 inducing another to break a contract to the injury of the person 
 with whom such contract has been made. It does not appear to 
 me to be a sound answer, to say that the act in such cases is the 
 act of the party who breaks the contract; for that reason would 
 apply in the acknowledged case of master and servant. ' Nor is it an 
 answer, to say that there is a remedy against the contractor, and 
 that the party relies on the contract; for, besides that reason also 
 applying to the case of master and servant, the action on the con- 
 tract and the action against the malicious wrong-doer may be for a
 
 716 ACTION (eight of). 
 
 No. 14. — Lumley v. Gye. 
 
 different matter; and the damages occasioned by such malicious 
 injury might be calculated on a very different principle from the 
 amount of the debt which might be the only sum recoverable on 
 the contract. Suppose a trader, with a malicious intent to ruin a 
 rival trader, goes to a banker or other party who owes money to 
 his rival, and begs him not to pay the money which he owes him, 
 and by that means ruins or greatly prejudices the party : I am by 
 no means prepared to say that an action could not be maintained, 
 and that damages, beyond the amount of the debt if the injury 
 were great, or much less than such amount if the injury were less 
 serious, might not be recovered. AY here two or more parties were 
 concerned in inflicting such injury, an indictment, or a writ of con- 
 spiracy at common law, might perhaps have been maintainable ; 
 and, where a writ of conspiracy would lie for an injury inflicted by 
 two, an action on the casein the nature of conspiracy will generally 
 lie ; and in such action on the case the plaintiff is entitled to re- 
 cover against one defendant without proof of any conspiracy, the 
 malicious injury and not the conspiracy being the gist of the action. 
 See note (4) to Skinner v. Gunton, 1 Wms. Saund. _!30. In this 
 class of cases it must be assumed that it is the malicious act of the 
 defendant, and that malicious act only, which causes the servant or 
 contractor not to perform the work or contract which he would 
 otherwise have done. The servant or contractor may be utterly 
 unable to pay anything like the amount of the damage sustained 
 entirely from the wrongful act of the defendant ; and it would seem 
 unjust, and contrary to the general principles of law, if such wrong- 
 doer were not responsible for the damage caused by his wrongful 
 and malicious act. Several of the cases cited by Mr. Cowling on 
 this part of the case seem well worthy of attention. 
 
 Without, however, deciding any such more general question, I 
 think that we are justified in applying the principle of the action 
 for enticing away servants to a case where the defendant maliciously 
 procures a party, who is under a valid contract to give her exclu- 
 sive personal services to the plaintiff for a specified period, to refuse 
 to give such services during the period for which she has so con- 
 tracted, whereby the plaintiff was injured. 
 
 T think, therefore, that our judgment should be for the plaintiff.
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 717 
 
 No. 15. — Bowen v. Hall. 
 
 No. 15. — BOWEN v. HALL. 
 
 6 Q. 1). 1). 333 (s. c. 50 L. J. Q. B. 305). 
 
 Action as against the defendants Hall and Fletcher for wrong- 
 fully enticing away and keeping the other defendant Pearson from 
 the plaintiff's employment, and for wrongfully receiving and har- 
 bouring him after notice of his being the servant of the plaintiff, 
 and as against the said defendant Pearson for unlawfully and 
 against the will of the plaintiff departing from the service of 
 the plaintiff. The facts, so far as necessary for this report, are 
 these : — 
 
 The plaintiff carried on the business of brickmaker, at the Clat- 
 tershall Fire Brickworks in Staffordshire, and in June, 1877, the 
 defendant Pearson, who was a bath and brickmaker, entered into 
 a written agreement with the plaintiff, of which the following is a 
 copy : — 
 
 Clattershall Fire Brickworks, Stourbridge, 
 June 18th, 1877. 
 
 I, George Pearson, of Stamber Hill, near Stourbridge, hereby 
 agree and undertake, for the consideration of the prices below 
 named, to find all labour for the whole manufacture in a workman- 
 like manner of best quality white-glazed bricks and baths (with 
 exception of hooping the baths and preparing the clay mass), in 
 such quantities as you require and when you require, and deliver 
 anywhere they may be required on the above premises, the said 
 quality and to be quite equal to sample supplied and marked 
 
 , and the said prices to be subject to the standard prices of 
 
 the trade for the manufacture of the same. 
 
 Prices of bricks, 9" x 4|-" x 3 " : — 
 
 Perfect single sides, ends or flats, in quantities up to 10,000 per 
 week, 505. per 1000. 
 
 Perfect single sides, ends or flats, in quantities from 10,000 to 
 15,000 per week, 47s. 6d. per 1000. 
 
 Perfect single sides, ends or flats, in quantities from 15,000 and 
 upwards per week, 45s. per 1000. 
 
 Perfect glazed on two surfaces, 20s. per 1000 extra. 
 three " 30s. " 
 
 Seconds of the above from the kiln, 25.9. per 1000. 
 Waste " " " 7s. 6d. "
 
 '18 ACTION (RIGHT OF). 
 
 No. 15. — Bowen v. Hall. 
 
 Body and glaze for single sides, ends or flats, -\ 
 
 4s. per 1000. (i also agree 
 
 two surfaces, 8s. per 1000. ( to find, 
 three surfaces, 1 2s. per 1000. ) 
 Prices of baths 5 ft. 8 ins. long : — 
 Perfect baths, £1 each. 
 Second baths, 10s. each. 
 Waste baths, nothing. 
 
 I also agree to find body and glaze for baths at 2s. each. 
 I also agree to load carefully into trucks, when required, bricks 
 at Is. 6d. per 1000. Baths, packed, loaded, and fixed into trucks at 
 6^. each ; also to do any day work when required at 5s. per day of 
 nine hours. 
 
 I also agree not to engage myself to any one else for a term of 
 five years. 
 
 Terms of Payment. 
 Fifty per cent, of the cost of making to be paid when the goods 
 are in the kiln, and the remainder to be paid when the goods are 
 delivered on the bank. 
 
 I, Edward Bowen, do hereby agree to the foregoing conditions, 
 also to supply clay for the manufacture of the said goods in a 
 proper state, also to find all materials (with the exception of body 
 and glaze) and tools, and not engage any one else for the same 
 work for a term of five years. 
 
 (Signed) Edward Bowen. 
 George Pearson. 
 
 The plaintiff alleged that the manufacture of white-glazed bricks 
 and baths according to the said sample w r as a secret known to the 
 defendant Pearson and only a few others, and that the defendant 
 Hall, who was a manufacturer of white-glazed bricks and baths in 
 the neighbourhood of the plaintiff, did not know of this method of 
 manufacture which Pearson used, and that therefore the bricks and 
 baths he manufactured were inferior to those manufactured by 
 Pearson on account of the plaintiff. The complaint of the plaintiff, 
 and for which this action was brought, was, that in May, 1878, the 
 defendants Hall and Fletcher (the latter being Hall's manager) 
 wrongfully induced Pearson, contrary to his said agreement with 
 the plaintiff, to depart from the exclusive service of the plain- 
 tiff, and to manufacture on account of the defendant Hall "lazed
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 719 
 
 No. 15. — Bowen v. Hall. 
 
 bricks and baths such as he had contracted to manufacture for the 
 plaintiff. 
 
 The plaintiff claimed damages, not against all the defendants, 
 but against only the two defendants Hall and Fletcher. He also 
 claimed an injunction to restrain these defendants from employing 
 the defendant Pearson to do work for them at brick-making or 
 glazing, and he claimed an- injunction to restrain the defendant 
 Pearson from engaging himself to the defendants Hall and Fletcher 
 until the expiration of his said contract of service with the plaintiff. 
 An interim injunction in the terms claimed was granted by Field, 
 J., in September, 1878, as against all the defendants. 
 
 The action was tried before MANISTY, J., at the Staffordshire 
 summer assizes of 1879, when that learned Judge held that there 
 was no evidence to enable the plaintiff' to maintain his action 
 against the defendants Hall and Fletcher, and he therefore directed 
 a verdict to be entered for those defendants ; and as regarded the 
 defendant Pearson, the learned Judge was of opinion that, as that 
 defendant had not acted nor threatened to act contrary to the in- 
 terim injunction, there was nothing to justify making such injunc- 
 tion perpetual. The plaintiff afterwards applied for and obtained 
 a rule nisi against all the defendants for a new trial. The Queen's 
 Bench Division made such rule absolute as against the defendants 
 Hall and Fletcher, but it discharged the rule as to the defendant 
 Pearson. The defendants Hall and Fletcher appealed to this court 
 against the order for a new trial, and there was a cross appeal by 
 the plaintiff against the order discharging the rule as to the defen- 
 dant Pearson. 
 
 Nov. 3, 1880, Jelf, Q. C. (J. 0. Griffits, Q. C, with him), for the 
 defendants Hall and Fletcher. 
 
 A. T. Lawrence, for the defendant Pearson. 
 
 H. Matthews, Q. C, and Anstie, for the plaintiff. 
 
 During the argument the Court expressed themselves to be satis- 
 fied that there was evidence to go to the jury as against all the 
 defendants. An unsuccessful attempt was made by counsel for the 
 defendants to distinguish the present case from that of I/u/mley v. 
 Gye, 2 E. & B. 216 ; 22 L. J. Q. B. 463, on the ground that there 
 was nothing in the terms of the contract between the plaintiff and 
 Pearson to require the personal services of the latter. On the part 
 of the plaintiff it was contended that there existed between Pear- 
 son and the plaintiff the strict relationship of master and servant,
 
 720 ACTION (right of). 
 
 No. 15. — Bowen v. Hall. 
 
 but that if not, then the case came within the authority of Lumley 
 v. Gye, supra. It became necessary therefore to determine whether 
 the judgment of the majority of the Judges who decided Lumley v. 
 Gye, supra, or that of the dissenting Judge (Coleridge, J.) was to be 
 supported by a Court of Appeal. On this point the Court took 
 time to consider its judgment, and counsel in the meanwhile were 
 to be at liberty to furnish the court with a reference to any further 
 authority bearing on the decision in that case. 1 
 
 Cur. adv. vult. 
 
 Feb. 5. Brett, L. J. The Lord Chancellor agrees with me in the 
 judgment [ am about to read, and it is to be taken therefore as the 
 judgment of the Lord Chancellor as well as of myself. 
 
 In this case, we were of opinion at the hearing, that the contract 
 was one for personal service, though not one which established 
 strictly for all purposes the relation of master and servant between 
 the plaintiff and Pearson. We were of opinion that there was evi- 
 dence to justify a finding that Pearson had been induced by the 
 defendants to break his contract of service, that he had broken it, 
 and bad thereby, in fact, caused some injury to the plaintiff. We 
 were of opinion that the act of the defendants was done with know- 
 ledge of the contract between the plaintiff and Pearson, was done in 
 order to obtain an advantage for one of the defendants at the ex- 
 pense of the plaintiff, was done from a wrong motive, and would 
 therefore justify a finding that it was done in that sense maliciously. 
 Tli ere remained nevertheless the question, Whether there was any 
 evidence to lie left to the jury against the defendants Hall and 
 Fletcher, it being objected that Pearson was not a servant of the 
 plaintiff 1 . The case was accurately within the authority of the case 
 of Lumley v. Gye, supra. If that case was rightly decided, the objec- 
 tion in this case failed. The only question then which we took 
 time to consider w T as whether the decision of the majority of the 
 Judges in that case should be supported in a court of error. That 
 case was so elaborately discussed by the learned Judges who took 
 part in it that little more can be said about it, than whether, after 
 
 1 The following is a list of the author- 780 ; Burr/ess v. Carpenter, 16 Amer. Rep. 
 
 ities with which the Court was afterwards 643 ; Bixby v. Dunlap, 22 Amer. Rep. 
 
 furnished, viz.: Brans v. Walton, Law 475; and note at the end of that case ; 
 
 Rep. 2 C. P. 615; Cattle v. Stockton Bryan v. Slate, 44 Georgia, 328; and 
 
 Waterworks Company, Law Rep. 10 Q. R. Walter v. Cronin, 107 Mass. 555. 
 453; Haskins v. Royster, 16 Amer. Rep.
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 721 
 
 No. 15. — Bowen v. Hall. 
 
 careful consideration, one agrees rather with the judgments of the 
 majority, or with the must careful, learned, and able judgment of 
 Mr. .lustier Coleridge. The decision of the majority will be seen, 
 on a careful consideration of their judgments, to have been founded 
 upon two chains of reasoning. First, that wherever a man does an 
 act which in law and in fact is a wrongful act, and such an act as 
 may, as a natural and probable consequence of it, produce injury to 
 another, and which in the particular case does produce such an in- 
 jury, an action on the case will lie. This is the proposition to be de- 
 duced from the case of AsKby v. White, 1 Sm. L. C. 8th ed. p. 264. If 
 these conditions are satisfied, the action does not the less lie because 
 the natural and probable consequence of the act complained of is 
 an act done by a third person ; or because such act so done by the 
 third person is a breach of duty or contract by him, or an act illegal 
 on his part, or an act otherwise imposing an actionable liability on 
 him. It has been said that the law implies that the act of the third 
 party, being one which he has free will and power to do or not to 
 do, is his own wilful act, and therefore is not the natural or proba- 
 ble result of the defendants' act. In many cases that may be so: 
 but if the law is so to imply in every case, it will be an implication 
 contrary to manifest truth and fact. It has been said that if the 
 act of the third person is a breach of duty or contract by him, or 
 is an act which it is illegal for him to do, the law will not recognise 
 that it is a natural or probable consequence of the defendant's act. 
 Again, if that were so held in all cases, the law would in some 
 refuse to recognise what is manifestly true in fact. If the judg- 
 ment of Lord Ellenborough in Vicar v. Wilcochs, 8 East, 1 ; 2 Sm. 
 L. C. 8th ed. p. 554, requires this doctrine for its support, it is, in 
 our opinion, wrong. 
 
 We are of opinion that the propositions deduced above from 
 AsJiby v. White, 1 Sm. L. C. 8th ed. p. 264, are correct. If they 
 be applied to such a case as Lumley v. Gye, supra, the question is 
 whether all the conditions are by such a case fulfilled. The first 
 is that the act of the defendants which is complained of must be 
 an act wrongful in law and in fact. Merely to persuade a person 
 to break his contract, may not be wrongful in law or fact, as in the 
 second case put by Coleridge, J., 2 E. & B., at p. 247. But if the per- 
 suasion be used for the indirect purpose of injuring the plaintiff, or 
 of benefiting the defendant at the expense of the plaintiff, it is a 
 malicious act which is in law and in fact a wrong act, and therefore 
 vol. i. — 46
 
 722 ACTION (right of). 
 
 No. 15. — Bowen v. Hall. 
 
 a wrongful act, and therefore an actionable act if injury ensues 
 from it. We think that it cannot be doubted that a malicious act, 
 such as is above described, is a wrongful act in law and in fact. 
 The act complained of in such a case as Lumley v. Gye, supra, and 
 which is complained of in the present case, is therefore, because 
 malicious, wrongful. That act is a persuasion by the defendant of 
 a third person to break a contract existing between such third per- 
 son and the plaintiff'. It cannot be maintained that it is not a 
 natural and probable consequence of that act of persuasion that 
 the third person will break his contract. It is not only the natural 
 and probable consequence, but by the terms of the proposition which 
 involves the success of the persuasion, it is the actual consequence. 
 Unless there be some technical doctrine to oblige one to say so, it 
 seems impossible to say correctly, in point of fact, that the breach 
 of contract is too remote a consequence of the act of the defendants. 
 The technical objections alluded to above have been suggested as 
 the consequences of the judgment in Vicars v. Wilcocks, supra. But 
 that judgment when so used or relied on seems to us to be' disap- 
 proved in the opinions given in the House of Lords in Lynch v. 
 Knight, 9 H. L. C. 577, and seems to us when so used to be unrea- 
 sonable. In the case of Lumley v. Gye, supra, and in the present 
 case, the third condition is fulfilled, — namely, that the act of the 
 defendant caused an injury to the plaintiff, unless again it can be said 
 correctly that the injury is too remote from the cause. But that 
 raises again the same question as has been just dismissed. It is 
 not too remote if the injury is the natural and probable consequence 
 of the alleged cause. That is stated in all the opinions in Lynch v. 
 Knight, supra. The injury is in such a case, in law as well as in 
 fact, a natural and probable consequence of the cause, because it is 
 in fact the consequence of the cause, and there is no technical rule 
 against the truth being recognised. It follows that in Lumley v. 
 Gye, supra, and in the present case all the conditions necessary to 
 maintain an action on the case are fulfilled. 
 
 Another chain of reasoning was relied on by the majority in 
 Lumley v. Gye, 2 E. & B. 216; 22 L. J. Q. B. 463, and powerfully 
 combated by Coleridge, J. It was said that the contract in ques- 
 tion was within the principle of the Statute of Labourers, — that 
 is to say, that the same evil was produced by the same means, and 
 that as the statute made such means when employed in the case 
 of master and servant, strictly so called, wrongful, the common
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 723 
 
 No. 15. — Bowen v. Hall. 
 
 law ought to treat similar means employed with regard to parties 
 standing in a similar relation as also wrongful. If, in order to 
 support Lumley v. Gye, 2 E. & B. 216; 22 L. J. Q. I). 463, it had 
 
 been necessary to adopt this proposition, we should have much 
 "doubted, to say the least. The reasoning of Coleridge, J., upon 
 the second head of his judgment seems to us to be as nearly as 
 possible, if not quite, conclusive. But we think it is not necessary 
 to base the support of the ease upon this latter proposition. We 
 think the case is better supported upon the first and larger doe- 
 trine. And we are therefore of opinion that the judgment of the 
 'Queen's Bench Division was correct, and that the principal appeal 
 must be dismissed. 
 
 Lord Selborne, L. C. I have now to add the conclusion to 
 ■which this court has unanimously come with regard to the cross- 
 appeal by the plaintiff against the defendant Pearson, who suc- 
 ceeded before the Queen's Bench Division in getting the rule for a 
 new trial discharged or refused as to himself, while it was made 
 absolute as to the other defendants. 
 
 Pearson was the workman, who, having a special knowledge or 
 skill in the glazing of bricks, which gave a peculiar and excep- 
 tional value to his services, contracted with the plaintiff to work 
 for him exclusively if required so to do, during a certain period of 
 time (the plaintiff being reciprocally bound to employ no other 
 person in the same kind of work during the same period), and was 
 afterwards induced by the other defendants to break that contract. 
 The relief asked against him in the action was injunction. An 
 interim injunction was granted before the trial; and the case went 
 down for trial against all the defendants at the same time and 
 upon the same issues of fact. The effect of leaving the verdict to 
 stand in Pearson's favour would be to entitle him to judgment in the 
 action, which cannot be right if his contract with the plaintiff was 
 broken in the manner alleged ; and if upon the evidence given at the 
 trial that question of fact could properly be now determined in Pear- 
 son's favour, it is impossible that upon the same evidence it could 
 also be right to order a new trial as against the other defendants. 
 
 We think, therefore, that the plaintiff's appeal must be allowed, 
 and that there ought to be a new trial as to all the defendants. 
 But as, when the proper time comes to give final judgment, the 
 consequences of a verdict for the plaintiff will not necessarily be 
 the same as to Pearson, and as to the other defendants, we think
 
 724 ACTION (right of). 
 
 No. 15. — Bowen v. Hall. 
 
 that the judge at the trial ought to give such directions to the 
 jury as will enable the court, if the plaintiff should succeed, to 
 dual with the particular case of this defendant as may be just. 
 For this purpose they ought to be directed, in the event of a 
 verdict for the plaintiff, to find specially the amount of damages 
 which they think ought to be awarded against Pearson, first, in 
 the event of the court thinking his case a proper one both for an 
 injunction and for damages ; and, secondly, in the event of the 
 court thinking it a proper case for damages only and not also for 
 an injunction. (See Lord Cairns' Act. 21 & 22 Vict. c. 27 § 2, 
 and the Judicature Act, 1873, 36 & 37 Vict. c. 66, § 2 sub-§ 6 ; 
 and § 76.) 
 
 The cases of Hills v. Croll, 2 Phill. 60 ; 1 D. M. & G. 627, n., 
 Dietricliaen v. Cabburn, 2 Phill. 52, and Lumleij v. Wagner, 1 D. 
 M. & G. 604, 627, and the authorities in equity as to covenants 
 in restraint of trade within certain limits of time or place, may 
 possibly require to be considered, before the case as to Pearson 
 (in the event of a verdict being found against him) is finally 
 disposed of. 
 
 Lord Coleridge, C. J. In this case, as far as regards the de- 
 fendants, Hall and Fletcher, I am sorry to be obliged to differ from 
 the Lord Chancellor and from my Brother Brett. The facts are 
 undisputed, and I understand that all the members of the court 
 are agreed that the relation of master and servant did not, in the 
 strict sense of the word, exist between the plaintiff and the work- 
 man whom the defendants induced to break his contract. That 
 being so, the point is neatly raised whether the opinion of the 
 majority of the Judges or the opinion of the dissentient Judge in 
 the case of Lumley v. Gye, 2 E. & B. 216; 22 I, J. Q. B. 463, 
 should prevail in a court which is not bound by the decision in 
 that case. I am of opinion that as we are not bound by it we 
 ought to overrule it. 
 
 I believe if it is not admitted, at least it is the fact, that Lumlci/ 
 v. Gye, 2 E. & B. 216 ; 22 L. J. Q. B. 463, stands alone. Cases 
 more or less analogous to it are, no doubt, cited in the judgments 
 of the Judges relied upon as authorities by the majority, but, in 
 my opinion, distinguished successfully by the dissentient Judge. 
 Since its decision I cannot find that its authority has ever been 
 so acknowledged as to be followed in any decided case which has 
 found its way into the Eeports. From its nature it cannot be a
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. I'll 
 
 No. 15. - -Eowen v. Hall. 
 
 very common form of action; and though no doubt it is quite fair 
 to say that this may reasonably account for the bareness of the 
 
 Reports, it ought also in fairness to take away any weight from 
 the circumstance that the case of Lumley v. Grye, supra, has stood 
 so many years in the books without being in terms questioned or 
 overruled. Unfavourable observations have been made upon it; 
 and, at least in some text-books, when it is treated as an authority, 
 it is so treated with the qualification of a "semble." Further, it 
 has certainly not had the unanimous assent of the profession. 
 The three judges who decided it, and my two colleagues here, are 
 no doubt lawyers entitled to the highest respect ; but there have 
 been great lawyers who are well-known to have thought that it 
 was wrongly decided. I may mention in particular Willes, J., — no 
 doubt the counsel who argued unsuccessfully in the case, but one 
 of the greatest jurists of this or any other time. 
 
 This state of things, I conceive, leaves me free to express here 
 what has always been my own opinion, — viz., that an action does 
 not and ought not to lie against a third person for maliciously and 
 injuriously enticing and procuring another to break a contract, in 
 a case where the relation of master nnd servant in the strict sense 
 does not exist. I do not propose to state at length my reasons 
 for this opinion. I could only recite the cases and re-state the 
 arguments of Sir John Coleridge in Lumley v. Gye, supra. I agree 
 with my Brother Brett that the conflicting views are stated as 
 well as they can be stated by the Judges who respectively enter- 
 tained them in that case ; and that there is really no more to be 
 said about it. The question is with which view do you agree, and 
 I have said I differ from the majority. 
 
 Only one independent observation occurs to me to make. It is, 
 I believe, admitted that if a man maliciously endeavours to per- 
 suade another to break a contract, but fails in his endeavour, the 
 malicious motive is not in itself a cause of action. It is, I believe, 
 also admitted, except by Sir William Erle, whom, I think, no one 
 has ever followed, that if a man endeavours to persuade another 
 to break his contract and succeeds in his endeavour, yet if he does 
 this without what the law calls "malice," the damage which 
 results, however great, is not in itself a cause of action, — I mean, 
 of course, a cause of action against him. But if the damage 
 which is not in itself actionnble be joined to a motive which is not 
 in itself actionable, the two together form a cause of action. This
 
 726 ACTION (right of). 
 
 No. 15. — Bowen v. Hall. 
 
 seems a strange conclusion, but I am reminded of the analogies of 
 libel and conspiracy, in both which, it is said, that malice makes, 
 that same thing actionable which without it would not be so. I 
 venture to think that in this there is a fallacy. 
 
 In the instance of libel there is not even an apparent parallel, 
 except in cases of prima facie privilege. A statement in itself 
 defamatory, made deliberately and intentionally, is, I apprehend* 
 a ground of action, however pure and even exalted may be the 
 motive of him who makes it. The case of privilege is an exception 
 to the general law. A statement that is defamatory and untrue,- 
 and which may do irreparable damage, is yet protected under 
 certain conditions, on the ground that it is better for the general 
 good that individuals should occasionally suffer than that freedom 
 of communication between persons in certain relations should be 
 in any way impeded. But the freedom of communication which 
 it is desirous to protect is honest and kindly freedom. It is not 
 expedient that liberty should be made the cloak of maliciousness, 
 and in such a case the general law applies. It is not, I think,, 
 accurate to say that the malice makes the statement actionable. 
 Deliberate and intentional defamation is always actionable, and 
 the law implies that a man means what he dues, save that under 
 peculiar and exceptional circumstances the law will not make the 
 implication which it makes in all others. So, too, in conspiracy. 
 The gist of the civil action, as of the criminal offence, is the act of 
 conspiracy by two or more minds to bring about certain ends by- 
 certain means. It is true that each separate conspirator might 
 not in some instances be actionable nor indictable for attempting 
 to do, or even for doing, with the utmost malice what he becomes 
 actionable or indictable for conspiring to do with others. But 
 here, too, I conceive that from the act of conspiring to bring 
 about the unlawful end, or to use the unlawful means, the law 
 implies that malice, which is necessary in law to ground the 
 action, or support the indictment. If, therefore, the suggested 
 analogies be accurately looked at, I think, with all deference, 
 they turn out to be no analogies at all. I do not know, except in 
 the^case of Lumley v. Gyc, 2 E. & B. 216; 22 L. J. Q. B. 463, 
 that it has ever been held that the same person for doing the same 
 thing under the same circumstances, with the same result, is ac- 
 tionable or not actionable according to whether his inward motive 
 was selfish or unselfish for what he did. 1 think the inquiries to
 
 SECT. IV. — CONTRACT WITH THIRD PERSON. 727 
 
 Nos. 14, 15. — Lumley v. Gye, &c. — Notes. 
 
 which this view uf the law would lead are dangerous and inexpe- 
 dient inquiries for courts of justice ; judges are not very fit for 
 them, and juries are very unfit. I think, therefore, that Lumley v. 
 Gye, supra, should be overruled, and that this action as against the 
 defendants Hall and Fletcher is not maintainable. As to the 
 other defendant, Pearson, 1 agree with the rest of the court. 
 
 Appeal of defendants Hall and Fletcher dismissed; 
 
 cross-appeal of plaintiff as to defendant Pearson 
 
 allowed. 
 
 ENGLISH NOTES. 
 
 These decisions of the Queen's Bench and of the Court of Appeal, 
 though dissented from, — the former by the late Sir John Coleridge, 
 and the latter by Lord Coleridge, — have placed the rule beyond ques- 
 tion by any English Court, unless by the House of Lords. 
 
 The principle on which the rule is based may be stated more gene- 
 rally as follows: Where an injury to the plaintiff has been (pre- 
 sumably) foreseen, and therefore intended, by the defendant as a con- 
 sequence of his act, the damage, which otherwise would have been too 
 remote, combines with the malicious intention, to make a cause of 
 action. This is the principle which underlies such apparently diverse 
 cases as Langridge v. Levy (pp. 527, 528, supra), and Lumley v. 
 Gye. 
 
 With these may be contrasted the case of Cattle v. Stockton Water 
 Works (1875), L. K., 10 Q. B. 453; 41 L. J. Q. B. 139, where defend- 
 ants, by allowing water to flow from a leakage in their pipes, had con- 
 verted the ground of the adjacent owner (A.) into a sort of quicksand. 
 This state of things was the cause of serious loss to the plaintiff, — a 
 contractor who had agreed with A. to execute certain work in making 
 a tunnel on his ground. It was held that, as the defendants were 
 neither under any duty towards the plaintiff, nor had they the intention 
 (actual or presumable) to injure him, they were not liable in the action. 
 It is on a somewhat similar ground that Lumley v. Gye is distin- 
 guished by Lord Coleridge in his judgment in the case of Mogul S. 
 S. Co. v. McGregor & Co. (1888), 21 Q. B. D. 544. 552; 57 L. J. Q. B. 
 541, — a judgment afterwards affirmed by the Court of Appeal and by 
 the House of Lords (1889), 23 Q. B. D. 598, and Appeal Cases, 18 , .)1', 
 p. 25 ; 58 L. J. Q. B. 465 ; 61 L. J. Q. B. 295. In that case an asso- 
 ciated body of shipowners, in order to get the whole of a certain ship- 
 ping trade into their own hands, offered exceptional terms to customers 
 who would deal only with members of the association. The plaintiff 
 was a shipowner who was by these means excluded from the trade.
 
 728 ACTION (right of). 
 
 Nos. 14, 15. — Lumley v. Gye, &.c. — Notes. 
 
 It was decided that the acts of the defendants, being lawful in them- 
 selves, and dune with the intention of benefit to themselves and not of 
 injuring the plaintiff, gave him no cause of action. 
 
 AMERICAN NOTES. 
 
 This action lies generally in this country. Lee v. Went, 47 Georgia, 311 ; 
 Walker v. Cronin, 107 Massachusetts, 555; Ames v. Union R. Co., 117 Massa- 
 chusetts, 541 ; Bixbysr. Dunlap, 56 New Hampshire, 150; 22 Am. Rep. 475 ; 
 Noice v. Brown, 39 New Jersey Law, 569 ; Haskins v. RoysU r, 70 No. Carolina, 
 001; 16 Am. Rep. 780; citingtheprincipalca.se; Woodward v. Washburn, 3 
 Denio (New York), 3G9 ; Huff" v. Walkins, 15 So. Carolina, 82; Plummer v. 
 Webb, 4 Mason (U. S. Circ. Ct.), 380 ; Sherwood v. Hull, 3 Sumner (U. S. Circ. 
 Ct.), 127 ; Haight v. BaiUjeley, 15 Barbour (New York Sup. Ct.), 499 ; Daniel v. 
 Swearengen, 6 So. Carolina, 297 ; 24 Am. Rep. 471 ; citing the principal case; 
 Caughey v. Smith, 47 New York, 244, holding however that the servant must 
 be in the actual service at the time. 
 
 li a man enters on another's premises to entice away his servant, he is a tres- 
 passer. Webber v. Burr//, GG Michigan, 127; 11 Am. St. Rep. 466, and ex- 
 tended note, 472. citing the principal case. 
 
 A labourer working a farm on shares has been deemed not a servant so as to 
 give the master a right of action for enticing him away. Winslow v. State 
 06 Alabama (to appear). But the contrary is held in Haskins v. Royster, 
 70 No. Carolina, 001 ; 10 Am. Rep. 780; Hufv. Walkins, 15 So. Carolina, 82; 
 40 Am. Rep. 680. 
 
 The first principal case is cited in Ileyirood v. Tillson, 75 Maine, 225; 40 
 Am. Rep. 373. See also 20 Am. Law Reg. (X. S.), 578. Also cited in hud- 
 ley v. Brigr/s, 141 Mass. 582 ; 55 Am. Rep. 494. 
 
 In Chambers v. Baldwin, 91 Kentucky, 121 ; 11 Lawyers' Rep. Annotated, 
 545 (A. D. 1891), it was held that inducing one to break his contract of sale 
 of goods will not afford an action, although done maliciously and for profit, 
 but without force or fraud. The action was founded on the principal cases, but 
 they were disapproved by the court, quoting and approving Cooley on Torts, 
 197 (agreeing with Chief Justice Coleridge in his dissent): "An action 
 cannot in general be maintained for inducing a third person to break his 
 contract with the plaintiff; the consequence, after ail, being only a broken 
 contract, for which the party to the contract may have his remedy by suing 
 upon it." 
 
 The same court, in Bourlier v. Macauley, 91 Kentucky. 135; 34 Am. St. 
 Rep. 171, held the same doctrine in an action of damages for inducing an 
 actor to break his contract for theatrical service, citing and disapproving 
 LumleyY. Gye, and approving Justice Coleridge's dissent therein. 
 
 In Rice v. Manley, 00 New York, 82 ; 23 Am. Rep. 30, the doctrine of the 
 principal cases was laid down even where the contract in question was void 
 by the statute of frauds, it appearing that it would have been performed but 
 for the interference. See Lawson on Contracts, § 115, citing the principal 
 cases.
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF ACTION. 729 
 No. 16. — Chaseniore v. Richards. — Rule. 
 
 Section V. — Cases of Loss where there is no Bight of 
 Action. Damnum absque Injuria. 
 
 No. 16. — CHASEMORE v. RICHARDS. 
 
 (h. l. 1859.) 
 
 RULE. 
 
 Where a proprietor digs a well on his own land and 
 pumps up water to an extent exceeding what is required 
 for his private use, with the result of absorbing water 
 from the substrata and diminishing the supply enjoyed 
 by neighbouring proprietors, but without diverting water 
 already collected in any definite channel, the loss suffered 
 by these proprietors is damnum absque injuria, and affords 
 no ground of action against the first proprietor. 
 
 Chasemore v. Richards. 
 
 7 II. L. C. 349 (s. c. 29 L. J. Ex, 81). 
 
 Error on a judgment in the Court of Exchequer Chamber. The 
 plaintiff in the action (who was also the plaintiff in error) was a 
 mill-owner near Croydon ; the defendant was the clerk of the local 
 Board of Health of that town and was sued in that character. 
 
 The declaration stated that the plaintiff was possessed of an 
 ancient mill, with the appurtenances, and was entitled to the How 
 of a certain stream, called the Wandle, for the purpose of working, 
 using, and more conveniently enjoying the said mill, and that the 
 said board wrongfully abstracted and prevented the flow of and 
 diverted the water of the said stream away from the said mill, and 
 wrongfully abstracted and prevented and intercepted the flow of 
 and diverted water which ought to have flowed into the said 
 stream and mill, and continued to abstract, prevent, divert, and 
 intercept the same respectively, by digging and sinking a well 
 near to the said stream, and taking the water of such well. 
 
 The defendant pleaded not guilty, by statute. The statute 
 stated in the margin was 11 & 12 Vict, c. 63, § 139, — a public 
 Act. Upon this plea issue was joined.
 
 730 ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. 
 
 The cause came on fur trial at the Kingston Assizes in March, 
 1854, before Mr. Baron Alderson, when a verdict was entered for 
 the plaintiff, subject to the award of Mr. Creasy, with power to 
 him to state a special case for the opinion of the Court. A case 
 was stated, and the following are the material facts set forth 
 in it : — 
 
 " The plaintiff is, and at the time of the acts complained of was, 
 possessed of and was the occupier of an ancient mill on the River 
 Wandle, in the county of Surrey, called Waddon Mill, situate 
 about one mile from the town of Croydon, in the said county. 
 
 " The plaintiff and the preceding possessors and occupiers of the 
 said mill had, for upwards of sixty years next before the acts of 
 the local board hereinafter mentioned, and for upwards of sixty 
 years next before the bringing of the action, used and enjoyed as 
 of right, and been entitled to use and enjoy, the flow of the said 
 river for the purpose of working and using the said mill. 
 
 " The River Wandle commences, and always has commenced, its 
 course near the part of the town of Croydon which is nearest to 
 the said mill, and the said river flows and always has flowed 
 thence to and by the plaintiff's mill. 
 
 " The River Wandle is, and always has been, fed and supplied 
 above the plaintiffs mill by (among other sources of supply) the 
 water produced by the rainfall on a district of many thousand 
 acres in extent, comprising the town of Croydon and its vicinity. 
 
 " Large quantities of this water sink into the upper ground to 
 various depths, and then flow and percolate through the strata 
 towards and to the River Wandle (if not interfered with), in some 
 instances rising to the surface as springs, and then flowing as little 
 surface streams into the river; in other instances finding their 
 whole way underground into the river. The precise lines and 
 courses in which the underground runlets and particles of water 
 so find their way underground towards and to the river vary con- 
 tinually and infinitely with the shiftings and variations in the 
 soil which occur from natural causes, but the general flow of large 
 quantities of water to the River Wandle is as above described ; and 
 if they are not interfered with or intercepted, they form consider- 
 able sources of supply to the river, as well above as below the 
 plaintiffs mill. 
 
 " It is impossible to know beforehand the precise or complete 
 "feet which the sinking a new well and pumping from it in any
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 73 L 
 No. 16. — Chasemore v. Richards. 
 
 part of the district above described may have upun springs or 
 streams in the vicinity. The effect may be instantly sensible and 
 considerable, or for a lung time no sensible effect may appear; but 
 the natural effect of abstracting a large quantity of water at any 
 spot of the district above described is to diminish the quantity at 
 every other spot throughout the district, though the amount of 
 diminution at particular spots maybe infini tesim ally small ; and 
 the natural effect to be reasonably expected from sinking a new 
 well in such a district, and from continually or almost continually 
 pumping thence large quantities of water for a long time, must be 
 the sensible diminution of the water supply of springs and streams 
 in the vicinity. 
 
 " The above description is to be taken to apply to the district in 
 question, not merely at the present time, but for 60 years and 
 upwards next before the works and acts of the local Board of 
 Health hereinafter mentioned, and for 60 years and upwards 
 before the bringing of the action. 
 
 " The local Board of Health for the town of Croydon was duly 
 constituted under the ' Public Health Act,' and under the ' Public 
 Health Supplemental Act, 1849.' 
 
 "In the year of our Lord 1851, the said local board, for the pur- 
 pose of supplying the town of Croydon with water, and for other 
 sanitary purposes under the said statutes, made and sank a large 
 well to the depth of 74 feet in their own ground, in a piece of land 
 of and belonging to them in the town of Croydon, and within the 
 district which has been above described. The distance of the said 
 well from the commencement of the River Wandle is about a quar- 
 ter of a mile. They also erected pumps and steam-engines on their 
 said ground, and began to pump water from the well into a reser- 
 voir and pipes, for the supply of the town at the end of the said 
 year, and, with slight periods of intermission, have continued to 
 do so to the present time. 
 
 " The amount of water so pumped and taken by them through and 
 from the said well during the period of six calendar months from 
 the 16th of August, in the year of our Lord 1853, to the 16th day 
 of February in the year of our Lord 1854, was between 500,000 and 
 600,000 gallons daily, Part of the said quantity of water so then 
 pumped and taken by them through and from the said well was water 
 then flowing and finding its way underground through the strata in 
 the manner above described, towards the River Wandle, and which,
 
 732 ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. 
 
 if not intercepted by the operation of the said well and pumping, 
 would have Howed and found its way into the Paver Wandle above 
 the plaintiffs mill; but which, by the operation of the said well and 
 pumping, was drawn away into the said well, and thence pumped 
 up and taken by the said local board. And I find, as a fact, that the 
 said local board did during the six months aforesaid, by means of 
 the said well and pumping, abstract, divert, and intercept under- 
 ground water, but underground water only, that otherwise would 
 have Howed and found its way into the River Wandle, and would 
 then and there, as part of the water and stream of the said river, 
 have flowed and found its way to the said mill of the plaintiff, and 
 have been applicable and serviceable to and for the working 
 thereof, and that the same was sufficient in quantity to have been 
 of sensible value in and towards the winking of the said mill. 
 
 "And I find that the said local board did not, during any part of 
 the time in cpuestion, intercept, divert, or abstract, or draw into 
 their well, any water which had already joined the said River 
 Wandle and become integral part of the same, or which had 
 already joined and become integral part of any surface stream 
 running into the said river. 
 
 " I further find that the said local board, throughout all their 
 acts and works hereinbefore described, were actuated by no malice 
 against the plaintiff or any one else, and that they did not intend 
 in any way to diminish the quantity of water in the River Wandle, 
 or to injure any person interested in the use of the said river ; but 
 the said board at the time of their said acts and works, and through- 
 out the said period of six months particularly in question in this 
 cause, had reasonable means of knowing the probable and natural 
 effects of their said acts and w r orks. 
 
 " In considering this case, the Court is to have power to draw 
 all inferences of fact which a jury might draw. 
 
 " The question for the opinion and judgment of the Court is 
 whether, under these circumstances, the said local Board of Health 
 is legally liable in this action to the plaintiff for the abstraction 
 of water as above described." 
 
 On the 14th May, 1856, the Court of Exchequer, acting upon 
 the authority of Broadbent v. Ramsbothain, 11 Exch. 602, and 
 without hearing any argument, gave judgment for the defendant. 
 
 On the 12th May, 1857, the Court of Exchequer Chamber 
 affirmed that judgment, Mr. Justice COLERIDGE differing from the
 
 SECT. V. — CASKS OF LOSS WIIKKK NO UIGHT OF ACTION". 733 
 No. 16. — Chasemore v. Richards. 
 
 other Judges. 2 Hurl. & Nor. 16S. On this judgment error was 
 suggested. 
 
 The Judges were summoned, and Mr. Justice Wightman, Mr. 
 
 Justice Williams, Mr. Baron Martin, Mr. Justice Crompton, Mr. 
 Baron Bramwell, and Mr. Baron Watson attended. 
 
 Mr. Bovill and Mr. Xeedhain (Mr. Raymond with them) for the 
 
 plaintiff. 1 
 
 On the facts found in the special case, the plaintiff has a clear 
 right to this water; the burden of showing a justification for inter- 
 ference with this right rests, therefore, on the defendant. The 
 ordinary right to water is the same as the right to light and air, 
 Blackstone's Com., Vol. II. p. 14 ; and any additional right must 
 be established by grant or prescription. Here the plaintiff's title 
 is perfect, both as respects ownership of land and length of enjoy- 
 ment. He is the owner of the land over which Hows an ancient 
 mill-stream, and he has been in possession of the right to use the 
 water of that stream for above 60 years. His enjoyment of this 
 right has been invaded by the defendant, who takes the water, not 
 only from land which he occupies, but.from a large extent around, and 
 entirely diverts it, so that the plaintiff no longer has the use of it. 
 This is an excess for which the defendant is answerable. Each 
 owner may have the reasonable use of water coming to his land, 
 but the use must be confined within reasonable limits. That is 
 the law in England, and it applies even in the cases on the subject 
 of irrigable meadows. 
 
 The first case in which a question of this sort directly arose was 
 that of Bui don v. Bcnsfcd, 1 Camp. 463, where Lord Ellexborolcii 
 held that "20 years' exclusive enjoyment of water in any particular 
 manner affords a conclusive presumption of right in the party so 
 enjoying it ; " and there the owner of an adjoining close was held 
 liable for cutting a drain, whereby the supply of water to a spring 
 on the plaintiff's land was diminished. In Race v. Ward, 4 El. 
 & Bl. 702, it was expressly decided that the use of water issuing 
 from a well was not in the nature of a profit a prendre, but was 
 an easement ; and in Mason v. Hill, 5 Barn. & Ad. 1, it was held 
 that an action would lie to recover damages for water diverted 
 
 1 There was some argument on the but, as the judgment proceeded entirely 
 
 words of the 145th section of the Public on the general law relating to rights to 
 
 Health Act of 1848, 11 & 12 Vict. c. 63, water, that argument is not reported, 
 under which the defendant had acted ;
 
 734 ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. 
 
 from springs in the plaintiffs land, and collected in a reservoir ;: 
 for the possessor of land through which a natural stream flows 
 has a right to the advantage of the stream flowing in its natural 
 course, no adverse right having been acquired by twenty years.* 
 possession. 
 
 The law of the United States resembles that of England. Mr. 
 Justice Story in Tyler v. Wilkinson, 4 Mason's U. S. Rep. 400, 
 laid it down that " no proprietor has a right to use the water," — 
 that is, water flowing along his own land, — " to the prejudice of 
 another;" and in Mr. Chancellor Kent's Commentaries 1 the 
 right to the use of water is treated as that of every inferior pro- 
 prietor, but that right is declared subject to the restriction that it 
 must be a reasonable use. The same principle of reasonable use 
 lias therefore been adopted in both nations. That doctrine is, in 
 Embrey v. Owen, 6 Exch. Rep. 353, declared to be fully estab- 
 lished ; and it is said, 6 Exch. Rep. 368, "the law as to flowing; 
 water is now put on its right footing by a series of cases, beginning; 
 with that of Wright v. Howard, 1 Si. & Stu. 190, followed by 
 Mason v. Hill, 3 Barn. & Ad. 304; 5 Barn. & Aid. 1, and ending 
 with that of Wood v. Wand, 3 Exch. Rep. 748, and see Miner 
 v. Gilmour, 12 Moo. P. C. Cas. 131, and is fully settled in the 
 American courts. Kent's Commentaries." There are several other 
 passages in the same judgment, in all of which the right of alt 
 the proprietors of land is restricted " to a reasonable enjoyment of 
 this gift of Providence." The case of Wood v. Wand, there re- 
 ferred to, is express upon that point. All these authorities apply- 
 as much to water flowing under ground as to that which flows' on 
 the surface, and whose cause is visible to all. And the doctrine 
 thus set forth comes from the civil law. Thus in Cujacius, Tit. 
 IV. Comm. Praed. Lib. VIII. Digest, Vol. VII. (Ed. Naples 1758), 
 Col. 443, it is said, " Aqiue haustus, est jus praedii non personam 
 Hoc vero ita procedit, si aqua hauriatur urnis, aut urceis, aut 
 
 1 Vol. iii. lect. 52 pp. 439, 445-544 : channel when it leaves his estate. "NVith- 
 " A proprietor of lands lias no property in out the consent of the adjoining pro- 
 file water itself, but a simple usufruct prietors, he cannot divert or diminish the- 
 while it passes along. Aqua currit et quantity of water which would otherwise- 
 debet cuirere ut currere solebat is the Ian- descend to the proprietors below, nor 
 guage of the law. Though he may use throw the water back on the proprietors- 
 the water while it runs over his land, as above, without a graut, or an uninter 
 an incident to the laud, he cannot an- rupted enjoyment of twenty years, which 
 reasonably retain or give it another direc- is evidence of it." 
 tion, and he must return it to its ordinary
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. Too 
 No. 16. — Chasemore v. Richards. 
 
 situlis aquariis, vel aliis vasibus ad aquam hauriendam accommo- 
 datis. Quid autem fiet si aqua hauriatur machinis aut organis ? 
 Machinae quibus hauriatur aqua liae sunt, quae etiarn liodie sunt 
 in usu, rota tympanum cochlea. Quaestio ergo legis est, quid juris 
 sit si aqua hauriatur his machinis ; " and lie goes on to say, that 
 there may be a grant of an exclusive right to take water, but he 
 imposes even a restriction on that. His words are, Tit. I. De 
 Servitutibus, Vol. VII., Col. 399, " Nunc quaero an sit utilis haec 
 cessio. Si quis mini cesserit ne sibi liceat in suo i'undo aquam 
 quaerere. Constat vero banc cessionem valere, quid est inihi 
 utilis, ne scil. minuatur aqua mei fundi, nee praecedantur venae 
 aquariae mei fundi aut putei." It is therefore clear that Cujacius 
 doubted whether such a right could be good even in a grant, and 
 he only inclined to think it might, if the grant was for useful — 
 that is, necessary — purposes of the grantee. Here there is neither 
 evidence of a grant nor that the water taken is required for the 
 use of the defendant. Even supposing that such a grant could be 
 good, still it must be shown to exist, and here there is no proof of 
 that kind. 
 
 The rule to be deduced from these authorities seems to be that 
 the owner or occupier of the land has the right to take the water 
 flowing through it to a reasonable extent, and for purposes con- 
 nected with the land through which it flows, but not otherwise. 
 Here neither of these conditions is fulfilled by the defendant ; 
 besides which he claims to take not only the water which he finds 
 on his own land, but likewise to draw it from all the land around 
 him, and not for his own use merely, but to supply other people, 
 who have no right to the water at all. Such a claim cannot be 
 supported ; it is in excess of all the principles which have hitherto 
 governed questions of this sort. Nor does the purpose of the 
 defendant give him the right he claims. If the defendant may 
 take the water from all the lands immediately .around his own 
 merely because he is about to employ it for the benefit of the 
 town of Croydon, he may take it, in like manner, and carry it to 
 London for the purpose of the metropolis. The case of Diclcinson 
 v. The Grand Junction Canal Company, 7 Exch. Eep. 282, is pre- 
 cisely in point here. There the company had power to make 
 wells, and in 1849 formed a well, and pumped a quantity of under- 
 ground water which would otherwise have gone into the river, and 
 would have found its way to the plaintiffs' mill, but which was
 
 73G ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. 
 
 thus intercepted ; and it was held that an action would lie at 
 common law against the company for this abstraction of the water, 
 though it never had formed part of the river, whether the water 
 was part of an underground watercourse or was merely water which 
 had percolated through the stratum. In that case it was said, 7 
 Exch. lie p. 300, that when water was on the surface, the right of 
 the owner of the land was undoubted ; " and if the course of a sub- 
 terranean stream were well-known, as is the case with many 
 which sink underground, pursue for a short space a subterraneous 
 course, and then emerge again, it never could be contended that 
 the owner of the soil under which the stream flowed, could not 
 maintain an action for the diversion of it if it took place under 
 such circumstances as would have enabled him to recover if the 
 stream had been wdiolly above ground." [Lord Brougham. Sup- 
 pose a man sank an artesian well for his use, and got an ample 
 supply of water, he must obtain part at least of it from what 
 would otherwise find its way into neighbouring streams. Suppose 
 it was like the artesian well at Grenelle, which affects streams 
 for forty or fifty miles around ; would every proprietor and mill- 
 owner within such a circle have a right of action ?] It is not 
 necessary in this case to consider such speculative instances ; here 
 the injury and the cause of it are undoubted. 
 
 The case of Rawstron v. Taylor, 11 Exch. Rep. 369, does not 
 impeach the doctrine thus laid down. That case decided that the 
 owner of land has an unqualified right, as to water coming on his 
 land in no regular or defined course, to drain it for agricultural 
 purposes, and a neighbouring proprietor cannot complain that he 
 is thereby deprived of such water which would otherwise have 
 come to his land. There the real principle was, that each pro- 
 prietor had the right to deal in a reasonable manner with the 
 water on his own land, and that though such reasonable and 
 necessary use of it might be injurious to another proprietor, it 
 gave no right of action. The plaintiff does not contest that prin- 
 ciple, and its application leaves Dickinson v. The Grand Junction 
 Company entirely unshaken. Nor is it touched by Broadbent v. 
 Bamsbotham, 11 Exch. Rep. 602; 25 L. J. Exch. 115, which like- 
 wise applies to surface water, where it was held that water which 
 occasionally flowed over the land in no definite channel, though 
 when doing so it benefited the plaintiff, could not be claimed by 
 him as something in which he had a fixed legal interest. Yet it
 
 SECT. V. — CASES OF LOSS WHERE NO IlIGHT OF ACTION. 737 
 No. 16. — Chasemore v. Richards. 
 
 was on the authority of these two rases that the judgment in the 
 Court of Exchequer in the present case was given. [Lord Wens- 
 LEYDALE. I did not take part in that judgment : I had left the 
 Court before it was delivered. 1 imagined there was a definite 
 stream which fell into the basin, and that an action would lie for 
 interrupting that stream. My learned brothers did not think 
 there was any stream ; we differed, not on any point of law, but 
 on a point of fact.] In the report of the case in the " haw- 
 Journal" there is introduced a very important observation of Mr. 
 Baron Parke, who, speaking of Acton v. Blundell, 12' Alee. & Wels. 
 o'24, said, " This Court and, I believe, all other courts disapprove of 
 that part of the judgment which denies the natural right to the 
 water. In Wood v. Waud it was held that there was no distinc- 
 tion with respect to water running under ground. For instance, 
 there would be no right to divert the River Mole or the stream at 
 Ingleborough (which is subterranean in a known course of a mile). 
 Dickinson v. The, Grand Junction Canal Company shows the right 
 to feeders, unless the owner's necessities require them." The 
 plaintiff here contends for that natural right, and admits that 
 where these are necessities of use affecting a particular owner the 
 water may be taken by him for such necessary use; that is, indeed, 
 the reasonable use which all the authorities show to be lawful, 
 but that will not justify what has been done here. 
 
 This brings the argument down to the present case itself, and it 
 is submitted that the judgment of Mr. Justice Coleridge is right, 
 2 Hurl. & Nor. 168, 186, and the judgments of the other Judges in 
 the Exchequer Chamber are erroneous. 
 
 The Attorney-General (Sir F. Kelly) and Mr. G. Miller for the 
 defendant : — 
 
 The substance of the plaintiffs claim is, that after a possession 
 of twenty years he is absolutely entitled to all the water which 
 he has been accustomed to use at his' mill, from whatever source 
 it is derived, whether passing through known and defined channels 
 above the surface of the ground, or passing through unknown and 
 undefined channels underground. But it is not denied that his 
 claim is subject to some qualification, and that is, that every 
 owner of land over or through which the water flows to the river 
 is entitled to appropriate to his own use a reasonable quantity of 
 this water. Here arises the first difficulty ; for here begins the 
 conflict of rights of all the owners whose lands are on the same 
 vol. i.— -47
 
 738 ACTIOX (right of). 
 
 No. 16. — Chasemore v. Richards. 
 
 level. It is admitted that each owner has a right to the reason- 
 able use of the water passing through his ground ; he may sink a 
 well to supply his domestic and agricultural wants. This well 
 produces no perceptible effect on the quantity of water that used 
 to flow into the stream. But a great many other owners do the 
 same, and a very perceptible effect is then produced. Is the mill- 
 owner then entitled to his action ? And, if so, against whom ? 
 Against all jointly, or against each ? And, if against each, against 
 which of them, there being no possible means of telling which 
 amongst them has caused the injury? What is the reasonable 
 use ? First, it is conceded that it is the necessary use of the 
 water for domestic, and then for agricultural, purposes ; but Mr. 
 Chancellor Kent has been cited, and lie superadds the use for 
 manufacturing purposes. 1 Is draining within the meaning of 
 agricultural purposes ? Is irrigation ? If so, to what extent ? 
 Would the making of an ornamental piece of water, a lake, — as in 
 Blenheim Park, for example, — be a reasonable use of the water? 
 [Lord Wensleydale. The English cases have not yet allowed of 
 the use of water for irrigation ; the American cases do allow it. 
 In Embrey v. Owen, 6 Exch. Rep. 353, an action for using the 
 water for the purposes of irrigation failed, because the evidence 
 showed that no injury had really been occasioned.] It has been 
 admitted that any one man may sink a well on his own land, for 
 his own domestic use ; but it is said that the well here is sunk, 
 not for the use of the defendant, but of a great number of other 
 persons, and therefore that it is in excess of the defendant's right. 
 But how can that affect the question? If there are five hundred 
 proprietors, and all of them agree that instead of each sinking a 
 well at great individual cost and trouble, they should pay one of 
 their number to supply them with water, the result would be pre- 
 cisely the same. Now, Blackstone, who has been already referred 
 to, expressly states, 2 Com. p. 14, that the owner of the land 
 where the water passes has a full right to use it in its passage. 
 Again, a man has a right to cover his land with warehouses and 
 sheds. Suppose he uses butts and tanks to collect the rain-water. 
 By so doing, he prevents it falling on the ground, sinking in and 
 
 1 Kent's Com. vol. iii. part 4, lect. mankind to debar every riparian pro- 
 
 52, tit. 11, § 7, p. 546: "Streams of prietor from the application of the water 
 
 water are intended for the use and com- to domestic, agricultural, and manufac- 
 
 fort of man, and it would be unreasonable turing purposes." 
 and contrary to the universal sense of
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF ACTION. 739 
 No. 16. — Chasemore v. Richards. 
 
 percolating' through the earth. Is his doing that to subject him 
 to an action, if the neighbouring stream is thereby affected '. Or, 
 
 suppose what one man does in this way should not affect the 
 stream; lint suppose that many others did the same, and that a 
 sensible effect was thereby produced on the stream, would an 
 action then lie, and, if so, against whom ? In insisting on a title 
 to the water after more than a twenty years' possession, the plain- 
 tiff is setting up a prescription on his own land, which he cannot 
 do; Cooper v. Burlier, 3 Taunt. 99. That case was referred to by 
 Lord Chief Justice TlNDAL, in judgment in Acton v. Blundell, VI 
 Alee. & Wels. 352, to show that that which is unknown to a man, 
 and therefore unnoticed by him for above twenty years, cannot be 
 made ground of prescription against him. The argument for the 
 plaintiff requires the House to hold the reverse, and to say, that 
 though no one knew of this underground water, the exclusive 
 benefit of which the plaintiff claims, yet his use of it, after it had 
 found its way into the stream for above twenty years, is to found 
 a prescription in his favour. 
 
 There are two cases which bear directly on the point now under 
 consideration; they are Acton v. Blundell on the one side, and 
 Dickinson v. The Grand Junction Canal Company on the other. 
 llaicstron v. Taylor and Broadbent v. Ramsbotham, though impor- 
 tant, are only of inferior importance. As to Dickinson v. The 
 Grand Junction Canal Company, it is clear that the Judges in the 
 Exchequer could not have meant to decide the question now before 
 this House ; for, in that event, that Court has now pronounced 
 opposite decisions on the same point. If that is so, then the latter 
 must be taken as overruling the former. The question there really 
 depended on this : Whether the company had violated the local Act 
 of Parliament, and its own agreement made in 1817, and the 
 answer was in the affirmative ; but the judgment, 7 Exch. Rep. 301, 
 shows that the water then spoken of was not underground water, 
 but water which had reached the surface, and was flowing in a 
 defined and well-known channel. Then, what is the case of Acton 
 v. Blundell, where the question now before the House really was 
 discussed. That case establishes the doctrine of the absolute right 
 of the owner of land through whose land water percolates, to use 
 that water. The law, civil and English, with relation to under 
 ground water, was there distinctly under discussion; and where 
 Marcellus was there quoted, 12 Mee. & Wels. 335, for the purpose
 
 740 ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. 
 
 of showing that the civil law did not admit such a right, Mr. 
 Justice Maule observed, that the true translation of the obser- 
 vation of that writer was, that " If a man dig a well in his own 
 field, and thereby drains his neighbour's, he may do so, unless he 
 does it maliciously ; " and when Lord Chief Justice TlNDAL deliv- 
 ered the judgment of the Court, 12 Mee. & Wels. 348, he said, 
 "The. question argued before us has been in substance this: 
 Whether the right to the enjoyment of an underground spring, or of 
 a well supplied by such underground spring, is governed by the 
 same rule of law as that which applies to and regulates a water- 
 course flowing on the surface." That is the question now before 
 the House. His Lordship afterwards said, that if the right to be 
 enjoyed was to be governed by. the same law, then the defendants 
 could not justify the making of coal-pits; "but we think there is 
 a marked and substantial difference between the two cases, and 
 that they are not to be governed by the same rule of law." The 
 reasons given for the difference are most strongly set forth, and 
 they depenj:! on this : that while as to streams flowing on the sur- 
 face, everything about them is known, there is an absolute impossi- 
 bility for any one to know what are the underground currents, 
 where they begin, what they produce, and in what direction they 
 run, and consequently an absolute impossibility of knowing what 
 are the rights in relation to them. The question therefore is not 
 now brought for the first time to a court for decision ; it has 
 already been fully considered and decided. That decision, pro- 
 nounced several years ago, has never been questioned ; it is right in 
 principle, and it fully justifies the all but unanimous judgments of 
 the Judges in this case. 
 
 Mr. Bovill in reply : — 
 
 The passage quoted on the other side from Kent's Commentaries, 
 Vol. iii. Lect. 52, pp. 439, 445, 544, expressly declares that the use 
 of the water for domestic, agricultural, and manufacturing purposes 
 must "be made under the limitations which have been mentioned." 
 Those limitations show that it must be a reasonable use, and such 
 a use as is required for the purposes of the owner of the land ; and 
 especially it is not to be used " so as to destroy, or render useless, 
 or materially diminish, or affect the application of the water by the 
 proprietors above or below on the stream." The civil law author- 
 ities are referred to in Acton v. Blundell, and they establish the 
 general proposition for which the plaintiff contends.
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 741 
 
 No. 16. -- Chassmore v. Richards. 
 
 The Lord Chancellor (Lord Chelmsford) proposed for the 
 opinion of the Judges the following question: Whether under 
 the circumstances stated in the printed case, the Croydon Local 
 Board of Health are legally liable to the action of the appellant for 
 the abstraction of the water in the manner described ? 
 
 11th June. Mr. Justice Wightman delivered the opinion of the 
 Judges who had been present at the argument: — 
 
 My Lords, in this case the Judges agree in opinion. I have, 
 therefore, to deliver their unanimous opinion to your Lordships. It 
 appears by the facts that are found in this case, that the plaintiff 
 is the occupier of an ancient mill on the River Wandle, and that 
 for more than sixty years before the present action he, and all the 
 preceding occupiers of the mill, used and enjoyed, as of -right, the 
 flow of the river for the purpose of working their mill. It also 
 appeal's that the River Wandle is, and always has been, supplied, 
 above the plaintiff's mill, in part by the water produced by the 
 rainfall on a district of many thousand acres in extent, comprising 
 the town of Croydon and its vicinity. The water of the rainfall 
 sinks into the ground to various depths, and then flows and perco- 
 lates through the strata to the River Wandle, part rising to the 
 surface and part finding its way underground in courses which con- 
 tinually vary. The defendant represents the members of the Local 
 Board of Health of Croydon, who for the purpose of supplying the 
 town of Croydon with water, and for other sanitary purposes, sank 
 a well in their own land in the town of Croydon, and about a quar- 
 ter of a mile from the River Wandle, and pumped up large quanti- 
 ties of water from their well for the supply of the town of Croy- 
 don ; and by means of the well and the pumping the Local Board 
 of Health did divert, abstract, and intercept underground water, 
 but underground water only, that otherwise would have flowed and 
 found its way into the River Wandle, and so to the plaintiff's mill ; 
 and the quantity so diverted, abstracted, and intercepted, was suffi- 
 cient to be of sensible value towards the working of the plaintiffs 
 mill. The question is, whether the plaintiff can maintain an action 
 against the defendant for this diversion, abstraction, and intercep- 
 tion of the underground water. 
 
 The law respecting the right to water flowing in definite, visible 
 channels may be considered as pretty well settled by several mod- 
 ern decisions, and is very clearly enunciated in the judgment of the 
 Court of Exchequer in the case of Embrey v. Our;), Exch. Rep
 
 742 ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. 
 
 353. But the law as laid down in those cases is inapplicable to the 
 case of subterranean water not flowing in any definite channel, nor 
 indeed at all, in the ordinary sense, but percolating or oozing 
 through the soil, more or less, according to the quantity of rain 
 that may chance to fall. The inapplicability of the general law 
 respecting rights to water to such a case has been recognised and 
 observed upon by many Judges whose opinions are of the greatest 
 weight and authority. In the case of Rawstron v. Taylor. 11 Exch. 
 Rep. 382, Baron Parke, in the course of delivering judgment, says, 
 " This is the case of common surface water flowing in no definite 
 channel, though contributing to the supply of the plaintiffs mill. 
 The waters having no definite course and the supply not being 
 constant, the plaintiff is not entitled to it. The right to have a 
 stream running in its natural direction does nut depend upon 
 a supposed grant, but is jure natural." 
 
 In delivering the judgment of the Court of Exchequer in the 
 subsequent case of Broadbent v. Ramsbotham, 11 Exch. Hep. 602, 
 615, Baron Aldkksox observes that "all the water falling from 
 heaven, and shed upon the surface of a hill, at the foot of which a 
 brook runs, must by force of gravity find its way to the bottom, and 
 so into the brook; but this does not prevent the owner of the land 
 on which it falls from dealing with it as he pleases, and appropri- 
 ating it. He cannot do so if the water has arrived at and is flow- 
 ing in some definite channel. There is here no watercourse at all." 
 
 In the earlier case of Acton v. Blundell, 12 Mee. & Wels. 324, 
 the Court of Exchequer were of opinion that the owner of the sur- 
 face might apply subterranean water as he pleased, and that any 
 inconvenience to his neighbour from so doing was damnum absque 
 injuria, and gave no ground of action. 
 
 There is no case or authority of which I am aware that can be 
 cited in support of the position contended for by the plaintiff, or in 
 which the right to subterranean percolating water adverse to that 
 of the owner of the soil came in question, except the Nisi Prius 
 case of Balston v. Bensted, 1 Camp. 463, and the case of Dickinson 
 v. The (Irand Junction Canal Company, 7 Exch. Rep. 282. 
 
 In the first of these cases, Lord Ellenborough is reported to have 
 expressed an opinion that twenty years' enjoyment of the nzz "* 
 water in any manner afforded an exclusive presumption of ng> t 
 This opinion amounted only to the dictum of an eminent judge, 
 followed by no decision upon the point; for the case ended in the
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 743 
 No. 16. — Chasemore v. Richards. 
 
 withdrawal of a juror, and is directly at variance with the judg- 
 ment of the Court of Exchequer in the other case, upon which the 
 plaintiff relies, of Dickinson v. The Grand Junction Canal Com- 
 pany, in which the Court declared " that the right to have a stream 
 running in its natural course is not by a presumed grant from lung- 
 acquiescence on the part of the riparian proprietors above and 
 below, but is ex jure natures, and an incident of property as much 
 as the right to have the soil itself in its natural state unaltered by 
 the acts of a neighbouring proprietor, who cannot dig so as to 
 deprive it of the support of his land." 
 
 In the case of Dickinson v. The Grand Junction Canal Company, 
 the very question now before your Lordships' House arose, and that 
 case is relied upon by the plaintiff as a decisive authority in his 
 favour. The Court of Exchequer was of opinion that the company, 
 by digging a well and pumping out the water, and so intercepting 
 and diverting underground and percolating water which would 
 otherwise have gone into a stream which flowed to the plaintiff's 
 mill, and was applied to the working of it, had become liable to an 
 action for the infringement of a right at common law. In the same 
 judgment, however, the Court refers to the case of Acton v. Blundell, 
 7 Exch. Eep. 300, apparently with approbation, and observes, " that 
 the existence and state of underground water is generally unknown 
 before a well is made ; and after it is made there is a difficulty in 
 knowing certainly how much, if any, of the water of the well, 
 when the ground was in its natural state, belonged to the owner 
 in right of his property in the soil, and how much belonged to his 
 neighbour. These practical uncertainties make it very reasonable 
 not to apply the rules which regulate the enjoyment of streams and 
 waters above ground to subterranean waters." But the Court, with- 
 out at all adverting to this distinction which it had adopted, treated 
 the case of underground percolating water as governed by the same 
 rules as would obtain in the case of visible streams and water- 
 courses above ground ; and no remark or comment is made or rea- 
 son assigned by the Court for arriving at a conclusion, which not 
 only does not seem warranted by the premises previously adopted, 
 but is in effect hardly consistent with them. The plaintiff in that 
 case was held to have a cause of action independently of any 
 infringement of a right at common law, by reason of the breach of 
 an agreement between the parties and of an Act of Parliament ; and 
 a decision upon the right at common law seems not to have been
 
 744 ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. 
 
 necessary for determining the suit between the parties. These 
 considerations greatly weaken the effect of the case of Dickinson v. 
 The Grand Junction Canal Company as an authority against the 
 defendant upon the point now in question, but it is an authority in 
 his favour to show that a right to water is not by a presumed grant 
 from long acquiescence, but, if it exists at all, is jure naturae, and 
 that the rules of law that regulate the rights of parties to the use 
 of water are hardly, or rather not at all, applicable to the case of 
 waters percolating underground. 
 
 In such a case as the present, is any right derived from the use 
 of the water of the River Wandle for upwards of twenty years for 
 working the plaintiff's mill ? Any such right against another 
 founded upon length of enjoyment is supposed to have originated 
 in some grant, which is presumed, from the owner of what is some- 
 times called the servient tenement. But what grant can be pre- 
 sumed in the case of percolating waters, depending upon the 
 quantity of rain falling or the natural moisture of the soil, and in 
 the absence of any visible means of knowing to what extent, if at 
 all, the enjoyment of the plaintiff's mill would be affected by any 
 water percolating in and out of the defendant's or any other land ? 
 The presumption of a grant only arises where the person against 
 whom it is to be raised might have prevented the exercise of the 
 subject of the presumed grant ; but how could he prevent or stop 
 the percolation of water ? The Court of Exchequer, indeed, in the 
 case of Dielinsonx. The Grand Junction Canal Company, expressly 
 repudiates the notion that such a right as that in question can be 
 founded on a presumed grant, but declares that with respect to 
 running water it is jure naturae. If so, a fortiori, the. right, if it 
 exists at all, in the case of subterranean percolating water, is jure 
 natural, and not by presumed grant; and the circumstance of the 
 mill being ancient would in that case make no difference. 
 
 The question then is, whether the plaintiff has such a right as 
 he claims jure natural to prevent the defendant sinking a well in 
 his own ground at a distance from the mill, and so absorbing the 
 water percolating in and into his own ground beneath the surface, 
 if such absorption has the effect of diminishing the quantity of 
 water which would otherwise find its way into the River Wandle, 
 and by such diminution affects the working of the plaintiff's 
 mill. It is impossible to reconcile such a right with the natural 
 and ordinary rights of landowners, or to fix any reasonable limits
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 745 
 
 No. 16. — Chasemore v. Richards. 
 
 to the exercise of such a right. Such a right as thai contended for 
 Ity the plaintiff would interfere with, if not prevent, the draining 
 of land by the owner. Suppose, as it was put at the bar in argu- 
 ment, a man sank a well upon his own land, and the amount of 
 percolating water which found its way into it had no sensible effect 
 upon the quantity of water in the river which ran to the plaintiff's 
 mill, no action would be maintainable; but if many landowners 
 sank wells upon their own lands, and thereby absorbed so mucli of 
 the percolating water, by the united effect of all the wells, as would 
 sensibly and injuriously diminish the quantity of water in the river, 
 though no one well alone would have that effect, could an action 
 be maintained against any one of them, and if any, which, for it 
 is clear that no action could be maintained against them jointly. 
 
 In the course of the argument, one of your Lordships (Lord 
 Brougham) adverted to the French artesian well at the Abattoir 
 de Grenelle, which was said to draw part of its supplies from a 
 distance of forty miles, but underground, and, as far as is known, 
 from percolating water. In the present case the water which finds 
 its way into the defendant's well is drained from and percolates 
 through an extensive district, but it is impossible to say how much 
 from any part. If the rain which has fallen may not be inter- 
 cepted whilst it is merely percolating through the soil, no man 
 could safely collect the rain-water as it fell into a pond ; nor would 
 he have a right to intercept its fall before it reached the ground, by 
 extensive roofing, from which it might be conveyed to tanks, to the 
 sensible diminution of water which had, before the erection of such 
 impediments, reached the ground, and flowed to the plaintiff's mill. 
 In the present case the defendant's well is. only a quarter of a mile 
 from the River Wandle ; but the question would have been the 
 same if the distance had been ten or twenty or more miles distant, 
 provided the effect had been to prevent underground percolating 
 water from finding its way into the river and increasing its quan- 
 tity, to the detriment of the plaintiff's mill. Such a right as that 
 claimed by the plaintiff is so indefinite and unlimited that, unsup- 
 ported as it is by any weight of authority, we do not think that it 
 can be well founded, or that the present action is maintainable; 
 .and we, therefore, answer your Lordship's question in the negative. 
 
 Lord CHELMSFORD. My Lords, the question in this ease is, 
 whether the plaintiff in error is entitled to claim against the 
 defendant the right to have the benefit of the rain-water which
 
 746 ACTION (RIGHT OF). 
 
 No. 16. — Chasemore v. Richards. 
 
 falls upon a district of many thousand acres in extent and percolates 
 through the strata to the River Wandle, increasing' the supply of 
 water in the river, and being of sensible value in and towards the 
 working of an ancient mill belonging to the plaintiff. The acts of 
 the defendant, by which this underground water was interrupted 
 and prevented from finding its way into the river, were done upon 
 his own land. 
 
 It was conceded by the plaintiff in argument, that a landowner 
 had a limited and qualified right to appropriate water, the course 
 of which is invisible and undefined, exactly to the same extent and 
 for the same purposes as he would be entitled to use water flowing 
 in a defined and visible channel. This, it was contended, must be 
 confined to a reasonable use of the water for domestic and agricul- 
 tural purposes, and perhaps (it was said) according to the opinion 
 of Chancellor Kent, for the purposes of manufacture also. It 
 must farther be admitted (and appeared to be so in argument) that, 
 in addition to these direct uses to which the water may be diverted, 
 if in the regular course of mining operations the percolation of 
 underground water is arrested in its progress, and pi evented reach- 
 ing a point where it would have increased a supply which had 
 previously been usefully employed by an adjoining landowner, he 
 can maintain no action for fhe loss of the water thus cut off from 
 him. A distinction was suggested between such a use as the one 
 last mentioned, where the interception of the water was merely 
 the consequence of operations upon a party's own land, and the 
 present, where the very end and object of the act done was to 
 collect and appropriate the water. And upon the state of things 
 existing in this case a farther distinction was insisted upon between 
 a party sinking a well in his own land for domestic or agricultural 
 or manufacturing purposes and a public Board or a Water Com- 
 pany doing the same thing for sanitary purposes, or for supplying 
 the inhabitants of the neighbourhood with water. 
 
 Before, however, the plaintiff can question the act of the defen- 
 dant, or discuss with him the reasonableness of the claim to appro- 
 priate this underground water for these purposes (whatever they 
 may be), he must first establish his own right to have it pass freely 
 to his mill, subject only to the qualified and restricted use of it, to 
 which each owner may be entitled through whose land it may 
 make its way. It seems to me that both principle and authority 
 are opposed to such a right.
 
 SECT. V. —CASES OF LOSS WHERE NO RIGHT OF ACTION. 747 
 No. 16. — Chasemore v. Richards. 
 
 The law as to water flowing in a certain and definite channel has 
 been conclusively settled by a series of decisions, in which the 
 whole subject has been very fully and satisfactorily considered, and 
 the relative rights and duties of riparian proprietors have been 
 carefully adjusted and established. The principle of these decisions 
 seems to me to be applicable to all water flowing in a certain and 
 defined course, whether in an open visible stream or in a known 
 subterranean channel ; and I agree with the observation of Lord 
 Chief Baron Pollock in Dickinson v. The Grand Junction Canal 
 Compa nil, 7 Exch. Hep. 300, 301, "that if the course of a subter- 
 ranean stream were well known, as is the case with many which 
 sink underground, pursue for a short space a subterranean course, 
 and then emerge again, it never could be contended that the owner 
 of the soil under which the stream flowed could not maintain an 
 action for the diversion of it, if it took place under such circum- 
 stances as would have enabled him to recover had the stream been 
 wholly above ground." But it appears to me that the principles 
 which apply to flowing water in streams or rivers, the right to the 
 How of which in its natural state is incident to the property 
 through which it passes, are wholly inapplicable to water percolating 
 through underground strata, which has no certain course, no defined 
 limits, but which oozes through the soil in every direction in which 
 the rain penetrates. There is no difficulty in determining the 
 rights of the different proprietors to the usufruct of the water in a 
 running stream. Whether.it has been increased by floods or dimin- 
 ished by drouth, it flows on in the same ascertained course, and 
 the use which every owner may claim is only of the water which 
 has entered into and become a part of the stream. But the right 
 to percolating underground water is necessarily of a" very uncertain 
 description. When does this right commence ? Before or after 
 the rain has found its way to the ground ? If the owner of laud 
 through which the water filters cannot intercept it in its progress, 
 can he prevent its descending to the earth at all, by catching it in 
 tanks or cisterns ? And how far will the right to this water supply 
 extend ? 
 
 In this case the water which ultimately finds its way to the 
 River Wandle is strained through the soil of several thousand 
 acres. Are the most distant landowners, as well as the adjacent 
 ones, to be bound, at their peril, to take care to use their lands so 
 as not to interrupt the oozing of the water through the soil to a
 
 748 ACTION (RIGHT of). 
 
 No. 16. ■ — Chasemore v. Richards. 
 
 greater extent than shall be necessary for their own actual wants ? 
 For, with Mr. Justice Coleridge, I do not see here " how the igno- 
 rance " which the landowner has of the course of the springs 
 below the surface, of the changes they undergo, and of the date of 
 their commencement "is material in respect of a right which dees 
 not grow out of the assent or acquiescence of the landowner, as 
 in the case of a servitude, but out of the nature of the thing 
 itself." 2 Hurl. & Nor. 191. 
 
 This distinction between water flowing in a definite channel and 
 water, whether above or underground, not flowing in a stream at all, 
 but either draining off the surface of the land, or oozing through 
 the underground soil in varying quantities and in uncertain direc- 
 tions, depending upon the variations of the atmosphere, appears to 
 be well settled by the cases cited in argument. In jRawstron v. 
 Taylor, 11 Exch. Rep. 369, 382, it was held that, in the case of 
 common surface water arising out of springy or boggy ground, and 
 flowing in no definite channel, the landowner was entitled to get 
 rid of it in any way he pleased, although it contributed to the 
 supply of the plaintiff's mill. And in Broadbent v. Ramsbotham, 
 11 Exch. 602, it was decided that a landowner has a right to 
 appropriate surface water which flows over his land in no definite 
 channel, although the water is thereby prevented from reaching a 
 brook, the stream of which had for more than fifty years worked 
 the plaintiffs mill. Baron Aldersox, in delivering the judgment 
 of the Court in that case, says, 11 Exch. Eep. 615, " No doubt all 
 the water falling from heaven and shed upon the surface of a hill, 
 at the foot of which a brook runs, must, by the natural force of 
 gravity, find its way to the bottom, and so into the brook ; but 
 this does not prevent the owner of the land on which this water 
 falls from dealing with it as he may please, and appropriating it 
 He cannot, it is true, do so if the water has arrived at and is flow- 
 ing in some natural channel already formed. But he has a perfect 
 right to appropriate it before it arrives at such channel." 
 
 These cases apply to the right to surface water not flowing in 
 any defined natural watercourse. But, of course, the principles 
 they establish are equally if not more strongly applicable to sub- 
 terranean water of the same casual, undefined, and varying descrip- 
 tion. This appears clearly to have been the opinion of Lord Chief 
 Justice Tindal and the Court of Exchequer Chamber, in the case 
 of Acton v. Blundell ; for, although the Court abstained from inti-
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF A.CTIOX. 749 
 No. 16. - Chassinore v. Richards. 
 
 mating any opinion as to what might have been the rule of law if 
 there had been an uninterrupted user for twenty years of the well 
 of the plaintiff, which had been laid dry by the mining operations 
 of the defendant, yet the Chief Justice having prefaced his judg- 
 ment by stating that " the question argued had been in substance 
 this, whether the right to the enjoyment of an underground spring, 
 or of a well supplied by such underground spring, is governed by 
 the same rule of law as that which applies to and regulates a water- 
 course Mowing on the surface," he concludes with these words, 
 12 Mee. & Wels. 353: "We think that the present case is not to 
 be governed by the law which applies to rivers and flowing streams, 
 but that it rather falls within that principle which gives to the 
 owner of the soil all that lies beneath his surface ; that the land 
 immediately below is his property, whether it is solid rock or 
 porous ground or venous earth, or part soil, part water; that the 
 person who owns the surface may dig therein, and apply all that is 
 there found to his own purposes at his free will and pleasure ; and 
 that if, in the exercise of such right, he intercepts or drains off the 
 water collected from the underground springs in his neighbour's 
 well, this inconvenience to his neighbour falls within the descrip- 
 tion of damnum absque injuria, which cannot become the ground 
 of an action." 
 
 The Court of Exchequer, in the present case, gave judgment for 
 the defendants without argument, on the authority of the decision 
 in Broadbent v. Ramsbotham. The Court of Exchequer Chamber 
 affirmed that judgment, there having been only one dissentient 
 opinion, which however, pronounced as it was by a most learned 
 and able Judge (Mr. Justice ColeridCxE), is certainly entitled to the 
 highest respect. The Judges, of whose assistance your Lordships 
 have had the advantage, have been unanimous in their agreement 
 with the judgment of the Court of Exchequer Chamber. 
 
 Against this concurrence of authority, what is there to be 
 opposed in favour of the plaintiff but' the Nisi Print case of 
 Balston v. Bcnsted, 1 Camp. 463, and the case of Dickinson v. The 
 Grand Junction Canal Company, 7 Exch. Rep. 282? With respecl 
 to Balston v. Benstcd, it does not appear that the question of the 
 right to water percolating through the strata, as contradistinguished 
 from water flowing in a visible stream, was ever presented to Lord 
 Ellenborough's mind, as it is stated that the defence was intended 
 to be set up, but that he observed, early in the trial, that there
 
 750 ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. 
 
 could be no doubt but that twenty years' exclusive enjoyment of 
 water in any particular manner affords a conclusive presumption, 
 of right in the party so enjoying it. Whether by the words " in 
 any particular manner'"' his Lordship meant to point to the right 
 claimed in that case, or intended to state a proposition applicable 
 to all water of which there had been a twenty years' enjoyment, 
 from whatever source it might be derived, it is impossible to gather 
 from the report ; but the question was never argued ; and as, upon 
 proof that the decrease of the water in the plaintiffs bath had been 
 occasioned by the operations in the defendant's quarry, the case 
 was at once referred, it can hardly be urged as any authority at all 
 upon a point of such importance, and which requires so much con- 
 sideration as that which it is supposed to have decided. 
 
 With respect to the case of Dickinson v. The Grand Junction 
 Caned Comjjany, upon which the plaintiff also relied, after the 
 observations made upon it by Mr. Justice CfiESSWELL in the 
 Exchequer Chamber, and by Mr. Justice WlGHTMAN in delivering 
 the opinion of the Judges to this House, it is unnecessary for me to 
 say more than that I entirely agree with them, and think that it 
 can hardly be regarded as a satisfactory decision upon the point 
 now under consideration. It appears to me that reason and prin- 
 ciple, as well as authority, are opposed to the claim of the plain- 
 tiff to maintain an action for the interception of the underground 
 water which would otherwise have ultimately found its way to 
 the River Wandle, and that, therefore, the judgment of the Court 
 of Exchequer Chamber ought to be affirmed. 
 
 Lord Ckaxworth. My Lords, I shall not trouble your Lordships 
 by adding more than a very few words to what has fallen from my 
 noble and learned friend, concurring as I do entirely in the unani- 
 mous opinion delivered by the learned Judges who assisted your 
 Lordships at the hearing of the argument, and in the view taken 
 by my noble and learned friend. 
 
 The right to running water has always been properly described 
 as a natural right, just like the right to the air we breathe ; they 
 are the gifts of nature, and no one has a right to appropriate them. 
 There is no difficulty in enforcing that right, because running water 
 is something visible, and no one can interrupt it without knowing 
 whether he does or does not do injury to those who are above or 
 below him. But if the doctrine could be applied to water merely 
 percolating, as it is said, through the soil, and eventually reaching
 
 SECT. V. — CASES OF LOSS WHERE NO EIGHT OF ACTION. 751 
 No. 16. — Chasemore v. Richards. 
 
 some stream, it would be always a matter that would require the 
 evidence of scientific men, to state whether or not there had been 
 interruption, and whether or not there had been injury. It is a 
 process of nature not apparent, and therefore such percolating 
 water has not received the protection which water running in a 
 natural channel on the surface has always received. If the argu- 
 ment of the plaintiff were adopted, the consequence would be that 
 every well that ever was sunk would have given rise, or might 
 give rise, to an' action. 
 
 It is said that, in this case, this is not a w r ell sunk by a partic- 
 ular individual, for his own purposes, but a great well which has 
 been sunk, and by which water is raised to a very enormous extent 
 for supplying the whole town of Croydon. That argument does 
 not affect my mind at all, because if it be conceded, as I think it 
 must be conceded, that each and every one of the individuals re- 
 siding upon this area might have sunk a well of his own to supply 
 himself, it seems to me to be exactly the same thing whether the 
 water is abstracted by one large well, which supplies the whole 
 community, or by a thousand small wells, by which each individual 
 of the community supplies himself. In truth, I should think that, 
 in all probability, the loss of water would be much greater by each 
 individual sinking a well than by one great well being sunk for 
 the supply of the whole community. 
 
 My Lords, upon these short grounds, I entirely concur with my 
 noble and learned friend. I think the judgment of the Court of 
 Exchequer Chamber ought to be affirmed. 
 
 Lord Wexsleydale. My Lords, this case is of the greatest 
 importance and requires the most full and attentive consideration. 
 No question that has occurred in my time has been so worthy of 
 the most careful examination ; and though we have had a very able 
 argument at the Bar from the learned counsel, and we also have 
 been favoured with the able and unanimous opinion of six of the 
 Judges, pronounced by Mr. Justice WlGHTMAN, I must own, speak- 
 ing for myself, I should still desire farther discussion, as I have 
 felt very great difficulty in coining to a conclusion satisfactory to 
 my mind : so many difficulties present themselves on both sides. 
 
 As, however, my noble and learned friends who heard the case 
 argued at the Bar have not had the same difficulty in deciding that 
 I have, and acquiesce in the propriety of the case being now dis- 
 posed of, I concur, though not without very serious doubts as to 
 the propriety of the conclusion at which they have arrived.
 
 752 ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. 
 
 Besides the opinion of the learned Judges, delivered by Mr. 
 Justice WiGHTMAN, Baron Bramwell has had the goodness to 
 communicate to nie one which he wrote, at the time when I 
 suppose a difference of opinion was expected, and I am much 
 indebted to him, as the subject is discussed by him with much 
 ability. 
 
 Your Lordships have, for the first time, to decide the question 
 as to the rights to underground water. There are two conflicting 
 authorities, — the case under appeal, and that of Dickinson v. The 
 Grand Junction Canal Company, 7 Exch. 282, — and your Lordships 
 have to decide between them. It is supposed in the judgment in 
 this case, delivered in the Exchequer Chamber by Mr. Justice 
 Cresswell, that the Court of Exchequer had, in two subsequent 
 cases (Raivstron v. Taylor, 11 Exch. 369, and Broadbent v. Rams- 
 botham, 11 Exch. 602; 25 L. J. Ex. 115), decided differently. 
 Those cases are said to be inconsistent with the decision in Dickin- 
 son v. The Grand Junction Canal Company, and virtually to over- 
 rule it. This is certainly a mistake, for having been a party to 
 the judgments in each of those cases, I am sure I at least had no 
 notion of impugning the doctrine which I had joined in laying 
 down before, in the case of Dickinson v. The Grand Junction 
 Canal Company, which was not decided without great considera- 
 tion. In Broadbent v. Ramsbotham it did not appear that any 
 water which percolated the strata would have reached tbe brook ; 
 and I well recollect that, on the argument, I so considered, and 
 therefore that the plaintiff could not recover on the ground on 
 which the case of Dickinson v. The Grand Junction Canal Com- 
 pany was decided. The argument of Mr. Cowling as reported in 
 the 25 Law Journal 122 (Exchequer), which is fuller than that in 
 the 11 Exchequer, was directed to this point. 1 may add, that the 
 report is more correct than that in the 11 Exchequer, which attri- 
 butes to me too limited a view of the decision in Dickinson v. The 
 Grand Junction Canal Company. 
 
 The subject of right to streams of water flowing on the surface 
 has been of late years fully discussed, and by a series of carefully 
 considered judgments placed upon a clear and satisfactory footing. 
 It has been now settled that the right to the enjoyment of a 
 natural stream of water on the surface ex jure natures belongs 
 to the proprietor of the adjoining lands, as a natural incident to 
 the right to the soil itself, and that he is entitled to the benefit of
 
 SECT. V. — CASKS OF LOSS WHERE NO UIGHT OF ACTION. 753 
 No. 16. — Chasemore v Richards. 
 
 it, as he is to all the other natural advantages belonging to the 
 land of which he is the owner, lie has the right to have it come 
 to him in its natural state, in How, quantity, and quality, and to go 
 from him without obstruction, upon the same principle that he is 
 entitled to the support of his neighbour's soil for his own in its 
 natural state. His right in no way depends upon prescription or 
 the presumed grant of his neighbour 
 
 The elaborate judgment of Lord Denman in the ease of Mason 
 v. Hill, 5 Barn. & Ad. 1, in 1833, reviewed most prior judgments and 
 authorities of importance up to that date, and fully established 
 that proposition. But former authorities and of a very early date, 
 when carefully considered, really left no room for doubt on this 
 subject. 
 
 In the case of Shury v. Pigott, decided in 1625, 3 Bulstr. 339, 
 Poph. 166, Palm, 444, YVhitlock, Justice, laid it down that "a 
 watercourse differs from a way or common ; that it doth not begin 
 by prescription nor yet by assent, but the same doth begin ex jure 
 natures, having taken this course naturally, and cannot be averted," 
 and he observed that the course of a spring is a natural course and 
 current, and to stop this may be a nuisance to the commonwealth 
 and a private wrong. And in Brown v. Best, 1 Wils. 174, Lord 
 Chief Justice Lee is reported to have said that a watercourse is 
 jure naturae and therefore a declaration stating merely the posses- 
 sion of the place through which the water used to run is good. 
 And Denison, Justice, said, that in natural watercourses that was 
 the most proper mode of declaring. 
 
 This decision in the case of Mason v. Hill has been followed by 
 many others laying down the same proposition, of which Wood v. 
 fraud, 3 Ex.ch. Pep. 748, was one. Mason v. Hill had been pre- 
 ceded by the case of Wright v. Howard before Vice Chancellor Sir 
 John Leach, 1 Si & Stu 190. And it was followed by Embrey v. 
 Owen, 6 Exch. 353, and by Dickinson v. The Grand Junction 
 Canal Company. 
 
 This position is also established in the American courts {Tyler 
 v. Wilkinson, 4 Mason U. S. Rep. 400) and sanctioned by the best 
 writers of the highest authority (Kent's Commentaries, Vol. III. Lect. 
 52, p. 439-455). And it is laid down as the first proposition in the 
 very able treatise on Watercourses by Mr. Angel, an American 
 authority (pp. 1, 21, 22). And it has been held in America that 
 the law implied damage from the violation of the right (vide Angel 
 vox, r. — 48
 
 754 ACTION (RIGHT OF). 
 
 No. 16. — Chasemore v. Richards. 
 
 on Water, p. 98 ; Pastorius v. Fisher, 1 Rawle, Pennsylvania Eep. 
 27), — a matter which has been sometimes doubted, though probably 
 without sufficient reason. 
 
 We may consider, therefore, that this proposition is indisputable, 
 that the right of the proprietor to the enjoyment of a watercourse 
 on the surface is a natural right, and not acquired by occupation of 
 the stream itself, or presumed grant. And the expressions used 
 by Mr. Justice Bayley in Williams v. Morland,2 Barn. & Ores. 
 910, and by Lord Chief Justice Tindal, in Liggins v. Inge, 7 Bing. 
 682, that water flowing in a stream is -publiei juris, and the 
 property of the first occupier, are founded on a mistake between 
 the property in the water itself and the right to have its con- 
 tinual flow. 
 
 The observations, also, of Lord Chief Justice Tindal in the case 
 of Acton v. Blundell, 12 Mee. & Wels. 324, and of Mr. Justice 
 MAULE in Smith, v. Kennel:, 7 Com Ben. 515, as to the oiigin of 
 the right to the continual flow of a superficial stream being the 
 presumed acquiescence of the proprietors above and below, and 
 which is the foundation of the distinction made by the Lord Chief 
 Justice between those streams and subterranean watercourses, can- 
 not be supported. 
 
 Now, the right to a natural stream flowing in a definite channel 
 is not confined to streams on the surface ; but the right to an under- 
 ground stream flowing in a known and definite channel is equally a 
 right ex naturd, and an incident to the land itself, as a beneficial 
 adjunct to it, as was determined in the case of Wood v. Waud. 
 
 If the River Wandle, in this case, had been supplied by natural 
 streams flowing into the river above ground, or in known definite 
 channels below ground, the cutting off those streams to which the 
 person entitled to the use of the river was entitled ei naturd as 
 feeders of the river, would be an injury to him, and give a right of 
 action And if this be true with regard to underground streams 
 finding their way into the river, then comes the difficulty how to 
 distinguish a smaller rivulet and the drops of water which flow 
 and percolate into and supply the river. They are all equally 
 the gifts of nature for the benefit of the proprietors of the soil 
 through and into which they flow. They are all flowing water, 
 the property in which is not vested in the owner of the soil, any 
 more than the property in the water of a river which flows through 
 it on the surface.
 
 SECT. V. — CASES OF LOSS VVHEUK NO lilGHT OF ACTION. f55 
 No. 16. — Chasemore v. Richards. 
 
 In Acton v. Blundell it is said by Lord Chief Justice TlNDAL, 
 that the case " rather falls within that principle which gives to the 
 owner of the soil all that lies beneath his surface; that the land 
 immediately below is his property, whether it be solid rock or 
 porous ground or venous earth, or part soil, part water: that the 
 person who owns the surface may dig therein, and apply all that lie 
 finds to his own purposes, at his free will and pleasure." If this 
 applies to water underground in a natural course of transit (and 
 it must do so to be applicable at all), and not to mere stagnant 
 water, I agree with Mr. Justice Coleridge in his remarks, that 
 Hie reason why it is, as such, more the subject of property than 
 the water Mowing above ground is not explained, 2 Hur. & Nor. 
 192. Surely, the use of the flowing water in each case, and not the 
 property in it, belongs to the proprietor of the surface. - 
 
 As to that part of Mr. Justice Coleridge's opinion in which he 
 relies on the possession of the mill for thirty or sixty years (2 
 •Hur. & Nor. 191, 193), I think he is wrong. I do not think that 
 the principle on which prescription rests can be applied ; it has not 
 been with the permission of the proprietor of the land that the 
 istreams have flowed into the river for twenty years or upwards : 
 " qui non prohibet quod prohibere potest, assentire videtur." But 
 how here could he prevent it ? He could not bring an action 
 against the adjoining proprietor ; he could not be bound to dig a 
 •deep trench in his own land to cut off the supplies of water, in 
 order to indicate his dissent. It is going very far to say that a 
 anan must be at the expense of putting up a screen to window 
 light to prevent a title being gained by twenty years' enjoyment 
 of light passing through a window. But this case would go very 
 far beyond that. I think that the enjoyment of the right to these 
 natural streams cannot be supported by any length of user if it 
 does not belong of natural right to the plaintiff. For the same 
 reason, I dispute the correctness of Lord Ellensborough's opinion 
 in the case of the spring in Balston v. Bensted, 1 Camp. 463, 
 where there had been twenty years' enjoyment of it in a particular 
 mode.. The true foundation of the right is, that it is incident to 
 the land ex jure natural. 
 
 What, then, is the distinction between superficial streams 
 and subterranean water ? With respect to underground water 
 percolating the strata, two considerations arise, which make a 
 material difference between them and the right to superficial
 
 756 ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. 
 
 streams. In the first place, these subterraneous waters cannot be 
 actually enjoyed (and all things are given to be enjoyed) without 
 artificial means. The water must be reduced into possession before 
 it can be used, and some mode of reducing into possession must 
 be permitted by law. If there be no such right, underground 
 water is comparatively useless. A man may therefore dig for his 
 own supply, or make a well for his own use and that of his family, 
 and, in so doing, he may deprive his neighbour's land of moisture, 
 and even tap a copious spring, and prevent it from flowing to his 
 neighbour's close. It can rarely happen that in excavating, in 
 order to obtain the use of the water, some injury will not be caused 
 to the subterraneous supplies of a neighbour, especially as the pre- 
 cise course and direction of such water can seldom be known 
 accurately beforehand. 
 
 In the second place, as the great interests of society require that 
 the cultivation of every man's land should be encouraged, and its 
 natural advantages made fully available, the owner must be per- 
 mitted to dig in his own soil, and, in so doing he can very rarely 
 avoid interfering with the subterraneous water flowing or percolat- 
 ing in his neighbour's land. 
 
 In the civil law are to be found many instances in which it is 
 allowed to cut off subterraneous supplies, if it is clone in the culti- 
 vation of the soil. In the Digest, Bk. 39 Tit. 3 Art, 1. § III. in 
 Pothier's edit., Vol. III. p. 578, it is said, " Denique Marcellus scribit ; 
 cum eo qui in suo fodiens vicini fontem avertit, nihil posse agi ; 
 nee de dolo. Et sane actionem non debet habere ; si non animo 
 vicino nocendi, sed suurn agrum meliorem faciendi id fecit." And 
 a very extensive sense is given to these words, authorising the 
 improvement of the proprietor's own land, in the civil law. In 
 the same book of the Digest, Bk. 39 Tit. 3 Art, 1. § IX., "De 
 aqua et aqu;e pluvise areendne," it is said that the making a work 
 " agri colendi causa et frugurn querendarum causa," and thereby 
 altering the course of the "aqua? pluvi.e," is not actionable. The 
 term "Fruges" is said to be the same as "rent," — " Frugem, pro 
 reditu appellari, non solum quod frumentis aut legumfnibus ; verum 
 et quod ex vino, sylvis, — caeduis, cretifodinis, lapidicinis, capitur." 
 It would seem, therefore, that if the sources of a fountain or spring 
 in an adjoining piece of land were cut off by excavating in order 
 to get the minerals in any place, it would be deemed by the
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 757 
 No. 16. — Chasemore v. Richards. 
 
 Roman law to fail within the principle of the improvement of 
 
 the land, ami not be actionable. 
 
 The case of Acton v. Blundell would be rightly decided upon 
 this ground, because the injury to the plaintiff's well was caused 
 by the lawful exercise of the defendant's right to get the minerals 
 
 in his land; and unless he had that right, the public would have 
 lost the benefit of a valuable gift of Providence. 
 
 We come, then, to the conclusion that every man has a right to 
 the natural advantages of his soil, — -the plaintiff to the benefit of 
 the flow of water in the river and its natural supplies, the defen- 
 dant to the enjoyment of his land, and to the underground waters 
 on it; and he may, in order to obtain that water, sink a well. But 
 according to the rule of reason and law, " sic utere tuo ut alienum 
 nun lsedas," it seems right to hold that he ought to exercise his 
 right in a reasonable manner, with as little injury to his neigh- 
 bour's rights as may be. The civil law deems an act, otherwise 
 lawful in itself, illegal if done with a malicious intent of injuring 
 a neighbour, animo vicino rwcendi. The same principle is adopted 
 in the laws of Scotland, where an otherwise lawful act is forbidden 
 "if done in cemulationem vicini" (Bell's Principles, § 96(5); but this 
 principle has not found a place in our law. 
 
 The question in this case, therefore, as it seems to me, resolves 
 itself into an inquiry whether the defendant exercised his right 
 of enjoying the subterraneous waters in a reasonable manner. 
 Had he made the well and used the steam-engines for the supply 
 of water for the use of his own property and those living on it, 
 there could have been no question. If the number of houses upon 
 it had increased to any extent, and the quantity of water for the 
 families dwelling on the property had been proportionately aug- 
 mented, there could have been no just grounds of complaint. But 
 I doubt very greatly the legality of the defendant's acts in 
 abstracting water for the use of a large district in the neighbour- 
 hood, unconnected with his own estate, for the use of those who 
 would have no right to take it directly themselves, and to the 
 injury of those neighbouring proprietors who have an equal right 
 with themselves. It does not follow that each person who was 
 supplied with water by the defendant could have dug a well him- 
 self on his own land, and taken the like quantity of water, so that 
 the defendant may have taken much more than would have been 
 abstracted if each had exercised his own ri^ht.
 
 758 action (right of). 
 
 No. 16. — Chassmore v. Richards. -Notes. 
 
 The same objection would not apply to the abstraction of watei 
 for the use of the dwellers on the defendant's land, even though; 
 they carried on trades requiring more water (breweries, for exam- 
 ple) than would be used for mere domestic purposes ; it would still 
 be for their purposes only. But in this case there has been an 
 abstraction of water for purposes wholly unconnected with the 
 enjoyment of the defendant's land. 
 
 On the whole, I should certainly have wished to give this im- 
 portant case farther consideration ; but, as my noble and learned 
 friends have formed their opinions upon it, I acquiesce, and do not 
 give my advice to your Lordships to reverse the judgment. 
 
 Lord Kingsdown. My Lords, I confess that I am unable to share 
 in the doubts that have been expressed by my noble and learned 
 friend opposite in the able and elaborate judgment which he has. 
 just delivered. I entirely concur in the opinion which has been 
 given by the Judges unanimously in this case, and for the reasons 
 by which that opinion has been supported ; and I think the House 
 is greatly indebted to those learned persons for the admirable rea- 
 soning by which they appear to have removed all doubt upon one 
 of the most important questions that ever came under the consid- 
 eration of a court of justice. 
 
 Lord Chelmsford. My Lords, I ought to have mentioned that 
 my noble and learned friend Lord Brougham, who is compelled to 
 leave the House to-day, but who was present during the whole 
 of the argument, entirely concurs in the opinion which I have 
 expressed. 
 
 Judgment of the Court of Exchequer Chamber affirmed with costs- 
 Lords Journals, 27 July, 1859. 
 
 ENGLISH NOTES. 
 
 There is a clear distinction — as shown by the cases of Hodgh'mson 
 v. Eunor (1863), 4 B.,& S. 229. and Ballard v. Tomlinson (C. A. 1885), 
 29 Ch. D. 115 ; 54 L. J. Gh. 454 (both cited under Fletcher v. Eylands, 
 pp. 270 and 271, supra) — between abstracting Mater which would 
 otherwise find its way by percolation to plaintiff's land, and sending 
 polluted water so as to percolate into plaintiff's land and poison the 
 water there. And such a plaintiff has a right to restrain the defend- 
 ant from permitting such pollution to flow from his land, whether 
 it mixes with a supply of water already there (as in Eodghinsnn r.
 
 SECT. A'. — CASES OF LOSS WHERE. NO RIGHT OF A.CTION. 759 
 
 No. 16. — Chasemore v. Richards. — Notes. 
 
 Ennor), or poisons the source from which the plaintiff draws water by 
 pumping (as in Ballard v. Tomlinson). 
 
 The judgment of the Lords Justices of Appeal in Grand Junction 
 Canal v. Shugar (1871), L. R., (i Ch. 483, is an express decision that, 
 where water is flowing in a defined channel, it is an injury to a riparian 
 proprietor to abstract by a drain, cut near the channel, water which has 
 already found its way there. But the Judicial Committee of the Privy 
 Council, on appeal from the Isle of Man, in Ballacorkish, &c. Mining 
 Co. v. Dumbell & Harrison (1873), L. E., 5 P. C. 49 ; 43 L. J. P. ('. 
 19, held that the owner of mines by reservation has a right, working 
 the mines in the ordinary way, to divert water by percolation, whether 
 it lias already found its way into a defined channel or not. The judg- 
 ment, indeed, seems to treat Chasemore v. Richards as an authority for 
 the general proposition that water may he diverted by percolation with- 
 out injury. But this view was unnecessary for the decision, is con- 
 trary to the decision of the Lords Justices in Grand Junction Canal 
 Co., and (it is submitted) is not consistent with the ratio decidendi of 
 the principal case. 
 
 In an Irish case, Black v. Ballymana Commissioners (1886), 17 
 L. lv. Ireld. 459, the Vice Chancellor (Ciiattertox) held that water 
 flowing underground in a well-defined channel is not within the 
 principle of Chasemore v. Richards, so as to be capable of being 
 abstracted without injury ; and that it is not necessary that the 
 channel should be known, in the sense of having been exactly ascer- 
 tained before the discovery of the abstraction : but that whether there 
 is a defined and known channel is a question of evidence by inference 
 from sufficiently obvious indications without recourse to .recondite 
 scientific investigations. 
 
 In Brain v. Marfell (1879), 41 L. T. 455, a question arose upon the 
 terms of an express conveyance by defendant of a well with the right of 
 taking water from it through pipes through defendant's land, and a 
 covenant for enjoyment without interruption by the defendant or his 
 assigns. The defendant had subsequently sold adjacent land to a rail- 
 way company who, by their works, drained off the supply of water 
 before it reached the spring. The Court of Appeal (Coleridge, C. J., 
 Bramwell and Brett, L. JJ. ), affirming the judgment of POLLOCK, 
 B., held that the conveyance assured only the flow of water after it had 
 reached the well; and that the draining of the water before it reached 
 the spring was not a breach of the covenant. In a later case. Bowen v. 
 Sandford (1888), 5 Times K. 570, the defendant had purchased part of 
 property sold in lots, subject to an easement in favour of the owners or 
 occupiers of other lots to use a certain spring. He subsequently diverted 
 the water by a cut, tapping a defined underground channel, by which
 
 7 GO ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. — Notes. 
 
 the water found its way to the spring. Dexman, J., granted an in- 
 junction. The Judge seems, indeed, inclined to have thought that 
 Chasem,ore v. Richards would not apply as between the grantor and 
 grantee of an easement to use the spring; hut if that was the ground of 
 decision, it is hardly consistent with that of the Court of Appeal in 
 Brain v. Mar fell. 
 
 Lord Wensleydale's observations in the principal case (p. 752 et 
 seq., supra), as to the nature of the rights of a riparian proprietor, are 
 cited and approved by Lord Cairns in Lyon v. Fishynongers Co. (1876), 
 1 App. Cas. 001', 008; 46 L. J. Ch. 08, and by the judgment of the 
 Judicial Committee in North Shore Ry. Co. v. Pion (1889), 11 App. 
 Cas. 012, 621; 59 L. J. P. C. 25. 
 
 Where a superior riparian owner takes water from the stream (whether 
 for his own purposes or for the use of a neighbour), and returns the 
 water to the stream undiminished and unpolluted, no cause of action 
 arises to the inferior riparian owner. Keiisit v . Great Eastern Ry. Co. 
 (1883, 1884), 23 Ch. D. 500; 27 Ch. D. 122; 52 L. J. Ch. 688; 54 L. J. 
 Ch. 19. It appeared on the evidence that the water was used for cool- 
 ing an apparatus used in a manufacture. It had been part of the 
 original complaint that the water was returned diminished in quantity 
 and polluted; but this was admitted to be unsubstantiated by the evi- 
 dence. There was no complaint of damage by reason of the water being 
 heated: so that, in effect, there was no damnum. 
 
 AMERICAN NOTES. 
 
 The doctrine of the principal case is accepted in the United States. 
 
 It may be found in some of the earlier cases, as Wheatley v. Baiy/h, 25 
 Penn. St. 528; 64 Am. Dec. 721; Greenhaf v. Francis, 18 Pickering (Mass.). 
 117 ; Brown v. Illius, 27 Connecticut, 84 ; 71 Am. Dec. 49 ; Chaff eld v. Wilson, 
 28 Vermont, 40; Roath v. Driscoll, 20 Connecticut, 533 ; 52 Am. Dec. 352; 
 Frazier v. Brown, 12 Ohio St. 294. Also in later cases. The precise cir- 
 cumstances of the principal case existed in Chase v. Silcerstone, 02 Maine, 
 17"); 16 Am. Rep. 419. and there was the like decision, citing the principal 
 case. The principal case was cited with approval in Wilson v. City of New 
 Bedford, 108 Mass. 261 ; 11 Am. Rep. 352, where t lie Chief Justice obiter ob- 
 serves : " The percolating water belongs to the owner of the land as much as 
 the land itself, or the rocks and stones in it. Therefore he may dig a well, 
 and make it very large, and draw up the water by machinery or otherwise, in 
 such quantities as to supply aqueducts for a large neighbourhood. lie may 
 thus take the water which would otherwise pass by natural percolation into 
 his neighbour's land, and draw off the water which may come by natural per- 
 colation from his neighbour's land ; and his neighbour may, by a wall or other 
 obstruction, retain the water which is upon his own land, and prevent the 
 water from coming into his soil." The principal case is also cited with
 
 SECT. V. — CASKS OF LOSS WHERE NO KIGHT OF ACTION. 761 
 
 No. 16. — Chasernore v. Richards. — Notes. 
 
 approval, although not strictly in point, in Taylor v. Fickas, 01 Indiana. 107; 
 31 Am. Rep. 114; City of Emporia v Soden,2o Kansas. 588; 37 Am. Rep. 265. 
 
 The exact circumstances of the principal case again arose, and the same 
 decision was made, citing' the principal case, in Village of Delhi v. Youmans, 
 45 New York, 362 ; Am. Rep. 100, and the same doctrine was necessarily 
 implied in Bliss v. Greeley, 45 New York, fill ; 6 Am. Rep. 157, in which coun- 
 sel cited the principal case. The same doctrine in Xoc Albany, Sfc. R. Co. v. 
 Peterson, 14 In liana, 112 ; 77 Am. Dec. (Si): Hour/an v. Milwaukee, 8fc. 11. Co., 
 35 Iowa. 558; 14 Am. Rep. 502. See Bloodgood v. Ayers, 37 Hun (New York 
 Supreme Ct.), 356; 108 New York, 400; 2 Am. St. Rep. 4L!: South. Pac. 11. 
 Co. v. Dufour, 95 California, 615; 19 Lawyers' Rep. Annotated, 92, with notes. 
 
 In P/ie/ps v. Nowlen, 72 New York, 39; 28 Am. Rep. 93, the court went 
 still further, and held that where defendant had a spring on his own land, 
 surrounded by an embankment partly artificial, which raised the water in a 
 well on the plaintiff's land, he was justified in digging a ditch through 
 the embankment, restoring the water to its natural condition, and lowering 
 the water in the plaintiff's well, although he did it to divert the water 
 from the plaintiff's well, but it did not appear to have been done malici- 
 ously. After citing the principal case the court said: "'The rules last stated 
 may perhaps be applied in cases where it is entirely obvious that the act was 
 done solely for the purpose of inflicting a wrong, and with no intention of 
 vindicating a right or preventing a wrong being done to the interests of another. 
 But not a single case is cited that sustains the doctrine that the owner of land 
 cannot assert a legal right, while as we have seen there is considerable author- 
 ity in the contrary direction," &c. See note to this case, 28 Am. Rep. 101. 
 
 In Chesley v. King, 74 Maine, 104; 4:> Am. Rep. 509, it was held that one 
 who accepts a deed reserving a right to draw water from a spring, and after- 
 wards, for the sole and malicious purpose of cutting off the water percolating 
 to the spring, digs a well on the land so conveyed, is liable to the grantor for 
 the injury ensuing. The principal case is cited and its doctrine accepted, and 
 Phelps v. Noiclen is distinguished on the ground of the absence of malice, 
 and the court admit " a conflict of authority either in decisions or dicta upon 
 this point" (of malice) "some courts of high standing — notably those of 
 New York, Pennsylvania, and Vermont — having said in some of their cases 
 broadly, in substance, as in Glendon Iron Co. v. Uhler, 75 Penn. St. 407: L~> 
 Am. Rep. 599, that the commission of a lawful act does not become action- 
 able although it may proceed from a malicious motive," and calls this a 
 "questionable dogma." In Lybe's Appeal, 106 Penn. St. 020; 51 Am. Rep. 
 542, the circumstances were like those in Chesley v. King, excepting that the 
 defendant's acts were in good faith ; it was held that he should not be 
 restrained. 
 
 But where subterranean water flows in a distinct channel on one's land, he 
 may not maliciously or negligently divert it to the injury of a lower proprie- 
 tor. Haldeman v. Bruckhart, 45 Penn. St. 514; 84 Am. Dec. 511. And so 
 an adjoining landowner may not divert it from the land in which it flows 
 any more than if it were on the surface. Burroughs v. Saterlee, 67 Iowa, 396 ; 
 56 Am. Rep. 350. So in Wheatley v. Bough, supra.
 
 7G2 ACTION (RIGHT of). 
 
 No. 16. — Chasemore v. Richards. — Notes. 
 
 If the acts complained of are unnecessary and in derogation of a grant or 
 in violation of a covenant, an action lies. Johnstown Cheese Manuf. Co. v. 
 Veghte, 69 New York, 16; 25 Am. Rep. 125. And so if merely negligent. 
 Collins v. Charliers Valley Gas Co., 131 Penn. St. 143 ; 17 Am. St. Rep. 791 ; 6 
 Lawyers' Rep. Annotated, 280. In the latter case the court said : " Since the 
 decisions in Acton v. Blundell and Wheatley v. Baugh, probably more deep 
 wells have been drilled in western Pennsylvania than had previously been dug 
 in the entire earth in all time"(!) To the same effect. Kinnaird v. Stand- 
 ard Oil Co., 89 Kentucky, 468; 25 Am. St. Rep. 545; 7 Lawyers' Annotated 
 Rep. 451. 
 
 The case of Swell v. Cults, 50 New Hampshire, 439 ; 9 Am. Rep. 276, has 
 been sometimes thought to conflict with the rule of the principal case, but it 
 simply asserted the right to keep off surface water flowing from other premises. 
 
 Mr. Justice Story, following Balston v. Betisted, 1 Camp. 464, seems to have 
 thought that an action would lie for sinking a well in such a manner as to 
 intercept the water flowing to a neighbour's spring, after the right had been 
 claimed and used for more than twenty years. Dexter v. Providence Aque- 
 duct Co. 1 Story, 392. 
 
 But this doctrine seems now to be repudiated. 
 
 No claim by prescription can arise in cases where the one against whom 
 the prescription is claimed had no right to complain of the use which the 
 other person made of the water. Hanson v. McCue, 42 Cal. 303; 10 Am. 
 Rep. 299. 
 
 No right to percolating water can be acquired by prescription. Wheatley 
 v. Baugh, 25 Penn. St. 528; 64 Am. Dec. 721; Delhi v. Youmans, 50 Barb. 
 316 : Frazier v. Brown, 12 Ohio St. 291. 
 
 In Barnard v. Shirley (Indiana), 34 N. E. Rep. 600, defendants sunk an 
 artesian well on their own premises. The water was turned into a small 
 stream, which flowed across plaintiff's land, and which was the only natural 
 or possible means of escape. Afterwards the water was found to have medi- 
 cinal properties, and a sanitarium was erected for the treatment of persons 
 afflicted with various diseases. Held, not unlawful to build and thus to 
 operate the sanitarium, where no negligence or malice was shown, though 
 the water was polluted thereby. Citing Acton v. Blundell, Y2 Mees. & YV. 
 324; Smith v. Kenrick, 7 C. B. 515; Wilson v. Waddell, L. R., 2 App. Cas. 
 9^>; Cmmpton v. Lea, L. R., 19 Eq. 115. 
 
 In Hague v. Wheeler, Pennsylvania Supreme Court, 27 Atlantic Reporter, 
 714; 22 Sawyer's Reports Annotated, 141, it was held that: "A court of 
 equity will not interfere by injunction to compel a landowner who has sunk 
 a gas well on his own premises, without malice or negligence, to stop the 
 flow of gas therefrom, which has proven insufficient in quantity to enable 
 him to utilise it, at the suit of adjoining owners, whose wells yield gas in 
 sufficient quantities to enable them to utilise and market it, though defend- 
 ant's well drains the common reservoir, and thus will ultimately reduce the 
 flow of plaintiffs' wells." The court below said that this question had " never 
 been determined in any court," and continued: "If the defendants have a 
 right to take gas from their well in unlimited quantities for their own profit.
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 763 
 
 No. 16. — Chasemore v. Richards. — Notes. 
 
 how far is their right affected by the fact, if it be a fact, that their motive in 
 Taking it is not profit, but injury to another, — malice in the Legal sense? 
 There are many dicta and some authorities "which seem to declare that an 
 act done in the exercise of a lawful right, and without negligence, may be 
 unlawful if done with express malice. Prominent among these is the cure- 
 fully considered case of Wheatley v. Baugh, 25 Pa. St. 532, in which the 
 rule of the civil law is cited with approval by Chief Justice Lewis to the 
 following effect : ' lie who, in making a new work upon his own estate, 
 uses his right without trespassing either against any law, custom, title, or 
 possession which may subject him to any service towards his neighbours, is 
 not answerable for the damages which they may chance to sustain thereby, 
 unless it be that he made that change with a view to hurt others without 
 any advantage to himself.' The same doctrine is approved in Haldeman v. 
 Bruckkart, 15 Pa. St. 514, in Coal Co. v. Sanderson, 113 Pa. St. MS, and 
 •other cases. The suggestion that one may not do maliciously what he 
 might lawfully do if his motives were good is found in many English cases, 
 -among which are Acton v. Blundell, 12 Mees. & *W. 338, and Chasemore v. 
 Richards, 7 II. L. Cas. 349. It has been more or less clearly made in the fol- 
 lowing, among other cases, in other States of this Union : Greenleaf v. Francis 
 18 Pick. 117; Roath v. Driscoll, 20 Conn. 533; Carson v. Railroad Co . 8 Gray, 
 423; Hovoland v. Vincent, 10 Mete. (.Mass.) :J71 ; Brown v. Illius, 25 Conn. 583; 
 Gallagher v. Dodge, 48 Conn. 389. I have not been able to find any case how- 
 ever in which a party has been actually held to liability on this ground alone. 
 On the other hand, there are many cases in which malice, as a criterion of 
 liability for civil damages, is distinctly repudiated, and among these our own 
 cases of Covanhooan v. Hart, 21 Pa. St. 495; Jenkins v. Fowler, 21 Pa. St. 3Q8; 
 Fowler v. Jenkins, 28 Pa. St. 176; and Iron Co. v. Uhler, 75 Pa. St. 407. 
 "'Malicious motives,' says Black, J., in Jenkins v. Fowler, -make a bad act 
 Avorse ; but they cannot make that wrong which in its own essence is lawful. 
 ... As long as a man keeps himself within the law by duing no act which 
 violates it, we must leave his motives to Him who searches the heart.' To 
 the same effect are Mahan v. Brown, 13 Wend. 201 ; Clinton v. Myers, 46 X. Y. 
 511 ; Phelps v. Nowlen, 72 X. Y. 39; Sonth Royalton Bank v. Suffolk Bank, 27 
 Vt. 505; Chatfehl v. Wilson, 28 Yt. 40. 
 
 " Without lengthening out this opinion by pointing out the distinctions 
 between these cases, it is enough to say that my mind inclines strongly to the 
 conclusion that the presence or absence of malice cannot of itself determine 
 the liability of an owner of land for an act done upon it. If the act is lawful 
 when done with innocent intentions, it is no less so because the motives were 
 bad. If these defendants might lawfully drill a hole into the gas-hearing 
 rock, and suffer the valuable gas to escape, because they foolishly Out hon- 
 estly believed that the use of natural gas is an injury to mankind, they may 
 <Io so for the purpose of keeping their neighbour from getting it, even if the 
 motive is purely malevolent. Such, in my opinion, is the weight of the 
 authorities, as well as the reason of the case. Put this assumes that the act 
 done with malicious intent invades no legal right of another. The cases are 
 all of this character, or were so regarded by the courts deciding them. On 
 the other hand, the cases which seem to announce a different doctrine ileal
 
 764 ACTION (right of). 
 
 No. 16. — Chasemore v. Richards. — Notes. 
 
 with rights which are not absolute and exclusive, but qualified and correlative.'' 
 This was sustained on appeal, the court observing: '"We cannot find any 
 rule of law or any principle of equity on which such an injunction can rest. 
 The scope of the golden ride may be sufficiently ample to cover this case, and 
 it may be that it would require an owner to surrender to his neighbour so 
 much of his own property as he could not turn to his own advantage, if his 
 neighbour was so situated that he could profit by it. Assuming this to be so, 
 "the moral obligation so arising is not enforceable by civil process. The 
 owner of timber may pile it in heaps, and burn it, as was done in the early 
 settlement of the country, notwithstanding the fact that his neighbour has a 
 sawmill and all the facilities for preparing the sawed lumber for market and 
 converting it into money. The power of the owner of the timber over it is 
 neither greater nor less because of his neighbour's readiness and ability to 
 market it. An owner of land may have a deposit of coal under some portion 
 of it so small in extent, or with such an inclination, as to make it impossible 
 for him to mine through his own tract without a greater cost to him than the 
 value of the mined coal when brought to the surface. His neighbour may have 
 an open mine that reaches it, and through which it could be brought at a fair 
 profit. These circumstances do not affect the title of the owner of the coal, 
 or confer any right on the adjoining mine-owner; but it is said that the oil 
 and gas are unlike the solid minerals, since they may move through the 
 interstitial spaces or crevices in the sand rocks in search of an opening through 
 which they may escape from the pressure to which they are subject. This is 
 probably true. It is one of the contingencies to which this species of property 
 is subject. But the owner of the surface is an owner downward to the centre, 
 until the underlying strata have been severed from the surface by sale. What 
 is found within the boundaries of his tract belongs to him according to its 
 nature. The air and the water he may use. The coal and iron or other solid 
 mineral he may mine and carry away. The oil and gas he may bring to I he 
 surface and sell, in like manner, to be carried away and consumed. His 
 dominion is, upon general principles, as absolute over the fluid as the solid 
 minerals. It is exercised in the same manner, and with the same results. He 
 cannot estimate the quantity in place of gas or oil. as lie might of the solid 
 minerals. He cannot prevent its movement away from him, towards an out- 
 let on some other person's land, which may be more or less rapid, depending 
 on the dip of the rock or the coarseness of the sand composing it; but so long 
 as he can reach it and bring it to the surface it is his absolutely, to sell, to use, 
 to give away, or to squander, as in the case of his other property." 
 
 One may lawfully erect, on his own land, a high division fence, with the 
 malicious purpose of annoying his neighbour and obstructing his air and 
 light. Riileoul v. Knox, 148 Massachusetts, 368 ; 2 Lawyers' Reports Anno- 
 tated, 81 ; but see Flaherty x. Moran, 81 Michigan, 52; 8 Lawyers' Reports 
 Annotated, 183, to the contrary.
 
 SECT. V. — (asks OF LOSS WHERE NO RIGHT OF ACTION. 765 
 
 No. 17. — Sutton v. Johnsto:ie. Rule. 
 
 No. 17. — SUTTON v. JOHNSTONE. 
 
 JOHNSTONE v. SUTTON in error, 
 (k. b. ex. ch. and ii. l. 1785-1787.) 
 
 HULK. 
 
 An action will not (in the opinion of Lord Mansfield) lie 
 by a naval officer against his superior in command for 
 a malicious prosecution before a court-martial, even al- 
 though there was no probable cause. 
 
 . .* . . 
 
 But where the prosecution is for disobedience to orders, 
 
 disobedience in fact is probable cause, although such dis- 
 ced ience has been found by the sentence of the court- 
 martial to have been, in the circumstances, excusable. 
 
 Sutton v. Johnstone. 
 Johnstone v. Sutton. ' 
 
 1 Revised Reports 257 > (s. c. 1 T. R. 493, 1 Bro. P. C. 76). 
 
 The declaration in the action (by the first count) stated, in effect, 
 as follows : — 
 
 In the prosecution of the war against France, a British squadron 
 was sent on a particular service under the command of the defen- 
 dant, Johnstone. The squadron sailed on that service to Port Pray a 
 Eoad, Santiago. The plaintiff, Sutton, was a captain in command 
 of the Isis, one of the ships of the squadron. On the 16th of April, 
 1781, the squadron was attacked by a French squadron ; and after 
 the action, the French squadron sailed away. Johnstone, as com- 
 mander of the squadron, thereupon ordered the commanders of the 
 English ships to slip their cables and put to sea after the French 
 squadron ; and subsequently signalled to the squadron to form 
 line of battle and bear down upon the enemy, which they did 
 about sunset. No further engagement however took place, and 
 the English squadron returned to Port Praya B.oad. The declara- 
 tion then alleges that the plaintiff, Sutton, did his best, having 
 
 1 The abridgment of this ense as con- permission) followed, subject to some fur- 
 tained in the Revised Reoorts is here (with ther curtailment of the arguments. — H. C.
 
 '66 ACTION (right of). 
 
 No. 17. — Sutton v. Johnstone. 
 
 regard to the condition of bis ship (the Isis), to obey, and did not 
 wilfully disobey, the orders, and that he did not wilfully or 
 improperly fall out of his place in the line. It is however to be 
 inferred, both from the facts directly set forth in the declaration 
 and from the finding of the court-martial stated in a later part 
 of the declaration, that some delay took place, in consequence of 
 the condition of the Isis, before her cable was actually slipped, and! 
 that further time was lost in clearing the wreck of the fore-topmast ~ 
 so that the Isis fell behind, and did not at once take up her 
 station in the line of battle. It is however stated that she was-. 
 in her place when the English squadron bore down upon the 
 enemy about sunset. 
 
 The gist of the charge laid in* the declaration was that the de- 
 fendant, well knowing the premises (i. c, that the plaintiff did. 
 his best, having regard to the condition of the ship, and that he 
 did not wilfully or improperly disobey orders or fall behind, &c.) ; . 
 but maliciously contriving to hurt the plaintiff in his good name: 
 and reputation as a captain in His Majesty's service, and to deprive 
 him of his rank of captain and commander of the Isis, and of the 
 profits, &c, falsely and maliciously, and without any reasonable or 
 probable cause, charged and accused the plaintiff with disobedience 
 of orders in not cutting his cables and putting to sea after the 
 enemy ; and for falling a-stern after he, the said plaintiff, had joined 
 the squadron ; and not keeping up in the line of battle ; and after- 
 wards, at Port Praya Road, under colour and pretence of the said 
 supposed crimes, falsely, maliciously., wrongfully, and injuriously,, 
 and without any reasonable or probable cause, put the plaintiff 
 under arrest, in order that he, the plaintiff, might be tried by a 
 court-martial for the supposed crimes ; and also wrongfully, mali- 
 ciously, and injuriously, and without any reasonable or probable cause,, 
 under colour and pretence of the said supposed crimes, suspended the 
 plaintiff from his post of captain of the ship Isis, until a court-martial 
 should be held for his trial ; and maliciously, and without any rea- 
 sonable or probable cause, sent him, under arrest, to the East Indies, 
 and from thence to Great Britain, in order to be tried by a court- 
 martial ; and maliciously, and without any reasonable or probable 
 cause, kept him under such arrest, from the said 22nd April, 1781 r 
 until the 11th December, 1783, and until the time of the trial and 
 acquittal next mentioned. 
 
 It was further charged that the defendant maliciously and
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF A.CTION. 767 
 No. 17. — Sutton v. Johnstone. 
 
 without probable cause procured the plaintiff to be tried by a 
 court-martial upon a charge of delaying the public service, and 
 also of disobedience, of orders &c. ; at which said trial, the court- 
 martial, having heard the witnesses. &c., and having maturely 
 and deliberately weighed and considered the whole, was of opinion 
 that it appeared to them that the said Sutton (plaintiff) did not 
 delay or discourage the public service, on which he was ordered, 
 on the said 16th April, 1781 ; that from the circumstances proved 
 of the condition the Isis was in, it appeared to the said court- 
 martial that the said Sutton was justifiable in not immediately 
 cutting or slipping the cable of the Isis, after his getting on board 
 her on that day ; and that, after the wreck of the fore-topmast 
 had been cleared, the said Sutton did his utmost to regain his 
 station in the line of battle; and that the Isis was in her station 
 about sunset of that day ; the court did therefore adjudge the 
 said Sutton to be honourably acquitted of the whole of the said 
 charge, and he was thereby honourably acquitted accordingly. 
 
 Special damage was laid by reason of loss of prize-money which 
 the plaintiff would have gained if he had not been suspended and 
 removed in the manner stated. 
 
 There was a separate count (the third), charging that it was 
 the duty of the defendant to have held a court-martial immedi- 
 ately at Port Praya Eoad, where there was a competent number 
 of officers for the purpose ; but that the defendant wrongfully and 
 maliciously delayed the holding of the court-martial for an un- 
 reasonable time, whereby the plaintiff had suffered special damage. 
 
 The defendant pleaded the general issue. 
 
 This cause was twice tried before the Chief Baron at Guildhall, 
 by special juries; on the former of which the jury found a verdict 
 for the plaintiff, with £5000 damages; and on the latter they 
 gave £6000. 
 
 Afterwards, a motion w r as made in the Court of Exchequer, 
 in arrest of judgment, which, after a very elaborate discussion, 
 was refused. And, in the absence of the Chief Baron, who was 
 indisposed, — 
 
 June 15, 1785, — Eyre, Baron, delivered the unanimous opinion 
 of the Court : 
 
 In this case of Sutton v. Johnstone it has been moved to arrest 
 the judgment, upon objections taken to the first and third counts 
 in the declaration.
 
 768 ACTION (RIGHT OF). 
 
 No. 17. — Sutton v. Johnstone. 
 
 It is an action on the case brought by the plaintiff, captain of 
 the Isis, ship of war, one of the squadron under the command of 
 the defendant: and the first count imputes to the defendant the 
 having maliciously, and without probable cause, charged the plain- 
 tiff with the crimes of disobedience of orders, and the delay of the 
 public service in which the squadron was engaged; and, upon that 
 charge, having put him under arrest, suspended him from his com- 
 mand, sent him under arrest to the East Indies, and from thence to 
 Great Britain, in order to be tried ; and having maliciously, and-with- 
 out probable cause, kept him under arrest till his trial ; and having 
 maliciously, and without probable cause, procured him to be tried 
 by a court-martial, upon a false, malicious, and injurious charge. 
 
 This being the ground of the action, expressed in the first count of 
 the declaration, it is objected, in arrest of judgment, that no action 
 for a malicious prosecution will lie for a subordinate officer against 
 the commander of a squadron for improper conduct while under his 
 command ; or, as put by one of the counsel, no action lies for a sub- 
 ordinate officer against his superior officer, for an act done in the 
 course of discipline, and under powers incident to his situation. 
 
 These propositions have been supported by arguments drawn from 
 the analogy the case is supposed to bear to the case of judges, jurors, 
 and the Attorney-General in respect of his power to file informa- 
 tions ex' officio, and from general principles of public policy and con- 
 venience ; and they have been rested upon those grounds, there 
 being no adjudged case or other authority in our law that can be 
 made to hear upon the point, so as to give it any support ; on the 
 contrary, it was necessary to press into the service distinctions and 
 refinements, in order to take the case out of the class of adjudged 
 cases hearing very strongly the other way. The cases I allude to 
 are those of Wall v.M'Namara, sittings after Michaelmas 1783, at 
 Westminster, cor. Lord Maxsfield, and Fabrigas v. Mostyn, Cowp. 
 161, which being cases in which one species of action is supported 
 against military men in command, — in one instance by a subordinate 
 officer, in the other by a person subject to the powers incident to the 
 situation of those military men in command, — for acts done by i olour 
 of their authority, or, in the language of one of the propositions, under 
 the powers incident to their situation, it does not readily occur why 
 another species of action, differing from those in form rather than 
 in substance, .should not also he sustained. These cases certainly 
 cut up all argument drawn from public policy and convenience ;
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 769 
 
 No. 17. — Sutton v. Johnstone. 
 
 because public policy and convenience, it' they operate at all, must 
 operate with strength sufficient to bar one species of art ion as 
 much as another. 
 
 The Court never had a difficulty upon this part of the case. 
 The principle of the action, which is pretty clearly ascertained 
 in the two cases of Saville v. Roberts, Gilb. Rep. 185, and Jones 
 v. Gwynn, 10 Mod. 148, is general and universal. In the 
 cases alluded to of judges and jurors, it cannot apply, because the 
 law gives faith and credence to what they do; and therefore there 
 must always, in what they do, be cause for it ; and there never can 
 be any malice in what they do. The presumption of law, that 
 judges and jurors do nothing causelessly and maliciously, does not 
 derogate from the universality of the principle, " that where it can 
 be shown that one man has causelessly and maliciously accused 
 another of a crime, or has otherwise vexed him by causelessly and 
 maliciously exercising upon him, to his damage, powers incident 
 to his situation of superior, the injured party is entitled to redress 
 by this species of action." The commander-in-chief of a squadron 
 of ships of war is in the condition of every other subject of this 
 country, who, being put in authority, has responsibility annexed to 
 his situation. 
 
 The propositions, which attempt to establish a distinction for 
 him, are dangerously loose and indefinite. It is said, subordinate 
 officers may be brought to a court-martial for improper conduct, 
 and that no action lies for anything done in a course of discipline, 
 or under powers incident to situation. If by improper conduct be 
 meant a breach of the articles for the government of the navy, if 
 by a course of discipline be meant exacting that which the discipline 
 of the navy requires, if by what is done under powers be meant 
 that which is warranted to be done under those powers, — it will be 
 agreed simply, for doing any of those acts no action will lie ; for 
 those are lawful acts in themselves, and there is nothing added to 
 make them unlawful in the particular case. But in respect of the 
 first branch of this proposition, if it lie meant that a commander- 
 in-chief, has a privilege to bring a subordinate officer to a court- 
 martial for an offence which he knows him to be innocent of, under 
 colour of his power, or of the dut} T of his situation to bring forward 
 inquiries into the conduct of his officers, the proposition is too 
 monstrous to be debated. 
 
 Under the second branch of it, it may not be fit, in point of 
 vol. i. — 40
 
 "70 ACTION (RIGHT OF). 
 
 No. 17. — Sutton v. Johnstone, 
 
 discipline, that a subordinate officer should dispute the commands 
 of his superior, if he were ordered to go to the mast-head; but if 
 the superior were to order him thither, knowing that, from some 
 bodily infirmity, it was impossible he should execute the order, 
 and that he must infallibly break his neck in the attempt, and it 
 were so to happen, the discipline of the navy would not protect 
 that superior from being guilty of the crime of murder. And one 
 may observe in general, in respect of what is done under powers 
 incident to situations, that there is a wide difference between 
 indulging to situation a latitude touching the extent of power, and 
 touching the abuse of it. Cases may be put of situations so criti- 
 cal that the power ought to be unbounded, but it is impossible to 
 state a case where it is necessary that it should be abused ; and it is 
 the felicity of those who live under a free constitution of government 
 thai; it is equally impossible to state a case where it can be abused 
 with impunity. The counsel for the defendant were disposed to 
 agree to this general doctrine, provided that the question was not 
 to be discussed in an action at law, which unavoidably brings the 
 inquiry into a matter of fact before a jury. We enter into all the 
 difficulties in the situation of an officer whose honour and fortune 
 may come to be so staked. In this particular case they have had 
 their weight with us. The decision has not been a hasty one, but 
 considerations of this nature cannot exclude the established juris- 
 diction of the country ; on the contrary, those jurisdictions must 
 be presumed to be equal to their functions. It must be presumed 
 that they will do their duty honestly ; if they do, no man can 
 have much to fear. To situations which require indulgence, they 
 will show it ; but, be the risk more or less, all men hold their 
 situations in this country upon the terms of submitting to have 
 their conduct examined and measured by that standard which the 
 law has established. Men of honour will do their duty and will 
 abide the consequences. 
 
 We decide against this first objection upon the mere abstract 
 state of it, without referring to the particular case made upon this 
 record, — which is certainly the most advantageous way of consider- 
 ing it for the defendant ; for undoubtedly upon this record, which 
 must now be taken to be proved, there is a strong case stated of 
 hardship, if not of wrong, injustice, and violence. Before I leave 
 this head of objection, I will observe upon an order of the justices 
 of gaol delivery, which is printed at the end of Kelynge's Eeports,
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF ACTION. 771 
 No. 17. Sutton v. Johnstone. 
 
 from whence it was inferred that the Court have thought them- 
 selves at liberty to control this species of action; but the nature 
 of that control, which was the withholding of the evidence, rather 
 proves that the action itself was thought to be beyond the reach 
 of any control. In truth, it seems to be nothing more than substi- 
 tuting a particular license to give copies upon motion, to the gene- 
 ral license which the officer of the Court had been permitted to 
 assume ; both founded upon the absolute power of the Court over 
 the records of their proceedings for felony, while they remained in 
 their custody. The object of this order, and of many of the expres- 
 sions we meet with in our books, tending to discourage this species 
 of action, could not be to protect any particular class of cases from 
 being made the subject of the action, but were to prevent a frivo- 
 lous and vexatious action of this species being brought in any 
 case. 
 
 The next objection taken to this count was, that, this being an 
 action founded on the want of probable cause for making the 
 charge, the action fails ; because upon the face of the record, and 
 upon the plaintiffs own showing, there was probable cause. It is 
 upon the face of the sentence of the court-martial that the prob- 
 able cause is said to appear, part of the charge being for disobe- 
 dience of orders in not slipping the cable of the Isis immediately 
 after the plaintiff got on board. The language of the sentence is, 
 that, from the circumstances proved of the condition the Isis was 
 in, it appeared to the court-martial that the plaintiff was justifi- 
 able in not immediately cutting or slipping the cable after his get- 
 ting on board ; from whence it was collected that it appears that 
 the plaintiff did disobey the orders of the defendant, and that he 
 was driven to justify himself by circumstances, and that his ac- 
 quittal proceeded, not upon the ground of his not having disobeyed. 
 but on the ground of his justification. 
 
 Upon this part of the case there has been some hesitation 
 amongst us. A case not cited in the argument at the bar, as I 
 recollect, but which occurred to us in the searches that have been 
 made, gave considerable countenance to the objection. The case i 
 refer to is that of Reynolds v. Kennedy, reported in Wilson (1 Wils. 
 232). It was a case in error from the King's Bench in Ireland : an 
 action was brought for maliciously, and without probable cause, prose- 
 cuting for condemnation brandy seized as forfeited ; the declaration 
 stated that the brandy was condemned by the sub-commissioners,
 
 "72 ACTION (RIGHT of.) 
 
 No. 17. — Sutton v. Johnstone. 
 
 and that that condemnation was most rightfully reversed, on appeal 
 to the commissioners. The judgment was arrested in the Court 
 of King's Bench in Ireland, and that judgment affirmed here ; 
 and it was said by Lord Chief Justice Lee, " the plaintiff has, by 
 his own declaration, shown that the prosecution was not malicious, 
 because the sub-commissioners gave judgment for the defendant ; 
 and therefore we cannot infer any malice in him." Perhaps it 
 would have been more correctly stated if they had said, And there- 
 fore we will infer that there was probable cause for prosecuting 
 that brandy to condemnation. To my apprehension, I confess, 
 the fact of the orders having been disobeyed seems fairly to be 
 collected from the sentence which takes upon itself to justify the 
 not obeying, and to make that the ground of the acquittal. If the 
 state and condition of a ship be such that an order given cannot be 
 obeyed, the not obeying in that case is not disobedience, and re- 
 quires no justification ; but there ought to be an acquittal upon 
 the ground of the charge of disobedience not being made out. 
 But if a subordinate officer, having received an order which might 
 be obeyed, does not obey, because, regard being had to the state 
 and condition of his ship, he is of opinion that such an order ought 
 not to have been issued to him, in this case the not obeying is dis- 
 obedience in my apprehension, and he would be to justify himself 
 as he could. 
 
 The sentence not being examinable here, I am relieved from the 
 difficulty of comprehending what circumstances can amount to a 
 justification of a subordinate officer, in disobeying the order of his 
 superior. We are bound by the sentence to understand the plain- 
 tiff in this case to stand justified. But the question is, whether 
 we are not also bound to conclude, from this sentence, that he did 
 in fact disobey ? and whether that be not probable cause for bring- 
 in" him to a court-martial, there to justify himself for that dis- 
 obedience ? Doubtless a court-martial is not bound to express 
 itself in strict technical language, and this court-martial may have 
 used in this case the word justifiable in some sense different from 
 our notion of justification ; but having acquitted the plaintiff gen- 
 erally of the charge of delaying the public service, which was one 
 of the two specific charges brought against him, and having made 
 this special acquittal upon the charge of disobedience of orders, it 
 does seem as if they meant to say that he did not delay the public 
 service, but that he did disobey the order, and, for some reason
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF ACTION. 773 
 
 No. 17. - Sutton v. Johnstone. 
 
 satisfactory to them, was justified in that disobedience. If this 
 be the true meaning of the sentence, will not the tad of disobedi- 
 ence thus established he a probable cause for bringing him to a 
 
 court-martial ? If the defendant is, upon this declaration, to be 
 taken to be ignorant, or if he is not averred to be cognisant, of all 
 the circumstances which constituted the justification, I should in 
 that case hold most clearly that it would be probable cause. 
 Reasonable suspicion was probable cause in the ancient proceed- 
 ings in conspiracy : there is more than suspicion here, the corpus 
 delicti in this case stands confessed. It is averred against the de- 
 fendant in this declaration that he knew the ship had received 
 damage, that he knew that the plaintiff obeyed his orders as far 
 as the state and condition of his ship would permit; but it is not 
 averred that he knew the circumstances of the state and condition 
 of the ship, which were proved to the court-martial, upon which 
 the justification is built. This undoubtedly is rather critical ; but 
 what if the defendant were taken to be cognisant of all the cir- 
 cumstances of the state and condition of the ship proved to the 
 court-martial ; did he know, or was he bound to know, that they 
 would amount to a justification in the judgment of the court-mar- 
 tial ? In our law, justification is a conclusion of law, which neces- 
 sarily results from a given state of facts ; and yet I doubt whether 
 if a man were to indict one for murder, who had committed homi- 
 cide, under circumstances within the knowledge of the prosecutor, 
 which made it justifiable, it could be said that there was no prob- 
 able cause for preferring that indictment. But I am not sure that 
 justification in the law martial is a matter of equal certainty in its 
 nature, so as to impute to the defendant a knowledge that he was 
 prosecuting in a case, where, of necessity, there must be an acquittal 
 upon the ground of justification, the fact of the charge being es- 
 tablished. These are questions of moment and difficulty, upon 
 which, I have already said, we have hesitated; and we shall not 
 now give an opinion upon them ; because, upon consideration, we 
 are of opinion, that admitting, for the sake of the argument, that 
 probable cause did appear upon this record for making a charge of 
 disobedience of orders, it cannot operate to arrest this judgment. 
 
 The defendant is charged by this count in the declaration with 
 having maliciously, and without probable cause, brought the plain- 
 tiff to a court-martial upon one entire charge, but consisting of 
 two distinct articles under two separate articles for the government
 
 ACTION (KIGIIT OF). 
 
 No. 17. — Sutton v. Johnstone. 
 
 of the navy : the first, for delaying the public service ; the second, 
 for disobedience of orders. I have observed that the sentence of 
 the court-martial acquits him generally of the first. They say he 
 did not delay the service. It is impossible therefore to find in 
 the sentence probable cause for this part of the charge. Then it 
 will stand thus : the plaintiff charges the defendant with having 
 maliciously, and without probable cause, brought the plaintiff to 
 a court-martial upon one charge, for which there was no probable 
 cause, and upon another charge, for which there was probable cause. 
 The declaration is therefore felo de se with respect to the latter, but 
 good as to the former. In that case, after a verdict, the jury must 
 be taken to have given damages for that part of the case only which 
 is actionable. This is familiar in the case of the action for words. 
 The words in one count may consist of several distinct paragraphs 
 or periods, some actionable, some not. It is no objection, after a 
 verdict, that some of the words given in evidence, and charged in 
 that count, are not actionable ; if there be actionable words to 
 which the damages can be applied, the jury are presumed to have 
 given their damages for the words which are actionable. It is 
 enough to sustain a judgment upon this count that a cause of 
 action appears in it; that which does not amount to a cause of 
 action, is merely surplusage. 
 
 It is further objected to this count that the assignment of the 
 special damage is ill laid. The count states that the plaintiff lost 
 a large sum of money, — namely, £l'0,000, — which he would have 
 gained if he had not been suspended and removed from his rank and 
 post of captain of the Isis, from prizes taken by the Isis and the other 
 ships of the squadron, in the course of the service, and during his 
 arrest and suspension. It is objected that there is no averment 
 or allegation of title to prize-money ; that it does not follow from 
 the fact stated that the prize-money was lost; that by law the 
 prize-money was not lost, and that the jury have therefore found 
 damages which by law could not be found. "We are clearly of 
 opinion that this objection must be overruled. The damages are 
 well assigned by stating that the loss happened by reason of the 
 wrong complained of: the rest is matter of evidence; and if any- 
 thing which can now be suggested would have proved the loss to 
 have happened by that means, after verdict we must suppose that 
 proof to have been given. The objection therefore resolves itself 
 into the last branch of it, namely, that the jury have found damages
 
 SECT. V. — (ASKS OF LOSS WHERE NO RIGHT OF ACTION. 775 
 No. IT. — Sutton v. Johnstone. 
 
 which could not possibly arise in the case, and could not therefore, 
 by law, be found. To support which proposition, it has been argued 
 that a suspended captain is entitled to the prize-money for captures 
 
 made during the time of his suspension. The proclamation must 
 be the rule by which this point is to be decided. By the proclama- 
 tion the captain of a King's ship, who shall be actually on board at 
 the taking of any prize, shall have a certain proportion. Is one 
 who had been suspended and removed from his rank and post of 
 captain, and was in that state of suspension when the prize was 
 taken, the captain of such ship actually on board at the taking of 
 such prize ? It is enough to state the question ; it answers itself. 
 Not having original jurisdiction in matter of prize, we cannot de- 
 cide that question so as to affect the right of prize-money ; but 
 we are obliged to decide it as far as it is incidental matter in this 
 cause, and for the purpose of this cause. And premising this, we 
 hold, in this case, that the plaintiff', by reason of his suspension 
 and removal, did lose the prize-money which he would have gained 
 from prizes taken by the Isis and other ships during his suspension, 
 and consequently that this is well assigned as special damage in 
 this action. 
 
 It is objected to the third count of this declaration, the griev- 
 ance complained of in which is the refusing and neulectimj; to 
 hold a court-martial for the trial of the plaintiff while the squa- 
 dron was under the defendant's command, and then keeping him 
 under arrest till his trial in Great Britain, that this is damn inn sine 
 injuria ; that the law has fixed no time, short of the term of 
 three years, within which courts-martial are to be held , and 
 therefore it could not be the duty of the commander to hold a 
 court-martial at any time within that period, or so soon as he 
 reasonably and conveniently could after the charge exhibited, and 
 consequently that the averments that it was the duty of the de- 
 fendant to hold such court-martial, that the defendant might 
 reasonably and conveniently have held a court-martial, and that 
 he wilfully, wrongfully, and injuriously, and contrary to his 
 duty, omitted, neglected, and refused to hold such court-martial 
 cannot give to the plaintiff' a cause of action. The answer to 
 i his objection is, that every breach of a public duty, working 
 wrong and loss to another, is an injury, and actionable; that the 
 three years are only a limitation of time, beyond which no court- 
 martial shall be held; consistent with which it may be the duty
 
 776 ACTION (right of). 
 
 No. 17. — Sutton v. Johnstone. 
 
 of those who have power to hold courts-martial to hold them 
 within a much shorter space. It is a familiar qualification of 
 powers of various kinds, that they should be executed within a 
 reasonable time. Suspension and arrest being incident to the 
 power of holding a court-martial, it seems an essential ingredient 
 in such a power, and absolutely necessary to qualify the rigour of 
 it, that it should be executed in a reasonable time ; otherwise a 
 power of holding a court-martial would necessarily involve in it a 
 power to imprison for three years previous to the trial, which could 
 not be borne. The usage of the navy might have made it the duty 
 of the commander-in-chief, in a case where it did not speak so 
 strongly for itself : how it becomes his duty is to be shown in 
 evidence, in proof of the averment that it was his duty, and, 
 after verdict finding that it was his duty, must be taken to have 
 been sufficiently proved. It must also be taken to have been 
 proved that there was no impediment in the way; and under 
 these circumstances the not holding a court-martial, and the 
 plaintiff's having sustained loss and damage thereby, both which 
 circumstances we must consider as proved, constitute a good cause 
 of action, upon which judgment may be now given. 
 
 The Court are therefore of opinion that the rule for arresting 
 this judgment is to be discharged. Rule discharged. 
 
 Johnstone v. Sutton in error. 
 
 The defendant having brought a writ of error in the Exchequer 
 Chamber, the case was argued at length in February and November, 
 1786, before Lord Mansfield, Chief-Justice of the King's Bench, 
 and Lord Loughborough, Chief-Justice of the Common Pleas. 
 They reported their opinion to the Lord Chancellor, who ac- 
 cordingly reversed the judgment of the Court of Exchequer. 
 
 The following was the joint opinion of Lord Mansfield and 
 Lord Loughborough. 1 
 
 On the 2nd day of February last we heard this cause argued by 
 counsel on both sides; and upon the 4th instant we heard it again 
 fully argued by the counsel for Captain Sutton, the defendant in 
 error, and the plaintiff in the cause. 
 
 1 The course of proceeding did not should he authentically known, the Lord 
 admit of the opinion being delivered as a Chancellor allowed the parties to take 
 formal judgment ; hut, in order that it copies of it.
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 777 
 
 No. 17. — Sutton v. Johnstone. 
 
 The record is printed, and in everybody's hands; there is there- 
 fore no occasion to state it. 
 
 The general question is, whether, upon the face of the declara- 
 tion, after a verdict, sufficient matter appears to show that the 
 plaintiff ought not to recover? 
 
 There is no similitude or analogy between an action of trespass, 
 or false imprisonment, and this kind of action. An action of 
 trespass is for the defendant's having done that which, upon 
 the stating of it, is manifestly illegal. This kind of action is 
 for a prosecution which, upon the stating of it, is manifestly 
 legal. 
 
 The essential ground of this action is, that a legal prosecution 
 was carried on without a probable cause. We say this is empha- 
 tically the essentia] ground, because every other allegation may 
 be implied from this ; but this must be substantively and ex- 
 pressly proved, and cannot be implied. 
 
 From the want of probable cause, malice may be, and most 
 commonly is, implied. The knowledge of the defendant is also 
 implied. 
 
 From the most express malice, the want of probable cause 
 cannot be implied. 
 
 A man, from a malicious motive, may take up a prosecution 
 for real guilt, or he may, from circumstances which he really 
 believes, proceed upon apparent guilt, and in neither case is he 
 liable to this kind of action. Vide Warren v. MaWieivs, 6 Mod. 73. 
 
 After a verdict the presumption is that such parts of the 
 declaration, without proof of which the plaintiff ought not to 
 have had a verdict, were proved to the satisfaction of the jury. 
 In this case, to support the verdict, there was nothing necessary 
 to be proved but that there was no probable cause, from whence 
 the jury might imply malice, and might imply that the defen- 
 dant knew there was no probable cause 
 
 The question of probable cause is a mixed proposition of law 
 ami fact. Whether the circumstances alleged to show it probable, 
 or not probable, are true and existed, is a matter of fact; but 
 whether, supposing them true, they amount to a probable cause, 
 is a question of law: and upon this distinction proceeded the case 
 of Reynolds and Kennedy, 1 Wils. 'I'^'l. 
 
 Thus much we think fit to premise in general, as a material 
 introduction to the discussion of the question upon this record.
 
 '78 ACTION (right of). 
 
 No. 17 — Sutton v. Johnstone. 
 
 The objections made by Johnstone, the defendant in the cause, 
 come under two general heads : — 
 
 First, Supposing this kind of action to lie. 
 
 Secondly, That it does not lie. 
 
 First, Supposing it to lie, the defendant has made the following 
 objections : — 
 
 To the first count, — 
 
 1st objection. That there appears upon record a probable cause 
 in law. 
 
 2nd. That the declaration alleges, by way of special damage, as a 
 legal consequence of the plaintiff's suspension, that he lost his 
 share of the prize-money acquired by the ship during his suspen- 
 sion ; which the defendant says is not true. 
 
 Upon the third count it is objected that it is not alleged that 
 the defendant had a commission to hold courts-martial, and as 
 commander-in-chief he had no such authority. 
 
 Secondly, That not holding a court-martial sooner, if any, is a 
 mere military offence, contrary to the duty of the defendant, as 
 commander; and the guilt has not been tried by any military 
 tribunal, and in this respect is like the case of Barwis v. Keppel, 
 I Wils. 314. 
 
 As to the first objection under the first head: — 
 
 The charges against the plaintiff before the court-martial were 
 formally two, but in reality and effect one, • — to wit, the disobe- 
 dience of the defendant's verbal orders, public signals, &c. 
 
 The second charge is a consequence of the first, — viz., for 
 delaying and discouraging the public service on which he was 
 ordered on the 16th of April, 1781 ; which delaying or discour- 
 aging arose from his not doing as he was ordered, no other instance 
 being alleged. 
 
 The flight, the signals, the attempt to pursue, the enemy sail- 
 ing off, are all admitted by the declaration. That the orders were, 
 in fact, not obeyed, seems admitted too ; for the plaintiff only 
 avers " that he did not wilfully and willingly disobey ; " but the 
 sentence of the court-martial shows clearly that the orders were 
 disobeyed, and that the plaintiff justified himself by a physical 
 impossibility to obey. Nothing less could be a justification. 
 
 A subordinate officer must not judge of the danger, propriety, 
 expediency, or consequence of the order he receives : he must 
 obey ; nothing can excuse him but a physical impossibility. A
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 779 
 No. 17. — Sutton v. Johnstone. 
 
 forlorn hope is devoted, — many gallant officers have been devoted. 
 
 Fleets have been saved, and victories obtained, by ordering partic- 
 ular ships upon desperate services, with almost a certainty of death 
 or capture. 
 
 The question then tried by the court-martial was, whether the 
 plaintiff was justified in not obeying by physical impossibility ? 
 Now, there cannot be a question more complicated. It involves 
 the precise point of time, the state of the wind, the state of the 
 ship, the position of both fleets. It requires great skill in navi- 
 gation. There is no question likely to create a greater variety of 
 opinions. 
 
 It is possible the court-martial at Portsmouth, at a great dis- 
 tance of time, may have thought it was impossible to obey ; and 
 yet the whole squadron, who saw the action, might be of a different 
 opinion. We use it only as a possible supposition : but we are 
 warranted to make it by a matter of fact which, it seems, came 
 out upon the trial of this cause. 
 
 In the printed notes of my Lord Chief Baron's argument upon 
 granting a new trial, his Lordship says, " that all the sea officers, 
 those examined for the plaintiff as well as those who were 
 examined for the defendant, swore they should have held them- 
 selves bound to obey the orders given, if they had been in the 
 situation in which the plaintiff was." 
 
 Under all these circumstances, it being clear that the orders 
 w r ere given, heard, and understood; that in fact they were not 
 obeyed ; that, by not being obeyed, the enemy were enabled the 
 better to sail off ; that the defence was an impossibility to obey, 
 (a most complicated point), — under all these circumstances, we 
 have no difficulty to give our opinion, that, in law, the commodore 
 had a probable cause to bring the plaintiff to a fair and impartial 
 trial. 
 
 This probable cause goes to both parts of the charge, — the dis- 
 obedience and obstructing the public service. But if it went to 
 the disobedience only, it would equally avail the defendant in this 
 cause. For it is not like the case put of a plaintiff recovering. 
 where he lays, in the same sentence, words actionable and words 
 not actionable. 
 
 Here the defendant alleges a justification of the arrest, suspen- 
 sion, and trial. If his justification be allowed, there is an end of 
 the action.
 
 780 ACTION (RIGHT OF). 
 
 No. 17. — Sutton v. Johnstone. 
 
 If the defendant were right in trying the plaintiff for disobe- 
 dience, the adding delay and obstructing the public service were 
 only two or three superfluous words, which created no additional 
 trouble, vexation, or expense ; and this action is not adapted to so 
 trifling a complaint. 
 
 Second objection under the first head : — 
 
 The right to the prize-money in* this case is, we understand, still 
 in litigation between the plaintiff and others, who are no parties in 
 this cause ; and therefore, without necessity, we choose to give no 
 opinion upon it: and if our opinion is right upon the other points, 
 this is not necessary. 
 
 The third count is upon a ground collateral to the prosecution. 
 It is for delaying to hold a court-martial for the trial of the plain- 
 tiff while the squadron under the defendant's command continued 
 abroad, contrary to the duty of his office as commander-in-chief. 
 
 Objections have been made to the plaintiff's recovering upon 
 this count : — 
 
 1st, That it doth not appear upon the declaration that he had 
 authority to hold a court-martial. 
 
 2ndly, That the offence, as charged, is merely military, and con- 
 trary to the discipline of the navy ; and the defendant has not yet 
 been tried for it by a court-martial. 
 
 3rdly, Alleging loss of prize-money as a special damage. We 
 have already said why we decline giving any opinion upon this. 
 
 As to the first, the averment is, that by law it was incident to 
 the duty of his office to hold a court-martial: now, the contrary is 
 manifest from the statute law of the land. There is no fact to be 
 tried by the jury. The allegation is a proposition in law, and 
 stands upon the record. It is false, and therefore the basis of 
 the charge, that the defendant had authority, is wanting; and this 
 objection we think fatal. 
 
 As to the second objection, the delay is charged to be contrary 
 to the defendant's duty as commander-in-chief. There is no rule 
 of the common or statute law applicable to his case. . It is a mere 
 military offence. It is the abuse of a military discretionary 
 power; and the defendant has not been tried for it by a court- 
 martial. 
 
 A court of common law, in such a case, cannot assume an 
 original jurisdiction. It is like 'the case of Barvis and Keppel. 
 This objection we think fatal.
 
 SECT. V. — TASKS OF LOSS WHERE NO RIGHT OF ACTION. 781 
 No. 17. — Sutton v. Johnstone. 
 
 This is our opinion upon the first, second, third, and fourth 
 counts, supposing an action for a groundless prosecution before a 
 court-martial to lie ; and upon this opinion no question will arise 
 
 whether or not there should be a venire de novo. 
 
 But the great and important question now brought into judg- 
 ment for the first time, is-, whether such an action can lie? 
 
 The occasion has often arisen at different periods of time, when 
 men of the fleets, put upon their trials before a court-martial, have 
 thought the charge without a probable cause, and have warmly 
 felt the injury of such an act of malice or oppression : yet, till 
 this experiment, it never entered into any man's head that such 
 an action as this could be brought ; consequently there is no usage, 
 precedent, or authority, in support of it. 
 
 This case stands upon its own special ground. 
 
 The wisdom of ages hath formed a sea military code, which in 
 the last reign was collected and digested into an Act of Parliament. 
 The great object of this code is, that the duty of every man in the 
 fleet shall be prescribed and regulated by rules and ordinances 
 adapted to sea military discipline; and that every man in the fleet, 
 for any offence against his duty in that capacity or relation, shall 
 be tried by a court-martial. 
 
 If a man be charged with an offence against the articles, or 
 where the articles are silent, against the usage of the navy, his guilt 
 or innocence can only be tried by a court-martial. 
 
 A commander-in-chief has a discretionary power, by this military 
 code, to arrest, suspend, and put any man of the fleet upon his 
 trial. A court-martial alone can judge of the charge. But this 
 military law hath foreseen that, though it is necessary to give 
 superiors great discretionary power, it may be abused to oppression, 
 and therefore has provided against such abuse by the 33rd article. 
 
 A commander who arrests, suspends, and puts a man on his trial 
 without a probable cause, is guilty within that article: but the same 
 jurisdiction which tries the original charge, must try the probable 
 cause ; which in effect is a new trial. And every reason which 
 requires the original charge to be tried by a military jurisdiction, 
 equally holds to try the probable cause by that jurisdiction. 
 
 The salvation of this country depends upon the discipline of the 
 fleet; without discipline they would be a rabble, dangerous only to 
 their friends, and harmless to the enemy. 
 
 Commanders, in a day of battle, must act upon delicate sus-
 
 782 ACTION (right of). 
 
 No. 17. — Sutton v. Johnstone. 
 
 picions ; upon the evidence of their own eye ; they must give des- 
 perate commands ; they must require instantaneous obedience. In 
 case of a general misbehaviour, they may be forced to suspend several 
 officers, and put others in their places. 
 
 A military tribunal is capable of feeling all these circumstances, 
 and understanding that the first, second, and third part of a soldier 
 is obedience. But what condition will a commander be in, if, upon 
 the exercising of his authority, he is liable to be tried by a common 
 law judicature ? 
 
 If this action is admitted, every acquittal before a court-martial 
 will produce one. 
 
 Not knowing the law, or the rules of evidence, no commander 
 or superior officer will dare to act ; their inferiors will insult and 
 threaten them. 
 
 The relaxation and decay of discipline in the fleet has been 
 severely felt. Upon an unsuccessful battle, there are mutual 
 recriminations, mutual charges, and mutual trials. The whole fleet 
 take sides with great animosity; party prejudices mix. If every 
 trial is to be followed by an action, it is easy to see how endless 
 the confusion, how infinite the mischief will be. 
 
 The person unjustly accused is not without his remedy. He has 
 the properest among military men. Reparation is done to him by 
 an acquittal. And he who accused him unjustly is blasted for- 
 ever, and dismissed the service. 
 
 These considerations incline us to lean against introducing this 
 action. But there is no authority of any kind either way ; and 
 there is no principle to be drawn from the analogy of other cases, 
 which is applicable to trials by a sea court-martial under the 
 marine law, confirmed, directed, and authorised by statute. And 
 therefore it must be owned that the question is doubtful ; and 
 when a judgment shall depend upon a decision of this question, 
 it is fit to be settled by the highest authority. 
 
 According to our opinion it is not necessary to the judgment 
 in this cause. Because, supposing the action to lie, we think judg- 
 ment ought to be given for the defendant, the plaintiff in error. 
 
 The judgment was accordingly reversed. 
 
 In the House of Lords (27 May, 1787) : — 
 The original plaintiff (Sutton), being dissatisfied with this judg- 
 ment of reversal, brought a writ of error upon it, returnable
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 783 
 No. 17. — Sutton v. Johnstone. 
 
 in Parliament. The points relied on by the plaintiff were the 
 following : — 
 
 1st error.- — The contention is that it is to be inferred, from the 
 sentence of the court-martial, that Sutton was guilty of disobedi- 
 ence to the orders of Johnstone, though he was excusable for such 
 disobedience for reasons not known to Johnstone. But it does not 
 appear that the court-martial meant either that Sutton had been 
 guilty of disobedience, or that the justification was not known to 
 Johnstone. It is a principle of law that every intendment must 
 be made to support a verdict, and none to destroy it. Malice and 
 want of probable cause having been expressly averred in the 
 declaration, it must after verdict be presumed that all the circum- 
 stances disclosed to the court-martial were before known to the 
 defendant. 
 
 2nd error. — If it is meant by the error so assigned that Sutton 
 brought the action simply for Johnstone's having him tried by 
 court-martial, the record is not properly understood, the injury 
 complained of being that Johnstone brought the plaintiff to such 
 trial from malicious motives, without even a reasonable and prob- 
 able cause, and with a perfect knowledge of his innocence, with a 
 view to injure and oppress him. If it is meant that such conduct 
 is in the due course of discipline, the proposition is wholly unten- 
 able. For no wrong can be without a remedy, and the courts of 
 common law are the only tribunal before which he can sue for 
 damages. 
 
 3rd error. — If in law and fact it was possible that prize-money 
 could be lost to Sutton by the acts complained of, the loss must 
 now be taken to have been proved. If it was impossible, it must 
 now be assumed that the jury, under direction of the Judge, did 
 not take this item of claims into consideration. 
 
 4th error. — If the objection is meant to be taken on the ground 
 that the courts of common law are, from the nature of the subject, 
 unable to judge of it, the answer is that the courts of law must 
 be supposed competent to their functions. And courts having 
 jurisdiction of the cause before them must take notice of, and 
 •decide upon, matters incidentally arising, though they may be of a 
 sort over which the court has not original jurisdiction. 
 
 5th error. — It having been stated in the declaration that it was 
 Johnstone's duty, as commander of the particular expedition, to 
 have held a court-martial, it must, after verdict, be assumed to
 
 784 ACTION ("RIGHT OF). 
 
 No. 17. — Sutton v. Johnstone. 
 
 have been proved, or admitted, that the defendant (Johnstone) had 
 the necessary commission to hold court-martials. 
 
 The arguments relied on, on behalf of the defendant (Johnstone), 
 were briefly these : — 
 
 The bringing of the plaintiff to trial by court-martial is an act 
 of discipline for which no action will lie. The same reasons of 
 public policy apply to a commander-in-chief as to a judge or 
 juror ; as to whom no action lies for an act done in that capacity, 
 though it be alleged to be malicious. By statute law an offence 
 against naval discipline must be tried by a court-martial. If an 
 action lay, the jury must inquire into the want of probable 
 cause (as well as malice), and they are incompetent to this inquiry 
 for the same reason that they are incompetent to try the original 
 charge. The proper remedy for an officer unjustly treated is to 
 bring his accuser to trial before a court-martial on a charge of 
 cruel and oppressive behaviour. The want of being aide to « et 
 satisfaction in damages puts him in no worse situation than t ! 
 persons who may suffer wrong from the other persons i . 
 whom no action can be brought, as above mentioned. 
 
 But supposing such an action would lie, enough appear? on 
 the record to arrest the judgment. The sentence of the court- 
 martial stated in the declaration did not negative the facts charged 
 against him, but, admitting them to be true, declared the plaintiff' to 
 be justifiable. That shows a reasonable and probable cause for hav- 
 ing preferred the charge. By the 22nd article of war, 22 Geo. II. 
 c. 33, disobedience to any lawful command of a superior officer is 
 made liable to such punishment as a court-martial, according to 
 the degree and nature of the offence, shall inflict ; and nothing can 
 justify disobedience but a physical impossibility to obey. The 
 sentence of acquittal cannot, on any reasonable construction, be 
 understood as implying that a physical impossibility existed ; so 
 that on the face of the sentence itself the justification was illegal ; 
 and this furnishes the strongest ground for saying that there was 
 a reasonable and probable cause for the charge Even if it could 
 be inferred from the sentence that there was a physical impossi- 
 bility or the belief of a physical impossibility of obeying, still the 
 fact of disobedience existing made it the duty of the commander- 
 in-chief to bring the plaintiff to trial by a court-martial, for them 
 to decide whether the circumstances did constitute such alleged 
 physical impossibility. And if there could be any justification
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF ACTION. 785 
 No. 17. — Sutton v. Johnstone. — Notes. 
 
 short of physical impossibility, it was still his duty to bring the 
 circumstances before a court-martial, for them to decide whether 
 they amounted to such justification. 
 
 The claim for damages for loss of prize-money cannot be sus- 
 tained as the legal consequence of the plaintiffs arrest. It must 
 be assumed that on his acquittal he was reinstated in his full 
 rights. 
 
 The charge of neglecting to hold a court-martial is liable to the 
 same objection as the other charges, inasmuch as it is a com- 
 plaint against a public officer for the exercise of legal powers ; and 
 it is liable to the further objection that the neglect to hold a 
 court-martial in order to oppress and injure the accused is an 
 offence against the articles of war, and must, therefore, in the form 
 of a criminal charge, be tried by a court-martial. 
 
 After hearing counsel on this writ of error, the following ques- 
 tion was put to the Judges: "What judgment, or other award, 
 ought to be made on the record as it lay before the House?" 
 And Mr. Justice Gould having delivered the unanimous opinion 
 of the Judges present, that the judgment given in the Exchequer 
 Chamber ought to be affirmed, it was thereupon ordered and ad- 
 judged that the same should be affirmed. 
 
 ENGLISH NOTES. 
 
 The broader rule as laid down by Lord Mansfield has not escaped 
 question, although, since the decision of the Queen's Bench in Daw- 
 kins v. Paulet (1869), L. R., 5 Q. B. 94; 39 L. J. Q. B. 53, it could 
 not now be questioned except in an appellate court. 
 
 The case of Warden v. Bailey (1811), 4 Taunt. 67, is only impor- 
 tant for a remark of Lawrence, J. (p. 75), during the argument, to 
 the effect that he had heard from good private information that the 
 reasons assigned by Lord Maxsfield were not adopted by the House 
 of Lords, though the judgment in the Exchequer Chamber reversing 
 that of the Court of Exchequer was confirmed. The case itself was 
 an action of trespass brought by an inferior officer of militia against 
 his superior officer for imprisonment. The Judge (Gkose, J.) who 
 tried tlie action non-suited the plaintiff on the authority of Sutton v. 
 Johnstone. The Court of Common Pleas set aside the non-suit, on the 
 ground that the imprisonment was for disobedience to a command re- 
 lating to a matter (the attendance of the soldiers at school) outside the 
 scope of the military authority. A second trial having resulted in a 
 verdict for the plaintiff, the case was brought, on a bill of exceptions, 
 vol. i. — 50
 
 ? 8G ACTION (RIGHT OF). 
 
 No. 17. — ■ Sutton v. Johnstone. — Notes. 
 
 before the Exchequer Chamber, where judgment was given for the 
 plaintiff in error (the original defendant), on the ground that there 
 was evidence of mutinous language; so that the imprisonment was 
 justified, whether the original order for attending school was valid or 
 not. Bailey v. Warden (1815), 4 ML & S. 400. 
 
 The question of privilege came up in a crucial form in Dawkins v. 
 Paulet (1869), L. R., 5 Q. B. 94; 39 L. J. Q. B. 53, where to a declara- 
 tion for libel it was pleaded that the alleged libel was contained in a 
 report by a superior officer made in the course of military duty to the 
 commander-in-chief; and it was replied "that the libel was written by 
 the defendant of actual malice, and without any reasonable, probable, 
 or justifiable cause, and not bond fide, or in the bond fide discharge of 
 the defendant's duty as such superior officer." On demurrer to this 
 replication, it was held (by a majority of the court, Mellor and Lush, 
 JJ., against the dissent of Cockburn, C. J.), that the replication was 
 bad; for that no action will lie against a military officer for an act done 
 in the ordinary course of his duty as such officer, even if done mali- 
 ciously and without reasonable or probable cause. The Lord Chief 
 Justice, Cockburn, cited the case of Warden, v. Bailey, and particu- 
 larly the observations of Lawrence, J., as showing that Lord Mans- 
 field's reasoning had not the authority of the House of Lords; and he 
 combated Lord Mansfield's reasoning on the question of policy. The 
 other Judges, Mellor and Lrsn, JJ. (the former delivering an opin- 
 ion which he stated to have had the concurrence of the late Mr. Justice 
 Hayes, who had heard the arguments), adopted the reasoning of Lord 
 Mansfield, which they considered to be of very high authority, and 
 applied it to the case in point. 
 
 It is settled law that no action will lie against a witness for what he 
 says when giving evidence before a court of justice. And it has been 
 decided by the House of Lords, affirming the judgment of the Exche- 
 quer Chamber, and confirming the ruling of Mr. Justice Blackburn, 
 which was challenged by a bill of exceptions, that the same rule applies 
 in the ease of a military man giving evidence (although not upon oath) 
 upon a military inquiry ordered by the general commanding-in-chief 
 in pursuance of the Queen's Regulations. Dawkins v. Lord Rokebi/ 
 (H. L. 1875), L. R., 7 H. L. 744; 45 L. J. Q. B. 8. In the judgment 
 of the Exchequer Chamber (1873), L. R., 8 Q. B. 255, 271; 42 L. J. 
 Q. B. 63, the decision is expressly based on (amongst other authori- 
 ties) Lord Mansfield's opinion in Sutton v. Johnstone, and the decis- 
 ion of the Queen's Bench in Dawkins v. Paulet, which are cited in 
 support of the general principle that "a case involving questions of 
 military discipline and military duty alone are cognisable only by a 
 military tribunal, and not by a court of law.'' The same absolute
 
 SECT. V. — (ASKS OF LOSS WHERK NO KIGHT OF ACTION. 787 
 
 No. 17. — Sutton v. Johnstone. — Notes. 
 
 privilege for words spoken extends to an advocate in supporting the east' 
 of his client before a judicial tribunal. Minister v. Lamb (C. A. 1883), 
 11 Q. B. I). r>$$- 52 L: J. Q. B. 726. In the judgments delivered by both 
 Brett,M. II., and Frv, L. J., the judgment of the Exchequer Chamber 
 in Dawkins v. Rokebg is cited and relied on; and the former (p. (>0I) 
 also refers to the opinion of Lord Mansfield in Reg. \. Skinner, L lift. 
 J55 (also cited in Dawkins v. Rokeby, L. li., 8 Q. 15. 264), that " neither 
 party, witness, counsel, jury, nor judge, can be put to answer, civilly 
 or criminally, for words spoken in office." That must of course be 
 subject to the implied exception of criminal liability for perjury. 
 
 Apart from any special privilege, it is a well-known proposition of 
 law that evidence of malice and want of probable cause are both neces- 
 sary to support an action for a wrongful prosecution. And, although 
 absence of reasonable and probable cause is in itself some evidence from 
 which malice may be inferred, it is not conclusive; and, if it appears and 
 is found as a fact, that the defendant honestly believed the charge he 
 made against the plaintiff, — although he has not taken reasonable care 
 to inform himself of the facts, — it has been decided by the Court of 
 Appeal, citing the principal case as an authority, that the plaintiff can- 
 not, without other evidence of the sinister motive, support his action. 
 Brown v. Hawkes (C. A. 1892), 2 Q. B. 718; 61 L. J. Q. B. 151. 
 
 AMERICAN NOTES. 
 
 Of the principal case it is said, in 1 Hare & Wallace's American Leading 
 Cases, p. 202 : " The reasons given by Lords Mansfield and Loughborough, 
 for the reversal in the Exchequer Chamber, have always been admired, as 
 presenting a comprehensive and accurate view of the grounds and nature of 
 this action." It is cited by Mr. Throop (Public Officers), but not to the par- 
 ticular point expressed in the rule. 
 
 In Parker v. Huntingtan, 2 Gray (Mass.), 128, the court were '-inclined to 
 the opinion," but did not decide, that an action does not lie against a district 
 attorney and another, for maliciously contriving to have the plaintiff indicted, 
 knowing that he was innocent. 
 
 In Conrad v. Ithaca, Sj-c, 16 New York, 106, the court citing Baron Eyre's 
 remark in the principal case, that "every breach of a public duty, working 
 wrong or loss to another, is an injury and actionable," observed: "If that 
 remark be true, it would of course follow that all public officers, including 
 commissioners of highways, are liable, for any neglect of duty, not only to 
 public prosecution, but to a civil action at the suit of any party injured. Can 
 this position be maintained? It was neither affirmed nor disaffirmed upon 
 the subsequent argument of the same case before the Chief Justices of the 
 King's Bench and Common Pleas, who decided for the defendant upon other 
 ^grounds." 
 
 A ministerial officer, acti-ig within his authority and with due care, is not
 
 788 ACTION (right of). 
 
 No. 17. — Sutton v. Johnstone. — Notes. 
 
 liable to any person who may be injured by his acts. Sample v. Broadwell, 87 
 Illinois, 017 ; Wilmarth v. Burt, 7 Metcalf (Mass.), 257; Sage v. Laurain r 19 
 Michigan, 137; Orr v. Quiinby, 54 New Hampshire, 500. In the last action it 
 was held that an agent of the United States, entering upon and doing injury 
 tii land in the prosecution of a coast survey, will be liable in an action for 
 tort, unless such entry and injury were reasonably necessary for the purposes 
 of the survey. (Doe, J., dissented in an opinion of fifty pages.) 
 
 A somewhat analogous case is Maurice v. Warden, 51 Maryland, 233 ; 39 
 Am. Rep. 384, where a professor at the United States Naval Academy at 
 Annapolis placed his written resignation in the hands of the superintendent 
 of the academy, to be forwarded to the Secretary of the Navy. The superin- 
 tendent being required by law to indorse his opinion thereon, did so, stating 
 why he thought the resignation should be accepted. Held, that this indorse- 
 ment was presumptively but not absolutely a privileged communication. The 
 court dissented from the view of the majority of the court in Dan-kins v. Lord 
 Paulel, L. R., 5 Q. B. 94, holding such communications to be absolutely priv- 
 ileged, and adopted the view of Cockburn, C. J., that they are actionable if 
 made with actual malice and without probable cause, and cited Lord Camp- 
 bell's opinion to the same effect in Dickson v. Earl of Wilton, 1 Fost. & Fin. 
 419, and While v. Nicholh, 3 Howard (U. S. Sup. Ct.), 207. 
 
 In Respublica v. Sparhawk, 1 Dallas (Penn. Sup. Ct.), 357, it was held that 
 during the War of the Revolution Congress had a right to direct the removal 
 of any articles that were necessary to the Continental army, or useful to the 
 enemy and in danger of falling into their hands, and one whose property so 
 removed was afterwards captured by the enemy was not entitled to compen- 
 sation from the Commonwealth. See also United Slates v. Pacific Railroad, 
 120 United States, 227: Lamar v. Browne. 92 United States, 187. 
 
 In Dow v. Johnson, 10 Otto, 158, it was held by the United States Supreme 
 Court that no action would lie againsl a commanding general for the value of 
 personal property owned by a citizen of New York, hut situated in a State in 
 rebellion, and seized by his troops, by his order, during the late Civil War, and 
 used for the army of the United States govern men t. Justices Clifford and 
 Miller dissented, on the ground that the ultimate court was without juris- 
 diction because the amount involved was less than $5000, and obiter expressed 
 a view contrary to that of the majority on the merits. Mr. Justice Miller 
 praised the conduct of General Jackson, in 1815, in submitting to be fined by a 
 civil court for contempt in violating a writ of habeas corpus during the siege 
 of New Orleans by the British, calling it " the brightest page in his history."
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OP ACTION. 7 9 
 No. 18. — Kennedy v. Broun. — Rule. 
 
 No. 18. — KENNEDY v. BROUN, 
 (c. P. 1863.) 
 
 RULE. 
 
 On grounds of public policy, the recovery of fees payable 
 to a barrister cannot be enforced by action ; nor will an 
 action lie on an account stated for such fees, although the 
 service has been performed and the debt admitted. 
 
 Kennedy v. Broun. 
 
 32 L. J. C. 137 (s. c. 13 C. B. n. s. G77). 
 
 Action on an account stated with the female defendant dum sola. 
 
 Plea (inter alia}, never indebted. 
 
 At the trial, before Cockburn, C. J., at the Warwickshire Spring 
 Assizes, 1862, the facts were, that the female defendant, before her 
 marriage with Mr. Broun, had been the widow of Henry John 
 Swinfen, and had claimed to be entitled to the Swinfen estates in 
 Staffordshire, under the will of the said H. J. Swin fen's father. In 
 a suit brought by the heir-at-law to recover these estates, the 
 Court of Chancery ordered an issue to try the validity of such will ; 
 which issue came on for trial at the Staffordshire Spring Assizes, 
 1856, when the claim of Mrs. Swinfen was compromised by her 
 counsel, but this was done without her consent. She afterwards 
 consulted the plaintiff, a barrister, and, acting upon his advice, she 
 refused to carry out the terms of the compromise, and ultimately 
 she succeeded in getting the Court of Chancery to set the compro- 
 mise aside, and to order a fresh trial of the issue. See Swinfen v. 
 Swinfen, 18 Com. B. Rep. 485 ; s. c. 25 Law J. Rep. (x. s.) C. P. 
 303 ; and in Chanc. 2 De Gex & J. 381 ; s. c. 27 Law J. Pep. (N. s.) 
 Chanc. 35, 491. The second trial took place at the Staffordshire 
 Summer Assizes, 1858, and resulted in a verdict for Airs. Swinfen, 
 which was afterwards confirmed by the Court of Chancery. See 
 Stoinfen v. Swwfen, 27 Beav. 148 ; s. c. 28 Law J. Rep. (x. s.) 
 Chanc. 840. On the occasion of all the proceedings which had 
 occurred since the compromise, including the second trial, the 
 plaintiff acted as the counsel of Mrs. Swinfen, and had the entire 
 conduct of her case, and during such proceedings she made repeated
 
 790 ACTION (right of). 
 
 No. 18. — Kennedy v. Broun. 
 
 requests to him for exertions as an advocate, and repeatedly prom- 
 ised to remunerate him amply for the same ; and there was evi- 
 dence that, after the end of the litigation in respect of the Swinfere 
 estates, she admitted the amount of debt due for such remuneration 
 to be £20,000, and she promised the plaintiff to pay it. There was 
 also evidence of the plaintiff having left Birmingham, where lie 
 had a practice as provincial barrister, in order to devote his time and 
 attention to the case of Mrs. Svvinfen, and also of his having written 
 and printed pamphlets in support of her claim to the estates, and in 
 order to create a favourable impression in the neighbourhood. 
 
 A verdict having been found for the plaintiff for £20,000, a rule 
 nisi was afterwards obtained for the defendants, to set the same 
 aside, and enter it for the defendants, pursuant to leave reserved,, 
 on the ground, inter alia, that the account relied upon was of a 
 matter in respect of which no legal liability existed ; or for a new 
 trial, on the ground of misdirection, and of the verdict being 
 against the evidence. 
 
 Cause having been shown by the plaintiff in person, and counsel 
 heard in support of the rule, the Court took time for consideration ;. 
 and, on a subsequent day, 11 January, 1863, 
 
 Ekle, C. J., delivered the following judgment of the Court. In this 
 case the defendants obtained a rule to show cause why the verdict 
 for the plaintiff should not be set aside, and either entered for the 
 defendants if there was no evidence of a debt, or for a new trial if 
 the verdict was against the evidence. The material facts upon the 
 first question are, that in the course of the suit of Swinfcn v. Swinfen 
 (see p. 789, ante), the plaintiff, a barrister, became the advocate of 
 the present defendant, Mrs. Broun ; and during the continuance 
 of that litigation she made repeated requests to him for exertions 
 as an advocate, and repeatedly promised to remunerate him for the 
 same ; and after the end of the litigation she spoke of the amount of 
 this remuneration, and for the purpose of the present judgment we 
 assume that she admitted the amount of debt due for such remun- 
 eration to be £20,000, and promised to pay it. These facts are no- 
 evidence to support the verdict if the promise of the defendant did 
 not constitute any obligation ; and we are of opinion that it did 
 not. We consider that a promise by a client to pay money to a 
 counsel for his advocacy, whether made before, or during, or after 
 the litigation, has no binding effect; and furthermore, that the 
 relation of counsel and client renders the parties mutually incapa
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 79 J 
 No. 18. — Kennedy v. Broun. 
 
 ble of making any legal contract of hiring and service concerning 
 advocacy in litigation. For authority in support of these propo- 
 sitions, we place reliance on the fact that in all the records of our 
 law, from the earliest time till now, there is no trace whatever 
 either that an advocate has maintained a suit against his client for 
 his fees in litigation, or a client against an advocate for breach of a 
 contract to advocate. And as the number of precedents has been 
 immense, the force of the negative fact is proportionally great. To 
 this we add the tradition and understanding of the profession, both 
 as known to living memory and as expressed in former times. Sir 
 John Davys. Davys' Rep. Preface, 23, declares that understanding 
 at the beginning of the seventeenth century, when he says that the 
 fees of professors of the law are not duties certain growing due by 
 contract for labour or service, but gifts ; not merces, but honorarium. 
 Sir John Davys would have ample experience of the rules of the 
 profession from his eminence in the law, and his opinion is entitled 
 to much weight. Lord Stowell, as appears in a work remarkable 
 for learned research, Wallace's Reporters, 162, 3rd ed., speaks of him 
 as a poet, a lawyer, and a statesman, and highly distinguished in 
 each of these characters. Lord Nottingham declares the same 
 understanding of the profession in the note to Co. Lit. 295 a, in 
 saying " a counsellor cannot bring any action (id est, for his fees-), 
 for he is not compellable to be a counsellor. His fee is honora- 
 rium, and not a debt." The same note contains the opinion of Mr. 
 Butler to the same effect, saying that in England the fees of coun- 
 sel are honorary in the strict acceptation of the word. Blackstone 
 also (vol. iii. p. 28) declares the same understanding: "A counsel 
 can maintain no action for his fees, which are given not as local io 
 vel conductio, but as quiddam honorarium ; not as salary or hire, 
 but as a mere gratuity." As we know of no authorities that con- 
 flict with these, we only add the names of the Judges who have had 
 occasion to declare an opinion to the same effect, and they are 
 Lord Hardwicke, Lord Kenyox, Kixdersley, V.C., Pigot, C.B. (Ire- 
 land), and Bayley, J., and Best, J. Thomhill v. Evans, 2 Atk. 
 330 ; Turner v. Phillips, 1 Peake, 166 ; Re May, 4 Jur. N. S. 1169 ; 
 Hobart v. Butler, 9 Ir. Com. Law Rep. 157 ; Morris v. Hunt, 1 Chit. 
 544. These are authorities for holding that the counsel cannot con- 
 tract for his hire in litigation. The same authorities we rely on to 
 show that the client cannot contract for the service of the counsel 
 in litigation. There is the same absence of any precedent for such 
 an action, and the reason for the one incapacity is good for both.
 
 792 ACTION (right of). 
 
 No. 18. — Kennedy v. Broun. 
 
 We proceed to the authorities on which the plaintiff relied ; and 
 instead of examining each citation separately, we think it more 
 convenient to take them in classes, and to give the reason why 
 each class appears to us to have no weight. The proposition is 
 confined to incapacity for contracts concerning advocacy in litiga- 
 tion. This class of contracts is distinguished from other classes 
 on account of the privileges and responsibility attached to such 
 advocacy, and on this ground we consider the cases unconnected 
 with such advocacy to be irrelevant. Thus the barrister who con- 
 tracted to serve as returning-officer, — Egan v. Kensington Union, 
 3 Q. B. Rep. 935, note, — and the barristers who contracted to serve 
 as arbitrators, — Vicar y v. Warne, 4 Esp. 46 ; Hoggins v. Gordon, 
 3 Q. B. Rep. 46b' ; s. c. 11 Law J. Rep. (n. s.) Q. B. 286 ; Marsack v. 
 Webber, 6 Hurl. & N. 5, — and the barristers who contracted either 
 for an annual sum by way of retainer, 39 H. 6, fo. 21, pi. 31, or for 
 an annuity pro consilio impenso et impendendo, Plowd. 32, 160, made 
 contracts not concerning litigation, and therefore were not within 
 the incapacity here in question. It may be that a contract for a 
 general retaining fee for a counsel may not bind at the present 
 day, because it relates in substance to litigation, and so may be 
 distinguished from annuities to a standing counsel, who w T as re- 
 quired to guide, by his advice, in the management of property and 
 general affairs. The change in the habits of courts and the practice 
 of the bar, since the last-mentioned cases were decided, has proba- 
 bly made the position of an advocate now as different from that 
 of standing counsel as the position of the clergy now differs from 
 that which they held when private chaplains were hired to serve 
 as chaplains, and perform other work, and were prosecuted for 
 breach of their contracts to serve under the statute 23 Edw. III., 
 relating to labourers ; in one of which prosecutions against a paro- 
 chial chaplain for breach of his contract to serve as seneschal and 
 be parochial chaplain, the Court of Common Pleas thought that, as 
 far as related to his duty as chaplain, lie might be considered to be 
 in the service of God, and therefore not within a statute expressed 
 to relate to mowers and reapers and the like, but hesitated so to 
 decide till they had consulted their brethren of the other bench, 
 and had their sanction. But be that as it may, fees unconnected 
 with litigation are irrelevant to our present judgment, and this 
 distinction seems to be taken in Mingay v. Hammond, Cro. Jac. 
 482, where the plaintiff sued for an annuity pro consilio, and the
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF ACTION. 793 
 No. 18. — Kennedy v. Broun. 
 
 defendant pleaded a refusal of the plaintiff to sign a bill in the Star 
 Chamber, and the plea was held bad, because a counsellor with 
 such a fee is not bound to put his hand to every bill, but only to 
 give counsel. 
 
 With respect to the dicta cited by Mr. Kennedy, relating to the 
 liability of counsel for their conduct as advocates, they are all con- 
 sidered and overruled in the action of Swinfen v. Lord Chelmsford, 
 5 Hurl. & N. 919, per Pollock, C. B. ; s. c. 29 Law J. Rep. (n. s.) 
 Exch. 382. Some relate to retainers relating to purchases of land 
 or similar services, 11 H. 6, 18, pi. 10, and so are not within the 
 incapacity here in question. And although the dictum of P ASTON, 
 C. J., 14 H. 6, IS, pi. 58, " that action lies against a serjeant who 
 fails to attend in court," and a dictum, by Stokes, counsel, to the 
 same effect (Roll. Abr. tit. Action sur Case (P), Disceit, p. 91, 
 pi. ii., citing 20 H. 6, fol. 34, pi. 4, relate to litigation), yet they are 
 mere remarks in the course of an argument, and not adjudications, 
 and they were expressly overruled, as before mentioned. Mr. Ken- 
 nedy cited Rastell's Entries, p. 2, as containing precedents for 
 actions against an attorney or counsel for not appearing in court 
 according to his retainer ; but the book contains no entry against 
 a counsel for that wrong. There are three entries in succession. 
 The first is against an attorney, and is for that wrong. The second 
 precedent is against a counsel who was retained to advise about 
 the purchase of a manor, and betrayed his client's secrets and in- 
 terest, and is not an entry which relates to litigation. And the 
 third is against a counsel, but it is for a. penalty under a statute 
 for taking retainers on both sides as an ambidexter. The citation 
 from Rastell, therefore, does not support the plaintiff's argument. 
 A considerable part of Mr. Kennedy's learned research consisted 
 of anecdotes of various classes relating to barristers, irrelevant to 
 the point for adjudication, because irrelevant to capacity or incapa- 
 city for contracting for advocacy. Such are the anecdotes relating 
 to the habits of barristers when they held communication with 
 their clients personally before the rights and duties of attorneys 
 and solicitors were ascertained, and the advocate did the work of 
 each branch of the profession, habits which continued in Jersey till 
 lately — see Jersey case, 13 Moore, P.C. 203. Such also are those 
 relating to alleged endeavours by barristers to obtain larger fees. 
 Whether, this has been done or not, and whether a communication 
 in respect of the amount of the fee be made to the client by the
 
 794 ACTION (right of). 
 
 No. 18. — Kennedy v. Broun. 
 
 clerk or the barrister, the nature of the fee is not altered, nor is 
 the right to sue for it affected thereby. Such also are those re- 
 lating to payment after, instead of before, the service is performed. 
 In England, the general usage is prepayment. On the Continent, 
 under the Roman law and the modern French law, and in some 
 exceptional cases in England, the fee is paid after the service. 
 But again, the nature of the fee is not altered by the time of pay- 
 ment. The anecdotes in each of these classes show that the pay- 
 ments are of gratuities and not of debts, and, so far as they are to 
 be noticed for adjudication, tend to support the defendant's case. 
 As to express contract, certain dicta by Picot, C.B., — Hobart v. 
 Butler, supra, — and by Pollock, C.B., — Swinfen v. Lord Chelmsford, 
 supra, — were cited for the purpose of proving that a barrister had 
 capacity to make himself liable under a special contract with his 
 client concerning advocacy, though not by an implied contract. 
 "We think that the effect of those dicta has been misunderstood. 
 A special contract differs from an implied contract only in the 
 mode of proof. If a brief marked with a fee for a given place of 
 trial is left in silence, there would be some evidence of an implied 
 contract to pay the fee, were there no usage to the contrary, and 
 no incapacity for such a contract. If the same brief is left with 
 an express contract to pay the fee, there would be an express con- 
 tract, if there were no incapacity. AVhere the service of the bar- 
 rister, according to usage, is for a gratuity, that usage would be 
 presumed to continue, unless there was an express contract rebut- 
 ting that presumption. And where there is no incapacity, the 
 presumption from usage is rebutted by an express contract. Pol- 
 lock, C.B., does not refer to any authorities ; but the cases referred 
 to by Pigot, C. B., show that this was his meaning, fur he refers to 
 the cases above mentioned, where barristers, either as returning 
 officers or as arbitrators, sustained actions on express contracts for 
 their fees. The incapacity depends on the subject-matter of the 
 contract, not on the mode of proof. "When the contract is proved, 
 its incidents are the same, whatever was the kind of evidence ad- 
 duced for proof. If there is incapacity, words and implication 
 are alike nullities, and no contract can result ; but where there is 
 no incapacity, and there are conflicting presumptions in respect 
 of the consensus essential to create contract, there evidence of 
 ex press words of clear meaning is decisive proof. In this sense 
 the observation of Wood, V.C., — The Attorneij-Genrrnl v. Tlie Col-
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF A.CTION. 795 
 No. 18. — Kennedy v. Broun. 
 
 lege of Physicians, 1 Jo. & II. 561 ; s. c. 30 Law J. Rep. (N. s.) 
 
 (Jhanc. 757, — must be understood, saying " that a physician 
 might recover his fee if he makes a special contract." We know 
 of no incapacity affecting a physician. According to usage, they 
 practise for a fee, which is honorarium, not merces ; and no action 
 lies where the parties are presumed to have acted according to this 
 usage. But if the presumption is rebutted by evidence of an ex- 
 press contract, such contract binds, and the physician may sue and 
 be sued thereon, as was held in Veitch v. Russell, 3 Q. B. (Ad. & El. 
 N. S.) 928 ; s. c. 12 Law J. Eep. (x. S.) Q. B. 13, Mr. Kennedy argued 
 that under the civil law an advocate could sue for his fee, and 
 that Blackstone made a mistake in referring thereto to support 
 a contrary opinion. In this it appears to us that the mistake 
 is on the part of the plaintiff. Throughout the whole growth 
 of the civil law, from the foundation of Rome to the Digest 
 -of Justinian, not only was the advocate always under incapacity 
 to make any contract for his remuneration, but also throughout 
 a part of that time he was under prohibition from receiving any 
 gain for his services. Whether the same be rfonum, or munus, 
 or honorarium, is immaterial ; the substance of the law was 
 invariable. He never could contract for merces, though during 
 part of the time he might lawfully accept a donum. In the be- 
 ginning all agree that the patron received no money for advocacy. 
 Afterwards he took gifts to an excess, and was restrained, in the 
 year 550 a. u. c. by the Lex Cincia de donis et muneribus >ic quis en oh 
 causam orandam caperet If gifts were prohibited, a fortiori con- 
 tracts for payment would not be allowed. This prohibition of all 
 gifts for advocacy was further enforced by Augustus in 732 a. u. c, 
 commanding advocates to plead gratuitously, and for breach they 
 were ordered to refund fourfold. This prohibition against all gifts 
 to advocates was relaxed in a time of great debasement, when, ac-' 
 cording to the passage in Tacitus referred to in Blackstone (Annal. 
 lib. xi. c. 7), non quicquam publicce mercis lam venale /nil t/»'<m 
 ■advocator a in perjidia. The Senate sought to enforce the Cincian 
 X,aw, forbidding all gifts, for protection against abuses on the part 
 of advocates. Suilius, an advocate of singular infamy, offered some 
 of the arguments which have been urged in support of mercenary 
 advocacy. The Emperor took an intermediate course, and by a 
 decree fixed the maximum which an advocate might lawfully re- 
 ceive by way of gift at £80, and made him liable t<» refund if he
 
 '96 ACTION (RIGHT OF). 
 
 No. 18. — Kennedy v. Broun. 
 
 took more. The words of Tacitus are, Claudius "capiendis pecuniis 
 modum statuit ad dena sestertia quern egressi repetundarum tene- 
 rentur." The Senate made a further effort in the same direction, 
 passing a law that every suitor, before he took any step in the 
 suit, should swear that he had neither given, nor contracted to 
 give, any money for advocacy. Pliny, in the passage referred to 
 by Blackstone (Epist. lib. v. 21), writing of a new edict by a prcetor 
 to enforce practically some recent laws, says sub edicto erat senatus 
 consult am, " Hoc omnes qui quid negotii haberent priusquam 
 agerent jurare jubebantur nihil se ob advocationem cuiquam dedisse, 
 promisse, cavisse. His enim verbis ac mille prseterea et venire 
 advocationes et emi vetabantur. Peractis tamen negotiis permitte- 
 bat pecuniam duntaxat decern millia dare." Although after this 
 time gifts within the limited amount were lawful, still contracts 
 with advocates during litigation are not shown to have been ever 
 at any time sanctioned by the law of Rome. Mr. Kennedy referred 
 to the Digest, lib. 50, tit. 13, Articles 10 and 12, to prove that an 
 advocate could sue for his fee under the extraordinary cognisance 
 of the prseses ; but we do not find that these articles prove his 
 contention. Article 10 seems to relate to a suit by a client against 
 an advocate to make him refund so much of a fee already paid as 
 exceeded the legitimate amount, and gives the principle for esti- 
 mating what that amount should be, " In honorariis advocatorum 
 ita versari debet judex ut pro modo litis pro advocati facundia, et 
 fori consuetudine in quo acturus erat estimationem adhibeat dum- 
 modo licitum honorarium non egrediatur ;" and the article con- 
 cludes with a rescript applicable only to refunding part of a fee, — 
 "earn duntaxat pecuniam quod legitimum egressa est repetere 
 debet." Article 12 relates to securities and bargains for fees, and 
 gives the rule when a suit can be maintained thereon. The effect 
 seems to be, that a promise while the litigation is pending does not 
 bind, but that a security given after the cause is at an end may be 
 enforced, if the sum secured, together with the sum paid, does not 
 exceed the legitimate amount. Article 12 is this : " Si cui cautuni 
 est honorarium vel si quis de lite pactus est videamus an petere 
 possit ? Et quidem de pactis ita rescriptum est, litis causa malo 
 more pecuniam tibi promissam ipse quoque profiteris ; sed hoc ita 
 est : si suspensa lite societatem futuri emolumenti cautio pollicetur. 
 Si vero post causam actam cauta est honoraria summa peti potei'it 
 usque ad probabilem quantitatem etsi nomine palmarii cautam est, 
 sic tamen ut computetur id quod datum est cum eo quod debetur
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF A.CTION. 797 
 No. 18. — Kennedy v. Broun. 
 
 neutruinque compositum licitam quantitatem excedat." We have 
 now to consider as much of the authorities referred to as seem to 
 be relevant, and in our judgment they support the proposition on 
 Avhich the defendants rely, viz., that the relation of couusel and 
 client in litigation creates an incapacity t>> contract for hiring and 
 service as an advocate. If the authorities were doubtful,and it was 
 necessary to resort to principle, the same proposition appears to us 
 to be founded on good reason. The facts of the present case fond- 
 lily show some of the evils which would attend both on the advo- 
 cate and on the client if the hiring of counsel were made binding. 
 In this case the advocate, by disclosing words of intimate confi- 
 dence which passed in moments of helpless anxiety, has raised the 
 phantom of a contract for a sum of monstrous amount; and of this 
 we hope we may say that there is no one in the profession of the 
 plaintiff who would be willing to accept from him this verdict for 
 £20,000 as a gift. In the present case, too, if the client compares 
 the, competence and peace secured for her by her former advocate 
 with the perils and the miseries of wearisome litigation derived 
 from her later advocate, the contrast may suggest to her that gratu- 
 ity is preferable to contract as a mode of remunerating advocates. 
 But it is not merely on such considerations as these that this law 
 is based. The incapacity of the advocate in litigation to make a 
 contract of hiring affects the integrity and dignity of advocates, 
 and so is in close relation with the highest of human interests, 
 viz., the administration of justice. We are aware that in the class 
 of advocates, as in every other numerous class, there will be bad 
 men taking the wages of evil, and therewith also for the most part 
 the early blight that awaits upon the servants of evil. We are 
 aware also that there will be many men of ordinary powers per- 
 forming ordinary duties without praise or blame; but the advocate 
 entitled to permanent success must unite high powers of intellect 
 with high principles of duty. His faculties and acquirements are 
 tested by a ceaseless competition proportioned to the prize to be 
 gained, that is, wealth and power and honour without, and active 
 exercise for the best gifts of mind within. He is trusted with 
 interests and privileges and powers, almost to an unlimited degree. 
 His client must trust to him at times for fortune and character and 
 life. The law trusts him with a privilege in respect of liberty of 
 speech which is in practice bounded only by his own sense of duty, 
 and he may have to speak upon subjects concerning the deepest 
 interests of social life and the innermost feelings of the human
 
 798 ACTION (right of). 
 
 No. 18. — Kennedy v. Broun. 
 
 soul. The law also trusts him with a power of insisting on an- 
 swers to the most painful questioning, and this power again is ins 
 practice only controlled by his own view of the interests of truth. 
 It is of the last importance that the sense of duty should be in 
 active energy, proportioned to the magnitude of these interests.. 
 If the law is that the advocate is incapable of contracting for hire- 
 to serve, when he lias undertaken an advocacy, his words and acts- 
 ought to be guided by sense of duty — that is to say, duty to his 
 client — binding him to exert every faculty and privilege and' 
 power in order that he may maintain that client's right, together 
 with duty to the court and himself binding him to guard against; 
 the abuse of the powers and privileges intrusted to him, by a con- 
 stant recourse to his own sense of right. If an advocate with these 
 qualities stands by the client in time of his utmost need, regard- 
 less alike of popular clamour and powerful interest, speaking witln 
 a boldness which a sense of duty can alone recommend, we say 
 the service of such an advocate is beyond all price to the client - 
 and such men are the guarantees to communities for the mainte- 
 nance of their dearest rights, and the words of such men carry a 
 wholesome spirit to all who are influenced by them. Such is the 
 system of advocacy intended by the law, requiring the remunera- 
 tion to be by gratuity ; but, if the law w T ere to allow the advocate 
 to make a contract of hiring and service, it might be that his mind 
 w T ould be lowered, and that his performance would be guided by 
 the words of his contract rather than by principles of duty ; that 
 words sold and delivered according to contract for the purpose of 
 earning hire, would fail of creating sympathy and persuasion in 
 proportion as they were suggestive of effrontery and selfishness ;:. 
 and that the standard of duty throughout the whole class of ad- 
 vocates might be degraded. It may also well be that, if contracts- 
 for hire could be made by advocates, an interest in litigation might 
 be created contrary to the policy of the law against maintenance,, 
 and the rights of attorneys might be materially sacrificed, and 
 their duties be imperfectly performed by unscrupulous advocates ; 
 and these evils, and others that may be suggested, would be un- 
 redeemed by a single benefit that we can perceive. The subject 
 has been often and ably discussed, so that we have already said 
 more than sufficient. We would only add, that, in the growth of 
 the English law, the advocates have been important agents in es- 
 tablishing the liberty of thought and speech and action which has 
 resulted from the contests in courts where such liberty has beeit
 
 SECT V. — CASKS OF LOSS WHERE NO RIGHT OF ACTION. 790 
 No. 18. — Kennedy v. Broun. 
 
 contended for. The English advocates in our historical trials are 
 entitled to be gratefully remembered, and it must not be forgotten 
 that their minds were trained in the practice of advocacy without 
 any contract. So also the Roman jurists are entitled to be grate- 
 fully remembered, because their intuitive sense of right showed to 
 them where right was in the conflicts of interest perpetually aris- 
 ing as the relations of man to man multiplied, and their words have 
 helped to guide succeeding generations in their search for right 
 when similar conflicts arose. And it must not be forgotten that 
 throughout the Roman system it was held that an advocate and a 
 professor of law would be degraded by a contract of hiring, and 
 that his reward was to be gratuitous. Mr. Kennedy has cited the 
 Digest, lib. 50, tit. 13, articles 10 and 12, on which we have re- 
 marked above. The title relates to the limits of the extraordinaria 
 cognitio of the praises, and it may not be superfluous to add article 5, 
 expressly excluding therefrom suits by the class of professors of 
 law, for a reason applicable by all advocates, — " Ne juris quidem 
 civilis professoribus jus est quidem res sanctissima civilis sapient ia 
 sed quae pretio nummario non sit estimanda neque dehonestanda, 
 qusedam tametsi honeste accipiuntur inhoneste tamen petuntur." 
 On principle, then, as well as on authority, we think that there is 
 good reason for holding that the relation of advocate and client 
 in litigation creates the incapacity to make a contract of hiring as 
 an advocate. It follows that the requests and promises of the 
 defendant, and the services of the plaintiff, created neither an ob- 
 ligation nor an inception of obligation, nor any inchoate right 
 whatever capable of being completed and made into a contract by 
 any subsequent promise. By reason of that incapacity, the present 
 case is distinguished from Lampleigh v. Brathwaite, Hob. 105, and 
 the cases following thereon. In all of them the defendant was 
 assumed to have received from the plaintiff such a valuable con- 
 sideration as would have made a valid contract if a promise had 
 been made before the consideration had passed. Here the defendant, 
 Mrs. Broun, received nothing from the plaintiff which was capable 
 of forming a consideration to support a promise at whatever time 
 such promise may have been made. In Lampleiyh v. Brathwaite, 
 supra, it was assumed that the journeys which the plaintiff per- 
 formed at the request of the defendant, and the other services he 
 rendered, would have been sufficient to make any promise binding 
 if it had been connected therewith in one contract, The peculiar- 
 ity of the decision lies in connecting a subsequent promise with a
 
 800 ACTION (RIGHT OF). 
 
 No. 18. — Kennedy v. Broun. 
 
 prior consideration after it had been executed. Probably at the 
 present day such service on such request would have raised a 
 promise by implication to pay what it was worth, and the subse- 
 quent promise of a sum certain would have been evidence for the 
 jury to fix the amount. On the same principle, the cases cited in 
 sequel to Lampleigh v. Brathwaite, supra, are also distinguished. 
 In each of those cases the defendant had, by the permission of the 
 plaintiff, received value belonging to the plaintiff, which was suffi- 
 cient to support any promise. As to one class, the original promise 
 was excluded by the Statute of Frauds ; but a subsequent promise 
 was held to be evidence to support an action on an account stated. 
 Pinchon v. Ckilcott, 3 Car. & P. 236 ; Sea go v. Deane, 4 Bing. 459 ; 
 Cocking v. Ward, 1 C. B. 858. As to another class, a claim in equity 
 to money was converted into a cause of action at law by an express 
 promise to pay it to the plaintiff. Paper v. Hollo nil, 3 Ad. & E. 99 ; 
 s. o. 4 Law J. Rep. (n. s.) K. B. 156 ; Topham v. Morecraft, 8 El. & 
 Bl. 972; More v. Hill, '1 Peake 10. For these reasons we think 
 that the plaintiffs case is not within the principle of Lamplcigh 
 v. Brathwaite, supra ; and we do not consider it to be our duty 
 to extend the application of that principle. With respect to 
 the claim for compensation for leaving Birmingham and coming 
 to London, and for services in issuing publications for the purpose 
 of creating a prepossession in favour of the defendant, Mrs. Broun, 
 there are several answers, of which two will suffice. The first is, 
 that these services were ancillary to the service as an advocate ; 
 and, if the principal service could not be the subject of a contract, 
 neither could any service which was merely accessory thereto, and 
 of no value without the principal. The second is, that the account 
 i^ stated of the total of the claims ; and if any one of the claims 
 of undefined amount is to be omitted, the statement of the account 
 is disproved, and the action founded upon such statement of ac- 
 count fails. We have now gone through the whole of the case, 
 and we come to the conclusion that the plaintiff has not established 
 a cause of action. It follows that the rule must be made absolute 
 to enter the verdict for the defendants. If the judgment on this 
 part of the rule should be reversed in a court of error, it will then 
 become our duty to dispose of the remaining part relating to a new 
 trial ; and, following the precedent in Betts v. Menzie, 28 Law J. 
 Rep. (x. s.) Q. B. 370, we order the part of the rule relating 
 thereto to be suspended until further order. 
 
 Rale absolute to enter the verdict for the defendants.
 
 SECT. V. — CASES OF Loss WHERE NO RIGHT OF ACTION. SOl 
 No. 18. — Kennedy v. Broun. — Notes. 
 
 ENGLISH NOTES. 
 
 The above ease has been .selected as the one in which the legal relation 
 between barrister and client, in England, has been most fully argued 
 and considered. The case is the converse of Swinfen v. Lord Chelms- 
 ford (C. P. 1860), oil. & X. SUO; 29 L. J. Exch. 382. The plaintiff 
 
 in that ease (who by her subsequently married name of Brown was de- 
 fendant in the principal case) sued her counsel for damages for improp- 
 erly and without authority (as she alleged) compromising her rights. 
 The whole subject of the relation between barrister and client was dis- 
 cussed with great learning; but the decision was rested on a somewhat 
 narrower ground than the judgment in the principal case. The Chief 
 Baron (Pollock), however (5 H. & jST. 924), stated his own view of the 
 law to be that a barrister, acting with perfect good faith, and with a 
 single view to the interests of his client, is not responsible for any mis- 
 take or indiscretion or error of judgment of any sort. This view has been 
 clearly adopted in the judgment in the principal case, which assumes, 
 as it must be assumed, that the right to sue for fees on the one side and 
 to sue for breach of contract on the other side must be reciprocal, and 
 stand or fall together. 
 
 The principal case is followed, and the converse rule applied, to an 
 action against a barrister for breach of an alleged special contract, by 
 the Queen's Bench Division in Ireland, in Robertson v. Macdonough 
 (1880), 6 L. R, Ir. 433. 
 
 AMERICAN NOTES. 
 
 The principal case is cited by Mr. Weeks (Attorneys at Law, p. 615), but 
 its doctrine does not prevail in this country. In the United States the offices 
 of solicitors and barristers are united in one person, known as an attorney and 
 counsellor, and lie always has an action for his fees, quantum meruit or fixed 
 by agreement. Wylie v. Coxe, 15 Howard (U. S. Sup. Ct.), 416; Smith v. 
 Dacis, 45 New Hampshire, 566 ; Nichols v. Scott, 1- Vermont, 47 ; Clendinen 
 v. Black, 2 Bailey (So. Carolina), 488; 23 Am. Dec. 140; Miller v. Beal, 26 
 Indiana, 2:51; Webb v. Browning, 14 Missouri, 353; 55 Am. Dec. 108 ; Sandford 
 v. Ruckman, 24 Howard Practice (New York), 521 ; Sterens v. Monges, 1 Har- 
 rington (Delaware), 127 ; Van Attn v. Mc Kinney, 16 New Jersey Law, 235'; 
 Foster v. Jack, 4 Watts (Penn.), 339; Harland v. Lilienthal, 53 New York, 
 438; Brackett v. Sears, 15 Michigan, 241 ; Baird v. Ralcliff, 10 Texas, si; 
 Carter v. Bennett, 6 Florida, 214 ; Rust v. Larue, A Littell (Kentucky), 11 J; 
 14 Am. Dec. 172; Ames v. Gilman, 10 Metcalf (Mass.), 239; Neicman v. Wash- 
 ington, Martin & Yerger (Tennessee), 70. In Xew Jersey, counsel fees can- 
 not be recovered without showing an express agreement fixing the amount. 
 Zabriskie v. Woodruff, 48 New Jersey Law, 610. In Harland v. Lilienthal, "» :> > 
 New York, 438, it was even held that a firm of attorneys, properly qualified 
 
 VOL. I. — 51
 
 802 ACTION (right of). 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Rule. 
 
 >,nd practising, may recover for services in a court to which only one of them 
 tyas admitted to practice. And an attorney may recover for a bare retainer, 
 without any service under it. KnigJit v. Russ, 77 California, 410; Blackman v. 
 Webb, 38 Kansas, 668. But contra: McLellan v. Hayfurd, 72 Maine, 410; :V.) 
 Am. Rep. M'-i. 
 
 No. 19. — THE QUEEN v. LORDS COMMISSIONERS 
 OF THE TREASURY. 
 
 (q. b. 1872.) 
 
 RULE. 
 
 No action (whether of mandamus or otherwise) lies against 
 the servants of the Crown, — e. g., the Lords of the Treasury 
 or the Postmaster-General, — nor against persons in their 
 employ, as such public servants. 
 
 The Queen v. Lords Commissioners of the Treasury. 
 41 L. J. Q. B. 178 (s. c. L. R., 7 Q. B. 387). 
 
 Rule calling upon the Lords Commissioners of Her Majesty's 
 Treasury to show cause why a manda7nus should not issue directed 
 to them, commanding them to issue a Treasury minute or authority 
 to the paymaster of civil contingences, or other proper officer, 
 directing and authorising him to pay, or cause to be paid, to the 
 treasurer of the county palatine of Lancaster, sums specified and 
 claimed in the affidavits upon which the rule was obtained. 
 
 It appeared from the affidavits that during the half year ending 
 the 31st of December, 1870, the costs of all prosecutions in the" 
 county were, upon the charges made by the respective prosecutors 
 in their bills of costs, duly taxed by the proper officers in the 
 county, and under the direction of the courts before which the 
 respective cases were tried. Orders in the usual form for the pay- 
 ment of sums expended for these prosecutions at assizes and 
 quarter sessions, including adjudications under the Criminal Justice 
 and the Juvenile Offenders Acts, were duly presented to the county 
 treasurer, having first been taxed by the proper officers, and he paid 
 the amounts directed by the orders out of the county rates. The 
 accounts of these payments, with all vouchers relating thereto, 
 were transmitted to the Lords of the Treasury. A number of 
 items in these bills, amounting altogether to <£100, were taxed
 
 SECT. V. — CASKS OF LOSS WHERE N<> BIGHT OF ACTION. 803 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. 
 
 off, and disallowed by the Board of Examiners of Criminal Law 
 Accounts. It was stated that the amount granted by the Appro- 
 priation Act, 1870, 34 & 35 Vict. c. 89, schedule B, part 7, to 
 defray the charges for prosecutions formerly paid out of the county 
 rates, and for other like charges, had not been entirely expended. 
 
 The Appropriation Act, 34 & 35 Vict. c. 89, by section 3, pro- 
 vides that "all sums granted by this Act, and the other Acts 
 mentioned in schedule (A) annexed to this Act, out of the Con- 
 solidated Fund towards making good the supply granted to Her Ma- 
 jesty, amounting, as appears by the schedule, in the aggregate, 
 to £45,006,516 9,s\ lid., are appropriated, and shall be deemed to 
 have been appropriated as from the date of the passing of the first 
 of the Acts mentioned in the schedule (A), for the purposes and 
 services expressed in schedule (B), annexed hereto." By schedule 
 (B), part 7, "Civil Services : Class III. Schedule of sums granted 
 to defray the charges of the several civil services herein particu- 
 larly mentioned, which will come in course of payment during the 
 year ending on the 31st of March, 1872 ; . . . 2. For prose- 
 cutions at assizes and quarter sessions in England, formerly paid 
 Dut of county rates, including adjudications under the Criminal 
 Justice and the Juvenile Offenders Acts, sheriffs' expenses, sala- 
 ries to clerks of assize, and other officers, and for compensation to 
 clerks of the peace under the Criminal Justice Acts, and other 
 expenses of the same class, £201,173." 
 
 By 29 & 30 Vict. c. 39 § 14, " when any sum or sums of money 
 shall have been granted to Her Majesty by a resolution of the 
 House of Commons, or by an act of Parliament, to defray expenses 
 for any specified public services, it shall be lawful for Her Majesty, 
 from time to time, by her royal order under the royal sign manual, 
 countersigned by the Treasury, to authorise and require the Treasury 
 to issue out of the credits to be granted to them on the exchequer 
 accounts, as hereinafter provided, the sums which may be required 
 from time to time to defray such expenses not exceeding the 
 amount of the sums so voted or granted." 
 
 It appeared that before 1836, under 7 Geo. IV. c. 64, the costs of 
 criminal prosecutions were paid out of the county fund. In 1836, 
 the Treasury, in pursuance of a resolution of the House of Com- 
 mons, began to repay to each county out of the consolidated fund 
 half the cost of these prosecutions. In 1847, and subsequently, 
 the House of Commons in supply have voted a sum sufficient to
 
 804 ACTION (right of). 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. 
 
 defray the expense of these prosecutions, and a sum is annually 
 appropriated for the purpose in the Appropriation Acts. 
 
 The Solicitor-General (Sir G. Jessel), J. Brown, and Archibald 
 showed cause against the rule. The court has no power to issue a 
 mandamus to the Lords of the Treasury as Ministers of the Crown. 
 If the Lords of the Treasury had been constituted by the legislature 
 bare trustees to do a certain act, but not as ministers of the Crown, 
 a mandamus might go; but neither this court nor any other court 
 of justice has any power to interfere with them in the performance 
 of their duties as ministers of the Crown. According to the terms of 
 the rule, they are ordered to show cause why they should not 
 make a Treasury minute, but there is no act of Parliament 
 which requires them to make a Treasury minute. 
 
 [Cockburn, C. J. The making a Treasury minute is merely 
 mentioned as a means to the end.] 
 
 Even so; this court cannot issue the mandamus to them. There 
 are only two statutes — namely, 34 & 35 Vict. c. 89 and 29 & 30 
 Vict. c. 39 — under which the alleged duty can be said to be cast 
 upon them. The county has paid the expenses incurred, and there 
 is no statute except the Appropriation Act, 34 & 35 Vict. c. 89, to 
 compel the Lords of the Treasury to make the allowances to the 
 county. It is quite clear that they have a discretion to determine 
 what amounts shall be allowed, and such discretion cannot be con- 
 trolled by mandamus. The statute was passed with the view of 
 preventing the servants of the Crown from appropriating to one 
 purpose the money which was intended for another, but not with 
 the view of giving a third person a right to the money. Before 
 the Appropriation Acts were passed by the legislature, the practice 
 was to vote money for particular purposes. The word "appro- 
 priated" in the Appropriation Act means appropriated as between 
 the Crown and the House of Commons, and refers to the sum of 
 money applicable to the particular purpose, not expressing that it 
 shall be laid out on the particular purpose. The 4th section shows 
 that the Commissioners of the Treasury have a discretion to 
 authorise the departments intrusted with the control over the 
 naval and military services to defray expenditure not provided for 
 in the sums appropriated to such services out of any surpluses 
 which may have been or which may be effected by the saving of 
 expenditure upon votes within the same department. 
 
 [Mellor, J. In schedule (B), part 7, the sum of £201,173 is
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION'. 805 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. 
 
 appropriated for prosecutions at assizes and quarter sessions in 
 England, formerly paid out of county rates, including some other 
 
 expenses] 
 
 The Lords of the Treasury have a discretion in allowing the 
 expenses under those heads; but further, if any obligation is 
 imposed, it is upon the Crown. If the money gets into the hands 
 of the Lords of the Treasury, it is simply because they are servants 
 of the Crown. If the court was to grant a mandamus in the 
 present case, it might he called upon to do so upon the application 
 of any sailor in the fleet, or of the housekeeper at the Admiralty 
 Office, if wages were not paid in full. See schedule B, part 3. 
 The discretion is inherent in the Lords of the Treasury to say 
 whether they will allow these costs now or at any other time. 
 They may find that it is necessary for the public service that some 
 other sums should be paid first. This court cannot look into the 
 Treasury accounts. The sum appropriated is a limited sum, and 
 the year is not ended. The first of the cases bearing upon the 
 subject is The King v. The Lords Commissioners of the Treasury, 
 4 Ad. & E. 286 ; s. c. 5 Law J. Rep. (n. s.) K. B. 20, where a man- 
 damus was granted by this court, ordering the payment of a retir- 
 ing allowance ; but there was, in that case, an appropriation of a 
 gross sum to be applied in discharge of retiring allowances, and 
 the Lords of the Treasury had informed the applicant that he might 
 receive the exact amount, thus admitting they had it in their 
 hands for that very purpose. Further, when that case was decided, 
 the statute 4 & 5 Will. IV. c. 15 was in operation, which was said 
 by section 13 to give jurisdiction to this court; and although that 
 proposition was disputed by the Treasury, it was thought better 
 that it should be repealed. This was done, with the exceptions 
 of sections 7 and 26. See 29 & 30 Vict. c. 39 § 46. It is sub- 
 mitted that that case is no authority in support of the present 
 application, there having been a specific duty cast upon the Lords 
 of the Treasury to parcel out, among the recipients, the sum 
 granted, and to carry over the specific sum allowed to the appli- 
 cant. It was decided in the case of In re the Bnrov de Bode, li 
 Dowl. P. C. 776, that a mandamus does not lie to the Crown or to 
 the servants of the Crown commanding them to pay over money in 
 its or their possession in liquidation of claims on the Crown. 
 Coleridge, J., said, "In the second place, in what capacity do the 
 Lords of the Treasury hold this fund ? Most clearly as the mere
 
 806 ACTION (right of). 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury 
 
 servants of the Crown. .By the exercise of the royal functions, the 
 money was first obtained. The present claim has been properly 
 admitted to be beside the parliamentary appropriation of any part 
 of it, and the residue has now reverted to the.Crown, and is in the 
 hands of the Crown by its servants. But against the servants of 
 the Crown, as such, and merely to enforce the satisfaction of claims 
 upon the Crown, it is an established rule that a mandamus will 
 not lie. I call this an established rule, and I believe it has never 
 been broken in upon. There are circumstances, indeed, under 
 which a mandamus will lie against the Lords of the Treasury, and 
 a much misunderstood instance is the case of The King v. The 
 Lords of the Treasury, supra. There it appeared prima* facie 
 that a pension had been granted ; that funds applicable to its pay- 
 ment had been placed by Parliament in the hands of the Lords of 
 the Treasury, as public officers charged by statute with the pay- 
 ment of such pensions ; that the Lords had allotted the fund for 
 the payment, and acknowledged to the claimant that they held it 
 for his use, and that they only refused to pay because he declined 
 to take it clogged with the conditions which they had no right to 
 impose. These were the facts on which the court directed the 
 mandamus to go, and no answer was given to them ; but, in so 
 deciding, the court did not implicitly infringe upon, and they 
 expressly affirmed, the doctrine that a mandamus will not lie 
 against the Crown or its servants as such. It is only necessary to 
 refer to the cases which are to be found in the same volume with 
 The King v. The Lords of the Treasury, supra ; in re Hand, 
 4 Ad. & E 984 ; In re Smith, ibid. 976 ; s. c. 5 Law J. Rep. (n. s.) 
 K. B. 20 ; and Ex parte Ricketts, ibid. 999, decided in strict con- 
 formity with the former case, but upon the distinction before 
 adverted to, to perceive that the doctrine of the Crown's exemption 
 from a mandamus, and of the Crown's servants equally, has not 
 been brought into question by the Court of Queen's Bench in 
 modern times. I have neither the power nor the inclination to 
 shake it." The cases referred to fully support the proposition so 
 laid down. In The Queen v. The Lords Commissioners of the 
 Treasury, 16 Q. B. Rep. 305 ; s. c. 20 Law J. Rep. (n. s.) Q. B. 
 357, the mandamus was granted, but it was with the consent of 
 the Crown, and upon the repealed statute, 4 & 5 Will. IV. c. 15 
 § 13. In Ex parte Napier, 18 Q. B. Rep. 701 ; S. C. 21 Law J. 
 Rep. (n. 8.) Q. B. 332, Lord Campbell, C. J., said, " Reliance is then
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 807 
 No. 19. --The Queen v. Lords Commissioners of the Treasury. 
 
 placed on the case of The King v. The Lords of the Treasury, 
 supra, in which this court granted a mandamus to the Lords of tin' 
 Treasury to pay to Mr. Carinichael Smyth the arrears of a pension 
 granted by the Crown fur services; but (as has been repeatedly 
 explained) this decision went entirely on the ground that the 
 Lords of the Treasury had admitted that they had in their hands 
 the sum of money in question, and that they had appropriated it 
 to his use." In Ellis v. Earl Grey, 6 Sim. 214, an injunction was 
 granted to restrain the Lords of the Treasury from paying the com- 
 pensation awarded, under 11 Geo. IV. and 1 Will. IV. c. 58, for 
 the office of side clerk in the Exchequer, which had been abolished; 
 but Siiadwell, A'. C.j said the money was " to pass through the 
 hands of the Lords of the Treasury, who are to be the mere minis- 
 terial conduit-pipes for payment of it to the parties entitled." 
 
 They also cited The Banker's Case, 14 How. St. Tr. 67; Gidley v. 
 Lord Palmerston,3 15. & 15. 275; The Queen v. The Commissioners 
 of Woods and Forests, 15 Q. 15. Rep. 761 ; s. c. 19 Law J. Rep. 
 v x. s.) Q. B. 497; Brashear v. Mason, 6 How. (American) Eep. 92; 
 Decatur v. Paulding, 14 Peters (American) Rep. 497. 
 
 Manisty and Gorst, in support of the rule. It must be as- 
 sumed that there are funds in the management of the Lords of 
 the Treasury sufficient to satisfy all these demands. No remedy 
 except mandamus exists, by which the justices can recover from 
 the Treasury the costs disallowed by the examiners. By 7 Geo. 
 IV. c. 64, the expenses of prosecutions were to be regulated In- 
 justices at quarter sessions. In the Appropriation Act, 1835 (5 $ 
 6 Will. IV. c. 80), § 17, there is an allowance " for charges hitherto 
 paid out of county rates for 1835." This amount was granted for 
 the purpose of discharging by the country half of the costs incurred 
 by the several counties. In the year 1846, the grant by the 
 Appropriation Act (9 & 10 Vict. c. 116) was for "charges formerly 
 paid out of county rates." The King v. The Lords of the Treasury,, 
 supra, shows that under 4 & 5 Will. IV.- c. 15 § 13, a manrtarryup 
 will lie. It will lie said that this section is repealed, but the 
 words of the repealing Act, 2!) & 30 Vict, c. 39 § 14, are similar. 
 Sections 13 & 15 show that the money is specifically appropri- 
 ated in the hands of the Treasury, and they are then like bankers, 
 who have acknowledged that they hold money for a particular 
 purpose. Their duty to apply the money will be enforced by
 
 808 ACTION (right of). 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. 
 
 mandamus. The Queen Dowager's Case, 16 Q. B. Rep. 357; s. c. 
 20 Law J. Eep. (n. s.) Q. B. 305, per Lord Campbell. 
 
 Cockburn, C. J. This is a case in which, if we had jurisdic- 
 tion to issue a writ of mandamus, I should have no hesitation in 
 the world in saying that it ought to go. Nothing can he more 
 anomalous or unsatisfactory than the present system with regard 
 to the taxation of these costs. Every one will agree in saying 
 that the expenses of prosecuting offenders ought to he defrayed 
 out of the public purse. It is essential to the effective adminis- 
 tration of criminal justice that the expenses of prosecutions 
 should not fall upon those who come forward to complain of 
 injuries which they have received, and which affect the public as 
 well as the individuals who suffer ; for experience has shown that 
 they are unwilling to prosecute if the expense is to fall upon them. 
 Under the old system these costs were defrayed out of the rates 
 of the counties or other districts having a criminal jurisdiction of 
 their own, the costs being of course taxed by proper officers ap- 
 pointed for the purpose. But as far back as 1836 this system was 
 to some extent altered, and the costs which up to that time had 
 been thrown upon the county were in fact transferred to the public 
 funds of the country, and by a still later arrangement the whole 
 of these costs were thrown upon the public revenue. The sys- 
 tem of taxation which had hitherto been found satisfactory was 
 continued, and the same officers who had taxed at the assizes and 
 quarter sessions continued to tax as before. The whole of the 
 expenses had to be defrayed out of the count} 7 or borough rates, 
 but by the new system the amount so paid was to be refunded to 
 the treasurer of the county or borough fund. 
 
 Now, the Lords Commissioners of the Treasury have thought 
 proper to introduce this addition, or, as it appears to me, excres- 
 cence upon the previous system. They have taken upon them- 
 selves, it is now said for a period of fourteen years, to review the 
 taxation of the proper taxing officers. I am far from saying that 
 the taxation of the costs of prosecutions ought not to be rigorously 
 supervised, for it would be a monstrous abuse if prosecutors were 
 allowed to extort from the public purse more than they had prop- 
 erly and legitimately expended. But it is a very different thing 
 to direct, instead of a taxation on the spot where the circumstances 
 attending the prosecution are known, and where the Court of 
 Assize <»r Quarter Sessions may be appealed to in case of dispute,
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. S00 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. 
 
 that after the matter has been investigated by the proper officer, 
 two gentlemen sitting in London, by the sole authority of the Lords 
 of the Treasury, should review the taxation, and strike off v\ liatever, 
 in the exercise of their discretion, they think proper to disallow. 
 They cannot have the same knowledge as the regular offici is. and I 
 am at a loss to conceive by what supposed authority they are required 
 to tax again, and disallow items in the bills of the regular officers. 
 The inconvenience of such a course is, I think, palpable. Tli • gen- 
 tlemen appointed by the Treasury will naturally, to show the use- 
 fulness of their office, be disposed to strike off items wherever 
 they have an opportunity of doing so, although they have not the 
 same means of forming a correct judgment as those who are upon 
 the spot. But it is another thing to say that we have jurisdiction. 
 It is not because this may be an unsatisfactory state of things 
 with regard to the taxation of costs in prosecutions, and that even 
 in the case of the county or borough who have paid the costs 
 allowed by the taxing master, there is no. remedy except that of 
 applying by petition to the Crown or to Parliament. — a remedy 
 which may be a fruitless or abortive one, — that this court has juris- 
 diction to issue a writ of mandamus. I take it with reference to 
 that jurisdiction that we must start with the unquestionable princi- 
 ple, that where a duty w r as to be performed (if I may use the expres- 
 sion) by the Crown, this court cannot affect to have any power 
 to command the Crown. We have no power over the Sovereign. 
 In like manner, where the parties are acting as servants of the 
 Crown, they are not amenable to us in the exercise of our preroga- 
 tive jurisdiction. 
 
 It comes, therefore, to this: Are the Lords Commissioners of the 
 Treasury, when this money gets into their hands, bound to apply 
 it as the servants of the Crown or as the servants of Parliament, 
 who votes the money ? Independently of authority, 1 think there is 
 no doubt whatever that we must look upon them as servants of the 
 Crown. The money is voted by Parliament as a supply to the 
 Crown, and ways and means are found with the view of making 
 this supply effectual. It is true that the money is appropriated to 
 a specific purpose, and that it can only be appropriated to the 
 purpose so specified in the Appropriation Acts. It is also tin i 
 that the particular mode of obtaining the money is prescribed by 
 statute. It is not a supply to be at once handed over to- the 
 Crown, but it is to be got at by a certain ascertained and specified
 
 810 ACTION (RIGHT OF). 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. 
 
 process, and the Crown must issue warrants or orders under its 
 sign-manual to enable the Lords Commissioners of the Treasury 
 to have this money paid to them. But nevertheless, when the 
 money is paid, I can entertain no doubt that it is paid to the 
 Treasury, as the servants of the Crown ; and though I quite agree 
 that, according to the Appropriation Act, they were bound to 
 apply the money upon the vouchers being produced, and had no 
 authority to re-tax these bills, still I cannot say that there is any 
 duty which makes it incumbent to do what I cannot but say that 
 they ought to have done, except as servants of the Crown, because 
 they have received the money in that character and in no other. 
 It is true that we have been pressed with the authority of the case 
 of The King v. The Lords Commissioners of the Treasury, supra, 
 but I think that is a case of very doubtful authority. It rests, 
 after all, as was subsequently said in this Court, upon a particular 
 clause in the then existing statute of 4 & 5 Will. IV. c. 15 § 13, 
 and I doubt very much whether the section upon which the decree 
 was supposed to rest would really support it ; but at any rate that 
 statute has been repealed. Then, with regard to the statute to 
 which Mr. Gorst ingeniously called our attention, with the view 
 of fortifying the case for the appellants, I cannot see anything in 
 that statute which imposes a duty at law upon the Treasury. It 
 may be a duty which they owe to the Crown or to Parliament to ap- 
 ply this money in discharge of the accounts which the counties are 
 compelled without any choice on their part to pay, but it is not 
 a duty which can be enforced by any legal proceeding or by the 
 prerogative jurisdiction of this court. I think, therefore, that we 
 must discharge this rule. 
 
 Blackburn, J. I am of the same opinion. 1 think that if we 
 had the power to grant a mandamus to compel the payment of this 
 money, it would be right to order the Treasury to pay it ; but in my 
 opinion we have no such power, though I think they have acted 
 under a mistake. I have not the slightest intention to question 
 the exclusive prerogative of the House of. Commons in voting 
 money. Before any such vote is actually made, I believe that a 
 mere resolution in the House could not be properly brought before 
 us. But when the money has been voted and an Appropriation 
 Act passed, this Act must be construed when it comes before us 
 like any other Act. The Appropriation Act regulates, so far as it 
 goes, what is to be clone with the money, and we find that it appro-
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF ACTION. 811 
 No, 19. — The Queen v. Lords Commissioners of the Treasury. 
 
 priates a portion of it to the cost of criminal prosecutions, and 
 grants money for these expenses, "hitherto paid out of county 
 rates." The first question is, what do these words mean '. I lis- 
 tened attentively to the Solicitor-General's argument on this part 
 of the case, but could find nothing to shake my opinion that the 
 meaning of the words is that the costs which formerly were pay- 
 able out of the county rates, after having been taxed in the manner 
 fixed by law, should still be paid out of these rates, but that the 
 payments should be recouped by the Treasury. I cannot doubt 
 that the Appropriation Act does not simply mean, "this sum of 
 money shall not be applied to any other purpose," but that it also 
 means, "this sum of money shall be applied to that purpose," and 
 consequently that the effect of the appropriation clause was to 
 grant a sum of money to Her Majesty to be applied to the payment 
 of those costs, which the county had hitherto been obliged to pay. 
 What seems to have been done in fact is this : Although the par- 
 ticular bill of costs is duly incurred according to the existing law, 
 although these costs have been duly ordered by the existing law to 
 be paid, although the proper taxing officers have duly taxed these 
 costs, and consequently the county is bound to pay them, the 
 Treasury seem to have assumed that they may appoint examiners, 
 and on the report of these examiners advise the Crown not to 
 appropriate the full amount, but to keep back some portion of it, 
 I think this is decidedly bad, though I have not the slightest doubt 
 that it is honest advice. Passing from these matters, if there were 
 a statutable obligation upon the Lords of the Treasury to do what 
 they are asked to do by the mandamus, it seems to me that it 
 ought to be granted, particularly where the application is made on 
 behalf of persons who have a direct interest in it. Of course it 
 would not do for a mere stranger to move in the matter, but the 
 treasurer of the county rate who has been obliged to make pay- 
 ments (for which, according to the construction which I put on the 
 Act, he ought to be indemnified) has a clear pecuniary interest, if 
 we have power to grant the mandamus. But here 1 think the 
 case fails. The general principle applicable, not merely to cases of 
 mandamus, but running through the whole law, is, that where an 
 obligation is cast upon the principal and not upon the servant, we 
 cannot enforce it against the servant, so long as he remains in the 
 service of the particular master. To take a familiar instance : If 
 an application were made for a mandamus to the secretary of a
 
 812 ACTIOM (right of). 
 
 > 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. 
 
 railway company to do something, it would not be granted merely 
 because the railway company, his employers, were under an obli- 
 gation to do it. Now, it can make no difference that the principal 
 here, the Sovereign, can only be sued by petition of right, and per- 
 haps not at all. There is the familiar case of the surveyor of high- 
 ways, who is the servant of the inhabitants of the parish. The 
 inhabitants of the parish cannot be sued, because they are not a 
 body corporate, but the surveyor of highways is not to be respon- 
 sible for the non-performance of their duties or the negligence of 
 their servants, though he is the person who acts for them. The 
 same principle applies to a mandamus if the duty is by statute. 
 (Perhaps "duty" is hardly the word to employ with regard to Her 
 Majesty, — the law speaks in respectful terms, and does not use the 
 word duty in reference to Her Majesty.) But where the intention 
 of the legislature is that the Crown should be advised to do a thing, 
 and where the obligation, if 1 may use the word, is east upon the 
 servants of the Crown to advise, we cannot enforce that obligation 
 against the servants by mandamus merely because the Sovereign 
 happens to be the principal. There are many cases applicable to 
 this subject, beginning with the Post Office cases in the time of 
 Lord Holt, where Lord Holt differed from the rest of the court, and 
 it was held that the Postmaster-General was not liable as a carrier 
 for non-delivery of letters, because it was in effect the Crown, 
 Quaere Lane v. Cotton, 1 Salk. 17. And, similarly, where through 
 the clumsiness of a man steering a ship of war a merchantman was 
 run down, it was held that neither the Crown nor the captain of 
 the man-of-war could be sued. Whenever, therefore, the case is 
 one of servants of the Crown, and the only duty which the servant 
 owes to the Sovereign and to the House of Commons is that of not 
 giving bad advice, we cannot grant a mandamus. This being so, 
 the question conies to be whether it can be shown (the common 
 law is out of the question) that a duty is cast upon the Treasury 
 with regard to third persons, and not merely to the queen, to issue 
 the minute in question. 1 certainly cannot find any such duty 
 from the case referred to of The Queen v. The Lords of the Treas- 
 ury, ah pro. It is true that in that case the rule was granted, but 
 it was upon the expectation that the point would be more fully 
 argued on the return, and taken to a court of error. But it appears 
 from what Lord C-AMPBELL said, who was then Attorney-General, 
 that he advised the Crown to pay the money, but to alter the effect
 
 SECT. V. — (ASKS OF LOSS WHERE NO RIGHT OF ACTION. 813 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. 
 
 of the Act next year, and the case of the Queen Dowager seemed 
 to show that this was not bad advice. Lord Campbell said that 
 § 13 of 4 & 5 Will. IV. did cast a specific duty upon the Lords of 
 the Treasury to giant a warrant or to execute a warrant wherever 
 there was a sum tiled as a charge upon the Consolidated Fund. 
 That was Lord Campbell's view of the statute, and it was upon this 
 view that it was said that they had jurisdiction in the Queen 
 Dc wager's case. It was not much argued, and it is not necessary 
 to inquire whether it was mistaken or not, though it seems doubt- 
 ful when we look at the words whether they were not misunder- 
 stood. However, that Act is repealed, and the section which is 
 supposed to create the duty no longer exists. Upon that Mr. 
 Gorst argued with great ingenuity that the effect of the Audit Act, 
 29 & 30 Vict. c. 39, was in fact to cast a duty upon the Lords of 
 the Treasury ; but I am unable to see that the Act amounts to more 
 than this, that Her Majesty, to whom the money is granted in law, 
 is to administer it according to the advice of responsible counsel- 
 lors, and this must be done through the hands of her servants. I 
 have found nothing, looking at the section adverted to, to make the 
 Lords of the Treasury (who have the money in their hands brought 
 from the Bank of England until it is paid to 'the recipients) in any 
 way more amenable to third persons than in the case I have spoken 
 of., — namely, a person whose servant has got money to pay weekly 
 bills or other matters, or power to draw upon the bank for that 
 purpose. 
 
 It seems to me that the obligation, such as it is, is upon Her 
 Majesty, to be discharged through her servants, so that the servants 
 cannot be proceeded against. I think, therefore, that there ought 
 to be no rule. 
 
 Mellor, J. I am of the same opinion. I think the changes to 
 which our attention has been called in the various acts of Parlia- 
 ment do not show any change in the relation of the ministers of 
 the Crown towards the Crown All that lias been done is to alter 
 the machinery by which the grant is to be distributed in the public 
 service, and I am therefore clearly of opinion that this mandamus 
 cannot issue. I think that in the taxation of these costs the Treas- 
 ury may properly require the production of vouchers, but that, in 
 reducing the amount allowed on taxation, they have disregarded 
 the operation of the Appropriation Act. The object of the grant is 
 to defray the charges, and the Treasury ought not to be at liberty to
 
 814 ACTION (right of). 
 
 ? 
 
 tfo. 19. — The Queen v. Lords Commissioners of the Treasury. 
 
 allow them or not, as it thinks fit. I agree with the observations 
 of my Lord and brother Blackburn that the Treasury have no doubt 
 acted under a mistaken view of their duty, but I cannot approve 
 of the course they have adopted. 
 
 Lush, J. I am also of opinion that this rule must be discharged. 
 I think that the applicants have failed to make out that which is 
 essential to entitle them to a mandamus, — namely, that there is a 
 legal duty imposed upon the Lords of the Treasury, as between 
 them and the applicants,' to pay over the money in question. The 
 only statute which can be brought in aid is the Appropriation Act, 
 and that, as it seems to me, clearly votes the money to the Crown 
 upon trust that they will dispense it on certain specified purposes. 
 When the money gets into the hands of the Commissioners of the 
 Treasury, who ore responsible for it, it is in their hands as servants 
 or agents of the Crown, but practically of the House of Commons, 
 and in no sense are they accountable to this or any other court of 
 justice. There is not, to my mind, a word in this or any other Act 
 showing an intention on the part of the legislature to make the 
 officers of the Crown subject to the jurisdiction of this court with 
 reference to the disbursement of moneys voted by the Crown for 
 specific purposes. 
 
 Upon the second point I am also of opinion that the practice 
 resorted to by the Treasury of retaxing costs paid by the county, 
 pursuant to the direction of the Judges at the time, is a practice in 
 violation of the terms of the Appropriation Act. If this question 
 had arisen prior to the year 1865, I should have been unable to 
 collect from the language of the Appropriation Act what the inten- 
 tion was, because up to that time the words of the Appropriation 
 Act were general. But from the year 1865 the language has been, 
 I cannot help supposing, intentionally altered. Before we read the 
 clause it is needful to bear in mind that, by several acts of Parlia- 
 ment, costs are allowed or allowable in most prosecutions, and are 
 to be paid in the first instance by the county treasurer. An order 
 is supposed to be made in each instance upon the county treasurer, 
 who is bound to pay in the first instance the person to whom those 
 costs are due. Beading, in reference to that state of things, the 
 language of the Appropriation Acts from 1855 to the present time 
 (and they are nearly all in the same language), I think one cannot 
 be at a loss to ascertain what is the meaning of the legislature. 
 The words are, " for prosecutions at assizes and Courts of Quarter
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF ACTION. 815 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 Sessions, formerly paid out of the county rate, including adjudica- 
 tions under the Criminal Justice Aet, sheriffs' expenses," and so on, 
 such a sum of money. Up to a given period the costs were not 
 only paid out of the county rate, but were a charge upon it, and the 
 county had no claim anywhere else. For several years the coun- 
 ties have had a claim by virtue of the statutes, more or less, upon 
 the Treasury. 
 
 Now, the words, " formerly paid out of the county rate," to my 
 mind clearly imply that that which was before a charge upon the 
 counties shall be so no longer, but the Crown or the Imperial 
 Treasury should pay, and Parliament provides the money for paying 
 the costs of prosecutions at assizes and quarter sessions which were 
 formerly paid out of the county rates- They are still paid pri- 
 marily out of the county rates ; and I think the words, read with 
 reference to the present condition of things, do clearly imply that 
 those which the counties have to pay in the first instance shall be 
 reimbursed to them out of the sums voted by Parliament. There- 
 fore I think that the practice which seems to have prevailed for 
 fourteen years is entirely unwarranted. 
 
 Rule disch arged. 
 
 ENGLISH NOTES. 
 
 The remedy by a private person for a grievance or wrong suffered by 
 the act or omission of the various persons employed in the service of 
 Her Majesty, is pointed out by rales which, though apparently plain 
 in outline, bristle with difficulties in their application. The rules have 
 been summed up in the maxim " The King can do no wrong; " and this 
 has been understood in English law to imply: — 
 
 1. The ground of the procedure by petition of right; 
 
 2. The personal responsibility of the servants of the Crown for 
 
 torts committed under colour of the King's service; and 
 
 3. The personal exemption of the King from being a defendant in 
 
 any action or proceeding in a court of justice. 
 1. A petition of right lies: — 
 
 (a) for breach of contract, whether resulting in a liquid debt (so to 
 speak), or in unliquidated damages. Thomas v. The Qi^een 
 (1874), L. R., 10 Q. B. 31 ; 44 L. J. Q. B. 17 ; Windsor, &c. R>j. 
 Co. v. The Queen and the Western Counties Ru. Co. (P. C. App. 
 from Canada, 1886), 11 App. Cas. 607 ; 55 L. J. P. C. 44. Per- 
 haps it may lie for equitable relief in the nature of specific 
 performance of a contract. Kirk v. The Queen (1872), L. R., 
 14 Eq. 558.
 
 816 ACTION (right of). 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 (b) Further, a petition of right will lie where the land or goods or 
 
 money of a subject have found their way into the possession 
 of the Crown, and the petitioner seeks to obtain restitution, 
 or, if restitution cannot be given, compensation in money. 
 Feather v. The Queen (1865), 6 B. & S. 257, per Curiam, 
 p. 294, again cited in Windsor, &c. Rij. Co., 11 App. Cas. COT, 
 614; 55 L. J. P. C. 44. Perhaps it lies where the Crown 
 authorities are exercising, under colour of a right, an ease- 
 ment over land, in excess of the true rights of the Crown. 
 Gervais de Clifton, cited in Tobin v. The Queen (18(14), 16 
 C. P». n. s. 310, at p. 362, et seq. 
 
 (c) Semble that a petition of right would lie in such circumstan- 
 
 ces as those which appear in the principal case. The duty 
 thrown upon the Crown by statute to pay for a certain public 
 service appears to be so far an obligation quasi ex contractu, 
 as to bring the case within the category (u) above described. 
 
 In all these cases the theory is that the King, as soon as he is duly 
 informed that the money is due, or that the possession ought to lie given 
 up, will act accordingly. It would seem that a petition of right and 
 an action against the officials cannot be concurrent remedies in respect 
 of the same acts; for a servant of the Crown contracting in that capacity 
 for the public service, is not personally liable upon the contract. Mac- 
 beath v. Haldimand (1786), 1 T. E. 172; 1 Pv. R. 177. Nor can he be 
 sued in his official capacity upon such a contract. See principal case 
 supra, and Palmer v. Hutchinson (P. C. Appeal from Natal, 1881). 6 
 App. Cas. 626. And, if the possession of the Crown is held under such 
 circumstances that a petition is necessary to clear up the question of 
 right, i^ can hardly be that any of the servants of the Crown are per- 
 sonally liable for what will presumably be set right in another way. 
 
 Rut a petition of right will not lie in respect of money in the hands 
 of the Crown which has been paid, under treaty, by a foreign govern- 
 ment, for the purpose of an indemnity to a class of persons of whom the 
 petitioner is one. This is not only for the reason that no specific fund 
 has been appropriated for the petitioner, but also for the reason that 
 by the making or performance of the treaty between Her Majesty and 
 the foreign government, no duty arises between Her Majesty and the 
 subject analogous to the duty arising out of a contract or trust. Rus- 
 tomjee v. The Queen (C. A. 1876), 2 Q. B. D. 69; 46 L. J. Q. B. 238. 
 
 The procedure under a petition of right was simplified by the Act 23 
 & 24 Vict. c. 34, but this does not alter the essential conditions under 
 which the remedy can be pursued. 
 
 2. A petition of right does not lie in respect of a pure tort done by a 
 person in the government service. By a pure tort is here meant a tres- 
 pass or other wrong, not being a breach of contract, and not being such
 
 SECT. V. — CASES OF LOSS WHERE NO UIGHT OF ACTION. 817 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. - Notes. 
 
 an exercise of a prima) facie right, or of possession, as would form the 
 
 ground of a petition of right. All acts by which such a wrong is done 
 are, by a necessary presumption, outside the scope of authority of tin- 
 King's service. Tobin v. The Queen (C. 1'. L864), L6 C. 1!. ar. s.310; 
 33 L. J. C. P. 199; Feather v. The Queen (Q. B. 1865), 6 B. & S. 257; 
 Windsor, &c. Ry. Co. v. The Queen, &c, 11 App. ('as. 607, 614; 55 
 L. J. P. C. 44. For such a wrong the remedy is an action against the 
 person actually doing the wrong. And, as the principal case shows, 
 the action must be against that person as an individual, and not in his 
 character of a servant of the King. Of numerous cases in which actions 
 have been maintained against persons tor acts done ostensibly in the 
 King's service, it may suffice to mention, Madrazo v. Willes (1820), 3 
 B. & Aid. .'!.").'> (an action against a British officer for an act done under 
 the supposed authority of the Act for suppressing the slave trade, but 
 which the Court held to be unauthorised by the Act); Money v. Leach 
 (1765), 3 Burr. 1742 (the case of general warrants) ; and the case of 
 Walker v. Baird (P. C. 1892), App. Cas. p. 491; 61 L. J. P. C. 92. 
 more fully stated below. 
 
 3. It follows from the personal exemption of the King from being a 
 defendant, that the principle respondeat superior is wholly absent in 
 actions under the last-mentioned head. For, ex hypotJtesi, the King, 
 who is the ultimate superior, cannot be liable. And the principle of 
 respondeat superior is never extended (except in the special and peculiar 
 case of the master of a ship) to fix a liability upon a superior servant for 
 the act of an inferior one. So in Lane v. Cotton (K. B. 1701), 1 Lord 
 Raym. 646, it was decided by three Judges of the King's Bench against 
 Holt, C. J., that an action would not lie against the Postmaster-General 
 for the loss of a letter by a subordinate. And this case was followed, and 
 treated as having established a settled rule of law, by Lord Mansfield 
 and his colleagues in Whitfield v. Lord de Despencer (1778), Cowp. 7.~>4. 
 
 The immunity from process in an English court of the reigning per- 
 son in a foreign independent state, has recently been the subject of an 
 important decision of the Court of Appeal, in the case of Mitchell v. 
 Saltan of Jolt ore (C. A. 1883), reported in 1894, 1 Q. B. 149. 
 
 That a foreign sovereign cannot be made responsible in an English 
 court for an act done in his sovereign capacity in his own country, was 
 decided by the House of Lords in the case of Duke of Brunswick v. 
 King of Hanover (1848), 2 H. L. C. 1. And there are numerous de- 
 cisions to the effect that moveable property, belonging to a foreign 
 sovereign as such, cannot be seized or affected by any process of law, 
 or in any way by means of an action in this country. Wadsworth v. 
 Queen of Spain (1851), 17 Q. B. (Ad. & El. n. s.) 171; 20 L. J. Q. B. 
 vol. i. — 52
 
 818 ACTION (RIGHT OF). 
 
 i 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 488; Smith v. Weguelin (1869), L. R., 8 Eq. 198; 38 L. J. Ch. 485; 
 Tivycross v. Dreyfus (C. A. 1877), 5 Ch. D. 351; 40 L. J. Ch. 510; 
 Vuvasseur v. Krupp (C. A. 1878), 9 Ch. D. 351; The Constitution 
 (1879), 4 P. D. 39; 48 L. J. P. D. & A. 13; The Parlement Beige 
 (C A. 1880), 5 P. D. 197,— the two last being cases of ships belong- 
 ing to foreign governments seized in admiralty actions in rem. 
 
 But in certain cases there had been some observations thrown out, 
 to the effect that a foreign sovereign may (perhaps) be sued in our 
 courts by a British subject, on an obligation contracted in a private 
 capacity. Duke of Brunswick v. King of Hanover, supra (dicta, 
 passini) ; Munclen v. Duke of Brunswick (1847), 10 Q. B. (Ad. & El. 
 n. s.) 656; The Charkieh (1873), L. R., 4 A. & E. 59; 42 L. J. 
 Adm. 17. Such a doctrine is, however, entirely repudiated by the 
 Court of Appeal in the case of the Sultan of Jo hove. 
 
 In this case (Jlitchell v. Sultan of Johore, 1894, 1 Q. B. 149), the 
 plaintiff alleged that the defendant, while living in this country incog- 
 nito and under an alias, had promised to marry her. She sued for breach 
 of promise, and the case came before the Court on a motion to set aside 
 an order for service of the writ out of the jurisdiction. The Court of 
 Appeal unanimously affirmed the judgment of Wills, J., deciding, — 
 first, that the status of the person named as defendant in the action, 
 as an independent sovereign, was (for the purpose of the motion) con- 
 clusively proved by a letter written with the sanction of the Secretary 
 of State for the department concerned with our relations with him 
 (i. e., presumably by the Queen's authority); and, secondly, that the 
 action would not lie against such a person. Wills, J., in his judg- 
 ment which was thus affirmed, observed that Lord Justice James, in a 
 case of Strousbery v. Republic of Costa Rica, 44 Law Times Rep. 199, 
 had pointed out the only two exceptions to the exemption of a foreign 
 sovereign from being sued in our courts: "One (he says) is that 
 'Where a foreign sovereign or state comes into the municipal courts of 
 this country for the purpose of obtaining a remedy, then, by way of 
 defence to that proceeding. — by way of counterclaim, if necessary, to 
 the extent of defeating that claim, — the person sued here may file a 
 counterclaim, or take any other proceeding against that sovereign or 
 state, for the purpose of enabling complete justice to be done between 
 them;' the other exception is 'the case in which a foreign sovereign 
 may be named as a defendant for the purpose of giving him notice of 
 the claim which the plaintiff makes to funds in the hands of a third 
 person or trustee over whom this court has jurisdiction." 
 
 The Court here lias no jurisdiction to restrain a subject from doing 
 in a foreign country what he is authorised to do by the sovereign power
 
 SECT. V. — CASES OF LOSS WHERE NO KIGHT OF ACTION. 819 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 there, on the alleged ground that it is a wrong or breach of faith (as 
 between that sovereign and the plaintiff) to give the authority. (Hail- 
 stone v. The Ottoman Bank i L863), 32 L. -I. Ch. 228. 
 
 As between a British subject and a foreigner, where the tortious ac! 
 -of the former lias been authorised or adopted and ratified by his govern- 
 ment, it becomes the act of the State, and the private fight of action is 
 .merged in the international question which arises between the govern- 
 ment of Her Majesty and that of the foreign country. Baron v. Den- 
 man (1848), 2 Ex. 1(57; Feather v. The Queen (1865), (i B. & S. l'.~>7, 
 --at p. 296. 
 
 Huron v. Denman, above cited, was an action by a Spanish subject 
 against a British naval commander for trespass. This officer had been 
 stationed on the coast of Africa with instructions to suppress the slave 
 trade there. On the request of the governor of Sierra Leone lie went 
 to a place on the Continent to obtain the liberation of two British sub- 
 jects. He succeeded in that object, and also obtained a treaty from the 
 king of that country for the suppression of the slave trade there. In 
 execution of this treaty, lie destroyed the barracoons of the plaintiff, 
 and carried away his slaves to Sierra Leone, where they were liberated. 
 It appeared from official correspondence that these acts had been sub- 
 sequently adopted and ratified by the Lords of the Admiralty, as well 
 as by the Secretaries of State for the Home and Foreign Departments. 
 It was held that this ratification was equivalent to a prior command by 
 the government of Her Majesty; and that what had been done became 
 -an act of State, the responsibility for which rested not with the officer, 
 but with Her Majesty's government, who would be answerable for a 
 •claim made through the Spanish government. 
 
 The plea of " act of State," in the sense of an act the justification of 
 ■which on constitutional grounds is not to be inquired into, cannot be 
 admitted between British subjects in regard to acts done in an English 
 •colony. 
 
 Walker v. Baird (1892), App. Cas. p. 491; 61 L. J. P. C. 92, was 
 an appeal to the Privy Council from the Supreme Court of Newfound- 
 land, in which some nice questions were raised. The plaintiff sued 
 the defendant (who was captain of one of Her Majesty's ships) for a 
 trespass by taking possession of his lobster factory and interfering with 
 iris business. The defendant pleaded that as captain of the ship in 
 -question he had the duty committed to him of enforcing a modus 
 vivendi embodied in an agreement between Her Majesty and the Re- 
 public of France; that under this agreement no lobster factories which 
 were not in existence at a certain date should be permitted unless by
 
 820 ACTION (right of). 
 
 ) 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 the joint consent of the British and French commanders; that the 
 plaintiff's factory was a contravention of the modus viuendij that tin- 
 defendant did for this cause take possession of (lie factory; that this 
 was done in pursuance of his duty and in his political capacity, and was 
 an act of State done under the modus vtvendi ; and that his acts had 
 heen ratified by Her Majesty as acts of State and public policy. And 
 he submitted that the matters on which he so rested his defence were 
 acts and matters of State arising out of the political relations between 
 England and France; that they involved the construction of the modus 
 Vivendi and other acts of State, and were matters which could not be 
 inquired into by the Court. The plaintiff objected that the defence 
 did not set forth any ground of defence to the action; and by direction 
 of the Court the question was argued upon the point of law. 
 
 The Supreme Court of Newfoundland, after argument, held that the 
 statement of defence disclosed no answer to the plaintiff's claim, but 
 gave the defendant leave to amend. This judgment was rested on 
 the ground that in an action of this description between British subjects 
 for a trespass committed within British territory in tune of peace, it is 
 no sufficient answer to say that the trespass was an " act of State " 
 committed under the authority of an agreement or modus Vivendi with 
 a foreign power; and that, in such a case, as between the Queen's sub- 
 jects, the validity, interpretation, and effect of all instruments and 
 evidence of title and authority rest with the C uirt of competent juris- 
 diction. This judgment was appealed to the Privy Council. 
 
 On the hearing of the appeal, it was argued on the part of the appel- 
 lant that the acts complained of were done by the appellant in pursuance 
 of orders given by the Crown, which were necessary for carrying out the 
 treaty made by Her Majesty by virtue and in lawful exercise of her pre- 
 rogative; that orders and acts necessary to carry this into effect are acts 
 and matters of State, and cannot be questioned in any of Her Majesty's 
 courts. The only question to be tried was whether the act of the appel- 
 lant was within the modus vivendi compact; and that question was 
 sufficiently raised by the defence. 
 
 On the part of the respondents it was argued: The inquiry as to the 
 right of Her Majesty to authorise an act committed by one subject 
 towards another cannot be excluded from the jurisdiction of the Court; 
 for, as between Her Majesty and one of her subjects, there can be no 
 such thing as an act of State. With regard to State necessity, there is 
 no authority for saying that State necessity will make a treaty binding 
 upon subjects by force of prerogative. And if necessity is to override law, 
 it is not sufficient for the appellant to show a necessity for the treaty; 
 he must show a necessity for the particular mode of carrying it into 
 effect — -that is, for doing so without an Act of Parliament.
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF ACTION. 82] 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 The judgment of the Judicial Committee, delivered by Lord IIkk- 
 schell, affirmed the judgment of the Newfoundland Court. They de- 
 clared to be wholly untenable the suggestion that the defendants' acts 
 could be justified as arts of State, or that the Court was not competent 
 to inquire into a matter involving the construction of treaties and other 
 acts of State. They observed that the argument for the appellant was 
 reduced to this: that (as was truly said) the power of making treaties 
 of peace is vested by our constitution in the Crown. That, therefore 
 (as it was argued), there must of necessity reside in the Crown the 
 power of compelling its subjects to obey a treaty arrived at for putting 
 an end to a state of war; and that it' that be so the power must equally 
 extend to a treaty having for its object the preservation of peace, and 
 to an agreement arrived at to avert imminent war. This argument, 
 the Committee observed, raised grave questions, on which they did not 
 find it necessary to express an opinion. They agreed with the Court 
 below in thinking that the allegations contained in the statement of 
 defence did not bring the case within the proposition contended for. 
 
 The judgment, guarded as it is, appears to establish the general 
 proposition contended for by the respondents, that as between Her 
 Majesty and a subject (in a colony) there, is no such thing as an act of 
 State. What is left open by the judgment is not the question whether 
 an act prima, facie wrongful can be justified as an " act of State," but 
 the much narrower question, whether the act can on constitutional 
 principles be justified on the ground of necessity for carrying out a 
 treaty or agreement of the special character suggested in the argument. 
 
 "ACT OF STATE" AS APPLIED TO THE GOVERNMENT 
 
 OF INDIA. 
 
 By C. P. Ilbert. 
 
 The doctrine of "act of State" has acquired exceptional importance 
 in actions against the East India Company and the Government of 
 India. The Indian cases rest on the same principles as the English 
 cases noted above, but present special features arising out of: — 
 
 (1) The dual character of the East India Company as a trading 
 
 company and a territorial sovereign; 
 
 (2) The ambiguous position of Indian princes and chiefs in their 
 
 relation to the Indian government, raising the question 
 whether they ought to be treated as foreign rulers or as 
 subjects; and
 
 822 ACTION (RIGHT OF). 
 
 ► 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 (3) The special statutory right of action against the Secretary of 
 State for India in Council, and the statutory restrictions ore 
 the jurisdiction of Indian courts in matters relating to the 
 government of India. 
 The East India Company was, in its inception, an ordinary trading- 
 company, not differing in its material characteristics from other trading: 
 companies established about the same time, such as the Levant Com- 
 pany and the Russia Company, and, like them, carrying on its local 
 trade from factories held by a precarious tenure under the local sover- 
 eign. But the Company soon acquired, under its charters, the power of 
 making peace and war, of concluding treaties, and of minting coin,. 
 and other attributes of sovereignty. And after its acquisition of the- 
 Island of Bombay, in 1069, and still more after its acquisition of actual 
 supreme power over the provinces of Bengal, Behar, and Orissa, irs 
 1765, it held the position of a great terricorial sovereign, by authority- 
 derived partly from charters and Acts of the British Crown and Parlia- 
 ment, and partly from cessions from, or treaties with, Indian princes- 
 For intelligible reasons the company preferred, in its early days of 
 sovereignty, to rely on the authority derived from the latter source,, 
 while, at the same time, the British government was reluctant to as- 
 sume the responsibility of direct sovereignty over the vast territorial 
 possessions which had been acquired by the Company in India. Thus 
 the position resembled in many respects that of modern "protectorates'* 
 in Africa and elsewhere. The term "British subject," as used in the 
 earlier Acts relating to India, does not include the native inhabitants 
 of the provinces of Bengal, Behar, and Orissa; and it was doubtful 
 whether, and how far, those provinces constituted British territory iu 
 the full sense. But circumstances soon compelled the British govern- 
 ment to assume the powers and responsibilities of direct sovereignty in 
 India. They appointed a Governor-General and a Supreme Court, with 
 extensive powers of administering and applying English law; and by 
 the establishment of the Board of Control they placed the exercise of 
 sovereign powers by the Company in complete subordination to the 
 executive government of the day. 
 
 The gradual assertion of sovereignty by the British government is re- 
 flected in the preamble to the successive Charter Acts. By the Act of 1793 
 (33 Geo. III. c. 52) the Company are continued in the possession^ their 
 territorial acquisitions " without prejudice to the claims of the public.''' 
 By the Act of 1813 (53 Geo. III. c. 155), the Company are allowed t<» 
 remain in possession of their territorial acquisitions for a further term. 
 "without prejudice to the undoubted sovereignty of the Crown of the 
 United Kingdom of Great Britain and Ireland in and over the same.'*
 
 SECT. V. — CASES OF LOSS WHERE NO RIGHT OF ACTION. 823 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 By the Act of 1833 (3 & 4 Will. IV. c. 85), the Company arc deprived 
 of their trading functions, and the territories under the government of 
 the Company are continued under that government only ••in trust for 
 the Crown of the United Kingdom of Great Britain and Ireland." 
 
 "It is manifest," remarked Tindal, C. J. (in 1839), "that the Easi 
 India Company have been invested with powers and privileges of a two- 
 fold nature, perfectly distinct from each other; namely, powers to carry 
 on trade as merchants, and, subject only to the prerogative of tin- 
 Crown, to be exercised by the Board of Commissioners for the affairs of 
 India, power to acquire and retain and govern territory, to raise and 
 maintain armed forces by sea and land, and make peace or war with 
 the native powers of India." Gibson v. East India Company (1839), 
 5 Bingham, N. C. 2(32. And see Rajah of Coorg v. East India Co. 
 (1860), 29 Beav. 300, at p. 308. 
 
 Finally, in 1858, by the " Act for the Better Government of India, " 
 21 & 22 Vict. c. 106, the government of the territories vested in the 
 Company in trust for the Crown is directly transferred to and vested in 
 the Queen, and is to be exercised in her name. 
 
 By this Act of 1858, the Secretary of State in Council of India was 
 constituted a body corporate for certain purposes, and (under §05) 
 might sue and be sued by that name; and all persons were to have the 
 same remedies against the Secretary of State in Council of India as 
 they would have had against the East India Company. 
 
 By § 6 of the amending Act of 1859 (22 Vict. c. 41), the Secretary of 
 State for India in Council was expressly made liable to be sued in respect 
 of certain contracts. 
 
 From the twofold character of the East India Company as above ex- 
 plained, it followed that legal proceedings against the Company in its. 
 trading capacity were governed by the same principles as proceedings 
 against private individuals; while proceedings against the Company in 
 its capacity of territorial sovereign, as the representative of the British 
 Crown, were governed by the principles applying to actions against 
 officers of the Crown. Moreover, by enactments which are still in 
 force, the Indian courts were prohibited from exercising jurisdiction 
 against the Governor-General or the governor of Madras or Bombay, or 
 any of the members of their councils, in respect of anything counselled, 
 ordered, or done by any of them in his public capacity only (21 Geo. 
 III. c. 70 § 1), or in any matter concerning the revenue or concern- 
 ing any act ordered or done in the collection of revenue according to 
 the usage and practice of the country or the regulations of the Governor- 
 General in council (21 Geo. III. c. 70 § 8). The same principles apply 
 in the case of legal proceedings against the Secretary of State in Council 
 as the statutory successor of the East India Company.
 
 824 ACTION (right of). 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 Closely allied to the question as to the capacity in which the East 
 India Company was acting in special cases, is the question as to the 
 relation in which Indian princes and chiefs formerly stood to the East 
 India Company, and now stand to the British Crown. This relation 
 has gradually changed. In the early days of British sovereignty in 
 India the East India Company was a local sovereign, exercising its au- 
 thority in rivalry with other country powers, making defensive and 
 offensive treaties with them, and striving to maintain its position by 
 establishing a balance of power between them. It gradually became 
 the predominant power throughout the peninsula, exercising direct 
 sovereignty over the greater part of it, and paramount influence over 
 the rest. The paramount suzerainty of the British Crown throughout 
 India was recognised and emphasised by the formal assumption of the 
 Imperial title at Delhi in 1877. 
 
 Throughout British India the sovereignty of the British government 
 is now full and complete. In the native states it is partial and incom- 
 plete. The territory of these states is not technically British territory, 
 and the subjects of these states are not technically British subjects, 
 though they are entitled to British protection. (See § 15 of the Foreign 
 Jurisdiction Act, 1890, 53 & 54 Vict. c. 37.) India, in its wider sense 
 as including these territories, has been defined by a recent Act (52 & 53 
 Vict. c. 63 § 18 (5)), as meaning "British India together with any 
 territories of any native prince or chief under the suzerainty of Her 
 Majesty exercised through the Governor-General of India or through any 
 governor or other officer subordinate to the Governor-General of India." 
 The special and exceptional position of native princes and states, which 
 has been made the subject of a careful study in Mr. Tupper's recent work, 
 4< Our Indian Protectorate," occasionally raises difficult questions in in- 
 ternational and municipal law. How far and in what sense ought the 
 territories of native states to be treated as foreign territory, and their 
 chiefs and subjects as foreigners? And, in particular cases, ought a terri- 
 torial magnate to be treated as a British subject owning land which con- 
 stitutes British territory and is subject to British law. or as a sovereign 
 power ruling over subjects of his own and over territory which is not 
 British ? And, if he passes from one condition to the other, what prin- 
 ciples are to be applied to his rights and the rights of those claiming 
 under him during and immediately after the transitional state? It will 
 be seen, from the cases referred to below, that it is on the answer to 
 these questions that the most important decisions in the Indian "Act 
 of State " cases turn. 
 
 The first reported case in which the plea of " Act of State" was 
 raised by the East India, ( !ompany appears to have been The, Nabob of the 
 ' 'arnatic v. East India Company (1793), 1 Ves. Jr. 371; 2 Ves. Jr. 56;
 
 SECT. V. — CASES OF LOSS WHEKE No IMOUT oK ACTION. 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 3 Bro. C. C. 292; 4 Bro. C. C. 100. Tins was a suit for an account, 
 brought by the Nabob of A.rcot against The East India Company. < >n 
 the hearing it appeared by the Company's answer thai the subject-matter 
 of the suit was a matter of political treaty between the Nabob and the 
 Company, the Company having acted throughout the transaction in their 
 political capacity, and having been dealt with by the Nabob as it' they 
 were an independent sovereign. On this ground the bill was dismissed. 
 
 The same principle was followed in the case of The East India Co. v. 
 Syed Ally (1827), 7 Moo. Ind. App. ooo, where it was held that the re- 
 sumption by the Madras government of a (t Jaghire " granted by former 
 Nawabs of the Carnatic before the date of cession to the East India 
 Company and the re-grant by the Madras government to another, was 
 such an act of sovereign power as precluded the Court from taking cog- 
 nisance of the question in a suit by the heirs of the original grantee. 
 
 The case of Bedreechund v. Elphinstone (1830), 2 State Trials, x. s. 
 379; 1 Knapp, P. C. 31G, raised the question as to the title to booty 
 taken at Poonah, and alleged to be the property of the Peishwa. It 
 was held that the transaction having been that of a hostile seizure, 
 made, if not flagrante } r et nondum cessante hello, a municipal court 
 had no jurisdiction to adjudge on the subject; and that if an3'thing 
 had been done amiss, recourse could be had only to the Government 
 for redress. 
 
 In the Tanjore Case, Secretary of State in Council of India v. Kama- 
 chee Boye Sahaba (1859), 13 Moo. P. C. 22, a bill was filed on the 
 equity side of the Supreme Court of Madras, to establish a claim as 
 private property to certain property of which the Government had taken 
 possession, and for an account. The acts in question had been done on 
 behalf of the Government by a commissioner appointed by them in con- 
 nection with the taking over of Tanjore on the death of the Rajah 
 Sevajee without heirs. It was held that, as the seizure was made by 
 the British Government, acting as a sovereign power, through its dele- 
 gate, the East India Company, it was an act of State, to inquire into 
 the propriety of which a municipal court had no jurisdiction. Lord 
 Kixgsdowx, in delivering judgment, remarked that "the general 
 principle of law could not with any colour of reason be disputed. The 
 transactions of independent states between each other are governed by 
 other laws than those which municipal courts administer. Such courts 
 have neither the means of deciding what is right nor the power of en- 
 forcing any decision which they make." It was held that the act com- 
 plained of fell within this principle. "Of the propriety or justice of 
 that act," remarked Lord Kixgsdowx, "neither the Court below nor 
 the Judicial Committee have the means of forming, or the right of ex- 
 pressing if they had formed, any opinion. Tt may have been just or 
 
 i
 
 826 ACTION* (right of). 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 I 
 
 unjust, politic or impolitic, beneficial or injurious, taken us a whole, 
 to those whoso interests are affected. These are considerations into 
 which their Lordships cannot enter. It is sufficient to say that, even 
 if a wrong has been done, it is a wrong for which no municipal court 
 of justice can afford a remedy." 
 
 In the Coorg Case, Rajah of Coorg v. East India Company (1860), 
 2!) Beav. 300, the East India Company had made war against the Rajah 
 of Coorg, annexed his territory and taken his property, including some 
 of the Company's notes. The Rajah filed a bill against the East India 
 Company, but it was held that the Company had acted in their sovereign 
 capacity, and the lull was dismissed. 
 
 In the Delia Case, Rajah Salig Ram ^.'Secretary of State fur India 
 in Council (1872), L. R. Ind. App. Supp. Vol. p. lit), the question was 
 as to the validity of the seizure, after the Indian Mutiny, of estates 
 formerly belonging to the titular King of Delhi. Here also it was held 
 that the seizure was an act of State, and as such was not to he ques- 
 tioned in a municipal court. 
 
 In Sirdar Bhagwan Singh v. Secretary of State for Ind in in Coun- 
 cil (1874), L. R., 2 Ind. App. Cas. 38, an estate belonging to a former 
 chief in the Punjab had been seized by the Crown, and the question was 
 whether it had been so seized in right of conquest or by virtue of a 
 legal title, such as lapse or escheat. It was held that the seizure had 
 been made in right of conquest, and as such must be regarded as an 
 act of State, and was not liable to lie questioned in a municipal 
 court. 
 
 Forester and others v. Secretary of State for India in Council (1872), 
 L. R. Ind. App. Supp, Vol. p. 10. is a case on the other side of the 
 line. In this case the Government of India had, on the death of Begum 
 Sumroo, resumed property formerly belonging to her; and the legality of 
 their action was questioned by her heirs. It appeared that the Begum had 
 verj 7 nearly but not quite acquired the position of a petty Indian sover- 
 eign, but that she was a British subject at the time of her death; and 
 that the seizure in question was not the seizure, by arbitrary power, of 
 territories which up to that time belonged to another sovereign state: 
 but was the resumption, under colour of a legal title, of lands pre- 
 viously held from the Government by a subject under a particular 
 tenure, on the alleged determination of that tenure; and that conse- 
 quently the questions raised by the suit were cognisable by a municipal 
 court. 
 
 Doss v. Secretary of State for India in Council (187.")), L. R., 19 Eq. 
 509, was a case arising out of the extinction of a sovereign power in 
 India, though not in consequence of hostilities. It was a suit brought 
 in the English Court of Chancery by creditors of the late King of Oudh
 
 SECT. V. — CASKS OF LOSS WHERE NO RIGHT OF ACTION. 827 
 No. 19 — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 against the Secretary of State as his successor. It was held that as the 
 «lebt had been incurred by the late King in his capacity as sovereign, 
 and could not have been enforced against him as a legal claim, it did not, 
 upon the annexation of the kingdom of Oudh, become a legal obligation 
 upon the East India Company, and therefore was not, by the Act of 
 1858, transferred as a legal obligation against the Secretary of State; 
 and on this ground a demurrer to the bill was allowed. 
 
 In the case of Grant v. Secretary of State for India in Council( 1877), 
 2 C. P. D. 445 ; 4G L. J. C. P. 681, a demurrer was allowed to an 
 action by an officer of the East India Company's service who had been 
 compulsorily retired under the order of the Government of India. Here 
 the plaintiff was clearly a British subject, but nothing turned upon 
 this. For the order was held, as an act of administration in the public 
 service, to be within the high powers of government formerly intrusted 
 to the East India Company (not as a trading company, but as a sub- 
 ordinate government), and now to be exercised by the Government of 
 India. In effect the question was not of a sovereign act, but of the 
 powers of high (but still subordinate) officers of Government. 
 
 AMERICAN NOTES. 
 
 The principal case is cited by the two latest writers in this country on 
 Public Officers and Mandamus. (Throopon Public Officers, §797 ; Merrill on 
 Mandamus, §§ 89, 90), and its doctrine is by them thought to prevail in this 
 country. Mr. Throop quotes the opinion of Chief Justice Marshall in Mar- 
 bury v. Madison, 1 Cranch (U. S. Sup. Ct.), 160, in respect to heads of depart- 
 ments and cabinet officers, that " the acts of such an officer, as an officer, can 
 never be examinable by the courts." Mr. Merrill says, *? In neither country . . . 
 will litigants be allowed to evade this rule, and the writ of mandamus will not be 
 allowed to run against the servants of the Crown or State, in order to enforce 
 satisfaction of claims upon the Crown or State," citing Cunningham v. Railroad 
 Co., 109 U. S. 4-10. " The writ cannot be used to make a contract which will 
 bind the State," as to compel the granting of a contract to the lowest bidder for 
 printing State reports, Mills Pub. Co. v. Larrabee, 78 Iowa, 97; "nor can ii be 
 used to compel a State to fulfill a contract," Ex parte Ayers, 123 United Slates, 
 303; People v. Dulaney, 90 Illinois. 503; as to compel a Secretary of Slate to 
 deliver laws to print, Marshall v. Clark, 22 Texas. •_':! ; contra, Stale v. Barker, 
 4 Kansas, 379. The writ has been denied to compel the commissioner of the 
 State general land office to issue patents without payment of the due fees, 
 Taylor v. Hal!,~\ Texas, 206; to compel State officers to payout money in 
 absence of an appropriation, Carry. Stale, 127 Indiana, 204 ; and of a war- 
 rant, Weston v. Dane, 51 Maine. 401; to compel an auditor-general to pay 
 over to a county treasurer certain taxes collected by lam. Ottawa Count// v. 
 Auditor-General, <>!) Michigan, 1; to compel State treasurer and auditor to 
 
 i
 
 828 action (right of). 
 
 I 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 audit and pay coupons, after a statute differently appropriating them, State v. 
 Burke, 33 Louisiana Annual, 498. " The officers," says Mr. Merrill, " owe 
 duty to the State alone. . . . They can be moved through the State, but not 
 the State through them." Citing Louisiana v. Jumel, 107 U. S. 711 ; Applin 
 v. Van Tassel, 73 Michigan, 28, 182. 
 
 But it seems that mandamus will issue when the government is liable and 
 willing to pay its debt, but the officer himself has improperly refused to act. 
 Reeside v. Walker, 11 Howard (U. S. Sup. Ct.), 272; Chance v. Temple, 1 
 Iowa, 179. So mandamus has issued against officers of the general govern- 
 ment, as an officer of the cabinet {United States v. Sehurz, 102 U. S. -578), and 
 the commissioner of patents and the commissioner of pensions (Butterworllt v. 
 Hoe, 112 U. S. 50; United States v. Black, 128 U. S. 40), to compel them 
 to perform ministerial duties not .lying in their pure discretion. So to the 
 postmaster-general, Kendall v. United Slates, 12 Peters (U. S. Sup. Ct.), 524. 
 
 In like circumstances mandamus issues to subordinate officers of the States. 
 such as secretary of State, treasurer, comptroller, auditor, land commissioner, 
 tkc. See Merrill on Mandamus, §§ 103-106. But whether mandamus will 
 issue to the governor of a State is a vexed question, the weight of authority 
 inclining to the negative. Merrill on Mandamus, §§ 91-98; People v. Smith, 
 43 Illinois, 219; 92 Am. Dec. 109. 
 
 Mandamus will lie to a public corporation to compel performance of a pub- 
 lic duty not due to the government as such, at the suit of a private person, 
 Union Pacific R. Co. v. Hall, 91 II. S. 355: as to compel a city to take posse- 
 sion of a bridge, Pumphrey v. Mayor, Sfc, 47 Maryland, 145; 28 Am. Rep. 440. 
 See People v. Halsey, 37 New York, 314 ; State v. Railway, 33 New Jersey 
 Law, 110; Ottawa v. People, 48 Illinois, 233. 
 
 Mandamus lies against county officers, as supervisors, in cases where, al- 
 though they have discretion, yet they have exercised it in an unconstitutional 
 manner, to compel them to perform their duty in a legal manner. As where 
 they have made an illegal division of voting districts. Baird v. Supervisors, 
 438 New York, 115. The court there said, " "Where the thing to be done 
 does not rest in discretion, and is to be performed by a public body or officer, 
 and the act is of a public nature, in the execution of which the public is inter- 
 ested, its performance may be compelled by mandamus sued out upon the 
 relation of any citizen of the community having an interest in the perform- 
 ance of the act. This has been the law of this State for many years. People 
 v. Halsey, 37 N. Y. 314. The thing to be done in this case is to make a valid 
 division of the county of Kings into Assembly districts. All the citizens are 
 interested in the performance of that duty. Its performance does not involve 
 any discretion. It must be done. The manner of its performance is to a 
 large extent discretionary. The court only interferes to compel the perform- 
 ance. In this case we hold that the defendants have failed thus far to per- 
 form their duty to legally divide the county of Kings into eighteen Assembly 
 districts. That duty still rests upon them, just the same as if they had never 
 attempted its performance. "What they have done is utterly void and of no 
 effect. We can only interfere so far as to direct them to come together and 
 perform their duty, and make a constitutional division of their county."
 
 SECT. V. — GASES OF LOSS WHERE NO RIGHT OF ACTION. 829 
 
 No. 19. — The Queen v. Lords Commissioners of the Treasury. — Notes. 
 
 Mr. Throop says (Public Officers, §712), "II is admitted, however, thai 
 executive officers, other than the president and governor, areliable to private 
 actions for misconduct in the discharge of ministerial duties confined" (con- 
 fided? ) "to them." Citing Adsit v. Brady, I Hill (New Void ), 630 ; 40 Am. 
 Dec. 305; Unison v. Mayor, 9 New York, 163; 59 Am. Dec 526; Robinson v. 
 Chamberlain, -SI New York, 389; 90 Am. Dec. 713. In the first case the super- 
 intendent of canals was held liable for neglect to remove obstructions to 
 navigation causing injury to an individual; in the second, a similar holding 
 was made in respect to neglect to repair a street; in the third, the like was 
 held as to a canal contractor in respect to neglect to repair a canal. See notes 
 to these cases in Am. Dec., especially 90 Am. Dec. 725-7;)'-'. 
 
 See generally, note, 89 Am. Dec. 728-742. 
 
 ( 
 
 END OF VOL L
 
 >
 
 i
 
 I
 
 i
 
 .
 
 NOTES 
 
 ON 
 
 ENGLISH RULING CASES 
 
 CASES IN 1 E. R. C. 
 
 i 
 
 1 E. R. C. 1, GOSS v. WITHERS, 2 Burr, 683, 2 Ld. Kenyon, 325. 
 
 Right to make an abandonment. 
 
 Cited in American Ins. Co. v. Ogden, 15 Wend. 532, holding the inability 
 of the master to procure funds to make repairs is a valid cause for abandon- 
 ment although the vessel be in the port of destination: Peile v. Merchants' 
 Ins. Co. 3 Mason, 27, Fed. Cas. No. 10,905, holding the owners had a right 
 to abandon a ship where it was wrecked on the rocks and bilged, although 
 the underwriters because of good weather got it off with a loss of less than 
 half the value of the ship; Beale v. Pettit, 1 Wash. C. C. 241, Fed. Cas. No. 
 1,158; Holbrook v. United States, 21 Ct. CI. 434; Watson v. Insurance Co. 
 of N. A. 1 Binn. 47 ; Dickey v. New York Ins. Co. 4 Cow. 222 ; Cossman v. 
 West, 18 N. S. 461; Thompson v. Mississippi, M. & F. Ins. Co. 2 La. 228, 22 
 Am. Dec. 129, — considering when the circumstances will authorize an abandon- 
 ment of a vessel; Roux v. Salvador, 3 Bing. N. C. 266, 2 Hodges, 209, 4 
 Scott, 1, 7 L. J. Exch. N. S. 328, 1 Eng. Rul. Cas. 46, reversing 1 Bing. N. C. 
 526, 1 Hodges, 49, 1 Scott, 491, 4 L. J. C. P. N. S. 156, on the general rules 
 of the right of abandonment. 
 — On arrest or capture. 
 
 Cited in Odlin v. Insurance Co. 2 Wash. C. C. 312, Fed. Cas. No. 10,433. 
 holding it right to abandon as for a total loss where a vessel was prevented 
 from continuing on her voyage because of an arrest under the embargo law: 
 Murray v. United Ins. Co. 2 Johns. Cas. 263, holding the carrying of a vessel 
 by a belligerent into the port of a neutral for adjudication is a ground for 
 abandonment; Schmidt v. United Ins. Co. 1 Johns. 249, holding right to 
 abandon existed where the vessel was not allowed to leave port because of 
 an active blockade by armed vessels; Rodocanachi v. Elliott, L. R. 8 C. P. 
 649, holding under a policy of insurance covering the entire journey a right 
 to abandon as for a total existed where while goods were being transported 
 overland the point which the goods had reached was surrounded and invested 
 by an invading army. 
 
 Disapproved in Ruckman v. Merchants' Louisville Ins. Co. 5 Duer, 342, hold- 
 ing that insurance on a ship is not on the voyage but merely on the ability 
 of the ship to perform the voyage, and loss of the voyage is not a valid and 
 sufficient cause for abandonment. 
 Notes on E. R. C— 1.
 
 1 E. E. C. 1] NOTES ON ENGLISH RULING CASES. 2 
 
 — Effect of recapture or liberation. 
 
 Cited, in Queen v. Union Ins. Co. 2 Wash. C. C. 331, Fed. Cas. No. 11,505, 
 holding no right to abandon existed where the vessel was recaptured with a 
 view to salvage and a salvage of only one-eight imposed, and the voyage only 
 temporarily interrupted; Oliver v. Newburyport Ins. Co. 3 Mass. 37, 3 Am. 
 Dec. 77, holding the insured was entitled to recover for only a partial loss 
 where the ship was recaptured and sold because of the inability of the master 
 to pay the salvage, the insured abandoning for the amount received on the 
 sale but refusing to abandon the ship; Hallett v. Peyton, 1 Cai. Cas. 28, hold- 
 ing an insured was not entitled to recover as for a total loss were after the 
 capture of the vessel and an abandonment, restoration of the vessel was made ; 
 United Ins. Co. v. Robinson, 2 Cai. 280, on right of insurer when captured 
 ship is ransomed or saved; Clendining v. Church, 3 Caines, 141, holding a 
 temporary capture with a subsequent recovery and arrival at the port of destina- 
 tion did not constitute a total loss; Post v. Phoenix Ins. Co. 10 Johns. 7i), 
 holding a right to abandon for a total loss existed where the vessel ran into 
 a port to avoid capture and was there seized and held until a recapture, 
 and payment of salvage compelled, and the voyage never completed. 
 
 Right to recover as for a total loss. 
 
 Cited in Copeland v. Phoenix Ins. Co. 1 Woolw. 278, Fed. Cas. No. 3,210, 
 holding that mere fact of submersion of the vessel does not amount to a 
 total loss; Kenny v. Halifax Marine Ins. Co. 1 N. S. 141, holding the insured 
 could not recover as for a total loss where the vessel struck on the rocks 
 and after finding it impossible to get it off gave notice of abandonment and 
 then during a heavy gale it was lifted off the rocks and saved; Musgrave v. 
 Mannlieim Ins. Co. 32 N. S. 405, holding there was a constructive total loss 
 where the ship was disabled and being unable to repair in time to carry the 
 cargo forward it was returned to the shippers and the ship laid up for repairs. 
 
 Cited in note in 1 Eng. Rul. Cas. 131, on criterion of time in cases of 
 abandonment and total loss under marine policy. 
 
 — As to cargo. 
 
 Cited in Seton v. Delaware Ins. Co. 2 Wash. C. C. 175, Fed. Cas. No. 12,675, 
 holding loss of a distinct part of the cargo which did not break up the voyage 
 could not be treated as total. 
 
 Distinguished in Goold v. Shaw, 1 Johns. Cas. 293, holding no right to recover 
 for a total loss existed where the voyage was broken up by the vessel being 
 compelled to put into port for repairs in consequence of a storm and the 
 cargo was sold to keep it from spoiling. 
 Application of the term "capture" to marine insurance. 
 
 Cited in Dole v. Merchants' Mut. M. Ins. Co. 51 Me. 465, 22 Phila. Leg. Int. 
 13; Fifield v. Insurance Co. 47 Pa. 166, 86 Am. Dec. 523; Dole v. New England 
 Mut. M. Ins. Co. 6 Allen, 373, — holding a warranty by the insured in a policy 
 of insurance that the vessel should be free from capture included a capture 
 by a cruiser of the so-called Confederate states; Fifield v. Insurance Co. of Pa. 
 21 Phila. Leg. Int. 221, holding that capture by Confederate privateer is 
 within clause excepting liability for loss by capture. 
 
 Salvage on recapture. 
 
 Cited in Kennedy v. Richer, Smith (N. H.) 432, Fed. Cas. No. 7,705. on 
 how the amount of salvage fixed on the recapture of a ship.
 
 3 NOTES ON ENGLISH RULING TASKS. |l E. R. C. 23 
 
 Right to question the validity of a capture. 
 
 Cited in Miller v. The Resolution, 2 Dall. 1, 1 L. ed. 263, on the right to ques- 
 tion the validity of a capture. 
 Capture of property as divesting title. 
 
 Cited in Cook v. Howard, 13 Johns. 276, holding the title to a horse cap- 
 tured during a battle and recaptured before the end of the conflict was not 
 divested; Moxon v. Fanny, 2 Pet. Adm. 309, Fed. Cas. No. 9,895, on a capture 
 as divesting title to property; The Curlew, Stew. Bice Adm. (N. S. ) 312, hold- 
 ing that naval departments of colonies had no right to captured vessels and 
 cargoes before condemnation. 
 
 1 E. R. C. 21, ALLEN v. SUGRUE, 8 Barn. & C. 561, 3 Mann. & R. 9, 7 L. J. 
 K. B. N. S. 53. 
 
 Right to recover as for total loss. 
 
 Cited in notes in 1 E. R. C. 34, as to when abandonment may be made and 
 total loss claimed under marine policy; 5 E. R. C. 688, on total loss by deten- 
 tion of ship. 
 Authority to sell vessel. 
 
 Cited in Robinson v. Commonwealth Ins. Co. 3 Sumn. 220, Fed. Cas. No. 
 11,949, considering the exigency that will authorize the master to sell the 
 vessel to be such as would move a considerate owner who was uninsured. 
 
 1 E. R. C. 23, IRVING v. MANNING, 1 H. L. C. 287, 6 C. B. 391; which 
 affirms the decision of the Court of Exchequer Chamber reported in 2 C. B. 
 784; which affirms the decision of the Court of Common Pleas, reported in 
 1 C. B. 168. 
 Measure of indemnity on valued policy of marine insurance. 
 
 Cited in International Nav. Co. v. Atlantic Mut. Ins. Co. 100 Fed. 304, hold- 
 ing upon a partial loss on a valued policy on ship the cost of repairs, less the 
 deduction of new for old, is the measure of indemnity against the insurers; 
 Griswold v. Union Mut. Ins. Co. 3 Blatchf. 231, Fed. Cas. No. 5,840, holding 
 where a partial loss occurs under a valued policy the amount of recovery i& 
 computed on the basis of the valuation in the policy; Aitchison v. Lohre, 
 14 E. R. C. 448, L. R. 4 App. Cas. 755, 49 L. J. Q. B. N. S. 123, 41 L. T. N. S. 
 323, 28 Week. Rep. 1, 4 Asp. Mar. L. Cas. 168, holding measure of indemnity, 
 where owners elect to repair, cost or repair, less one-third. 
 Conclusiveness of policy valuation. 
 
 Cited in Michael v. Prussian Nat. Ins. Co. 171 N. Y. 25, 63 N. E. 810, 
 holding that valuation is conclusive on parties, in absence of fraud or mistake. 
 Cited in note in 14 E. R. C. 230, on what constitutes a valued policy and 
 conclusiveness of the valuation. 
 
 — On insured ship. 
 
 Cited in Sun Printing & Pub. Asso. v. Moore. 1S3 U. S. 642, 46 L. ed. 366, 
 22 Sup. Ct. Rep. 240, holding that parties to charter party may stipulate 
 agreed value of vessel as liquidated damages for failure to return it, and 
 such stipulation is conclusive, in absence of fraud or mistake; The St. Johns, 
 101 Fed. 469, holding where a vessel is valued in a policy, the insured can- 
 not be heard to say that it had a larger valuation on order to prevent the 
 insurer from being subrogated to a fund recovered as damages for the wrong- 
 ful collision; Leonard v. Bosch, 73 N. J. Eq. 438, 6S Atl. 56. holding that re-
 
 1 E. R. C. 23] NOTES ON. ENGLISH RULING CASES. 4 
 
 covery in case of total loss is whole amount of agreed value; Phoenix Ins. 
 Co. v. McLoon, 100 Mass. 475; Howes v. Union Ins. Co. 16 La. Ann. 235, — hold- 
 ing that agreed valuation of ship in policy is conclusive on parties; Barker 
 v. Janson, 14 E. R. C. 222, L. R. 3 C. P. 303, 37 L. J. C. P. N. S. 105, 17 
 L. T. N. S. 473, 16 Week. Rep. 399, holding value in policy conclusive, though 
 ship had been injured, unknown to parties, so that expense of repairs would 
 have exceeded its value when repaired; The Main, 13 E. R. C. 681, [1894] 
 P. 320, 63 L. J. Prob. N. S. 69, 70 L. T. N. S. 247, 6 Reports, 775, 7 Asp. 
 Mar. L. Cas. 424, holding valuation conclusive though amount actually at risk 
 turns out to be very much less than was actually intended at time of mak- 
 ing policy. 
 
 Cited in note in 14 E. R. C. 232, on conclusiveness on parties of value of ship 
 as stated in polity. 
 Right to recover as for a total loss. 
 
 Cited in Northwestern Mut. L. Ins. Co. v. Rochester German Ins. Co. 85 
 Minn. 48, 56 L.R.A. 108, 88 N. W. 265, holding loss not total, if remnant 
 of building left standing above foundation is safely adapted for use as basis 
 upon which to restore building; Milwaukee Mechanics' Ins. Co. v. Russell, 
 65 Ohio St. 230, 56 L.R.A. 159, 62 N. E. 33S, holding that refusal of insured 
 to permit insurer to rebuild is no defense to recovery of total loss; Ruck- 
 man v. Merchants' Louisville Ins. Co. 5 Duer, 342, holding it a constructive 
 total loss, when disabled vessel is in port of necessity and cost of repairing will 
 exceed moiety of her value; Boardman v. Boston Marine Ins. Co. 146 Mass. 442, 
 16 N. E. 26, upholding claim for total loss of freight, on loss of more than 
 half of cargo of coal in specie, though actual freight lost is less than one 
 half the value of freight; Murray v. Great Western Ins. Co. 72 Hun, 282, 25 
 N. Y. Supp. 414, holding that constructive total loss takes place when destruc- 
 tion of ship is rendered highly probable, or the privation of it is such that 
 its recovery is either exceedingly doubtful or too expensive to be worth the 
 attempt; Brady v. Northwestern Ins. Co. 11 Mich. 425 (dissenting opinion) ; 
 Royal Ins. Co. v. Mclntyre, 90 Tex. 170, 35 L.R.A. 672, 59 Am. St. Rep. 797, 
 37 S. W. 1068, — considering the right to recover as for a total loss; Gerow 
 v. British American Assur. Co. 16 Can. S. C. 524 (affirming 27 N. B. 513), hold- 
 ing not constructive total loss, where cost of repairs did not amount to half 
 of declared value, allowing deduction of one-third new for old; Phoenix Ins. 
 Co. v. Anchor Ins. Co. 4 Ont. Rep. 524, holding stranding of vessel no ground 
 for abandoning as for total loss, where injuries were trifling and no difficulty 
 was experienced in getting vessel off; Morton v. Patillo, 9 N. S. 17, holding that 
 master might abandon vessel and recover as for total loss, where cost of re- 
 pairing would amount to more than vessel was worth. 
 
 Cited in notes in 1 E. R. C. 34, as to when abandonment may be made and 
 total loss claimed under marine policy; 5 E. R. C. 688, on total loss by deten- 
 tion of ship. 
 
 The decision of the Court of Exchequer Chamber was cited in King v. West- 
 ern Assur. Co. 7 U. C. C. P. 300, holding that where owners of vessel which was 
 stranded gave notice of abandonment and circumstances justified abandonment 
 verdict for total loss was proper; Harkley v. Provincial Ins. Co. 18 U. C. C. P. 
 335, holding that whether loss is to be considered total loss depends on fact of 
 whether vessel, as injured, is useless to owner unless at expense that no prudent 
 man, if uninsured, would incur; Crawford v. St. Lawrence Ins. Co. 8 U. C. Q. 
 B. 135, holding that where mortgagee had policy on vessel and loss was actual
 
 5 NOTES ON ENGLISfl Rl LING CASKS. [1 E. R. C. 27 
 
 total loss, verdict for plaintiff could not be disturbed where vessel was abandoned 
 by mortgagor. 
 
 The decision of the Court of Common Pleas was cited in Wallerstein v. Co- 
 lumbian Ins. Co. 44 N. Y. 204, 4 Am. Eep. 664, upholding right to recover as for 
 total loss, though part of goods may be brought into port in specie, if right to 
 abandon is exercised during .continuance of peril and there is total loss of value 
 to owner; Corbett v. Spring Garden Ins. Co. 155 N. Y. 389, 41 L.R.A. 318, 50 
 N. E. 282, denying recovery for total loss, Avhere roof and interior are burned, 
 but foundation and walls remain and building can be repaired for one third its 
 value. 
 
 1 E. R. C. 27, FARNWORTH v. HYDE, L. R. 2 C. P. 204, 15 L. T. N. S. 395, 15 
 Week. Rep. 340, 36 L. J. C. P. N. S. 33, affirming the decision of the Court of 
 Common Pleas reported in 18 C. B. N. S. 835, 11 Jur N. S. 349, 12 L. T. 
 N. S. 231, 13 Week. Rep. 613, 34 L. J. C. P. N. S. 207. 
 What will constitute a constructive total loss of a vessel. 
 
 Cited in Cossman v. West, L. R. 13 App. Cas. 160, 57 L. J. P. C. N. S. 17, 58 
 L. T. N. S. 122, Asp. Mar. L. Cas. 233, holding a vessel is a total loss within 
 the meaning of a policy of marine insurance where the vessel coming into the 
 hands of salvors as a derelect is sold by a court of competent jurisdiction; Walson 
 v. Mercantile Marine Ins. Co. 9 N. S. 396, holding there could be no recovery as 
 for a total loss where the cargo was damaged during a storm and sold before 
 reaching the port of destination where it did not appear conclusively that the 
 cargo might not have been sent to point of destination at an expense less than its 
 probable value there. 
 
 Cited in note in 1 E. R. C. 32, as to when abandonment may be made and 
 total loss claimed under marine policy. 
 
 The decision of the Court of Common Pleas was cited in Providence Wash- 
 ington Ins. Co. v. Corbett, 9 Can S. C. 256, holding no right existed to recover 
 as for a total loss where the vessel was stranded and the master gave notice of 
 abandonment which was refused whereupon he sold the vessel which the pur- 
 chaser easily floated; Gallagher v. Taylor, 5 Can. S. C. 368 (reversing 13 N. S. 
 279), refusing recovery for total loss, no notice of abandonment being given, 
 where master sold vessel without attempting to get it off and purchaser got it 
 off and floated it. 
 
 — Constructive total loss of cargo. 
 
 Cited in Heard v. Prince Edward Island Marine Ins. Co. 1 Has. & War (Pr. 
 Edw. Isl.) 381, holding there could be no recovery as for a total loss where a 
 vessel was caught in the ice and the cargo of fish damaged and the voyage aban- 
 doned and the cargo sold, and the fish dried and shipped by the purchaser, the 
 injury being slight; Singer Mfg. Co. v. Western Assur. Co. Rap. Jud. Quebec 10 
 S. C. 379, holding, where the articles composing a cargo are under the policy 
 valued separately, insured may recover as for a total loss for articles damaged 
 and worthless when vessel was stranded and returned to port and cargo was dis- 
 charged; Browning v. Provincial Ins. Co. L. R. 5 P. C. 263, 28 L. T. N. S. 853, 21 
 Week. Rep. 587, 2 Asp. Mar. L. Cas. 35, holding the loss of a cargo of flour did 
 not become total, where part of it was saved, until it was found impossible to 
 carry to destination and it had to be sold. 
 
 Cited in note in 5 E. R. C. 6S8, on total loss by detention of ship. 
 
 The decision of the Court of Common Pleas was cited in Musgrave v. Mannheim 
 Ins. Co. 32 N. S. 485, holding a recovery might be had for a total loss where the
 
 1 E. R. C. 27] NOTES OX ENGLISH RULING CASES. 6 
 
 vessel was disabled and the cargo was of such a nature as to require immediate 
 shipment, which was done by another vessel, the former boat going in for re- 
 pairs. 
 Recovery of freight on the constructive total loss of a vessel and cargo. 
 
 Cited in Cogan v. Commercial Mut. M. Ins. Co. 135 Mass. 328, holding an in- 
 sured was entitled to recover the expenses of shipping the quarter catch home 
 where there was a constructive total loss of the vessel at foreign port, but not 
 the freight paid for carrying it to the home port nor the cost of insurance thereon. 
 Duty of master of wrecked vessel with regard to the cargo. 
 
 Cited in Edward v. Gurney, 37 U. C. Q. B. 324, on duty of master with regard 
 to his cargo where his vessel is irreparably damaged. 
 Iiiahility of cargo for general average. 
 
 Cited in Chaffey v. Schooley, 40 TJ. C. Q. B. 165, holding the owner of a cargo 
 was not liable for a share of the general average it appearing the vessel was un- 
 seaworthy at the beginning, during and at the .end of the voyage. 
 Liability of owner of cargo for freight. 
 
 Cited in Anchor Ins. Co. v. Phoenix Ins. Co. 30 U. C. C. P. 570 (dissenting opin- 
 ion), on liability of owner of cargo for freight where cargo was not sent to port 
 of destination. 
 Right of master to sell vessel. 
 
 Cited in Churchill v. Nova Scotia M. Ins. Co. 28 N. S. 75, holding that master 
 is justified in selling vessel beached to prevent her sinking on island where she 
 could not be repaired. 
 
 The decision of the Court of Common Pleas was cited in Driscoll v. Millville M. 
 Ins. Co. 23 N. B. 160, on nature of necessity which will justify master in selling 
 vessel. 
 Necessity of giving notice of abandonment. 
 
 Cited in Rankin v. Potter, L. R. 6 H. L. 83, 42 L. J. C. P. N. S. 169, 29 L. 
 T. N. S. 142, 22 Week. Rep. 1, 2 Asp. Mar. L. Cas. 65, 1 Eng. Rul. Cas. 71, hold- 
 ing no notice of abandonment to the underwriters on freight was necessary where 
 the vessel being injured on the outward voyage the cost of repairs exceeded the 
 value of the ship when repaired and the freight to be earned. 
 
 The decision of the Court of Common Pleas was cited in McGhee v. Phoenix Ins. 
 Co. 28 N. B. 45, holding notice of an abandonment was not necessary to recover 
 as for a total loss, the evidence being sufficient to show that the vessel was a 
 total wreck as she lay on the shore; O'Leary v. Pelican Ins. Co. 29 N. B. 510, on 
 the necessity of giving notice of abandonment before selling the vessel; Harkley 
 v. Provincial Ins. Co. 18 U. C. C. P. 335, on necessity of giving notice of abandon- 
 ment; Kaltenbach v. Mackenzie, L. R. 3 C. P. Div. 467, 48 L. J. C. P. N. S. 9, 
 39 L. T. N. S. 215, 26 Week. Rep. 844, 4 Asp. Mar. L. Cas. 39, holding notice of 
 abandonment was necessary in order to recover for a constructive total loss 
 where the assured receives information that the vessel is in imminent danger of 
 becoming a total loss. 
 Kvidence of abandonment. 
 
 Cited in Rankin v. Potter, L. R. 6 H. L. 83, 2 Asp. Mar. L. Cas. 65, 29 L. T. N. 
 S. 142. 22 Week. Rep. 1, 42 L. J. C. P. N. S. 169, on sale of wreck as evidence of 
 election to abandon. 
 
 1 E. R. C. 37, FLEMING v. SMITH, 1 H. L. Cas. 513, 6 Bell, 278, affirming the 
 decisions of the Court of Session, reported in 4 Sc. Sess. Cas. 2d Series, 631.
 
 7 NOTES ON ENGLISH RULING CASKS. [1 E. R. ('. 46 
 
 Necessity of giving notice of abandonment. 
 
 Cited in Phoenix Ins. Co. v. McGhee, 18 Can. S. C. Gl (affirming 28 X. I'.. 45), 
 holding on facts the evidence of the total wreck of the vessel was such as not 
 to require any notice of abandonment; The Livingstone, 122 Fed. 278, on when 
 notice of abandonment is essential; Rankin v. Potter, L. R. 6 II. L. 83, 1 Eng. 
 Rul. Cas. 70, 42 L. J. C. P. N. S. 169, 29 L. T. X. S. 142, 22 Week. Rep. 1, 2 
 Asp. Mar. L. Cas. 65, holding notice of abandonment not necessary where the cost 
 of repairs exceeded the value of the vessel after repairing and the value of the 
 freight to be earned and that there was no election where the omitted notice 
 would have been useless 
 Right of abandonment. 
 
 Cited in Morton v. Patillo, 9 X. S. 17, holding a master might abandon a vessel 
 where the cost of repairing would amount to more than the vessel was worth. 
 
 1 E. R. C. 46, ROUX v. SALVADOR, 3 Bing. X. C. 266, 2 Hodges, 209, 4 Scott, 1, 
 7 L. J. Exch. X. S- 328, reversing the decision of the Court of Common Pleas, 
 reported in 1 Bing. X. C. 526, 1 Hodges, 49, 1 Scott, 491, 4 L. J. C. P. X. S. 
 156. 
 Total loss, what constitutes. 
 
 Cited in Wallerstein v. Columbian Ins. Co. 3 Robt. 528 (dissenting opinion), 
 on what constitutes a total loss; Crosby v. Xew York Mut. Ins. Co. 5 Bosw. 369, 
 holding that the loss is in its nature total to him who has no means of recovering 
 his property whether his inability arises from its annihilation or any insuperable 
 obstacle; Sherlock v. Globe Ins. Co. 1 Cin. Sup. Ct. Rep. 193, on when a recovery 
 may be had as for a total loss of a vessel; Phognix Ins. Co. v. McGhee, IS Can. 
 S. C. 61 (affirming 28 X. B. 45), holding a recovery might be had for a total loss 
 where the vessel was driven on the rocks and the tug which came to her assistance 
 refused to make the attempt to release her, although no notice of abandonment 
 given; Asfar v. Blundell [1S95] 2 Q. B. 196, [1896] 1 Q. B. 123, 64 L. J. Q. B. 
 X. S. 573, 73 L. T. X. S. 30, 15 Reports, 481, 65 L. J. Q. B. X. S. 138, 73 L. T. X. 
 S. 648, 44 Week. Rep. 130, 8 Asp. Mar. L. Cas. 106, holding there had been a total 
 loss under a policy insuring the profit on the charter freight where so much of the 
 cargo was damaged that the freight payable was less than the charter freight; 
 Cossman v. West, L. R. 13 App. Cas. 160, 57 L. J. P. C. X. S. 17, 58 L. T. X. S. 
 122, 6 Asp. Mar. L. Cas. 233, holding there was a total loss of a vessel and cargo 
 where after its abandonment by the crew it was found by salvors and brought 
 into port and sold; Potter v. Rankin, L. R. 5 C. P. 341, 1 Eng. Rul. Cas. 70, L. 
 R. 3 C. P. 562, 39 L. J. C. P. X. S. 147, holding there was no total loss of a right 
 to earn freight where the vessel was not impossible of repair but it was rendered 
 difficult because of the expense. 
 — Enforced sale consequent on peril insured against. 
 
 Cited in Anchor Marine Ins. Co. v. Keith, 9 Can. S. C. 483, holding a recovery 
 might be. had for a total loss where a vessel being damaged by striking on a reef 
 was obliged to put back to port where there being no facilities for repairs and 
 being unable to take her to a port where repairs might be made the master 
 stripped the vessel and sold at auction; Providence Washington Ins. Co. v. 
 Corbett, 9 Can. S. C. 256, holding there could be no recovery as for a total loss 
 where vessel was driven on shore and then sold by the master without attempting 
 to get it off and it was easily floated off by the purchaser without any serious 
 damage; Stringer v. English & S. M. Ins. Co. L. R. 4 Q. B. 676, 38 L. J. Q. B.
 
 1 E. R. C. 46] NOTES ON ENGLISH RULING CASES. 8 
 
 N. S. 321, holding where a vessel which is seized as a prize is sold by order of the 
 prize court it constitutes a total loss. 
 
 — Cargo sold or cast away as damaged. 
 
 Cited in Parsons v. Manufacturers' Ins. Co. 16 Gray, 463, holding no right to 
 recover for a total loss where the vessel was damaged and put into port for re- 
 pairs and part of the cargo being damaged it was thrown overboard and the re- 
 mainder reshipped by another vessel; Wallerstein v. Columbian Ins. Co. 44 N. Y. 
 204, 4 Am. Rep. 664, holding there may be a recovery for a total loss although 
 some of the goods may be brought into port in specie, the right to abandon being 
 exercised during the continuance of the peril ; Insurance Co. of N. A. v. Svendsen, 
 77 Fed. 220, on the right to recover as for the total loss of a cargo; Watson v. 
 Mercantile Marine Ins. Co. 9 N. S. 396, denying recovery as for total loss, when 
 cargo was damaged during storm and sold before reaching destination, where 
 cargo might have been sent to destination at expense less than its probable value 
 there; Saunders v. Baring, 34 L. T. N. S. 419, 3 Asp. Mar. L. Cas. 133, holding 
 a cargo of coal to be a total loss where it has become so damaged by sea as to 
 make an immediate sale necessary; Browning v. Provincial Ins. Co. L. R. 5 P. C. 
 263, 28 L. T. N. S. 853, 21 Week. Rep. 587, 2 Asp. Mar. L. Cas. 35, holding there 
 was a total loss of a cargo where although part of it was saved it was in such a 
 condition that an immediate sale was necessary and it could not be carried to 
 its place of destination. 
 
 Disapproved in Depeyster v. Sun Mut. Ins. Co. 17 Barb. 306, holding there could 
 be no recovery for the total loss of a cargo of hides where the greater part were 
 damaged by sea water, and destroyed by putrefaction, and the remainder sold 
 in a port of necessity as damaged hides. 
 
 — Perishables rendered incapable of transportation to destination. 
 Cited in De Peyster v. Sun Mut. Ins. Co. 19 N. Y. 272, 75 Am. Dec. 331, hold- 
 ing a recovery for a total loss may be had for perishable articles where so dam- 
 aged as incapable of being transported to port of destination; Tudor v. New 
 England Mut. M. Ins. Co. 12 Cush. 554, holding there might be a recovery for 
 a total loss on a cargo of ice where the vessel was compelled to put into port 
 having sprung a leak during a storm and the cargo having to be removed to 
 examine and repair the vessel was sold and the voyage abandoned; Williams v. 
 Kennebec Mut. Ins. Co. 31 Me. 455, on right to recover for a total loss of perish- 
 able goods; Fairbanks v. Union Marine Ins. Co. 3 N. S. 67, holding total loss, 
 where cargo of salt fish was injured by salt water and vessel so damaged that 
 she could not reach destination before fish would be spoiled. 
 
 — Total loss of voyage or freight. 
 
 Cited in Lord v. Neptune Ins. Co. 10 Gray, 109, holding the insurers of the 
 freight of a ship are not liable for a total loss where no total loss of the ship 
 occurs although obliged to put into port for repairs where the cargo is sold it 
 being damaged for more than half its value; Anchor Ins. Co. v. Phoenix Ins. Co. 
 30 U. C. C. P. 570 (dissenting opinion), on shipper as being liable for the freight 
 if the goods are capable of being delivered at the point of destination in specie; 
 Musgrave v. Mannheim Ins. Co. 32 N. S. 405, upholding recovery for total loss, 
 where vessel was disabled and cargo required immediate shipment, which was 
 done by another vessel, former boat going in for repairs; Movvat v. Boston Marine 
 Ins. Co. 33 N. B. 109, holding that total destruction of part of cargo, insured in 
 bulk, is not total loss of part. 
 
 Distinguished in Ogden v. General Mut. Ins. Co. 2 Duer. 204, holding that where 
 a part of the cargo had been jettisoned and another part injured by the seas, and
 
 9 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 46 
 
 the ship having returned to its port of clearance, and the remainder of the goods 
 forwarded in another boat, there was no total loss of the freight. 
 
 The decision of Court of Common Pleas was cited in Hugg v. Augusta Ins. & 
 Bkg. Co. 7 How. 595, 12 L. ed. 834, holding a recovery might be had upon an 
 insurance on freight where because of storms the vessel was put into port in a 
 leaking condition with its cargo of perishable goods in such bad condition that 
 the master sold as he could not carry forward and no vessel was procurable to 
 do so. 
 Recovery for total loss without abandonment. 
 
 Cited in Poole v. Protection Ins. Co. 14 Conn. 47, on when an abandonment not 
 essential to right to recover as for a constructive total loss; Crosby v. New York 
 Mut. Ins. Co. 19 How. Pr. 312; Merchants' & M. Ins. Co. v. Duffield, 2 Handy 
 (Ohio) 122, — on abandonment as essential to right of recovery under policy of 
 marine insurance. 
 
 Cited in note in 1 Eng. Rul. Cas. 46, 111, on right to claim total loss under 
 marine policy without abandonment. 
 
 The decision of Court of Common Pleas was cited in Smith v. Manufacturers 
 Ins. Co. 7 Met. 448, on when an abandonment is essential to the right to recover 
 for a total loss; Gallagher v. Taylor, 13 N. S. 279, holding a recovery might be 
 had for a total loss without notice of abandonment where the injuries were of 
 such a nature that the survey showed that the vessel could not be repaired so as 
 to be made tight. 
 
 — Perishables or wreck beyond possibility of saving. 
 
 Cited in Williams v. Cole & B. Ins. Co. 16 Me. 207, holding the damage to 
 perishables being of such a nature as to render them a nuisance a recovery for 
 a total loss might be had without an abandonment; McCall v. Sun Mut. Ins. Co. 
 66 N. Y. 505, holding an abandonment is not essential to recover for a total loss 
 where the vessel is injured and pronounced a complete wreck by the surveyors 
 whereupon the master sold her at public auction. 
 Total loss and constructive total loss distinguished. 
 
 Cited in Providence Washington Ins. Co. v. Corbett, 9 Can. S. C. 256, dis- 
 tinguishing between the right to recover for a total loss and a constructive total 
 loss. 
 Right to recover as for an average loss. 
 
 Cited in The Alsace Lorraine [ 1S93] P. 209, 62 L. J. Prob. N. S. 107, 1 Reports, 
 632, 69 L. T. N. S. 201, 42 Week. Rep. 112, 7 Asp. Mar. L. Cas. 362, holding there 
 could be no recovery for a particular average where the ship was stranded where 
 at time the cargo was on shore, part for the purpose of being sold as damaged 
 and the remainder awaiting the repairs of the ship. 
 
 The decision of the Court of Common Pleas was cited in London Assur. Co. 
 v. Companhia de Moagens, 167 U. S. 149, 42 L. ed. ]13, 17 Sup. Ct. Rep. 785 
 (affirming 68 Fed. 247, 15 C. C. A. 379, 2S U. S. App. 439), holding where a vessel 
 was injured by a collision while proceeding out to sea and during a storm shipped 
 water as a result of the collision, so as to damage the cargo and compel the 
 vessel to put into port and a sale of the cargo made a recovery might be had for 
 a particular average; Thames & M. M. Ins. Co. v. Pitts [1893] 1 Q. B. 476, 5 
 Reports, 168, 68 L. T. N. S. 524, 41 Week. Rep. 346, 7 Asp. Mar. L. Cas. 302, on 
 the right of insured to recover in respect to an average loss. 
 Right of abandonment of damaged vessel or cargo. 
 
 Cited in Fulton Ins. Co. v. Goodman, 32 Ala. 10S, holding a right to abandon a
 
 1 E. R. C. 46] NOTES ON ENGLISH RULING CASES. 10 
 
 vessel for a constructive total loss where it sunk from striking a snag, where the 
 general opinion was that it could not be raised although afterwards raised at a 
 cost of less than half its value; Phoenix Ins. Co. v. Anchor Ins. Co. 4 Ont. Rep. 
 524, holding the stranding of a vessel no grounds for abandoning as for a total 
 loss where the injuries were of a trifling nature and no difficulty was experienced 
 in getting the vessel off; Singer Mfg. Co. v. Western Assur. Co. Rap. Jud. Quebec 
 10 C. S. 379, holding where a lot of sewing machines were valued separately in 
 the policy of insurance, the insured may abandon such of them as are declared by 
 a survey to be a total loss: Meagher v. ^tna Ins. Co. 20 U. C. Q. B. 607, holding 
 that test of right to abandon vessel is whether under similar circumstances pru- 
 dent men would think it worth while to attempt to save and repair vessel : Mor- 
 ton v. Patillo, 9 N. S. 17, holding that master might abandon vessel, where cost 
 of repairing would amount to more than vessel was worth. 
 — Perishable cargo. 
 
 Cited in Delaware Ins. Co. v. Winter, 38 Pa. 176, holding a right to abandon 
 for a total loss existed where vessel with cargo of perishable goods was obliged 
 by storms to put back to port with its cargo in such a condition that it could not 
 be shipped in whole or in part to port of destination. 
 Necessity that notice of abandonment be given. 
 
 Cited in Harkley v. Provincial Ins. Co. IS U. C. C. P. 335, holding plaintiff could 
 not recover for a total loss, no notice of abandonment being given, where the 
 vessel was driven on the rocks but floated off without assistance and was then 
 lost through plaintiff's negligence; O'Leary v. Pelican Ins. Co. 29 N. B. 510, on 
 necessity of giving notice of abandonment before selling vessel; Rankin v. Potter, 
 L. R. 6H. L. 83, 42 L. J. C. P. N. S. 169, 29 L. T. N. S. 142, 22 Week. Rep. 1, 
 
 2 Asp. Mar. L. Cas. 65, 1 Eng. Rul. Cas. 70, holding no notice of abandonment was 
 necessary to the underwriters on freight where the cost of repairs of the vessel 
 would exceed the value of the vessel after repairing with the value of the freight 
 to be earned; Trinder, A. & Co. v. Thames & M. M. Ins. Co. [1898] 2 Q. B. 114, 
 67 L. J. Q. B. N. S. 666, 78 L. T. N. S. 485, 46 Week. Rep. 561, 8 Asp. Mar. L. 
 Cas. 373, 3 Com. Cas. 123, 14 Times L. R. 386, on the necessity of giving notice 
 of abandonment upon a constructive loss; Fleming v. Smith, 1 E. R. C. 37, 1 H. 
 L. Cas. 513, holding notice of abandonment necessary, where ship is driven into 
 port and captain writes owners that ship can be repaired. 
 
 Distinguished in Kaltenbach v. Mackenzie, L. R. 3 C. P. Div. 467, 39 L. T. N. S. 
 215, 26 Week. Rep. 844, 48 L. J. C. P. N. S. 9, 4 Asp. Mar. L. Cas. 39, holding 
 notice of abandonment necessary in order to recover for a constructive total loss 
 where the assured receives reliable information that the vessel is in imminent 
 danger of becoming a total wreck. 
 Subrogation of insurer to cause of action accruing to insured. 
 
 Distinguished in Clark v. Wilson, 103 Mass. 219, 4 Am. Rep. 532, on the right 
 of insurers to maintain an action to recover damages the right to which had 
 accrued to assured before abandonment. 
 
 Construction of use of words "loss*' and '•average" in policy of marine 
 insurance. 
 
 Cited in Hall v. Rising Sun Ins. Co. 1 Disney (Ohio) 308, holding the word 
 loss or average in clause of marine insurance policy is not confined to sea dam- 
 ages but extends to charges fixed upon the property by reason of the accident 
 itself.
 
 11 NOTES <)N ENGLISH RULING CASKS. |l E. R. C. 71 
 
 1 E. II. C. 71, RANKIN v. TOTTER, L. R. G H. L. 83, 2 Asp. Mar. L. Cas. 65, 
 29 L. T. N. S. 142, 22 Week. Rep. 1, 42 L. J. C. P. N. S. 169, affirming the 
 decision cf the Court of Exchequer Chamber, reported in L. R. 5 C. P. 341, 
 o9 L. J. C. P. N. S. 147, which reverses the decision of the Court of Common 
 Pleas, reported in L. R. 3 C. P. 562. 
 Necessity of making- an abandonment. 
 
 Cited in The Burlington, 73 Fed. 258, holding an abandonment not necessary 
 to vest title to the wrecked vessel in the insurer where the insured has been 
 paid for a total loss; Taber v. China Mut. Ins. Co. 131 Mass. 239, holding an 
 abandonment necessary where the vessel although a constructive total loss was in 
 a safe port and in no danger of further injury. 
 Right to abandon. 
 
 Cited in Providence Washington Ins. Co. v. Corbett, 9 Can. S. C. 256, holding 
 an abandonment and sale by the master of a stranded vessel was not justified 
 where it appeared that the master made no attempt to get her off and that the 
 purchaser floated her immediately; Barrs v. Merchants M. Ins. Co. 26 N. B. 339, 
 on the right to make an abandonment. 
 Right to recover as for a total loss. 
 
 Cited in Driscoll v. Millville M. Ins. Co. 23 N. B. 160, holding the owner of a 
 vessel was entitled to recover for a total loss of freight where the vessel is 
 damaged and the surveyors advise an abandonment, which is made, the cargo being 
 reshipped by another boat; Phcenix Ins. Co. v. Anchor Ins. Co. 4 Ont. Rep. 524. 
 holding no right existed to treat a vessel as a total loss where the vessel was 
 floated and the cost of salvage and repairs was less than the value of the vessel ; 
 Anchor Marine Ins. Co. v. Keith, 9 Can. S. C. 483, holding that where vessel was 
 so injured that she could not be taken into port at which necessary repairs could 
 be executed, mortgagee was entitled to recover for actual total loss, and no 
 notice of abandonment was necessary; Ruys v. Royal Exchange Assur. Corp. 
 [1897] 2 Q. B. 135, 66 L. J. Q. B. N. S. 534, 77 L. T. N. S. 23, 8 Asp. Mar. L. Cas. 
 294, holding where a vessel is captured by a war vessel and notice of abandonment 
 given, a return of the ship after the commencement of an action did not disentitle 
 owners to recover as for a total loss. 
 
 Cited in note in 24 E. R. C. 198, on ship retaining its character as such after 
 becoming unsea worthy. 
 
 The decision of the Court of Exchequer Chamber was cited in Hart v. Boston M. 
 Ins. Co. 26 N. S. 427, holding there could be no recovery for a total loss where a 
 vessel stranded and master made no attempt to get her off while the purchaser 
 floated her immediately. 
 — Of freight. 
 
 Cited in Troop v. Merchants' Marine Ins. Co. 13 Can. S. C. 506, holding the in- 
 sured might recover the freight where there was a constructive total loss of tlie 
 vessel and an abandonment made; Schofield v. Carvill, 21 N. B. 55S, on right to 
 recover as for a total loss of freight. 
 
 Distinguished in Marmaud . v. Melledge, 123 Mass. 173, holding on a con- 
 structive total loss of vessel where insurer refused to receive the abandonment 
 and repaired the vessel at less than cost and insured refused to accept but failed 
 to make any objections to repair, there could be no - recovery as for a total loss of 
 "freight. 
 Notice of abandonment as essential to right to recover for a total loss. 
 
 Cited in Churchill v. Nova Scotia M. Ins. Co. 28 X. S. 52, holding notice of
 
 1 E. R. C. 71] NOTES ON ENGLISH RULING CASES. 12 
 
 abandonment not necessary where the owners on learning that the vessel has been 
 so injured as to be a proper subject for abandonment also learn that there has 
 been a justifiable sale by the master; Gallagher v. Taylor, 5 Can. S. C. 368 (re- 
 versing 13 N. S. 279), holding there could be no recovery for a total loss, no 
 notice of abandonment being given, where the master sold the vessel without at- 
 tempting to get it ofY and the purchaser got it off and floated it; Watson v. 
 Mercantile M. Ins. Co. 9 N. S. 396; Singer Mfg. Co. v. Western Assur. Co. Rap. 
 Jud. Quebec 10 C. S. 379; Phcenix Ins. Co. v. McGhee, 18 Can. S. C. 61 (reversing 
 28 N. B. 45), — on notice of abandonment as essential to right to recover for a 
 total loss; Trinder v. Thames & M. M. Ins. Co. [1898] 2 Q. B. 114, 8 Asp. Mar. L. 
 Cas. 373, 67 L. J. Q. B. N. S. 666, 78 L. T. N. S. 485, 14 Times L. R. 386, 46 Week. 
 Rep. 561, on notice of abandonment as essential to right to recover as, for a total 
 loss. 
 
 Distinguished in Dickie v. Merchants' Marine Ins. Co. 16 N. S. 244, holding no 
 liability on part of insurers where no notice of abandonment was given, the vessel 
 being put back into port and kept afloat and then sold because there was no facil- 
 ities there for making repairs. 
 — As to loss of freight. 
 
 Distinguished in Patch v. Pitman, 19 N. S. 298, holding there could be no 
 recovery for a total loss of freight, no notice of abandonment being given where 
 on the abandonment of the ship the cargo was reshipped without notice to in- 
 surer. 
 Abandonment and notice of abandonment distinguished. 
 
 Cited in Kaltenbach v. Mackenzie, L. R. 3 C. P. Div. 467, 48 L. J. C. P. N. S. 
 9, 39 L. T. N. S. 215, 26 Week. Rep. 844, 4 Asp. Mar. L. Cas. 39, distinguishing 
 between abandonment and notice of abandonment. 
 Constructive total loss converted into a partial loss. 
 
 Cited in O'Leary v. Pelican Ins. Co. 29 N. B. 510, on what necessary to con- 
 vert a constructive total loss into a partial loss. 
 Computation to ascertain constructive total loss. 
 
 Cited in Angel v. Merchants' M. Ins. Co. [1903] 1 K. B. 811, 72 L. J. K. B. N. S. 
 498, 51 Week. Rep. 530, 88 L. T. N. S. 717, 19 Times L. R. 395, 9 Asp. Mar. L. 
 Cas. 406, holding in determining whether there had been a constructive total loss 
 the ship owner was not entitled to add the value of the wreck to the cost of re- 
 pair. 
 Nature of contract of insurance. 
 
 Cited in Hurd v. Doty, 80 Wis. 1, 21 L.R.A. 746, 56 N. W. 371, on nature of 
 contract of life insurance. 
 Right to recover for a loss of freight. 
 
 Cited in Jackson v. Union M. Ins. Co. L. R. 8 C. P. 572, L. R. 10 C. P. 125, 42 
 L. J. C. P. N. S. 284, 22 Week. Rep. 79, 44 L. J. C. P. N. S. 27, 31 L. T. N. S. 
 789, 23 Week. Rep. 169, 6 Eng. Rul. Cas. 650, holding a ship owner might recover 
 from assured for a loss of freight where the vessel was cast on the rocks and the 
 charterer being unable to wait until repairs were- made shipped by another ves- 
 sel; Inman S. S. Co. v. Bischoff, L. R. 7 App. Cas. 670, 52 L. J. Q. B. N. S. 169, 
 47 L. T. N. S. 5S1, 31 Week. Rep. 141, 5 Asp. Mar. L. Cas. 6, holding underwriters 
 not liable for a loss of freight where charterers by reason of an abatement clause 
 in contract refuse to pay freight after a certain date because of the unseaworthy 
 condition of the ship; Thu Alps [1893] P. 109, 62 L. J. Prob. N. S. 59, 1 Reports, 
 587, 68 L. T. N. S. 624, 41 Week. Rep. 527, 7 Asp. Mar. L. Cas. 337, holding the
 
 13 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 112 
 
 underwriters liable for freight where because of a fire which laid the vessel up 
 for a period of time the charterers in reliance upon an abatement clause in the 
 contract refused to pay for that period. 
 Liability of freight for general average. 
 
 The decision of Court of Common Pleas was cited in Steamship Carisbrook Co. 
 v. London & P. M. & General Ins. Co. [1901] 2 K. B. 861, 70 L. J. K. B. N. S. 
 930, 50 Week. Rep. 42, 17 Times L. R. 764, [1902] 2 K. B. 681, 71 L. J. K. B. 
 N. S. 978, 50 Week. Rep. 691, 87 L. T. N. S. 41S, 18 Times L. R. 783, 9 Asp. Mar. 
 L. Cas. 332, holding where a ship chartered to proceed to a foreign port and bring 
 back cargo, is stranded on the outward voyage, but continued voyage after mak- 
 ing repairs and brought back the cargo, the chartered freight was liable to con- 
 tribute to the general average. 
 
 Commencement of insurance. 
 
 Cited in note in 13 E. R. C. 713, as to when risk commences on insurance of 
 chartered freight. 
 
 Distinguished in Beckett v. West of England M. Ins. Co. 25 L. T. N. S. 739, 1 
 Asp. Mar. L. Cas. 185, where an "at and from" policy was coupled with a clause 
 that insurance should commence with "loading ... at as above" and the 
 loading was never completed. 
 Insurance on chartered freight. 
 
 Cited in note in 13 E. R. C. 312, on right to insure expectant value or profits 
 from success of adventure. 
 
 Effect of abandonment on rights to ship. 
 
 Cited in Barrs v. Merchants' Marine Ins. Co. 26 N. B. 339, holding that under- 
 writers by abandonment of ship become entitled to portion of freight earned after 
 damage to ship. 
 
 1 E. R. C. 112, HAMILTON v. MENDEZ, 1 W. Bl. 276, 2 Burr. 1198. 
 Existing conditions as sole ground for abandonment of vessel. 
 
 Cited in Watson v. Insurance Co. of N. A. 1 Binn. 47, on right of abandonment 
 when exists; Shepherd v. Henderson, L. R. 7 App. Cas. 49. holding no constructive 
 total loss existed where at time of notice of abandonment there was a reasonable 
 prospect that the vessel might be gotten off. 
 
 Cited in note in 1 E. R C. 12S, 129, 131, on criterion of time in cases of aban 
 donment and total loss under marine policy. 
 — Later favorable conditions. 
 
 Cited in Hallett v. Peyton, 1 Cai. Cas. 28, holding there could be no recovery 
 for a total loss where a vessel is captured and restoration made although the 
 abandonment was made before knowledge of the restoration received; Kenny v. 
 Halifax Marine Ins. Co. 1 N. S. 141, upholding recovery for total loss, where at 
 time of abandonment, vessel was total loss, though heavy gale afterwards blew her 
 off rocks and she was brought into port without serious damage; Bainbridge v. 
 Neilson, 1 Campb. 237, 10 East, 329, 1 Eng. Rul. Cas. 121, holding recapture at 
 small salvage and expense so that voyage is worth pursuing nullifies the abandon- 
 ment made on tidings of capture. 
 Ground for abandonment. 
 
 Cited in Gilfert v. Hallet, 2 Johns. Cas. 296, holding a right to abandon for a 
 total loss existed where pirates seized part of the cargo and the vessel because of 
 weather and want of provisions was forced to put into a port where the remaining
 
 1 E. R. C. 112] NOTES ON ENGLISH RULING CASES. 14 
 
 goods were sold and the voyage broken up; Dickey v. New York Ins. Co. 4 Cow. 
 222, considering when an abandonment must be made; Ruckman v. Merchants' 
 Louisville Ins. Co. r Duer, 342, holding that loss of the voyage is not a valid 
 and sufficient cause for abandonment; King v. Middletown Ins. Co. 1 Conn. 183 
 (dissenting opinion), on right of insured to abandon for a total loss; Beale v. 
 Pettit, 1 Wash. C. C. 241, Fed. Cas. No-. 1,158, on no right to abandon as existing 
 where notice was had of the recovery of the vessel being captured; Hart v. 
 Boston M. Ins. Co. 26 N. S. 427, holding there could be no recovery for a total 
 loss where a vessel is stranded and no steps are taken to get her off while the 
 purchaser gets her up immediately without further trouble; Providence Washing- 
 ton Ins. Co. v. Corbett, 9 Can. S. C. 256, holding no right to recover for a total 
 loss where a vessel was driven ashore and the master without attempting to float 
 sold her and the purchaser immediately and without difficulty floated her off; 
 Roux v. Salvador, 1 E. R. C. 46, 3 Bing. N. C. 266, 7 L. J. Exch. N. S. 328, on 
 rules on subject of abandonment. 
 
 Distinguished in Goold v. Shaw, 1 Johns. Cas. 293, holding no right to abandon 
 a ship and recover for a total loss existed where the ship was compelled to put 
 in for repairs and the cargo sold because of danger of spoiling and the voyage 
 broken up where the vessel might have been repaired for less than half her value. 
 
 — Vessel saved after peril and attempted abandonment. 
 
 Cited in Peele v. Merchants' Ins. Co. 3 Mason, 27, Fed. Cas. No. 10,905, holding 
 the insured had a right to abandon a vessel where it was cast on the rocks and 
 it appeared that there was no chance to get it off and that it would become a 
 total wreck although by reason of extremely good weather and good fortune it 
 was gotten off; Oliver v. Newburyport Ins. Co. 3 Mass. 37, 3 Am. Dec. 77, hold- 
 ing the insured was entitled to recover for only a partial loss where the ship 
 was captured and recaptured and sold to satisfy the claims for salvage the master 
 purchasing where the owners offered to abandon the proceeds of the sale but not 
 the ship. 
 
 — Vessel captured and recaptured or released. 
 
 Cited in Queen v. Union Ins. Co. 2 Wash. C. C. 331, Fed. Cas. No. 11,505, 
 holding no right of abandonment existed where a ship was captured and re- 
 captured and sold for salvage and purchased by the captain for the benefit of 
 all concerned; De Peau v. Russel, 1 Brev. 441, 2 Am. Dec. 676, holding owner had 
 no right to abandon on the ground that the voyage was- broken up by a capture of 
 the vessel after hearing of her release and safe arrival at port of destination; 
 Marine Ins. Co. v. Tucker, 3 Cranch, 357, 2 L. ed. 466, holding there might be a 
 recovery for a total loss where a vessel is captured and then recaptured, the 
 voyage being broken up, where no evidence that the vessel wasn't damaged and 
 selling at the salvage sale for far less than her value; Ruys v. Royal Exchange 
 Assur. Corp. [1897] 2 Q. B. 135, 66 L. J. Q. B. N. S. 534, 77 L. T. N. S. 23, 8 Asp. 
 Mar. L. Cas. 294, holding a ship owner was not disentitled to recover as for a 
 total loss of a ship captured as a prize, notice of abandonment having been 
 given, where ship returned after the action was commenced. 
 Total loss how converted into a partial loss. 
 
 Cited in O'Leary v. Pelican Ins. Co. 29 N. B. 510, on how a constructive total 
 loss is converted into a partial loss. 
 Time of liability oai policy of marine insurance. 
 
 Cited in Smith v. Steinbach, 2 Cai. Cas. 158, holding that insurance at and 
 from foreign port commences at time goods are first on board.
 
 15 NOTES o\ ENGLISH RULING CASKS. j 1 E. R. C. 121 
 
 Distinguished in Whiting v. Independent Mut. Ins. Co. 15 Md. 297, holding the 
 liability of an underwriter on a marine insurance policy became fixed as soon as 
 the loss occurred. 
 
 Indemnity nature of contract of insurance. 
 
 Cited in Exchange Bank v. Loh, 104 Ga. 447, 44 L.R.A. 372, 31 S. E. 459, hold- 
 ing creditor has an insurable interest in debtor's life for indemnity but none 
 otherwise; Eagle Ins. Co. v. Lafayette Ins. Co. 9 Ind. 443, holding reassurance 
 to be a contract of indemnity; Charleston Ins. & T. Co. v. Neve, 2 McMull. L. 
 237, holding an assignee of a policy of fire insurance might recover as to the 
 amount of his interest under it; Mathewson v. Western Assur. Co. 10 Lower Can. 
 Rep. 8, holding the assignee of a debt who insures the buildings as security for 
 the debt cannot recover on the policy when buildings destroyed were rebuilt and 
 restored to their original condition and value by the owner; Robert v. Traders' 
 Ins. Co. 17 Wend. 631; Illinois Mut. Ins. Co. v. Andes Ins. Co. 67 111. 362, 16 Am. 
 Rep. 620, 7 Legal Gaz. 302, — on contract of insurance as being one of indemnity; 
 Robert v. New England Mut. Ins. Co. 2 Disney (Ohio) 106; Connecticut Mut. L. 
 Ins. Co. v. Schaefer, 94 U. S. 457, 24 L. ed. 251, — on nature of contract of life 
 insurance; Rankin v. Potter. L. R. 6 H. L. S3, 42 L. J. C. P. N. S. 169, 29 L 
 T. N. S. 142, 22 Week. Rep. 1, 2 Asp. Mar. L. Cas. 65, 1 Eng. Rul. Cas. 70, on 
 contract of marine insurance being a contract of indemnity; Dalby v. India & 
 London Life Assur. Co. 13 E. R. C. 383, 24 L. J. C. P. N. S. 2, 15 C. B. 365, 18 
 Jur. 1024, holding that life insurance policy is not contract to indemnify against 
 loss like marine policy. 
 
 1 E. R C. 121, BAINBRIDGE v. NEILSON, 1 Campb. 237, 10 East, 329, 10 
 
 Revised Rep. 316. 
 Constructive total loss reduced to partial loss after abandonment. 
 
 Cited in O'Leary v. Pelican Ins. Co. 29 N. B. 510, on how what was a con- 
 structive total loss at time of abandonment may be converted into a partial 
 loss; Kenny v. Halifax Marine Ins. Co. 1 N. S. 141, holding there could be re- 
 covery for a total loss where at time abandonment was made it appeared that 
 vessel was a total loss though a heavy gale afterwards blew her off the rocks and 
 she was brought into port without serious damage; Bradlie v. Maryland Ins. Co. 
 12 Pet. 378, 9 L. ed. 1123, on right to convert what was a constructive total loss 
 into a partial loss; Sailing Ship "Blairmore" Co. v. Macredie [1898] A. C. 593, 
 holding where a vessel was sunk by a squall and notice of abandonment made, the 
 underwriters could not by raising and saving her from being a constructive loss, 
 change a constructive total loss into a partial loss. 
 
 Cited in note in 1 E. E. C. 12S, 129, on criterion of time in cases of abandon- 
 ment and total loss under marine policy. 
 
 Distinguished in Ruys v. Royal Exchange Assur. Corp. [1897] 2 Q. B. 135, 
 holding a ship owner was not disentitled to recover for a total loss where the 
 vessel was captured and notice of abandonment given where the ship was re- 
 turned after the commencement of the action. 
 Conclusiveness of an abandonment. 
 
 Disapproved in Peele v. Merchants' Ins. Co. 3 Mason, 27, Fed. Cas. No. 10,905, 
 considering the conclusiveness of an abandonment and holding it not destructible 
 by facts subsequent to those on which it was based. 
 Right and grounds of abandonment. 
 
 Cited in Norton v. Lexington F. L. & M. Ins. Co. 16 111. 235 (dissenting opin- 
 ion), on the right of abandonment for a constructive total loss; Pezant v. Na-
 
 1 E. R. C. 121] NOTES ON ENGLISH RULING CASES. 16 
 
 tional Ins. Co. 15 Wend. 453, holding no right to abandon for a total loss existed 
 where the vessel arrived safely at port of destination in a reparable state. 
 
 Cited in notes in 1 E. R. C. 17, as to when abandonment may be made and 
 total loss claimed under marine policy; 1 E. R. C. 131, on criterion of time in 
 cases of abandonment and total loss under marine policy. 
 
 Insurance as contract of indemnity. 
 
 Cited in Illinois Mut. F. Ins. Co. v. Andes Ins. Co. 67 111. 362, 16 Am. Rep. 
 620, 7 Legal Gaz. 302, on contract of insurance as one of indemnity; Eagle Ins. 
 Co. v. Lafayette Ins. Co. 9 Ind. 443, holding reassurance to be contract of in- 
 demnity. 
 
 1 E. R. C. 132, MITCHELL v. EDIE, 1 T. E. 608, 1 Revised Rep. 318. 
 Time for declaring or electing abandonment. 
 
 Cited in Smith v. Steinbach, 2 Cai. Cas. 158, holding abandonment never too 
 late if loss continue total at time of commencement of action; Livermore v. New- 
 buryport M. Ins. Co. 1 Mass. 264, holding the owner of a vessel waived his right 
 to give notice of abandon where he waited over a month after learning of the de- 
 tention of the ship before giving such; Norton v. Lexington F. L. & M. Ins. Co. 
 16 111. 235 (dissenting opinion) ; Russel v. Union Ins. Co. 4 Dall. 421, 1 L. ed. 
 892; Parker v. Towers, 2 Browne (Pa.) 80, Appx.; Peele v. Merchants' Ins. Co. 
 3 Mason, 27, Fed. Cas. No. 10,905, — on the necessity that an abandonment be 
 made within a reasonable time; Dickey v. New York Ins. Co. 4 Cow. 222, con- 
 sidering where an abandonment must be made; Rankin v. Potter, L. R. 6 H. L. 
 83, 42 L. J. C. P. N. S. 169, 29 L. T. N. S. 142, 22 Week. Rep. 1, 2 Asp. Mar. L. 
 Cas. 65, 1 Eng. Rul. Cas. 70, holding an abandonment by a ship owner was made 
 on sufficient time where the vessel being damaged on the outward voyage, con- 
 tinued on its way after slight repairs were made, and after the refusal of the 
 charterer to load the vessel was examined and it was found the cost of repairs 
 would exceed the value of the ship as repaired and the value of the freight to be 
 earned. 
 Necessity of giving notice of abandonment. 
 
 Cited in Townsend v. Phillips, 2 Root, 400, holding plaintiffs could not recover 
 for a constructive total loss of a vessel where no notice of abandonment was 
 given; King v. Western Assur. Co. 7 U. C. C. P. 300, on necessity of notice of 
 abandonment being given in order to recover for a constructive total loss; Oliver 
 v. Newburyport Ins. Co. 3 Mass. 37, 3 Am. Dec. 77, on necessity of insured 
 giving notice of intention to abandonment; Roux v. Salvador, 1 E. R. C. 
 46, 3 Bing. N. C. 266. 7 L. J. Exch. N. S. 328, holding that where owner is dis- 
 abled from recovering in specie thing insured there is total loss, without necessity 
 of notice of abandonment. 
 Right and grounds of abandonment. 
 
 Cited in American Ins. Co. v. Ogden, 15 Wend. 532, holding the inability ot 
 master to procure the necessary funds to make the repairs is a good ground for 
 an abandonment although the vessel is in the port of destination; Gilfert v. 
 Hallet, 2 Johns. Cas. 296, holding the right existed to abandon a cargo where the 
 vessel because of storms and meeting with pirates was compelled to put into 
 port for provisions and repairs, a large part of the cargo being taken by the 
 pirates; Armroyd v. Union Ins. Co. 3 Binn. 437, on the right of abandonment; 
 Deblois v. Ocean Ins. Co. ]6 Pick. 303, 28 Am. Dec. 245, on the right of abandon- 
 ment for technical total losses.
 
 J7 NOTES ON ENGLISH RULING CASES. |1 E. R. C. Hi 
 
 Right to recover as for an average loss on waiver of abandonment. 
 
 Cited in Suydam v. Marine Ins. Co. 2 Jolins. 13S, holding the failure to aban- 
 don a cargo where grounds existed for such abandonment did not prevent the 
 assured from recovering as for an average loss; Watson v. Insurance Co. of N '. A. 
 1 Binn. 47, holding same when plaintiff proves a capture and condemnation of 
 the property but no abandonment made; Radcliff v. Coster, Hoffm. Ch. 98, on the 
 mode of adjusting an average loss. 
 What constitutes a total loss. 
 
 Cited in Alexander v. Baltimore Ins. Co. 4 Cranch, 370, 2 L. ed. 650, on what a 
 total loss consists in; Saunders v. Baring, 34 L. T. N. S. 419, 3 Asp. Mar. L. Cas. 
 133, holding the owner of a cargo of coal which has become so damaged during 
 a storm as to render an immediate • sale necessary, entitles owner to recover as 
 for a total loss. 
 
 1 E. R. C. 141, CASE v. DAVIDSON, 5 M. & S. 70, affirmed in Exchequer Cham- 
 ber, reported in 5 J. B. Moore, 116, 2 Brod. & B. 379, 8 Price, 542, 17 Revised 
 Rep. 280. 
 Rights passing to abandonee of ship. 
 
 Cited in The Red Sea, 65 L. J. Adm. 9, [1896] P. 20, 73 L. T. N. S. 462, 44 
 Week. Rep. 306. 8 Asp. Mar. L. Cas. 102, holding on the abandonment of a strand- 
 ed vessel for a constructive total loss, cash advances by the charterers to the 
 master for ship's disbursements did not pass to the underwriters, the cargo bavin:.' 
 been delivered. 
 Subrogation of insurer to rights of insured. 
 
 Cited in The Atlas (Phcenix Ins. Co. v. The Atlas), 93 U. S. 302, 23 L. ed. 863, 
 on suit as maintainable for the insurer against wrong-doer in the name of the 
 injured party; Midland Ins. Co. v. Smith, L. R. 6 Q. B. Div. 561, 50 L. J. Q. B. 
 N. S. 329, 45 L. T. N. S. 411, 29 Week. Rep. 850, 45 J. P. 699, holding an insur- 
 ance company could not maintain in its own name an action against the wife of 
 the assured who feloniously burned the insured property. 
 
 1 E. R. C. 149, DAVIDSON v. CASE, 17 Revised Rep. 280, 5 J. B. Moore, 116, 2 
 Brod. & B. 379, 8 Price, 542, affirming the decision of the Court of King's 
 Bench, reported in 5 Maule & S. 79. 
 
 Effect of abandonment to transfer title to abandonee. 
 
 Cited in Harkley v. Provincial Ins. Co. 18 U. C. C. P. 335, on the effect of notice 
 
 of abandonment on the title of a ship. 
 
 — Rights in freight on abandonment of ship. 
 
 Cited in Lord v. Neptune Ins. Co. 10 Gray, 109; Atlantic Ins. Co. v. Storrow, 1 
 Edw. Ch. 621; Buffalo City Bank v. Northwestern Ins. Co. 30 N. Y. 251, — on 
 underwriters after the abandonment of a vessel being entitled to freight subse- 
 quently earned; Keith v. Burrows, L. R. 2 App. Cas. 636, 46 L. J. C. P. N. S. 801, 
 37 L. T. N. S. 291, 25 Week. Rep. 831, 3 Asp. Mar. L. Cas. 481, on the underwriters 
 as being entitled to receive the freight carried by the ship on its abandonment. 
 
 — Liability of abandonee. 
 
 Cited in Hammond v. Essex F. & M. Ins. Co. 4 Mason, 196, Fed. Cas. No. 6,001, 
 holding after the acceptance of an abandonment by the insurers they are liable 
 for the seamen's wages from such time. 
 Notes on E. R. C. — 2.
 
 1 E. R. C. io6] NOTES ON ENGLISH RULING CASES. 18 
 
 1 E. R. C. 156, DOCKWRAY v. DICKENSON, Comb. 366, Skinner, 640. 
 Necessity of pleading in abatement nonjoinder of proper parties. 
 
 Cited in Wheelwright v. Depeyster, 1 Johns. 471, 3 Am. Dec. 345, holding in 
 an action of trover by a joint owner the defendant cannot on the trial take ad- 
 vantage of plaintiff's failure to join others jointly interested; Newton v. Reardon, 
 
 2 Cranch, C. C. 49, Fed. Cas. No. 10,192, holding in an action for the use and 
 occupation of land by one of joint tenants the defendant may take advantage of 
 the failure to join other joint tenants without pleading it in abatement. 
 
 Distinguished in Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 551, holding in 
 an action of tort by one of joint tenants for an injury to the personal estate upon 
 a failure to plead the nonjoinder of parties, svich fact may not be given in evidence 
 in diminution of damages. 
 Right of party having joint interest in property to recover for conversion. 
 
 Cited in Paterson v. Thompson, 9 Ont. App. Rep. 326, on right of party having 
 a joint interest in propertj 7 to maintain an action for its conversion. 
 Justification of order or right. 
 
 Cited in Talbot v. Three Brigs, 1 Dall. 95, 1 L. ed. 52, holding one wishing to 
 justify a capture as prize must show a well founded right to do so. 
 Joinder of plaintiffs. 
 
 Cited in notes in 8 E. R. C.639, on necessity of execution of deed by attorney 
 in name of principal: 15 E. R. C. 445, on parties plaintiff in action on covenant 
 in joint demise by tenant" in common. 
 
 1 E. R. C. 167, BOULSTON v. SANDIFORD, Skinner, 278, s. c. sub. nom. Boson 
 v. Sandford, Carth. 58, Comb. 116, Freem. C. L. 499, 1 Shower, 101, 3 Lev. 
 258, 1 Shower, 29, 2 Shower, 479, 2 Salk. 440, 3 Salk. 203, 3 Mod. 321, 
 .Molloy, 312. 
 Duty resting on common carrier to carry goods for hire. 
 
 Cited in Doty v. Strong, 1 Pinney (Wis.) 313, Burnett (Wis.) 158, 40 Am. 
 Dec. 773, holding a person holding himself out to the public as a carrier of 
 freight was liable for the damages caused by his refusal to carry the goods of 
 the plaintiff; Dorr v. New Jersey Steam Nav. Co. 11 N. Y. 484, 62 Am. Dec. 125; 
 Jones v. Sims, 9 Port. (Ala.) 236, 33 Am. Dec. 313, — on liability of common 
 carrier refusing to carry goods for hire. 
 Inability of common carrier. 
 
 Cited in Hollister v. Nowlen, 19 Wend. 234, 32 Am. Dec. 455, holding a com- 
 mon carrier was liable for the loss of a passenger's baggage, although they had 
 given a general notice that baggage was carried at the risk of the owner; Galena 
 & C. Union R. Co. v. Kae, 18 111. 490, 68 Am. Dec. 574, holding that railroad 
 company may be held liable for damages sustained by reason of its servants, 
 giving preference to one person over another because of bribes or other improper 
 motives; Southern Exp. Co. v. Craft, 49 Miss. 480, 19 Am. Rep. 4, holding that 
 shipper is party in interest to contract and carrier cannot object to recovery by 
 him unless consignee objects, or in absence of objection by consignee it will be 
 presumed that he consented. 
 Nonjoinder of defendants as ground for abatement. 
 
 Cited in McFadden v. Haley, 1 Brev. 96, holding that in action of trespass by 
 widow to try title to land, nonjoinder of co-heirs can be taken advantage of only 
 by plea in abatement; Bank of Orange v. Brown, 3 Wend. 158, holding that plea 
 in abatement that all proprietors of steamboats were not joined in action against
 
 19 NOTES ON ENGLISH RULING I A.SES. Li E. R. 0. L75 
 
 them as common carriers for loss of property, was bad, where gravaman of action 
 was breach of duty; Mitchell v. Tarbutt, 1 E. R. C. 183, 5 T. R. 649, 2 Revised 
 Rep. 6S4, holding that defendant in negligence case cannot plead in abatement 
 nonjoinder of other joint wrong doers. 
 
 Cited in note in 1 E. R. C. 171, 173, 187, on nonjoinder of defendants as 
 ground for abatement. 
 
 Disapproved in Jones v. Pitcher, 3 Stew. & P. (Ala.) 135, 24 Am. Dec. 716, 
 holding that non-joinder of co-defendant in action ex contractu can only be taken 
 advantage of by plea in abatement. 
 Proper parties defendant. 
 
 Cited in YYeatherford v. Fishback, 4 111. 170, holding that servant may be sued 
 for deceit. 
 Actions on contract. 
 
 Cited in Colwell v. New York & E. R. Co. 9 How. Pr. 311, holding that com- 
 plaint alleging agreement to carry cattle and breach of agreement and loss by 
 reason of furnishing insufficient cars, states action founded upon contract; Bates 
 v. Reynolds, 7 Bosw. G85, holding that complaint alleging that two persons, 
 common carriers, undertook to convey and deliver certain goods, and that through 
 their negligence such goods were wholly lost states action on contract, where de- 
 fendants are jointly liable; Milwaukee v. Hale, 1 Dougl. (Mich.) 306, holding 
 that where certain counts in complaint set forth contract and breach of same, 
 allegation as to violation of duty does not necessarily make action one in tort; 
 Wright v. Geer, 6 Vt. 151, 27 Am. Dec. 538, holding that in action against two 
 defendants, setting forth joint contract to erect mill, and declaring for mis- 
 feasance in spoiling work, recovery cannot be had without proving joint con- 
 tract; Vail v. Strong, 10 Vt. 457, holding that where cause of action originates 
 in contract, and declaration, in form, counts on contract, contract must be proved 
 as laid. 
 Dissenting opinion as authority. 
 
 Cited in note in 7 E. R. C. 178, on dissenting opinion as authority. 
 Release of joint obligors. 
 
 Cited in note in 21 E. R. C. 661, on release of one as release of all persons 
 joined in joint bond. 
 Master as agent of shipowners. 
 
 Cited in The Underwriter, 119 Fed. 713, holding that master had no authority 
 to bind owner for coal, where charter party provided that charterer should pro- 
 vide coal used by vessel and that master should be under orders of charterer; 
 Starr v. Knox, 2 Conn. 215 (dissenting opinion), to point that owner is liable 
 for necessary disbursements in repairs and supplies procured by master during 
 voyage; Blanchard v. Page, 8 Gray, 281, holding .that bill of lading though made 
 by master, is considered in law as having been made by error. 
 Waiver of objection. 
 
 Cited in Christian & C. Co. v. Dantzler Lumber Co. 78 Miss. 74, 28 So. 788, 
 to the point that taking of judgment without revivor is waived by not objecting 
 in trial court. 
 
 1 E. R. C. 175, KENDALL v. HAMILTON, L. R. 4 App. Cas. 504, 41 L. T. N. S. 
 
 418, 28 Week. Rep. 97, 4S L. J. C. P. N. S. 705. 
 Merger of claims and contract rights in judgment. 
 
 (?ited in Harper v. Harper, 2 B. C. 15, holding that plaintiff's rights as a
 
 1 E. R. C. 175J NOTES ON ENGLISH RULING CASES. 20 
 
 legatee were merged into those of a judgment creditor by his procurement of a 
 judgment for unpaid legacy; Smart v. Moir, 7 Manitoba L. Rep. 5G5, holding 
 on tinal judgment being signed the original cause of action is merged into the 
 judgment; Westmoreland Green & Blue Slate Co. v. Feilden [1891] 3 Ch. 15, 60 
 L. J. Ch. N. S. 680, 65 L. T. N. S. 428, 40 Week. Rep. 23, holding that cause of 
 action for payment of calls made before winding-up of company is not merged in 
 balance order made in winding-up for amount of calls. 
 
 Distinguished in Wegg-Prosser v. Evans [1894] 2 Q. B. 101 [1895] 1 Q. B. 108, 
 64 L. J. Q. B. N. S. 1, 9 Reports, 830, 43 Week. Rep. 66, holding that where suit 
 is brought on a check and judgment not satisfied such judgment is not a bar to 
 an action against a co-obligor by way of guaranty, being different causes of 
 action. 
 
 — Partnership and individual debts. 
 
 Cited in Cambefort v. Chapman, L. R. 19 Q. B. Div. 229, 56 L. J. Q. B. N. S. 
 639, 57 L. T. N. S. 625, 35 Week. Rep. 838, 51 J. P. 455, holding that a suit to 
 judgment against a partner in the firm name is a bar to an action against the 
 other partner on same debt the obligation being joint only and the right of 
 action merging into the judgment; Munster v. Cox, L. R. 10 App. Cas. 680, 55 
 L. J. Q. B. N. S. 108, 53 L. T. N. S. 474, 34 Week. Rep. 461, holding that a judg- 
 ment against a partnership may not be amended so as to include a dormant and 
 concealed partner, the right of action in that case becoming rem judicatour; Ex 
 parte Chandler, L. R. 13 Q. B. Div. 50, 50 L. T. N. S. 635, holding that a partner- 
 ship debt is not necessarily joint and several and that a separate cause of 
 action is not merged into a joint judgment; Re Hodgson, L. R. 31 Ch. Div. 177, 
 55 L. J. Ch. N. S. 241, 54 L. T. N. S. 222, 34 Week. Rep. 127, holding that where 
 creditors of partnership are allowed dividend out of estate of deceased partner 
 such allowance is not a bar to an action against the estate of other partner on 
 the same debt but that separate creditors must be allowed dividends out of 
 separate estate of deceased partner in preference to joint creditor, the creditor 
 not having several rights in separate estate. 
 
 — Election to sue agent or principal as a bar to action against both. 
 Cited in Sessions v. Block, 40 Mo. App. 569, holding that recovery of judgment 
 
 against the agent after disclosure of principal is a bar to an action against 
 principal though the judgment against agent was unsatisfied; Rounsaville v. 
 North Carolina Home Ins. Co. 138 N. C. 191, 50 S. E. 619. holding that suit 
 against agent to judgment after a disclosure of facts is an election to hold 
 agent and discharge principal; Toronto Dental Mfg. Co. v. McLaren, 14 Out. Pr. 
 Rep. 89, holding that so long as judgments stands against an agent, no action 
 can be brought against the principal on the same cause of action such right being 
 merged in the judgment. 
 
 Cited in note in 21 L.R.A. (N.S.) 792, on commencing action or taking judg- 
 ment against either undisclosed principal or his agent as bar to subsequent 
 action against other. 
 
 Cited in Hollingsworth Contr. 78, on election to sue agent or discovered princi- 
 pal as bar to action against other; Tiffany Ag. 238, on right to elect to resort to 
 agent signing negotiable instrument in his own name. 
 
 Distinguished in Herod v. Ferguson, 25 Ont. Rep. 567, holding that judgment 
 against the person for whom services were actually performed is not a bar to 
 action against one who negotiated the contract for services. 
 
 — Recovery against one as a bar to further action against others liable. 
 Cited in Coles v. McKenna, 80 N. J. L. N 48, 76 Atl. 344, holding that in action
 
 21 NOTES OX ENGLISH RULING CASKS. [1 E. 15. C. 175 
 
 brought against four defendants jointly plaintiff cannot split up his cause of 
 action by entering judgment against two by default and subsequently enter judg- 
 ment against other defendants; Willcocks v. Howell, 8 Out. Rep. 576, holding 
 that a recovery of a verdict against some of several persons concerned in a libel 
 is a bar to an action against others for the same libel though judgment, was 
 never entered; Keating v. Graham, 26 Ont. Rep. 3G1, on the effect of a judgment 
 destroying right of action against a co-contractor even though plaintiff did not 
 know that he had a remedy against such co-contractor; Dueber Watch Case Mfg. 
 Co. v. Taggart, 20 Ont. App. Hep. 295, on the suit of one of two joint debtors on 
 a note to judgment as a bar to suit against the others on the same note; Grand 
 Trunk R. Co. v. McMillan, 10 Can. S. C. 543, on the question as to whether the 
 release of one of a number of tort feasors or satisfaction one is not a re- 
 lease of them all; Blyth v. Fladgate, 03 L. T. N. S. 540, 00 L. J. Ch. N. S. 66 [1891] 
 1 Ch. 337, 39 Week. Rep. 422, holding that the liability arising out of a breach 
 of trust is joint and several and that a judgment against one of the persons 
 liable is not a bar to action against others; Hoare v. Niblett, 00 L. J. Q. B. N. S. 
 565 [1891] 1 Q. B. 781. 04 L. T. N. S. 059, 39 Week. Rep. 491, 55 J. P. 664, hold- 
 ing that an action against a husband on a lease is a bar to an action against the 
 wife on the same lease; Odell v. Cormack Bros. L. R. 19 Q. B. Div. 223, on dis- 
 missal of action against one of two joint obligors and proceeding to judgment 
 against the other as being a bar to subsequent action against the one dismissed; 
 Hammond v. Schofield [1891] 1 Q. B. 453, 60 L. J. Q. B. N. S. 539, holding that 
 an action to judgment is a bar to action against a supposed partner even though 
 plaintiff did not know that he had a right of action against him at time he 
 signed judgment, and even after such judgment has been set aside with defend- 
 ant's consent. 
 
 Cited in notes in 43 L.R.A. 162, on effect of judgment in action against part of 
 obligors on joint or joint and several contract upon liability of others; 11 Eng. 
 Rul. Cas. 14, on judgment against one of several joint contractors or debtors as 
 bar to action against others. 
 
 Cited in 1 Beach, Contr. 833, on judgment against one joint debtor as discharge 
 of others. 
 
 Distinguished in Zweig v. Morrissey, 5 B. C. 484, holding that where final 
 judgment has been taken against a defendant who has not appeared it is not a 
 bar to taking judgment against another defendant whether lie appears or not; 
 Beck v. Pierce, L. R. 23 Q. B. Div. 316, 58 L. J. Q. B. N. S. 516, 61 L. T. N. S. 
 44S, 38 Week. Rep. 29, 54 J. P. 198, holding that a judgment against a woman 
 for her prenuptial debts is not a bar to a subsequent action against her husband 
 for the same debts; Badeley v. Consolidated Bank, 34 Ch. Div. 536, 55 L. T. N. S. 
 635, 35 Week. Rep. 136, holding the guarantor of a debt standing on general 
 rights of indemnity is not confined to rights of principal creditor, in that he after 
 recovery of judgment against one partner may sue another for the same debt ; 
 Weall v. James, 68 L. T. N. S. 515, 4 Reports, 356, holding that where one de- 
 fendant submits to judgment and pays one half of the debt, the plaintiff may pro- 
 ceed to judgment against the other for the unpaid portion of the debt; McLeod 
 v. Poun [189S] 2 Ch. 295, 67 L. J. Ch. N. S. 551, 79 L. T. N. S. 67, 47 Week. 
 Rep. 74, holding that where judgment has been taken by consent against one 
 co-contractor it is a bar to action on the same obligation against the other. 
 Rights of firm and individual creditors to respective assets. 
 
 Cited in Clark v. Stanwood, 166 Mass. 379, 34 L.R.A. 378, 44 N. E. 537, hold- 
 ing the estate of insolvent partner, not liable for partnership debts after dis-
 
 1 E. R. C. 175] NOTES ON ENGLISH RULING CASES. 22 
 
 charge of such partner; Bank of Toronto v. Hall, 6 Ont. Rep. 644, holding that in 
 the case of an insolvent partnership the joint estate must go to satisfy joint 
 debts and individual debts must be paid out of the separate estate; Moorehouse 
 v. Bostwick, 11 Ont. App. Rep. 76, on the right of joint creditors to follow the 
 estate of a retiring, partner ; McDonagh v. Jephson, 16 Ont. App. Rep. 107, hold- 
 ing that on an execution against three persons two of whom are partners the 
 writ covers partnership and individual property or the separate property of any 
 one or two of them, and that the effect is to create- equities among the partners 
 and not the creditors; Henderson v. Killey, 17 Ont. App. Rep. 456, on the equities 
 among partners as distinguished from those among creditors and their right to 
 participate in partnership effects independent of judgment; Re McRae, L. R. 25 
 Ch. Div. 16, 53 L. J. Ch. N. S. 1132, 49 L. T. N. S. 544, 32 Week. Rep. 304, hold- 
 ing that an action for the administration of separate estate of partner cannot 
 be based on a partnership debt such debt not being joint and several. 
 
 Cited in note in 4 Eng. Rul. Cas. 122, on respective rights of joint and separate 
 creditors of bankrupt partnership. 
 Pleadings in abatement as affected by Judicature Act. 
 
 Cited in Chard v. Rae, 18 Ont. Rep. 371, on the effect of the Judicature Act on 
 the plea in abatement for want of parties; Robb v. Murray, 13 Ont. Pr. Rep. 
 397, holding that since the passage of the Judicature Act no plea or defense can 
 be pleaded in abatement; Campbell v. Farley, IS Ont. Pr. Rep. 97, holding that 
 the Judicature Act did not convert into a joint and several debt that which had 
 been theretofore merely joint, thus a surviving partner's right against the estate 
 of deceased partner with respect to partnership debts precluded the making of 
 the administratrix a party to an action on partnership liability; Scarlett v. 
 Nattrcss, 23 Ont. App. Rep. 297, holding that where a joint covenantee assigns 
 his interest in the covenant to the other covenantees such other covenantees may 
 sue on covenant without joining the assigning covenantee in the action; Beard- 
 more v. Toronto, 19 Ont. L. Rep. 139, holding that a stay of proceedings may not 
 be had for nonjoinder of parties, the Judicature Act having done away with all 
 defenses and objections arising from misjoinder or non-joinder of parties; British 
 South Africa Co. v. Campanhia de Mocambique [1893] A. C. 602, 63 L. J. Q. B. 
 N. S. 70, 6 Reports, 1, 69 L. T. N. S. 604, on Judicature Acts not having changed 
 or affected the rights of parties being rules of procedure merely. 
 Right to an order compelling joinder of parties. 
 
 Cited in Toronto & H. Nav. Co. v. Silcox, 12 Ont. Pr. Rep. 622, holding that a 
 defendant who has been sued as being, solely liable has not the right to bring 
 in an undisclosed party as third party; Robb v. Murray, 13 Ont. Pr. Rep. 397, 
 holding that an order compelling plaintiff to join a person as defendant jointly 
 entitled in the subject of a counterclaim is proper under the statute; Pilley v. 
 Robinson, L. R. 20 Q. B. Div. 155, 57 L. J. Q. B. N. S. 54, 58 L. T. N. S. 110, 36 
 Week. Rep. 269, holding that a defendant has the right to have persons jointly 
 liable joined in the action as co-defendants but not a third party; Wilson v. 
 Balcarres Brook S. S. Co. [1893] 1 Q. B. 422, 4 Reports, 286, 6S L. T. N. S. 312, 
 41 Week. Rep. 486, 7 Asp. Mar. L. Cas. 321, holding that the defendants could 
 not as of right have a co-contractor joined as a defendant he being a foreigner 
 outside the jurisdiction of the court and that the Judicature Act altered the 
 form rather than the substance, leaving the right to apply for joinder though 
 abatement pleas were thereby abolished. 
 Joinder on joint and several liability. 
 
 Cited in Gilderslecve v. Balfour, 15 Ont. Pr. Rep. 293, holding in a statement
 
 23 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 183 
 
 ■ of claim against the members of a nominal corporation, the liability alleged is 
 joint only, that all the members must be joined as defendants the plaintiff not 
 having the right to sue such as he thinks proper ; Vassie v. Chcsley, 33 N. B. 192. 
 holding that non-joinder of parties is not a ground for nonsuit. 
 Nonjoinder of defendant as ground for abatement. 
 
 Cited in Vassie v. Chesley, 33 N. B. 192, holding that in courts of inferior 
 jurisdiction non-joinder of parties defendant in actions on contract, is not 
 ground of nonsuit. 
 
 Cited in note in 1 Eng. Rul. Cas. 170, on nonjoinder of defendants as ground 
 for abatement. 
 Proper parties defendant. 
 
 Cited in note in 1 E. R. C. 180, 182, on proper parties defendant. 
 
 1 E. R. C. 183, MITCHELL v. TARBUTT, 5 T. R. 649, 2 Revised Rep. 684. 
 Former tort judgment as a bar to subsequent action for the same wrong 
 against joint wrongdoer. 
 
 Cited in Holden v. Reed, Smith (N. H.) 278, holding a judgment in an action 
 against one of persons compelling plaintiff to pay them money in order to se- 
 cure his release from a wrongful arrest was a bar to an action against another 
 a party to the same act; Dodge v. Averill, 5 How. Pr. 8, holding that a common 
 law in actions for tort a party on whom process was not served and did not ap- 
 pear was a party to the action, if the right of contribution exists; Sanderson v. 
 Caldwell, 2 Aik. (Vt. ) 195, holding a judgment in an action of trover which is 
 unsatisfied is no bar to another action against a different person for the same 
 offense; Murray v. Lovejoy, 2 Cliff. 191, Fed. Cas. No. 9963, holding a judgment 
 against a sheriff not satisfied is not a bar to a subsequent suit against the attach- 
 ing creditor. 
 
 Cited in note in 58 L.R.A. 306, on effect of failure to sue all joint tort feasors 
 on liability of those sued. 
 Election of remedies against joint tort feasors. 
 
 Cited in McAvoy v. Wright, 137 Mass. 207, on party as having right to sue 
 joint tort feasors jointly or separately. 
 Nonjoinder of parties as a defense. 
 
 Cited in Reed v. Wilson, 39 Me. 585, holding in an action on a promissory note 
 a defendant could not after pleading the general issue, raise an objection to the 
 nonjoinder of his joint promisor as defendant; Low v. Mumford, 14 Johns. 42S, 7 
 Am. Dec. 469, on nonjoinder of parties when available as a defense; Orange v. 
 Brown, 3 Wend. 158, on right to plead the nonjoinder of parties in abatement 
 of an action; White v. Smith, 12 Rich. L. 595, holding an action for the destruc- 
 tion of a property may be maintained against a member of a partnership without 
 joining the others. 
 
 Cited in note in 1 Eng. Rul, Cas. 187, 1S8, on nonjoinder of defendants as de- 
 fense. 
 Joint or several liability of joint masters of servant. 
 
 Cited in Bostwick v. Champion, 11 Wend. 571, holding a joint action would 
 lie against partners operating a stage line for an injury received through the 
 negligence of a driver although the route was divided between the parties and 
 each one furnished the expenses of his section. 
 Liability for tort of partner. 
 
 Cited in Parsons Partn. 4th ed. 124-126, on liability for tort of partner.
 
 1 E. K. C. 183] NOTES ON ENGLISH RULING CASES. 24 
 
 Right to avail of a defense by a plea on abatement. 
 
 Cited in McFarland v. McKnight, 6 B. Mon. 500, holding the nonjoinder of 
 proper parties defendant is not available by a plea in abatement in an action 
 against several partners for the loss of slaves through defendant's negligent acts; 
 Chalfort v. Johnston, 3 Yeates, 16, holding in an action on a bond the sufficiency 
 of the assignment could not be raised where its insufficiency is not pleaded in 
 abatement of the action ; Wetherspoon v. Killough, Mart. & Y. 38, holding the 
 nonjoinder of two joint parties in an action by a witness for his fees could only 
 be taken advantage of by a plea in abatement; Bates v. Reynolds, -7 Bosw. 685, 
 on the right to plead nonjoinder of defendants in abatement in an action of tort; 
 Petty v. Cleveland, 2 Tex. 404; Pringle v. Pr ingle, 130 Pa. 565, 18 Atl. 1024, 25 
 W. N. C. 297, 47 Phila. Leg. Int. 234, 20 Pittsb. L. J. N. S. 290,— on defense, 
 when must be made available by a plea in abatement. 
 Pleading negligence. 
 
 Cited in Lake Shore & M. S. R. Co. v. Johnson, 35 111. App. 430, holding alle- 
 gations of negligence causing an injury to plaintiff were sufficient. 
 Remedy for tortious breach of contractual duty. 
 
 Cited in Wright v. Geer, 6 Vt. 151, 27 Am. Dec. 538, holding in an action for 
 a misfeasance in spoiling work contracted to be done by defendants, under joint 
 contract on part of defendants, tort will lie. 
 
 1 E. R. C. 188, SYLVESTER'S CASE, 7 Mod. 1.30. 
 Right of alien enemy lo maintain suit. 
 
 Cited in Johnson v. Thirteen Bales, 2 Paine, 639, Fed. Cas. No. 7,415, holding 
 an alien enemy not here under letters of safe conduct or under the protection of 
 the government cannot maintain a suit and must prove and plead such letters; 
 Clarke v. Morey, 10 Johns. 69, on right of alien to maintain an action in time of 
 war; Society for Propagation of Gospel v. Wheeler, 2 Gall. 105, Fed. Cas. No. 
 13,156, holding that if foreign corporation established in foreign country, sue in 
 our courts, and war intervene between countries pending suit this is not sufficient 
 to defeat action unless it appears on record, that plaintiffs are not within ex- 
 ceptions, which enable alien enemy to sue. 
 
 1 E. R. C. 191, WARNER v. IRBY, 2 Ld. Raym. 1178. 
 
 1 E. R. C. 194, LAINSON v. LAINSON, 5 De G. M. & G. 754, 3 Eq. Rep. 43, 1 Jur. 
 N. S. 49, 3 Week. Rep. 31, 24 L. J. Ch. N. S. 46, affirming the decision of the 
 Master of the Rolls, reported in 18 Beav. 1, 17 Jur. 1044, 2 Week. Rep. 82, 
 23 L. J. Ch. N. S. 170. 
 Acceleration of remainders. 
 
 Cited in Robinson v. Harrison, 2 Tenn. Ch. 11, holding where, a widow to 
 whom the husband has bequeathed property for life with a remainder over, dis- 
 sents from the will, it inures to the benefit of the legatees in remainder by ac- 
 celerating the time of enjoyment but not affecting the limitations otherwise; 
 Jull v. Jacobs, L. R. 3 Ch. Div. 703, 35 L. T. N. S. 153, 24 Week. Rep. 947; 
 Ajudhia Buksh v. Mussamut Rukmin Kuar, L. R. 11 Ind. App. 1, — holding a 
 gift in remainder expectant upon the termination of a life estate is accelerated 
 and not destroyed by reason of the gift of the life estate being void. 
 
 Cited in note in 1 E. R. C. 199, on acceleration of legacy to take effect in 
 future.
 
 25 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 203 
 
 The decision of the Master of Rolls was cited in Rogers's Estate, 17 Phila. 478, 
 42 Phila. Leg. Int. 236, 16 W. N. C. 228 ; Randall v. Randall, 85 Md. 430, 37 Atl. 
 209, — holding the renunciation by a widow of the provisions made for her under 
 the will accelerated the vesting of the gifts in remainder; Holdren v. Holdren, 
 78 Ohio St. 276, 18 L.R.A.(N.S.) 272, 85 N. E. 537, holding where a wife elects 
 to take her dower share instead of the life estate under the will and such dower 
 share exceeds the value of the life estate, the remainder after the life estate is 
 not accelerated but the life estate sequestered to compensate devisees; Craven v. 
 Brady, L. R. 4 Eq. 209, 36 L. J. Oh. N. S. 905, 15 Week. Rep. 952, holding upon 
 the forfeiture of a life estate by a widow on her remarriage the remainders in the 
 estates were accelerated: Aplin v. Stone [1904] 1 Ch. 543, 73 L. J. Ch. N. S. 456, 
 90 L. T. N. S. 284; Blatchford v. Newberry, 99 111. 11 (dissenting opinion), — on 
 the application of the doctrine of acceleration of remainders. 
 — By revocation of particular estate devised. 
 
 Cited in Lewin v. Lewin, 2 N. B. Eq. 477, holding the revocation of an annuity 
 by a codicil to a will accelerated the vesting of the remainders in the legatees; 
 Re Love, 47 L. J. Ch. N. S. 7S3, 27 Week. Rep. 39, holding same where codicil 
 revoked a life interest; Re Johnson, 3 Reports, 308, 68 L. T. N. S. 20, holding 
 upon the revocation by a testator of an estate devised for life, and upon the death 
 of the testator, the donee of the remainder in trust for the children of the 
 testator took effect immediately; Stephenson v. Stephenson, 54 L. J. Ch. N. S. 928, 
 52 L. T. N. S. 576, holding the revocation by a codicil of an estate in remainder 
 to certain named persons accelerated the interest in which remainder would vest 
 if such persons were not alive to receive it; Langfeld's Estate, 18 Phila. 134, 44 
 Phila. Leg. Int. 26, 4 Pa. Co. Ct. 82, on the acceleration of a remainder by the 
 testator's revocation of the life estate or its determination by a clause of forfei- 
 ture. 
 
 The decision of the Master of Rolls was distinguished in Eavestaff v. Austin, 
 19 Beav. 591, holding under a will setting aside a sum of money as would provide 
 a certain annuity, to one person and the capital to others on her death, such re- 
 mainder was accelerated by a codicil revoking the annuity. 
 Construction of terms of a will. 
 
 Cited in Re Dawes, L. R. 4 Ch. Div. 210, on construing the terms of a will. 
 
 1 E. R. C. 203, DAVIS v. SAUNDERS, 2 Chitty, 639. 
 Nonactionable injury arising from an accident. 
 
 Cited in Cook v. Potter, 2 Mich. N. P. 146, to point that no one is responsible 
 for injury caused by unavoidable accident, while he is engaged in lawful business, 
 though injury was direct consequence of his act; Miller v. Martin, 16 Mo. 508, 57 
 Am. Dec. 242, holding a person setting fire to his stubble was not liable for dam- 
 ages where without any fault on his part it escapes to a neighbor's land, burning 
 his fences; Brown v. Collins, 53 X. H. 442, 16 Am. Rep. 372, holding a person 
 was not liable for damages where his horse became frightened at a locomotive 
 and ran away and up onto the land of another, doing damage there; Garris v. 
 Portsmouth & R. R. Co. 24 N. C. (2 Ired. L.) 324, holding defendant company 
 could not be held liable where, the night being very dark, the engineer was not 
 able to see the steer, which was lying down on the track, until too late to avoid 
 the accident; Sullivan v. Murphy, 2 Miles (Pa.) 298, holding defendant not 
 liable where he accidentally fell against a stove, spilling boiling water over 
 plaintiff; Brown v. Kendall, Cush. 292, on no cause of action arising from an 
 accident occurring in the prosecution of a lawful act.
 
 1 E. R. C. 203] NOTES ON ENGLISH RULING CASES. 26 
 
 Cited in note in S E. R. C. 412, on remoteness of damages. 
 
 Distinguished in The Maverick, 1 Sprague, 23, Fed. Cas. No. 9,316, holding 
 defendants were liable where their vessel came into an accidental collision with 
 another ship, the presence of defendant's ship in that particular waters being 
 illegal. 
 Presumption of negligence. 
 
 Annotation cited in Excelsior Electric Co. v. Sweet, 57 N. J. L. 224, 30 Atl. 
 553, holding that occurrence of accident does not raise presumption of neg- 
 ligence, but where evidence which proves occurrence by which plaintiff was in- 
 jured discloses circumstances from which defendant's negligence in reasonable 
 inference case is presented which calls for defense. 
 
 1 E. R. C. 210, THE UHLA, L. R. 2 Adm. & Eccl. 29, note, 19 L. T. N. S. 89, 37 
 
 L. J. Prob. 16, note. 
 Inevitable accident. 
 
 Cited in Downey v. Patterson, 38 U. C. Q. B. 513, on an inevitable accident as 
 giving rise to no cause of action for damages. 
 
 Cited in note in 18 E. R. C. 736, on enhancement by inevitable accident of 
 damages from negligence as a defense. 
 Jurisdiction of admiralty courts over injury to land works. 
 
 Cited in The Curtin, 152 Fed. 588, holding that action for injury to pier by 
 moving vessel is not cognizable in admiralty; The Blackheath (United States v. 
 Evans) 195 U. S. 361, 49 L. ed. 236, 25 Sup. Ct. Rep. 46, holding that admiralty 
 has jurisdiction of libel in rem against vessel for damages caused by negligently 
 running into beacon in channel, although beacon is attached to bottom; San Jose 
 Land & Water Co. v. San Jose Ranch Co. 189 U. S. 158, 47 L. ed. 760, 23 Sup. 
 Ct. Rep. 487, holding that statute giving jurisdiction to court over action for 
 damage done by ship does not give jurisdiction for damage done on ship; The 
 Teddington, Stockton, Adm. (N. B.) 495, holding the vice admiralty court had 
 jurisdiction of a cause of action for damages done by a ship to property upon 
 land and within the limits of a county; The Chase, Young, Adm. (N. S.) 113, 
 holding the same where a vessel broke from her moorings during a storm and 
 came into collision with wharves where plaintiff's property was stored. 
 
 Distinguished in The Ottawa, 1 Brown, Adm. 356, Fed. Cas. No. 10,616, hold- 
 ing that action will not lie in admiralty against vessel to recover damage done 
 by her to wharf projecting into navigable water; The Maud Webster, 8 Ben. 547, 
 Fed. Cas. No. 9,302, holding that admiralty court had no jurisdiction over action 
 for injury to derrick used in constructing pier by being struck by vessel as injury 
 was not done upon water. 
 
 1 E. R. C. 216, FORWARD v. PITTARD, 1 T. R. 27, 1 Revised Rep. 146. 
 
 Act of God, what constitutes. 
 
 Cited in Kirby v. Wylie, 108 Md. 501, 21 L.R.A.(N.S.) 129, 129 Am. St. Rep. 
 451, 70 Atl. 213, holding a covenant in a lease requiring lessor to rebuild in case 
 premises were destroyed by an act of God did not apply where the building falls 
 to pieces by gradual decay from natural causes; Polak v. Pioche, 35 Cal. 416, 95 
 Am. Dec. 115, considering what may be said to be an act of God; Reed v. Hatch, 
 55 N. H. 327, 7 Legal Gaz. 301, on act of God rendering an act impossible as ex- 
 cusing the duty to perform; Baldwin v. New York L. Ins. & T. Co. 3 Bosw. 530. 
 holding that death which prevented the insured from complying with the terms
 
 27 NOTES ON ENGLISH RULING CASKS. [1 E. R. C. 216 
 
 •of the insurance contract was an act of God; Merritt v. Earle, 29 X. Y. 115, SO 
 Am. Dec. 2H2. holding that by "act of God" is meant something which operates 
 without any aid or interference from man; Hays v. Kennedy, 41 Pa. 378, 80 
 Am. Dec. 027, 20 Phila. Leg. Int. 11G, to the point that "Act of God" is such one 
 as could not happen by intervention of man, as storms, lightning ami tempests. 
 
 Cited in note in 1 E. R. C. 215, on what constitutes an inevitable accident. 
 
 Cited in 2 Underbill Land & T. 900, on "act of God" as acts which could not 
 happen by intervention of man, as storms, lightnings, and tempests. 
 
 — Fires. 
 
 Cited in Clay County v. Simonsen, 1 Dak. 387, 40 X. W. 592, holding that acci- 
 dental fire, not caused by lightning, is not irresistible super-human cause, or 
 act of God; Niblo v. Biusse, 44 Barb. 54, holding an accidental fire would not be 
 deemed the act of God so as to excuse the nonperformance cf a contract; Hulett 
 v. Smith, 42 Barb. 230, holding same so as to excuse the liability of an innkeeper 
 for the destruction of property of a guest. 
 
 — Distinguished from inevitable accident. 
 
 Cited in. Morel v. Roe, R. M. Charlt. (Ga.) 19, as distinguishing between 
 inevitable accident and the act of God; Hodgson v. Dexter, 1 Cranch, C. C. 109, 
 Fed. Cas. No. 0,505, on what is an inevitable casualty. 
 Act of God relieving carrier from liability; 
 
 Cited in Central R. Co. v. Hall, 124 Ga. 322, 4 L.R.A.(X.S.) 898, 110 Am. St. 
 Rep. 170, 52 S. E. 079, 4 Ann. Cas. 128, holding a carrier not relieved from lia- 
 bility for an accident caused by the engineer becoming suddenly insane and run- 
 ning train at an excessive rate of speed; Fergusson v. Brent, 12 Md. 9, 79 Am. Dec. 
 582, holding a carrier not relieved of liability as by the act of God where vessel 
 strikes a hidden rock in a harbor there being a buoy near by to mark its 
 presence; Hays v. Kennedy, 3 Grant, Cas. 351, holding that unavoidable dangers 
 of navigation means dangers unavoidable where all precautions, care and skill, 
 usually demanded of carriers has been exercised; Reaves v. Waterman, 2 Speers, 
 L. 197, 42 Am. Dec. 304, holding same where buoy had drifted so as to no longei 
 mark the location of the rock; Friend v. Woods, Gratt. 189, 52 Am. Dec. 119. 
 holding a carrier was not relieved from liability where a cargo was lost when the 
 vessel stranded on a bar recently formed in the navigable channel and of which 
 the master had no knowledge; Alexander v. Greene, 7 Hill, 533; Coosa River S. 
 B. Co. v. Barclay, 30 Ala. 120, — on common carrier as being excused from liability 
 where the loss is traceable to an act of God. 
 
 Cited in 1 Beach Contr. 275, on fire as act of God exempting carrier from lia- 
 bility; 1 Hutchinson Carr. 3d ed. 296, on necessity that human agency does not 
 intervene to make carrier liable for loss by act of God; Porter Bills of L. 129, 
 on what is an act of God excusing liability of carrier; 5 Thompson Neg. 893, on 
 liability of carrier for loss by act of God. 
 
 — Accidental burning of goods in transit. 
 
 Cited in Hale v. New Jersey Steam Nav. Co. 15 Conn. 539, 39 Am. Dec. 398, 
 holding. a carrier was not relieved from liability where plaintiff's property was 
 destroyed by the burning of defendant's boat, as arising from an act of God. 
 
 — Storms and floods. 
 
 Cited in Mein v. West, T. U. P. Charlt. (Ga.) 170, holding a carrier was re- 
 lieved from liability for an injury caused by a severe storm; McClary v. Sioux 
 City & P. R. Co. 3 Neb. 44, 19 A. R. 631, holding a carrier was not liable for 
 injuries where a passenger was injured by the upsetting of a car from a sudden
 
 1 E. R. C. 216] NOTES ON ENGLISH RULING CASES. 28 
 
 violent gust of wind; New Brunswick S. B. & Canal Transp. Co. v. Tiers, 24 N. 
 J. L. 697, 64 Am. Dec. 394, holding a carrier was not relieved from liability 
 where a storm caused such an unusually low tide that the vessel struck a beam 
 or timber negligently protruding from the wharf, sinking the vessel; Egan v. 
 Central Vermont R. Co. 81 Vt. 141, 16 L.R.A.(N.S.) 928, 130 Am. St. Rep. 1031, 
 69 Atl. 732, holding that railroad company was not liable for injury to abutting 
 land caused by inability of culvert to carry off extraordinary flood, as sole 
 proximate cause of damage was act of God; Michaels v. New York C. R. Co. 30 
 N. Y. 564, 86 Am. Dec. 415, holding a carrier was not relieved from liability 
 where goods damaged by an extraordinary and unusual rise in the river, which 
 flooded their warehouse, where but for a negligent detention the goods would not 
 have been in the warehouse; Price v. Hartshorn, 44 Barb. 655, holding a violent 
 storm, which injured the cargo was such an act of God as to affect the carrier's 
 liability in absence of a special contract; Cormack v. New York, N. H. & 
 H. R. Co. 196 N. Y. 442, 24 L.R.A. (N. S.) 1209, 90 N. E. 56, 17 Ann. Cas. 949, 
 holding that snow storm of such severity as that it delays train, although rail- 
 road company made strenuous efforts to clear track, must be classed as act of 
 God; McGraw v. Baltimore & O. R. Co. 18 W. Va. 361, 41 Am. Rep. 696, holding 
 sudden freezing weather causing a loss of a shipment of potatoes was not such an 
 act of God as to relieve the carrier from liability for its loss; Tompkins v. The 
 Dutchess of Ulster, Fed. Cas. No. 14,087a, holding on facts the storm was not of 
 such a nature as to relieve defendant from liability for the loss of cargo as an 
 act of God; Smith v. Whiting, 3 U. C. Q. B. O. S. 597, holding a carrier was not 
 liable for the loss of a cargo during a violent storm there being no negligence on 
 the part of carrier to trying to prevent the loss. 
 
 — Peril of the sea or of river. 
 
 Cited in Jones v. Pitcher, 3 Stew. & P. (Ala.) 135, 24 Am. Dec. 716, holding 
 defendant was not liable for the loss of plaintiff's goods due to a collision with 
 another boat without blame attaching to defendant, it being a peril of river 
 navigation; Plaisted v. Boston & K. S. Nav. Co. 27 Me. 132, 46 Am. Dec. 587, 
 holding the loss of goods by a collision between vessels at sea where no fault was 
 imputable to either was imputable to the perils of the sea; Gordon v. Little, 8 
 Serg. & R. 533, 11 Am. Dec. 632, holding carrier was relieved from liability on 
 the ground that the injury was due to a peril of the river where the vessel struck 
 a sunken log and sunk; Hays v. Kennedy, 41 Pa. 378, 80 Am. Dec. 627, 20 Phila. 
 Leg. Int. 116, 3 Grant Cas. 351, holding a shipper could not recover for the loss 
 of his goods when the vessel was run into and sunk where the bill of lading ex- 
 cepted liability for the unavoidable dangers of the river. 
 
 — Act of public enemy. 
 
 Cited in Hubbard v. Harnden Exp. Co. 10 R. I. 244, holding a carrier was not 
 liable for the nondelivery of goods where they were taken from their possession 
 by the officials of the Confederate government and sold for nonpayment of 
 duties levied on them. 
 
 Cited in 2 Kinkead Torts, 1176, act of public enemy as excusing carrier of 
 goods from liability for loss; Porter Bills of L. 223, on what are not losses by 
 the public enemy; Porter Bills of L. 224, on exception against loss by public 
 enemy as not relieving carrier from results of his negligence; 5 Thompson Nig. 
 895, on liability of common carrier for loss by public enemies. 
 Inability of common carrier. 
 
 Cited in Colsch v. Chicago, M. & St. P. R. Co. 149 Iowa, 176, 34 L.R.A. (N.S.) 
 1013, 127 N. W. 198, Ann. Cas. 1912C, 915, to the point that carrier is held to be
 
 29 NOTES ON ENGLISH RULING CASES. [1 E. C. R. 216 
 
 insurer of safety of property while he has it in his possession as carrier; Rowland 
 v. Miln, 2 Hilt. 150, holding that a common carrier is liable for goods entrusted 
 to him for delivery under all events unless they are lost by act of God or the 
 public enemies; Mallory v. Tioga R. Co. 39 Barb. 488, holding a carrier liable 
 where on the wreck of train from an unknown cause the property of the plaintiff 
 was damaged and partially lost; Iloneyman v. Oregon & C. R. Co. 13 Or. 352, 
 57 Am. Rep. 20, 10 Pac. 628, holding a common carrier was not liable as such for 
 an accidental injury to a dog carried for the accommodation of a passenger; 
 Klauber v. American Exp. Co. 21 Wis. 21, 91 Am. Dec. 452, holding carrier was 
 liable for goods injured by rain while removing from train, the goods being 
 packed in the usual way; Fitch v. Newberry, 1 Dougl. (Mich.) 1, 40 Am. Rep. 
 33; Lindsley v. Chicago, M. & St. P. R. Co. 36 Minn. 539, 1 Am. St. Pep. 692, 33 
 X. W. 7; Moses v. Norris, 4 N. H. 304; Elkins v. Boston & M. R. Co. 23 N. H. 
 275; Franklin F. Ins. Co. v. Jenkins, 3 Wend. 130; Stevenson v. Gildersleeve, 2 
 U. C. C. P. 495; Moses v. Boston & M. R. Co. 24 N. II. 71, 55 Am. Dec. 222 — 
 holding that if goods delivered to carrier for shipment are held back in ware- 
 house by order of owner, carrier is not liable for their loss as carrier, but as de- 
 pository only: Chesapeake & O. R. Co. v. Pew, 109 Va. 288, 64 S. E. 35, holding 
 that under statute liability of common carrier of goods is that of insurer except 
 against losses occasioned by act of God, or public enemy, or of shipper, or nature 
 or inherent qualities of goods, and contract with carrier limiting liability is void ; 
 Liver Alkali Co. v. Johnson, L. R. 9 Exch. 338, 43 L. J. Exch. X. S. 216, 31 L. T. 
 N. S. 95, 2 Asp. Mar. L. Cas. 332 (affirming L. R. 7 Exch. N. S. 267, 41 L. J. 
 Exch. N. S. 110); Hartwell v. Northern Pacific Exp. Co. 5 Dak. 463, 3 L.R.A. 
 34:i, 41 N. W. 732, — on the liability of a common carrier; Marable v. Southern R. 
 Co. 142 N. C. 557, 55 S. E. 355, distinguishing between the liability of a carrier 
 of goods and a carrier of passengers; Thurman v. Wells, F. & Co. 18 Barb. 500: 
 Cook v. Gourdin. 2 Nott. & M'C. 19 (dissenting opinion) ; Joy v. Allen, 2 Woodb. 
 & M. 303, Fed. Cas. No. 7,552; Rixford v. Smith, 52 N. H. 355, 13 Am. Rep. 42 — 
 on carrier as an insurer of the safe transportation of goods; Nugent v. Smith, L. 
 R. 1 C. P. Div. 19, 423, 1 Eng. Rul. Cas. 216, 45 L. J. C. P. N. S. 697, 34 L. T. N. 
 S. 827, 25 Week. Rep. 117, 24 Week. Rep. 237, 3 Asp. Mar. L. Cas. 198, holding 
 the owner of a vessel carrying an animal for hire was liable for injuries without 
 regard to whether or not he was a common carrier. 
 
 Cited in notes in 1 E. R. C. 232, on losses to goods for which common carrier 
 is liable; 5 E. R. C. 262, 203, on extent of carrier's liability; 5 Eng. Rul. Cas. 
 344, on special limitations of liability of carrier. 
 — Loss by perils of navigation. 
 
 Cited in Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393, holding a carrier was 
 liable where the goods were lost by the overturning of a wagon while fording a 
 river, although without fault of defendant; Fisher v. Clisbee, 12 111. 344, holding 
 a ferryman liable for the loss of a horse while crossing a river although he was 
 guilty of no negligence; Daggett v. Shaw, 3 Mo. 264, 25 Am. Dec. 439, holding 
 owners of a river steamer liable where goods were lost because of a collision with 
 another boat where the goods were stored in an exposed position: McArthur v. 
 Sears, 21 Wend. 190, holding the owners of a steamboat were not relieved from 
 liability where the vessel was stranded, the master taking the light of a stranded 
 vessel for the beacon light, on the ground that it was'an inevitable accident with 
 out the intervention of man; Charleston & C. S. B. Co. v. Bason, Harp, L. 262, 
 holding a carrier is liable for damage to property occurring when the vessel 
 grounded on a bar and the water entered the vessel: Ewart v. Street, 2 Bail. L.
 
 1 E. R. C. 216] NOTES ON ENGLISH RULING CASES. 30 
 
 157, 23 Am. Dec. 131, holding carrier liable for damages where on the flowing out 
 of the tide the vessel which was in a dock settled on the bow allowing the water to 
 run forward damaging plaintiff's goods; Turney v Wilson, 7 Yerg. 340, 27 Am. 
 Dec. 515, holding one undertaking to carry a cargo of cotton for hire is liable 
 as a common carrier where the vessel is sunk and the cargo damaged. 
 
 — Loss by fire. 
 
 Cited in Angle v. Mississippi & M. River R. Co. 18 Iowa, 555; Moses v. Boston 
 & M. R. Co. 24 N. H. 71, 55 Am. Dec. 222; Ladue v. Griffitli, 25 N. Y. 364, 82 Am. 
 Dec. 360; Clarke v. Needles, 25 Pa. 338; Southern Exp. Co. Newby, 36 Ga. 635, 91 
 Am. Dec. 783, — holding a common carrier was liable for the destruction of goods 
 by fire in their warehouse though through fault of carrier; New Jersey Steam 
 Nav. Co. v. Merchants' Bank, 6 How. 344, 12 L. ed. 465, holding defendant car- 
 rier was liable for the loss of property where boat burned at sea; Chevallier v. 
 Straham, 2 Tex. 115, 47 Am. Dec. 639, holding a carrier of cotton liable for its 
 loss where it was placed so close to a camp fire that when a wind sprung up 
 during the night it was set on fire. 
 
 Cited in 1 Hutchinson Car. 3d ed. 299, on liability of carrier for loss by fire, 
 explosion or collision; Porter Bills of L. 161, on liability of carrier for loss by 
 lire. 
 
 Distinguished in Hart v. Chicago & N. W. R. Co. 69 Iowa, 485, 29 N. W. 597, 
 holding defendant carrier was not liable where horses of plaintiff were burned 
 to death by a fire set in the car by a servant of plaintiff traveling with the car; 
 Torrance v. Smith, 3 U. C. C. P. 411, holding carrier by reason of statute was re- 
 lieved of liability for the loss of a cargo caused by an accidental fire. 
 
 — Legal and contractual liability. 
 
 Cited in School Dist. v. Boston, H. & E. R. Co. 102 Mass. 552, 3 Am. Rep. 502, 
 holding a contract for carriage of property at risk of shipper does not relieve 
 carrier from liability for injury to the property where injury due to carrier's 
 negligence; Hollister v. Nowlen, 19 Wend. 234, 32 Am. Dec. 455; Cole v. Goodwin, 
 19 Wend. 251, 32 Am. Dec. 470, — holding a notice that all baggage was carried at 
 the risk of the passenger did not excuse the carrier for the loss of passenger's 
 trunk; Mercantile Mut. Ins. Co. v. Chase, 1 E. D. Smith, 115, on the right to limit 
 a common carrier's liability by express contracts; Gulf, C. & S. F. R. Co. v. Levi, 
 76 Tex. 337, 8 L.R.A. 323, 18 Am. St. Rep. 45, 13 S. W. 191, holding a carrier 
 could relieve himself of liability for the failure to deliver property, where strikes 
 took possession of and held up and even destroyed trains. 
 
 Cited in 1 Hutchinson Car. 3d ed. 406, on limitation of carrier's liability by 
 contract; Porter Bills of L. 131, on losses within exceptions from liability in bill 
 of lading. 
 liability of exceptional bailees for accident. 
 
 Cited in Sibley v. Aldrich, 33 N. H. 553, 66 Am. Dec. 745, holding defendant 
 innkeeper could not relieve himself from liability for an injury to a horse in his 
 possession by proving that there was an actual negligence on his part. 
 Measure of carrier's liability for loss of goods. 
 
 Cited in Gillingham v. Dempsey, 12 Serg. & R. 183, holding in an action for a 
 loss in carrying goods the measure of damages is the net value of the goods at 
 the port of destination. 
 Liability of common carrier when presumed. 
 
 Cited in Agnew v. The Contra Costa, 27 Cal. 425, 87 Am. Dec. 87, on the liabil- 
 ity of a common carrier as being presumed unless it is made to appear that the
 
 31 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 218 
 
 injury could not have happened by the intervention of human means; Hall v. 
 Cheney, 30 N. II. 2G; Tarbox v. Eastern S. B. Co. 50 Me. 339,— holding the burden 
 of proof rests on a carrier to show that any damage did not occur to the goods 
 while in their possession; Arent v. Squire, 1 Daly, 347, on whom is cast the 
 burden of showing negligence or its absence in the care of the property where a 
 bailee for hire fails to return all goods entrusted to him; Lamb v. Camden & A. 
 R. & Transp. Co. 2 Daly, 454, holding that a common carrier was liable for the 
 loss of goods, separate from his contract of carriage, and there was a presump- 
 tion of negligence where property was lost by the carrier. 
 Presumption as to negligence of warehouseman. 
 
 Cited in Schmidt v. Blood, 9 Wend. 2GS, 24 Am. Dec. 143, holding the burden 
 of showing negligence on the part of a warehouseman rests on the owner of the 
 damaged property. 
 Who are common carriers. 
 
 Cited in Collier v. Langan & T. Storage & Moving Co. 147 Mo. App. 700, 127 
 S. W. 435, holding that common carrier is any one who for hire, undertakes to 
 transport goods of such as choose to employ him, and includes carters and ex- 
 pressmen. 
 
 Cited in 1 Hutchinson Car. 3d ed. 54, on necessity that employment of common 
 carrier be public in its nature; 1 Hutchinson Car. 3d ed. 68, as to when 
 wharfingers, warehousemen and forwarders of freight are common carriers. 
 
 1 E. R. C. 218, NUGENT v. SMITH, L. R. 1 C. P. Div. 423, 3 Asp. Mar. L. Cas. 
 ]98, 34 L. T. N. S. 827, 25 Week. Rep. 117, 45 L. J. Q. B. N. S. 697, reversing 
 the decision of the Court of Common Pleas, reported in L. R. 1 C. P. Div. 19, 
 24 Week. Rep. 237, 45 L. J. Q. B. N. S. 19. 
 Liability of common carrier. 
 
 Cited in The Svend, 1 Fed. 54, holding that carrier is not relieved from liability 
 where cargo of iron was injured by salt water, owing to improper stowage and 
 defective construction of vessel because of exceptions in bill of lading against 
 liability because of breakage, leakage and rust; The E. A. Shores, Jr. 73 Fed. 
 342, on liability of vessel as a common carrier for the loss of cargo; Nordheinier 
 v. Alexander, 19 Can. S. C. 248; The Prussia, 88 Fed. 531, — on a carrier as not 
 liable for a loss resulting from inherent defects in the goods themselves; Faucher 
 v. Wilson, t;S X. H. 338, 39 L.R.A. 431, 38 Atl. 1002, on a common carrier as not 
 liable for losses happening from the operation of natural causes; Central R. Co. 
 v. Hall, 124 Ga. 322, 4 L.R.A. (N.S.) 89S, 110 Am. St. Rep. 170, 52 S. E. 679, 4 
 Ann. Cas. 128, holding that carrier is liable for loss of goods caused by act of 
 engineer in running at dangerous speed although engineer was insane at time: 
 Roussel v. Aumais, Rap. Jud. Quebec 18 C. S. 474, holding owner of ferry not 
 liable for value of horse which became frightened, jumped overboard and was 
 drowned; Little Rock, M. R. & T. R. Co. v. Talbot, 47 Ark. 97, 14 S. W. 471, hold- 
 ing that when common carrier contracts for exemption from liability for injury 
 from fire he is bound to exercise ordinary diligence to prevent such injury. 
 Brown v. Great Western R. Co. 2 Ont. App. 64, holding that railroad company 
 was liable for injury caused conductor of train on road which its tracks crossed. 
 where it failed to stop train for three minutes before crossing in accordance with 
 statute; Chicago & N. W. R. Co. v. Hoag, 90 111. 339, holding that railroad com- 
 pany is liable for injury to another's property caused by freezing of waste water 
 turned onto such property by company. 
 
 Cited in notes in 18 L.R.A. (N.S.) 93, on carrier as insurer of live stock; 1
 
 1 E. R. C. 21S] NOTES ON ENGLISH RULING CASES. 32 
 
 E. R. C. 232, 233, on losses to goods for which common carrier is liable; 3 E. 
 R. C. 142, on liability of carrier of livestock: 5 E. R. C. 262, 263, on extent of 
 carrier's liability; 24 E. R. C. 371, on limitation of liability in charter party or 
 bill of lading. 
 
 Cited in 4 Elliott Railr. 2d ed. 274, on excuses for failure of carrier to deliver 
 goods; 4 Elliott Railr. 2d ed. 299, on nonliability of carrier for injuries to live 
 stock arising from inherent nature of stock; 4 Elliott Railr. 2d ed. 753, on action 
 for damages as remedy for carrier's refusal to carry. 
 
 The decision of the Court of Common pleas was cited in The Albany, 44 Fed. 
 431, holding that salvor is bound to take such care of property saved as prudent 
 person takes of his own property and is liable for embezzlement of such property 
 by his servants or agents. 
 Act of God or vis major as relieving carrier from liability. 
 
 Cited in The Carlotta, 9 Ben. 1, Fed. Cas. No. 2,413, holding the damage to 
 cargo by the gnawing of rats was not such an act of God as to relieve the carrier 
 from liability; Hamilton v. Hudson's Bay Co. 1 B. C. pt. 2, p. 4, on an accidental 
 loss as when excusing carriers from liability; Wilson v. Canadian Development 
 Co. 9 B. C. 82, holding the closing up of navigation was not such ah act of God 
 as would relieve carrier from liability for a failure to deliver freight; Garfield 
 v. Toronto, 22 Ont. App. Rep. 128, on carrier as relieved from liability where 
 loss attributable to act of God. 
 
 Cited in note in 29 L.R.A.(N.S.) 663, on burden of proof where defense in 
 action for loss or injury to goods during carriage in act of God or vis major. 
 
 Cited in 1 Hutchinson Car. 3d ed. 296, on necessity that human agency does not 
 intervene to make carrier liable for loss by act of God; 1 Hutchinson Car. 3d ed. 
 323, on degree of diligence to be exercised by carriers where goods have been 
 overtaken by disaster: 1 White Pers. Inj. Railr. 37, on nonliability of railroad 
 company for injury from act of God. 
 
 The decision of the Court of Common Pleas was cited in Egan v. Central Ver- 
 mont R. Co. 81 Vt. 141, 16 L.R.A.(N.S.) 928, ,130 Am. St. Rep. 1031, 69 Atl. 
 732, holding that railroad company was not liable for injury to abutting land 
 caused by inability of culvert to carry off extraordinary flood, as sole proximate 
 cause of damage was act of God. 
 — Sea carriers. 
 
 Cited in The Shand, 10 Ben. 294, Fed. Cas. No. 12,702, holding a carrier was not 
 liable for damage to cargo caused by a leak which sprung during a storm at sea 
 and which could not be controlled; Kopitoff v. Wilson, L. R. 1 Q. B. Div. 377, 45 
 L. J. Q. B. N. S. 436, 34 L. T. N. S. 677, 24 Week. Rep. 706, 23 Asp. Mar. L. Cas. 
 163, holding in every contract for the conveyance of merchandise by sea there is an 
 implied warranty of seaworthiness. 
 What necessary to constitute one a common carrier. 
 
 Cited in Bell v. Pidgeon, 5 Fed. 634, holding the owner of a vessel built for his 
 own occupation was not liable as a common carrier for the loss of a cargo he 
 was carrying for hire, caused by the swell of passing boats; Sumner v. Caswell, 20 
 Fed. 249, holding a ship chartered to carry the goods of a single freighter upon a 
 particular voyage was not a common carrier; Collier v. Langan & T. Storage & 
 -Moving Co. 147 Mo. App. 700, 127 S. E. 435, holding that "common carrier" is 
 any one who undertakes for hire to transport goods of such as choose to employ 
 him, and includes carters and expressmen ; Roussel v. Aumais, Rap. Jud. Quebec 
 18 C. S. 474, holding that owner of ferry, rowed by employees temporarily drop- 
 ping regular duties, is not common carrier.
 
 33 NOTES ON ENGLISH RULING CASES. [1 E. R, C. 236 
 
 Cited in Hughes Adm. 150, on ship as common carrier; 1 Hutchinson Car. 3d 
 ed. 44, on necessity that employment of common carrier be public in its nature: 
 1 Hutchinson Car. 3d ed. 59, on action lying for refusal to carry as essential to 
 make one a common carrier. 
 
 The decision of the Court of Common Pleas was cited in Thompson v. New York 
 Storage Co. 97 Mo. App. 135, 70 S. W. 938, holding that person engaged in busi- 
 ness of storage of personal property and moving household effects is not common 
 carrier. 
 Act of God or vis major. 
 
 Cited in The George Shiras, 9 C. C. A. 511, 17 U. S. App. 528, 61 Fed. 300, to 
 the point "vis major" is any irresistible, natural cause, which cannot be guarded 
 against by ordinary exertions of human skill and prudence; Gill v. Benjamin, 64 
 Wis. 362, 54 Am. Rep. 619, 25 N. W. 445, on when a loss is attributable to the act 
 of God; Tennant v. Hall, 27 N. B. 499 (dissenting opinion), denning what consti- 
 tutes vis major; Nichols v. Marsland, L. R. 2 Exch. Div. 1, 46 L. J. Exch. N. S. 
 174, 35 L. T. N. S. 725, 25 Week. Rep. 173, 1 Eng. Rul. Cas. 262, holding defendant 
 not liable for damages where artificial pools which he maintained gave way be- 
 cause of an extraordinary and unusual rainfall, to the damage of plaintiff's land. 
 
 Cited in Benjamin Sales 5th ed. 570, on impossibility as excuse for nonper- 
 formance of contract. 
 Following prior decisions. 
 
 Cited in Stuart v. Bank of Montreal, 41 Can. S. C. 516, holding that supreme 
 court should refuse to follow its own decisions only under very exceptional cir- 
 cumstances. 
 
 1 E. R. C. 236, RYLANDS v. FLETCHER, L. R. 3 H. L. 330, 19 L. T. N. S. 220, 37 
 
 L. J. Exch. N. S. 161, affirming the decision of the Exchequer Chamber, reported 
 in L. R. 1 Exch. 265 ? 4 Hurlst. & C. 263, 12 Jur. N. S. 603, 14 L. T. N. S. 
 523, 14 Week. Rep. 799, 35 L. J. Exch. N. S. 154, which reverses the decision 
 of the Court of Exchequer, reported in 3 Hurlst. & C. 774, 34 L. J. Exch. N. 
 S. 177, 13 L. T. N. S. 121. 
 Liability to adjoining- or adjacent owner generally. 
 
 Cited in Underwood v. Waldron, 33 Mich. 232, on the enjoyment of one's own 
 property to the injury of adjacent proprietors; Garland v. Towne, 55 N. H. 58, 
 20 Am. Rep. 104, 7 Phila. Leg. Gaz. 244, holding that owner of building so erected 
 that its roof overhangs street is liable for injury to pedestrian by fall of snow 
 and ice from roof; O'Hara v. Nelson, 71 N. J. Eq. 161, 63 Atl. 836; Salisbury v. 
 McGibbon, 61 App. Div. 524, 69 N. Y. Supp. 258,— on the test of the permissible 
 use of property as resulting in injury to adjoining premises; McLean v. Crosson, 
 33 U. C. Q. B. 448, holding that if a person in the ordinary course of husbandry 
 so used his land so as to injure his neighbor, he will be liable in damages though 
 such act is not wilful nor the sole cause of the injury; McNerney v. Forrester. 
 
 2 D. L. R. 718, holding that where walls of building are dangerous because of fire, 
 owners of damaged building are under legal duty to take all reasonable measures 
 to prevent wall from falling over to injury of neighbor's property; Robinson v. 
 Webb, 11 Bush, 464, holding that owner is liable for negligent use of his prop- 
 erty by himself or servants resulting in injury to others; Gill v. Edouin, 11 
 Times L. R. 93; Crompton v. Lea, L. R. ]9 Eq. 115, 44 L. J. Ch. N. S. 69, 31 
 L. T. N. S. 469, 23 Week. Rep. 53, — on the liability for injury to neighboring 
 property, resulting from a reasonable use of one's own; Atty.-Gen. v. Tomline, 
 
 Notes on E. R. C— 3.
 
 1 E. R. (J. 23(5] NOTES ON ENGLISH RULING CASES. 34 
 
 48 L. J. Ch. N. S. 503, L. R. 12 Cli. Div. 21 4, 40 L. T. N. S. 775, on the liability 
 for injury to adjoining property resulting from a natural user of own; Smith 
 v. Giddy, 73 L. J. K. B. N. S. 894, [1904] 2 K. B. 448, 91 L. T. N. S. 296, 53 
 Week. Rep. 207, 20 Times L. R. 590, holding that a land owner is liable to an 
 adjoining land owner for allowing his trees to overhang the boundary to the 
 damage of the latter's crops. 
 
 Cited in note in 18 E. R. C. 724, on liability for injury to neighbor from im- 
 proper use of one's own land. 
 
 Cited in 1 Thompson Neg. 997, on liability for removing support of land. 
 
 The decision of the Exchequer Chamber was cited in Gorham v. Gross, 125 
 Mass. 232, 28 Am. Rep. 224, holding that owner of land, who makes contract with 
 mason by which latter is to furnish material and build party wall is liable to 
 adjoining owner for fall of wall after acceptance, resulting from its defective con- 
 dition. 
 — Water damage. 
 
 Cited in Weis v. Madison, 75 Ind. 241, 39 Am. Rep. 135, holding that while a 
 city was not liable for damages resulting from the grading of a street, they cannot 
 gather surface water in an artificial channel and cast it upon adjoining land; 
 Baltimore Breweries' Co. v. Ranstead, 78 Md. 501, 27 L.R.A. 294, 28 Atl. 273, 
 holding that the defendant was liable for damages caused by a discharge of water 
 from its brewery upon the street so as to flood an abutting lot of a lower level; 
 Smith v. Faxon, 156 Mass. 589, 31 N. E. 687, holding that a landowner is liable 
 for flooding his neighbor's land by means of an artificial drain, through which 
 surface water flows; Boyd v. Conklin, 54 Mich. 583, 52 Am. Rep. 831, 20 N. \V. 
 595, holding that a rural landowner was liable for the flooding of his neighbor's 
 land caused by his erecting a barrier to prevent surface water from flowing onto 
 his land in order that he might dry up a pond on his land; Grey ex rel. Simmons 
 v. Paterson, 5S N. J. Eq. 1, 42 Atl. 749, on the right of a city to discharge sewage 
 into a stream; Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 57 Am. Rep. 
 445, 6 Atl. 453, IS W. N. C. 181, 43 Phila. Leg. Int. 467, holding that where a 
 mining company drained the waters percolating into its mines into the stream 
 naturally draining that territory, thus making the stream unfit for use by lower 
 riparian owners, they were without remedy; Nichols v. Marsland, 7 Legal Gaz. 
 27S, holding that owner of artificial lake was not liable for injury to adjacent 
 land caused by bursting of lake's bank as result of unprecedented rain, where he 
 was not guilty of negligence; Williams v. Union Improv. Co. G Kulp, 417, 1 Pa. 
 Dist. R. 288, holding that a bill averring that their lands were injured by the 
 draining of lands which could as easily have been drained without such damage, 
 into another channel, was good as against demurrer; Williams v. Raleigh, 21 
 Can. S. C. 103, on the liability of a town for damages occasioned by the erection 
 and maintenance of a public drain; Young v. Tucker, 2G Ont. App. Rep. 162, hold- 
 ing that one who in the course of husbandry drains his land into a pond which 
 is thereby overflowed the person is liable for the flooding of his neighbor's prop- 
 erty; Rowe v. Rochester, 29 U. C. Q. B. 590, holding that where the defend- 
 ant drained a highway by constructing a drain alongside thereof so that it flood- 
 ed the plaintiff's land, the defendant was liable even in the absence of negligence; 
 N'oble v. Toronto, 46 U. C. Q. B. 519, holding that mere proof of Hooding plain- 
 tiff's cellar from sewer did not establish prima facie case of negligence against 
 city; Derinzy v. Ottawa, 15 Ont. App. Rep. 712, holding same where grading of 
 streets caused the land to be flooded. 
 
 Cited in notes in 27 L.R.A. 294, on disposal of water brought in unnatural
 
 35 NOTES ON ENGLISH RULING CASKS. [1 E. Et. C. 236 
 
 quantities upon property; 61 L.R.A. 685, 710, on duty and liability of munici 
 pality witn respect to drainage; 1 Eng\ Rul. Cas. 758, on nonliability for diminu- 
 tion of water on adjoining land by pumping from well on one's own land; 25 
 E. R. C. 423, 425, on liability for injury to adjoining land due to protecting one's 
 own land from Hood. 
 
 Cited in 4 Dillon Mun. Corp. 5th cd. 3045, on rights and liabilities as respect 
 surface-water, of the owners of higher and lower city lots as between tbemselves; 
 
 5 Tbompson Neg. 360, on negligence of municipality in failing to construct drain- 
 to carry off surface water. 
 
 Distinguished in Vanderwiele v. Taylor, 65 N. Y. 341, holding that where the 
 defendant's land was in its natural condition and flooded the plaintiff's cellar, 
 the former was not liable therefor, nor was he bound to drain his land for the 
 latter's benefit; Central Trust Co. v. Wabash, St. L. & P. R. Co. 57 Fed. 441, hold- 
 ing thoct where injuries resulted from flooding lands because of the insufficiency of 
 a culvert to carry off water because of an almost unprecedented rain, the defend 
 ant was not liable; McBryan v. Canadian P. R. Co. 29 Can. S. C. 359 (reversing 
 
 6 B> C. 136, which affirmed 5 B. C. 187), holding that where the defendant erected 
 upon his land a dam to repel water cast thereon by a culvert in a railroad em- 
 bankment, and it threw the water back on the embankment the defendant was not 
 liable; Powley v. Mickleborougb, 21 Ont. L. Rep. 556, 18 Ann. Cas. 532, holding 
 tenant in upper flat liable to tenant underneath for damages from water over- 
 flowing from tap negligently left running in lavatory. 
 
 The decision of the Exchequer Chamber was cited in Derinzy v. Ottawa, 15 Ont. 
 App. Rep. 712, holding that municipal corporation is liable for injury to neigh- 
 boring property caused by collection and discharge of surface water as result of 
 grading of street, if by proper care injury might have been avoided; Morse v. 
 Marshall, 13 Allen, 288, on the right to flood other people's lands by means of a 
 dam; Clear Creek Land & Ditch Co. v. Kilkenny, 5 Wyo. 38, 36 Pac. 819, holding 
 that owner of irrigation ditch is liable for damages to owner of land caused by 
 enlarging ditch as first constructed. 
 
 The decision of the Exchequer Chamber was distinguished in Phillips v. Water- 
 house, 69 Iowa, 199, 58 Am. Rep. 220, 28 N. W. 539, holding that the owner of a 
 city lot who had improved it so that the surface water ran into the street at the 
 established grade, was not liable if another's lot was flooded, when the latter was 
 below grade. ^ 
 
 The decision of the Court of Exchequer was cited in Sanderson v. Pennsylvania 
 Coal Co. 35 Phila. Leg. Int. 332, 7 Luzerne Leg. Reg. 113, holding that mine owner 
 might be liable to lower owner on stream for injury caused by pumping water 
 from mine into stream; Bryce v. Loutit, 21 Ont. App. Rep. 100, holding that where 
 two townships build a drain under a road and the defendant built a drain to it 
 in such a manner that it flooded the plaintiff's land on the other side of the road, 
 the defendant was liable but the towns were not; Gordon v. St. James's West 
 minster, 13 L. T. N. S. 511, holding that where the defendants were not negligent 
 in maintaining a drain, they were not liable to the plaintiffs. 
 
 The decision of the Court of Exchequer was disapproved in Hannaher v. St. 
 Paul, M. & M. R. Co. 5 Dak. 1, 37 N. W. 717, holding that a railroad was not 
 liable for the flooding of adjoining land by reason of the construction of its 
 road bed, if the same was not negligently constructed. 
 — Maintenance of nuisance. 
 
 Cited in note in 2 B. R. C. 903, on trees near boundary as nuisance. 
 
 Cited in Joyce Xuis. 381, on disposal of sewage under statutory authority as a 
 nuisance.
 
 1 E. R. C. 236] NOTES ON ENGLISH RULING CASES. 36 
 
 Distinguished in Griffith v. Lewis, 17 Mo. App. 605, holding that one who col- 
 lects upon his property a substance which becomes a nuisance is not liable for 
 damages resulting until he has had reasonable time after notice, to remove it; 
 Esson v. Wattier, 25 Or. 7, 34 Pac. 756, holding that the erection of a dam could 
 not be enjoined unless it overflowed lands which would not be but for the 
 dam. 
 
 The decision of the Exchequer Chamber was cited in Seacord v. People, 121 111. 
 623, 13 N. E. 194, holding that business or trades which produce merely annoy- 
 ance, and which are not injurious to health or life, are not prima facie nuisances; 
 Reinhart v. Sutton, 58 Kan. 726, 51 Pac. 221, holding that abutting lot owner 
 may sue to abate as nuisance railroad company's ditch which encroaches by 
 erosion on street to his damage. 
 — Impairment of subjacent or superjacent mining rights. 
 
 Cited in Lord v. Carbon Iron Mfg. Co. 42 N. J. Eq. 157, 6 Atl. 812, holding that 
 if an upper mine owner breaks through a barrier maintained by a lower mine 
 owner to protect his mine against the flow of surface water, the former is liable 
 for resulting damages; Darley Main Colliery v. Mitchell, 55 L. J. Q. B. N- S. 
 529, L. R. 11 App. Cas. 127, 54 L. T. N. S. 882, 51 J. P. 148, holding that where, 
 the operation of the defendant's mine caused a subsidence of the surface and in- 
 jured plaintiff and he recovered compensation therefor, and later another sub- 
 sidence occurred without further operation of the mine, the plaintiff could re- 
 cover for the second; Holliday v. Wakefield, 17 E. R. C. 627, [1891] A. C. 81, 55 
 J. P. 325, 60 L. J. Q. B. N. S. 361, 64 L. T. N. S. 1, 40 Week. Rep. 129, holding 
 mine owners not entitled to compensation for prospective prevention of working 
 of more than 50 per cent of coal within twenty yards of reservoir. 
 
 Distinguished in Greenwell v. Low Beachburn Colliery Co. 66 L. J. Q. B. N. S. 
 643, [1897] 2 Q. B. 165, 76 L. T. N. S. 759, holding that where a subsidence was 
 caused dining the currency of a mining lease, by reason of excavations made by 
 the lessee's predecessor, the lessee was not liable; Smith v. Fletcher, 43 L. J. Exch. 
 N. S. 70, L. R* 9 Exch. 64, 31 L. T. N. S. 190, holding that where by reason of 
 improvements of the surface, water gathered there and passed into the defend- 
 ants' mines, and thence into the plaintiff's which were at a lower level, the de- 
 fendants were not liable unless negligent. 
 Liability for acts authorized by law but injurious to others. 
 
 Cited in District of Columbia v. Baltimore & P. R. Co. 1 Mackey, 314, holding 
 that a railroad company was liable to a city for the amount the latter had been 
 compelled to pay for injuries received because of a defective condition of a street 
 caused by the railroad company's embankment; Short v. Baltimore City Pass. R. 
 Co. 50 Md. 73, 33 Am. Rep. 298, holding that a street raihvay company was liable 
 for damages resulting from the heaping up of snow which was removed from its 
 tracks so as to block the gutter in an unreasonable manner ; Beach v. Sterling 
 Iron & Zinc Co. 54 N. J. Eq. 65, 33 Atl. 2S6, holding that a mining company may 
 not pollute the waters of a stream without compensating the riparian owners in- 
 jured thereby, even though it is authorized by law; Chichester Corp. v. Foster 
 P906] 1 K. B. 167, 75 L. J. K. B. N. S. 33, 70 J. P. 73, 54 Week. Rep. 199, 93 
 L. T. N. S. 750, 22 Times L. R. 18, holding that where a water main was broken 
 by use .of an exceptionally heavy traction engine and trucks on a street, the per- 
 son using them was liable for the repair of the main; Manchester Corp. v. New 
 Moss Colliery [1906] 1 Ch. 278, 75 L. J. Ch. N. S. 145, 70 J. P. 83, 54 Week. Rep. 
 240, 93 L. T. N. S. 762, 22 Times L. R. 132, on the liability for loss arising from 
 things proper construction of which are authorized by law.
 
 37 NOTES ON ENGLISB RULING (ASKS. [1 E. R, C. 236 
 
 Distinguished in Bryant v. Bigelow Carpet Co. 131 Mass. 491, holding that one 
 authorized by law to erect a railroad or a mill-dam, is liable for injuries to 
 adjacent property because of a negligent construction thereof; Fleming v. Man- 
 chester, 44 L. T. N. S. 517, 45 J. P. 423, holding that though the corporation had 
 been by law authorized to build a sewer, if it was negligent in maintaining the 
 same, it was liable for injuries caused thereby; Snook v. Grand Junction Water- 
 works Co. 2 Times L. R. 308; Green v. Chelsea Waterworks Co. 10 Times L. R. 
 259, — holding that where a company was authorized by statute to maintain a 
 system of waterworks, that it was not liable for the bursting of a main unless 
 it was negligent; Dixon v. Metropolitan Bd. of Works, 50 L. J. Q. B. N. S. 772, 
 L. R. 7 Q. B. Div. 418, 45 L. T. N. S. 312, 30 Week. Rep. 83, 46 J. P. 4, holding 
 same as to sewer authorized to be built; Boughton v. Midland G. W. R. Co. Ir, 
 Rep. 7 C. L. 169, holding that where water from a canal, which was authorized 
 by law to be built and required to be maintained, was turned into a sewer which 
 was obstructed and flooded the plaintiff's land, the owners of the canal were not 
 liable. 
 — By carrying on a lawful business injurious to others. 
 
 Cited in Seacord v. People, 121 111. 623, 13 N. E. 194, on the liability of a land 
 owner for carrying on a lawful business which is injurious to neighboring prop- 
 erty; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 9 L.R.A. 737, 25 Am. 
 St. Rep. 595, 20 Atl. 900, holding that where a lawful business is carried on so 
 as to interfere with the reasonable and comfortable enjoyment by another of his 
 property or occasions injury to the property itself, the proprietor is liable there- 
 for; Frost v. Berkeley Phosphate Co. 42 S. C. 402, 26 L.R.A. 693, 46 Am. St. Rep. 
 736, 20 S. E. 2S0, holding that if a land owner uses it for the prosecution of a 
 business from which injury to his neighbor's property will necessarily or prob- 
 ably result, he is liable for the resulting damages, even though he uses reasonable 
 care; Wilson v. Waddell, L. R. 2 App. Cas. 95, 35 L. T. N. S. 639, holding that the 
 right to work mines is a right of property which when properly exercised begets 
 no responsibility. 
 
 The decision of the Exchequer Chamber was cited in Madison v. Ducktown 
 Sulphur, Copper & I. Co. 113 Tenn. 331, 83 S. W. 658, holding that it is not ques- 
 tion of care and skill in management of industry but only results that must de- 
 termine right to injunction against its continuance to injury of another's prop- 
 erty. 
 
 Liability of land-owner for injuries resulting from dangerous instru- 
 mentalities maintained on premises. 
 
 Cited in Shipley v. Fifty Associates, 101 Mass. 251, 3 Am. Rep. 346, holding 
 that owner of building is liable for injury resulting from sliding of mass of ice 
 and snow from roof upon person in highway if he suffered ice and snow to remain 
 on roof for unreasonable time; Chicago & N. W. R, Co. v. Hunerberg, 16 111. App. 
 387, holding that where through the culpable negligence of the railroad company, 
 a switch was left open so that its cars ran off and onto the plaintiff's lands, the 
 company was liable for resulting damages; Gorham v. Gross, 125 Mass. 232, 28 
 Am. Rep. 224, holding that one who had constructed a party wall between his 
 own and his neighbor's land under agreement with the latter was liable for in- 
 juries to the latter caused by such wall falling upo n his land; Vincett v. Cook, 
 4 Hun, 321, holding that failure on part of owner of building to keep it in safe 
 condition, and resulting damages, throw upon owner burden of showing that build- 
 ing was safe so far as diligent examination would show; Mathews v. St. Louis & 
 S. F. R. Co. 121 Mo. 298, 25 L.R.A. 161, 24 S. W. 591, on the common law liability
 
 J E. R. C. 236] NOTES 03SJ ENGLISH RULING CASES. 38 
 
 of a railroad company for fires started by sparks from their engines; Ains- 
 worth v. Lakin, ISO Mass. 307, 57 L.R.A. ]32, 91 Am St. Rep. 314, 62 N. E. 746; 
 Dillon v. Hunt, 11 Mo. App 246, — holding that the defendant was liable for in- 
 juries sustained because of walls falling upon adjacent premises, which walls were 
 unsafe; dissenting opinions in McCafferty v. Spuyten Duyvil & P. M. R. Co. 61 
 N. Y. 178, 19 Am. Rep. 207; Stewart v. Gary Lumber Co. 146 N. C. 47, 59 S. E. 
 545; Winslow v. Fuhrman, 25 Ohio St. 639, — on the liability of a landowner for 
 injuries caused by dangerous instrumentalities brought upon his premises; Penas 
 v. Chicago, M. & St. P. R. Co. 112 Minn. 203, 30 L.R.A.(N.S.) 627, 140 Am. St. 
 Rep. 470, 127 N. W. 926, to the point that master is held liable for act of servant 
 where he puts in servant's power ability to do damage by means of instrumen- 
 talities dangerous intrinsically: Crewe v. Mottershaw. 9 B. C. 246, holding that 
 fire started in brush and timber for the purpose of clearing the land was a dan- 
 gerous instrumentality which was maintained at his own risk, and was liable for 
 damages in event of its escape, even without negligence; Grant v. Canadian P. 
 R. Co. 36 N. B. 528, holding same as to railroad company; Booth v. Moffatt, 11 
 Manitoba L. Rep. 25, holding same as to fire used by farmer to clear land but 
 only in case of actual negligence; Furlong v. Carroll, 7 Ont. App. Rep. 145, hold- 
 ing that where a fire was accidentally set upon land and the owner thereof left 
 .t after confining it to one place but it afterward spread, he is liable for the dam- 
 ages caused thereby; Wealleans v. Canada S. R. Co. 21 Ont. App. Rep. 297, hold- 
 ing that a foreign railroad company operating within the province without au- 
 thority is liable for fire started by its engines, even in the absence of negligence; 
 Millard v. Thurston, 9 Ont. App. Rep. 514, holding same as to a steamboat com- 
 pany navigating inland waters without authority ; Young v. Gravenhurst, 22 Ont. 
 L. Rep. 291, holding that one dealing in electricity is bound to public to exercise 
 utmost care in construction, inspection, repair and operation of his apparatus and 
 appliances; Kruse v. Romanowski, 3 Sask. L. R. 274, holding that recovery could 
 not be had at common law for the death of horse caused by eating poisoned grain 
 while trespassing on neighbor's land; Jones v. Festiniog R. Co. 37 L. J. Q. B. 
 N. S. 214, L. R. 3 Q. B. 733, 9 Best & S. S35, 18 L. T. N. S. 902, 17 Week. Rep. 
 28, holding where a railroad was not authorized by law to use steam locomotives, 
 it was liable for fires set by its engines; Crowhurst v. Amersham Burial Board, 
 48 L. J. Exch. N. S. 109, L. R. 4 Exch. Div. 5, 39 L. T. N. S. 355, 27 Week. Rep. 
 95, holding that where the plaintiff's horse died from eating of a poisonous tree 
 which extended from the defendants' land upon the plaintiff's, the defendants were 
 liable; Powell v. Fall, L. R. 5 Q. B. Div. 597, 43 L. T. N. S. 562, 49 L. J. Q. B. 
 N. S. 428, holding that where the plaintiff's haystacks were burned by sparks 
 from the defendant's traction engine being driven along the highway the defend- 
 ant was liable, though he was not negligent and had conformed to the statutes 
 applicable to steam engines. 
 
 Cited in notes in 15 L.R.A. (N.S.) 535, 541, 54S, on liability for escape of 
 dangerous substance stored on premises; 34 L.R.A. 559, on individual liability 
 for falling walls or buildings. 
 
 Cited in Joyce, Nuis. 550, on liability of one collecting dangerous substance on 
 his property; 1 Thompson, Neg. 1025, on liability of landlord in case of mixed 
 possession as between landlord and tenant. 
 
 Distinguished in Simonton v. Loring, 68 Me. 164, 28 Am. Rep. 29, holding that 
 where the occupants of an upper tenement left open a water faucet so that the 
 lower tenement was flooded, the former were liable to the latter; Burbank v. 
 Bethel Steam Mill Co. 75 Me. 373, 46 Am. Rep. 400. holding that the defendants
 
 39 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 236 
 
 were not liable for the burning of a mill by sparks from their stationary engine 
 though it was erected and used with out a licence, unless negligence was proved: 
 Quinn v. Crimmings, 171 Mass. 255, 42 L.R.A. 101, 08 Am. St. Rep. 420, 50 
 N. E. 624, holding that one bound to maintain a boundary fence is not liable foi 
 injuries caused by its fall, in the absence of negligence; Canada Southern R. Co. 
 v. Phelps, 14 Can. S. C. 132; Michigan C. R. v. Wealleans, 24 Can. S. C. 303,— hold 
 ing that where a railroad company was authorized to operate its road within the 
 province, it was not liable for fires started by its engines unless it was negligent: 
 Brewer v. Humble, 26 N. B. 495, holding that where the defendant erected a .steam 
 mill upon their property under agreement with the plaintiff, they are not liable 
 for a destruction of his property by sparks from the mill, in the absence of negli 
 gence; Tennant v. Hall, 27 N. B. 499, holding that where a drain pipe from the 
 roof to a cistern, maintained for the benefit of both plaintiff and defendant was 
 insufficient to carry off the water during a hard rain, the defendant was not 
 liable; Liretle v. Moncton, 36 N. B. 475, holding that the city having constructed 
 a sewer under statutory authority and made its use compulsory, it was not liable 
 if the sewer was insufficient to accomplish its purpose, if there were no' negli 
 gence in adopting the plans; Roe v. Lucknovv, 21 Ont. App. Rep. 61, holding thai 
 a corporation operating a factory and legally authorized to do a lawful business 
 is not liable for injuries caused by a horse becoming frightened by its whistle, 
 unless negligently operated; dissenting opinion in Gillson v. North Grey R. Co. 
 35 U. C. Q. B. 475 (affirming 33 U. C. Q. B. 128), on the liability of a land 
 owner for the escape of dangerous instrumentalities from his land; Wilson v. 
 Newberry, L. R. 7 Q. B. 31, 41 L. J. Q. B. N. S. 31, 25 L. T. N. S. 695, 20 Week. 
 Rep. Ill, holding that where a poisonous tree existed on a person's land, there 
 being no active duty that he shall keep the leaves there, he is not liable if an- 
 other's horse eats them; Ponting v. Noakes, 63 L. J. Q. B. N.' S. 549 [1S94] 
 2 Q. B. 281, 10 Reports, 265, 70 L. T. N. S. 842, 42 Week. Rep. 506, 58 J. P. 55S. 
 holding that where the plaintiff's horse died from eating of a poisonous tree which 
 grew on the defendant's land near the boundary, there being no fence, the de 
 fendant was not liable; Evans v. Liverpool Corp. [190G] 1 K. B. 160, 74 L. J. 
 K. B. N. S. 742, 69 J. P. 263, holding that where the plaintiff's son was dis- 
 charged from the defendant's hospital while still in an infectious state after 
 being sick with scarlet fever, and he communicated the disease to other children 
 of the plaintiff, the defendant was not liable. 
 
 The decision of the Exchequer Chamber was cited in Robertson v. Halifax Coal 
 Co. 20 N. S. 517, holding that railroad company using highway without express 
 authority is liable for death of person caused by being thrown under engine by 
 horse which he was leading which became frightened by engine, where no signal 
 was given of approach of engine; George v. Cypress Hills Cemetery, 32 App. Div. 
 281, 52 N. Y. Supp. 1097 (dissenting opinion), on liability of cemetery association 
 for injury to another caused by coming in contact with poison ivy at grave pur 
 chased for burial of husband; Cahill v. Eastman, 18 Minn. 324, Gil. 292, 10 Am 
 Rep. 184, holding that person who constructs tunnel is liable for injury to an 
 other's property caused by water of river bursting into tunnel and undermining 
 such other person's mill; George v. Cypress Hills Cemetery, 32 App. Div. 2S1 . 
 52 N. Y. Supp. 1097 (dissenting opinion), on the liability of a land owner for 
 the escape of dangerous instrumentalities maintained by him; Memphis Consol. 
 Gas. & Electric Co. v. Letson, 68 C. C. A. 453, 135 Fed. 969, holding that where a 
 person was killed while turning on an electric light because 'of a short circuit 
 the company was liable, and negligence is presumed.
 
 1 E. R. C. 236] NOTES ON ENGLISH RULING CASES. 40 
 
 The decision of the Exchequer Chamber was disapproved in Gerrish v. Whitfield, 
 72 N. H. 222, 55 Atl. 551, holding that an owner of a steam mill was not liable, 
 in the absence of negligence, for the destruction of a neighboring dwelling by 
 sparks from the mill. 
 
 — Damaging percolations. 
 
 Cited in Ball v. Nye, 99 Mass. 5S2, 97 Am. Dec. 56, holding that one who 
 maintains a vault so that filthy water filters from it through into the cellar of a 
 neighbor is liable for damages caused thereby without proof of negligence; 
 Mears v. Dole, 135 Mass. 508, holding that where one excavates upon his land 
 so as to let in the sea, which undermines the land of his neighbor, the former is 
 liable therefor; Berger v. Minneapolis Gaslight Co. 60 Minn. 296, 62 N. W. 336, 
 holding that the defendant was liable without any showing of negligence, for the 
 escape of crude petroleum stored in large quantities upon his premises, which 
 injured adjoining property; Humphreys v. Cousins, 46 L. J. C. P. N. S. 438, L. R. 
 
 2 C. P. Div. 239, 36 L. T. N. S. 180, 25 Week. Rep. 371, holding that the defend- 
 ant was liable for a defective sewer whereby sewage escaped into the plaintiff's 
 cellar, though he was not negligent and the sewer extended under the plaintiff's 
 house. ' 
 
 Distinguished in Goodlander Mill Co. v. Standard Oil Co. 27 L.R.A. 583, 11 C. 
 C. A. 253, 24 U. S. App. 7, 63 Fed. 400, holding that where the plaintiff's mill 
 was destroyed because of the escape of oil from a car shipped by the defendant, 
 without a valve to regulate the outflow, and the consignee attempted to unload it, 
 the defendant was not liable. 
 
 Disapproved in Long v. Louisville & N. R. Co. 128 Ky. 26, 13 L.R.A.(N.S.) 
 10G3, 107 S. W. 203, 16 Ann. Cas. 673, holding that one who buries a dead body 
 on his own land is not liable if the spring on his neighbor's land is polluted there- 
 by unless a reasonably prudent person would have foreseen such result. 
 
 — Escape of water artificially impounded or conducted. 
 
 Cited in Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285, 110 Pac. 79, 
 holding that owner of reservoir is liable for injuries occasioned to others by leak- 
 age or overflow therefrom, or breaking of embankment; Murphy v. Gillum, 73 Mo. 
 App. 487, holding that owner of reservoir will not be held for resulting damage 
 from vis major or act of God, or any unusual cause; Keever v. Mankato, 113 
 Minn. 55, 33 L.R.A. (N.S.) 339, 129 N. W. 158, Ann. Cas. 1912A, 216, 1 N. C. C. A. 
 187, to the point that city operating waterworks was liable for injury caused by 
 water escaping from embankment; City Water Power Co. v. Fergus Falls, 113 
 Minn. 33, 32 L.R.A. (N.S.) 59, 128 N. W. 817, Ann. Cas. 1912A, 10S, holding that 
 owner of dam is liable for injury caused by its breaking as result of such extraor- 
 dinary floods as may reasonably be anticipated; Wilson v. New Bedford, 108 Mass. 
 261, 11 Am. Rep. 352, holding that one who artificially accumulates water upon 
 his land is liable for injuries resulting therefrom through the percolation of the 
 water through upon his neighbor's land; Scott v. Longwell, 139 Mich. 12, 102 N. 
 W. 230, 5 Ann. Cas. 679, on the obligation of one who collects waters in an arti- 
 ficial reservoir to protect other property; Wiltse v. Red Wing, 99 Minn. 255, 109 
 N. W. 114, holding that the defendant was liable for damages resulting from the 
 bursting of a reservoir even in the absence of proof of negligence; Duerr v. Con- 
 solidated Gas Co. 86 App. Div. 14, 83 N. Y. Supp. 714, holding that a gas company 
 was liable for injuries caused by the rush of water from a Imrsted tank which was 
 improperly constructed ; Quebec v. The Queen, 24 Can. S. C. 420, on the liability 
 of the government for damages caused by a drain; Hart v. McMullin, 32 N. S. 
 340, holding that a mill owner who stored up water on his land by means of a
 
 41 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 236 
 
 dam was responsible for its safe keeping; Canadian P. R. Co. v. McBryan, 6 B. 
 0. 136, holding that injury to defendant's land caused by irrigation ditch of ad- 
 joining proprietor could not lawfully be averted by erection upon defendant's land 
 diverting it upon property of another; Cattle v. Stockton Waterworks Co. 44 L. 
 J. Q. B. N. S. 139, L. R. 10 Q. B. 453, 33 L. T. N. S. 475, on the liability of a water 
 company for injury from water escaping from their mains; Canadian P. R. Co. 
 v. McBryan, 5 B. C. 187, holding that land owner is not liable for injury from 
 backing water by erecting dam to prevent water from irrigation ditch constructed 
 on another's land from flowing through his land ; Hurdman v. North Eastern R. 
 Co. 47 L. J. C. P. N. S. 36S, L. R. 3 C. P. Div. 168, 38 L. T. N. S. 339, 26 Week. 
 Rep. 489, holding that where water was cast upon neighboring land because of an 
 •artificial barrier erected on the defendant's land which gathered the 
 water, defendant was liable for the resulting injury; Whalley v. Lan- 
 cashire & Y. R. Co. L. R. 13 Q. B. Div. 131, 53 L. J. Q, B. N-. S. 285, 50 
 L. T. N. S. 472, 32 Week. Rep. 711, 48 J. P. 500, holding that where the defend- 
 ant's railroad embankment gathered the water and the embankment was pierced 
 so as to protect it from the water, the defendant was liable for casting the water 
 upon the plaintiff's land; Snow v. Whitehead, 53 L. J. Ch. N. S. 885, L. R. 27 
 Ch. Div. 588, 51 L. T. N. S. 253, 33 Week. Rep. 12S, holding where a man allowed 
 water to gather in his cellar and percolate through on to his neighbor's land, that 
 he was liable for injuries caused; Evans v. Manchester, S. & L. R. Co. 57 L. J. 
 Ch. N. S. 153, L. R. 30 Ch. Div. 626, 57 L. T. N. S. 194, 36 Week. Rep. 328, hold- 
 ing that where a mill was injured by reason of water soaking through from a 
 canal alongside of it, the owners of the canal were liable as they had been negli- 
 gent, but they must recover in the manner provided by statute and not by 
 action; Ruddiman v. Smith, 60 L. T. N. S. 708, 37 Week. Rep. 528, 53 J. P. 518, 
 on the liability of a land owner for the escape of water from his premises. 
 
 Cited in notes in 1 L.R.A. (N.S.) 596, on negligence in storing or confining 
 water which escapes and causes damage; 1 Eng. Rul. Cas. 266, 272, 273, 275, on 
 liability for injury by water, etc., escaping from place where it is stored; 18 
 E. R. C. 626, on liability of water company for escape of water from pipes. 
 
 Cited in 1 Farnham, Waters, 478, on injury by construction and use of canal; 
 3 Farnham, Waters, 2798, on liability for injury by stored waters. 
 
 Distinguished in Canadian P. R. Co. v. Parke, 6 B. C. 6, holding that where the 
 defendant's irrigation ditches caused injuries to the plaintiff's railroad, the 
 ditches being authorized by law, the defendant was not liable in the absence of 
 negligence; St. John Y. M. C. A. v. Hutchinson, 18 N. B. 523, holding that where 
 water gathered in an old cellar where the building had been burned away and 
 soaked through into the adjoining cellar which had been sunk below its level, the 
 owners were not liable; Clarke v. Rama Timber Transport Co. 9 Ont. Rep. 68, 
 holding that the defendants were not liable for a break in the river bank at the 
 place where they were maintaining a dam and canal; Carstairs v. Taylor, 40 L. J. 
 Exch. N. S. 129, L. R. 6 Excli. 217, 19 Week. Rep. 723, holding that where defend 
 ant rented the lower floor of a building to the plaintiff, and the latter's stock 
 was injured because a rat ate a hole in one of the drains from the roof, the 
 defendant was not liable unless he was negligent; Ross v. Fedden, 41 L. J. Q. B. N. 
 S. 270, L. R. 7 Q. B. 661, 20 L. T. N. S. 966, holding that where the water escaped 
 from a tap into a water closet and the waste pipe therefrom had become clogged, 
 the owners thereof not being negligent, were not liable; Dunn v. Birmingham 
 Canal Navigation, 42 L. J. Q. B. N. S. 34, L. R. 8 Q. B. 42, 27 L. T. N. S. 
 683, 21 Week. Rep. 266, holding that where the defendants' canal was made to 
 leak by reason of the plaintiff's working his coal mine under it, and the water
 
 1 E. R. C. 236] .NOTES ON ENGLISH RULING CASES. 42 
 
 Hooded the ruined, the defendants were not liable, they not being negligent; 
 Madras R. Co. v. Carvetinagarum, L. R. 1 Ind. App. 364, 30 L. T. N. S. 770, 
 
 22 Week. Rep. S65, holding that where the tanks used for the storage of water in 
 India have existed from time immemorial, the rule as to the liability of the 
 owner does not apply; Nicholas v. Marsland, L. R. 2 Exch. Div. 1, 46 L. J. Exch. 
 N. S. 174, 35 L. T. N. S. 725, 25 Week. Rep. 173, 1 Eng. Rul. Cas. 262 (affirming 
 
 23 Week. Rep. 693, 7 Legal Gaz. 278), holding that if one who collets and stores 
 water on his premises, uses all reasonable means to keep it there, and it escapes 
 through some act of God or vis major, the person is not liable; Box v. Jubb, 48 
 L. J. Exch. N. S. 417, L. R. 4 Exch. Div. 70, 41 L. T. N. S. 97, 27 Week. Rep. 
 415, holding that where a large quantity of water was discharged into the defend- 
 ant's reservoir by the act of a third party over whom he had no control, and in- 
 jury was thereby occasioned to the plaintiff", the defendant was not liable; Ander- 
 son v. Oppemheimer, L. R. 5 Q. B. Div. 602, 49 L. J. Q. B. N. S. 708, holding that 
 where a cistern was maintained on the top floor and water supplied therefrom to 
 all the tenants, water escaping from a branch service pipe and injuring the plain- 
 tiff on the first floor, did not make the defendant liable unless he was negligent; 
 Blake v. Land & House Property Corp. 3 Times L. R. 667,' holding that where the 
 owner was not negligent, and water escaped from a tap in the house, through 
 no negligence of his, the owner was not liable to an adjoining owner; Blake v. 
 Woolf, 67 L. J. Q. B. N. S. S13, [1S98] 2 Q. B. 426, 79 L. T. N. S. 188, 47 Week. 
 Rep. 8, 62 J. P. 659. holding that where the defendant maintained a cistern on the 
 fourth floor, and the plaintiff, who occupied the first floor drew his supply of 
 water therefrom, was injured by tins water leaking through after the defendant 
 had hired a man to repair it, the defendant was not liable. 
 
 Disapproved in Moore v. Berlin Mills Co. 74 N. H. 305, 11 L.R.A.(N.S.) 284, 
 124 Am. St. Rep. 90S, 67 Ati. 578, 13 Ann. Cas. 217, holding that one accumulat- 
 ing a large reservoir of water upon his premises is not liable for injuries sus- 
 tained by reason of waters therefrom percolating through upon adjoining prop- 
 erty unless such use of the land is unreasonable. 
 
 The decision of the Exchequer Chamber was cited in Gannon v. Laclede Gaslight 
 Co. 145 Mo. 502, 43 L.R.A. 505, 47 S. W. 907 (dissenting opinion), on the liabil- 
 ity of one maintaining a reservoir of water on his premises; Righter v. Jersey 
 City Water Supply Co. 73 N. J. L. 298, 63 Atl. 6, on the liability of a land owner 
 for damages resulting from the reservoir on his land bursting; Hart v. McMullin. 
 32 N. S. 340, holding that mill owner who causes water to be stored up by erection 
 of dam, is responsible for its safe keeping; Weaver Mercantile Co. v. Thurmond, 
 68 W. Va. 530, 33 L.R.A. (N.S.) 1061, 70 S. E. 126, holding that land owner who 
 brings water upon his premises by artificial means and stores it in tanks, is 
 liable if water escapes and injures adjoining owner's property; Defiance Water 
 Co. v. Olinger, 54 Ohio St. 532, 32 L.R.A. 736, 44 N. E. 238, holding that the 
 water company was liable for injuries sustained by a guest of one of its serv- 
 ants while residing in a dwelling on the defendant's own land, where the water 
 tower burst; Sawyer v. Ives, Rap. Jud. Quebec 4 B. R. 374, holding owner liable 
 for damages from breaking, during extraordinary rainfall, of wing of dam due 
 to water having been held back by too high flush boards on center of dam. 
 
 The decision of the Exchequer Chamber was disapproved in Murphy v. Gilltim, 
 73 Mo. App. 487, holding that on° maintaining a reservoir of water on his land- 
 is not an insurer that it will cause no injury to others. 
 — Other fugitive or vagrant tilings. 
 
 Cited in Frost v. Berkeley Phosphate Co. 42 S. C. 402, 26 L.R.A. 693, 46 Am.
 
 43 .NOTES ON ENGLISH RULING CASKS. LI E. R. C. 230 
 
 St. Rep. 736, 20 S. E. 280, holding that owner of land is liable for damage to 
 neighbor's property caused by phosphate factory thereon generating deleterious 
 gases and vapors; Dever v. South Bay Boom Co. 14 N. B. 100, holding that where 
 a company were authorized by law to maintain a boom within certain limits, they 
 were not liable for logs breaking away and floating ashore within the boom limits; 
 Atkinson v. Goodrich Transp. Co. 00 Wis. 141, 50 Am. Rep. 352, 18 N. \V. 704. 
 holding that the defendant steamboat company was liable for the destruction of 
 the plaintiff's buildings even though the lire was communicated first from its 
 engines to a pile of shavings belonging to a third party; Chandler Electric Co. v. 
 Fuller. 21 Can. S. C. 337 (affirming 23 N. S. 263), holding that the defend- 
 ants were liable for damages to property of the plaintiffs stored on adjoining 
 premises by steam discharged from their condenser; Jaffrey v. Toronto, G.- & B. 
 R. Co. 24 U. C. C. P. 271, holding that where a railroad company recently built 
 through a forest and allowed wood to accumulate which became dry and was set on 
 lire by their engine, and the fire spread, the company was not liable in the 
 absence of negligence; Canadian P. R. Co. v. Roy, Rap. Jud. Quebec 9 B. R. 551 
 (reversed in Rap. Jud. Quebec 12 B. R. 543), holding railroad liable for fire from 
 sparks from engine though no negligence is proved and best spark arresters were 
 used; Cumberland Teleph. & Teleg. Co. v. United Electric R. Co. 12 L.R.A. 544, 
 42 Fed. 273; Bell Teleph. Co. v. Montreal Street R. Co. Rap. Jud. Quebec 10 C. 
 S. 162, — holding that where the operation of a telephone system was interfered 
 with, by the installation of an electric street railway, the former having no vested 
 interest in the street, the latter was not liable; Young v. Gravenhurst, 24 Ont. L. 
 Rep. 470. Ann. Cas. 1912B, 812, holding that municipal corporation is bound to 
 exercise utmost degre of care and skill in supplying residents with electricity: 
 Cooksley v. New Westminster, 14 B. C. 330, on liability of person who brings on 
 his land anything which if it should escape, may cause damage to his neighbor; 
 Winnipeg Oil Co. v. Canadian Northern R. Co. 21 Manitoba L. Rep. 274, holding 
 that railroad company was liable for damage by fire to plaintiff's premises ad- 
 joining track where fire was discovered five minutes after passage of train, 
 although no negligence in operating train was shown; Martineau v. Dumphy, 
 Rap. Jud. Quebec 1!) B. R. 352, holding that persons in possession of premises 
 near sidewalk are liable to person although trespasser who is injured by electric 
 current not properly guarded; Ottawa Electric Co. v. Cunningham, Rap. Jud. 
 Quebec 20 B. R. 481, holding that electric company is presumed to be negligent 
 in making connections for supplying home with electricity in such way as to 
 allow high voltage to reach inside wiring, causing death by contact with such 
 inside wires; Fuller v. Pearson, 23 N. S. 263, holding that recovery might be had 
 for damage caused by rust to property twenty feet distant from place where steam 
 or vapor escaped from defendant's engine, upon his own land; Batcheller v. Tun 
 bridge Wells Gas Co. 84 L. T. N. S. 765, 65 J. P. 680, 17 Times L. R. 765, hold- 
 ing that the defendants were bound to keep their gas mains gas tight so as to pre- 
 vent fts escape; Smith v. London & S. W. R. Co. 18 E. R. C. 726, L. R. 6 C. P. 
 14. 40 L. J. C. P. N. S. 21, 23 L. T. N. S. 678. 10 Week. Rep. 230, holding railroad 
 liable for burning of cottage from fire carried by high wind across field from fire 
 in heaps of trimmings on right of way. 
 
 Cited in notes in 52 L.R.A. 295, on liability of owner or occupant of land for 
 spread of weeds or noxious vegetation; 30 L.R.A. (N.S.) 195, on liability for set- 
 ting fire spreading to other's property; 2 B. R. C. 133, on liability of user of 
 electricity for injury to business or property of another from induction or use of 
 earth as return electric circuit.
 
 1 E. R. C. 236] NOTES ON ENGLISH RULING CASES. 44 
 
 Cited in Joyce, Nuis. 46, on liability for accumulating on one's own land some- 
 thing liable to escape; 1 Thompson, Neg. 637, 638, 640, 643-645, 649, 653, on lia- 
 bility for artificially collecting on one's own land substances 'having tendency to 
 escape on land of another; 1 Thompson, Neg. 732, 733, 735, on liability for injury 
 by electricity; Thornton, Oil & Gas, 685, on. duty of gas company to keep its gas 
 constantly under control. 
 
 Distinguished in Jennings v. Davis, 109 C. C. A. 451, 187 Fed. 703, holding 
 that owner of pipe line used for transportation of petroleum must use such care 
 to prevent leakage and injury to another's property as would be exercised by 
 man of ordinary prudence under same circumstances if whole risk was his own; 
 Smith v. Boston Gaslight Co. 129 Mass. 318, holding that a gas company was not 
 liable for the death of a person caused by inhaling gas which had escaped from a 
 defective gas pipe in the absence of negligence, but the unexplained escape of the 
 gas was prima facie evidence of negligence; Gould v. Winona Gas Co. 100 Minn. 
 258, 10 L.R.A.(N.S.) 889, 111 N. W. 254, holding that a gas company was not 
 liable in the absence of negligence for the injuries to trees caused by the escape 
 of gas from its mains on streets; Schmeer v. Gaslight Co. 147 N. Y. 529, 30 L.R.A. 
 653, 42 N. E. 202, holding that a gas company is not liable for an explosion of 
 gas let into a building unless it is negligent; Neal v. Atlantic Ref. Co. 4 Pa. 
 Dist. R. 49, 16 Pa. Co. Ct. 241, holding that the defendant was not liable for the 
 destruction of the plaintiff's tug boat, by a fire set by one over whom it had no 
 control, though some oil had escaped from its refinery and had commingled with 
 that set on fire; Hinman v. Winnipeg Electric Street R. Co. 16 Manitoba L. Rep. 
 16, holding that where the use of electricity was authorized for street railway 
 purposes the company was not bound to prevent telephone wires from coming 
 in contact with the trolley wires except where it is specially dangerous; Eastern 
 & S. A. Teleg. Co. v. Cape Town Tramways Co. [1902] A. C. 3S1, 2 B. R. C. 114, 71 
 L. J. P. C. N. S. 122, 86 L. T. N. S. 457, 50 Week. Rep. 657, 18 Times L. R. 523, 
 holding that an action did not lie against an electric railway company for inter- 
 ference with the operation of a submarine cable, because of the escape of electric 
 currents, where the interference could have been prevented in the construction of 
 the cable; National Teleph. Co. v. Baker, 62 L. J. Ch. N. S. 699, [1893] 2 Ch. 
 186, 3 Reports, 318, 68 L. T. N. S. 2S3, 57 J. P. 373, holding same as to a tele- 
 phone company injured by operation of street railway, which was authorized by 
 law. 
 
 Limited in Langabaugh v. Anderson, 68 Ohio St. 131, 62 L.R.A. 948, 67 N. E. 
 286, holding that where oil escaped from a tank and ran down across plaintiff's 
 land and was intercepted by a fire which followed it back and destroyed the plain- 
 tiff's buildings the defendant was not liable. 
 
 Disapproved in Mangan v. Louisville Electric Light Co. (Phelan v. Louisville 
 Electric Light Co.) 122 Ky. 476, 6 L.R.A. (N.S.) 459, 81 S. W. 703, holding that a 
 manufacturer of electricity is liable for injuries caused by its escape only in case 
 of negligence and he is not an insurer; Triple-State Natural Gas & Oil Co. t. 
 Wellman, 114 Ky. 79, 70 S. W. 49, 1 Ann. Cas. 64, holding same as to natural 
 gas. 
 
 The decision of the Exchequer Chamber was cited in Gulf, C. & S. F. R. Co. v. 
 Oakes, 94 Tex. 155, 52 L.R.A. 293, 86 Am. St. Rep. 835, 58 S. W. 999, holding 
 that mere spreading to adjoining farms of Bermuda grass planted by railroad 
 company to preserve embankments does not render company liable for damages 
 caused tbereby ; Brennan Constr. Co. v. Cumberland, 29 App. D. C. 554, 15 L.R.A. 
 (N.S.) 535, 10 Ann. Cas. 865, holding that person who permits escape of
 
 45 NOTES ON ENGLISH RULING CASKS. [1 K. R. C. 236 
 
 petroleum residuum into navigable river within limits of city is liable for in- 
 jury to boat at boat house caused by such escaping substance; Mathews v. St. 
 Louis & S. F. R. Co. 121 Mo. 298, 25 L.R.A. 161, 24 S. W. 591, holding that stat 
 ute making railroad company absolutely liable for damage to property from fires 
 communicated by its locomotives is not unconstitutional as impairing, by sub 
 jecting it to increased burden, rights given it to propel its cars by steam; Lawson 
 v. Price, 45 Md. 123, holding that in action for obstruction of race by throwing 
 logs, stumps, etc. therein, whereby damage accrued to plaintiff, negligence, is 
 not gravamen of action. 
 
 The decision of the Court of Exchequer was cited in Gillson v. North Grey E. 
 Co. 33 U. C. Q. B. 128, holding that person setting fire on his own land in order 
 to clear it is not insurer that no injury shall happen to neighbor's land, but is 
 responsible only for negligence; Berger v. Minneapolis Gaslight Co. GO Minn. 290, 
 62 N. W. 336, holding that person who stores quantity of petroleum upon his land 
 is liable to person whose land is injured by its escape; George v. Cypress Hills 
 Cemetery, 32 App. Div. 281, 52 N. Y. Supp. 1097, 1 Am. Neg. Rep. 646 (dissent- 
 ing opinion), on liability of owner of premises for damages caused by escape from 
 his premises of anything likely to do injury; Sanderson v. Pennsylvania Coal Co. 
 86 Pa. 401, 27 Am. Rep. 711, 11 Mor. Min. Rep. 60, 6 W. N. C. 97, 35 Phila. Leg. 
 Int. 332, 7 Luzerne Leg. Reg. Ill, holding tnat in action for pollution of stream 
 so as to render it unfit for domestic purposes, caused by opening and operation of 
 coal mine by upper owner, question of defendant's liability should have been 
 submitted to jury. 
 
 The decision of the Court of Exchequer was distinguished in Pennsylvania Coal 
 Co. v. Sanderson, 113 Pa. 126, 57 Am. Rep. 445, 6 Atl. 453, 18 W. N. C. 181, 43 
 Phila. Leg. Int. 467, holding that lower owner cannot recover damages for pollu- 
 tion of stream by opening of coal mine by upper owner and destroying usefulness 
 of water of stream for domestic purposes. 
 — To persons while lawfully traveling on public highway. 
 
 Cited in Davis v. Rich, 180 Mass. 235, 02 N. E. 375, holding that one main- 
 taining a spout having a visible defect so that it discharges water upon the side- 
 walk instead of into the sewer is absolutely liable to a person for injuries result- 
 ing from falling on ice formed by such spout; Shipley v. Fifty Associates, 106 
 Mass. 194, 8 Am. Rep. 3.18 (affirming 101 Mass. 251, 3 Am. Rep. 346) ; Hannem 
 v. Pence, 40 Minn. 127, 12 Am. St. Rep. 717, 41 N. W. 657,— holding that the 
 owner of a building abutting on a street was liable to a person injured by snow 
 falling from the roof where it had been accumulated by the formation of the 
 roof, without other proof of negligence; Griffiths v. Portland, 23 N. B. 559, holding 
 that the city was liable for injuries caused by a defect in a sidewalk; Dugal v. 
 People's Bank, 34 N. B. 581, on the liability of a land owner for injuries caused 
 by the accumulation of ice and snow upon a building, which ice and snow after 
 ward falls. 
 
 Cited in 1 Washburn, Real Prop. 6th ed. 444, on liability of tenant to traveler 
 on highway. 
 
 Distinguished in Southwestern Teleg. & Teleph. Co. v. Beatty, 03 Ark. 65, 37 
 S. W. 570, holding that a telephone company was not liable to a pedestrian in- 
 jured by a brick falling from a pier used to support its wires, unless the com 
 pany was negligent; Walsh v. Hayes, 72 Conn. 397, 44 Atl. 725, holding that in 
 the absence of negligence the defendant was not liable if a piece of ice was jolted 
 out of an ice cart while crossing over a rough stone crossing; Waller v. Ross, 100 
 Minn. 7, 12 L.R.A. (N.S.) 721, 117 Am. St. Rep. 661, 110 N. W. 252, 10 Ann. Caa.
 
 I E. K. C. 236] NOTES ON ENGLISH RULING CASES. 40 
 
 715, holding that one maintaining an awning over a sidewalk is not liable for in- 
 juries to persons, resulting from the falling of the awning, unless it was negli- 
 gently maintained; MeNulty v. Ludwig & Co. 125 App. Div. 291, 109 N. Y. Supp. 
 703, holding that in the absence of negligence, an owner of a building is not 
 liable for injuries received by reason of a swinging sign falling from the building, 
 which is not a nuisance; Strawbridge v. Philadelphia, 13 Phila. 173, 30 Phila. 
 Leg. Int. 270, 7 W. N. C. 537, 2 Pennyp. 419, holding that a city, in the absence of 
 negligence is not liable for the bursting of a gas main owned by it; Skelton v. 
 Thompson, 3 Ont. Rep. 11, holding that where the plaintiff was injured by fall- 
 ing on an icy sidewalk caused by the discharge of water from defendant's roof 
 through a drain, the latter were not liable without knowledge of the dangerous 
 condition; Roberts v. Mitchell, 21 Ont. App. Rep. 433, holding that the owner of 
 a building was liable for injuries to one passing by on the sidewalk, caused by a 
 cornice falling, which resulted from the ordinary decay without notice of the 
 dangerous condition. 
 
 Disapproved in Garland v. Towne, 55 N. H. 55, 20 Am. Rep. 104, holding that 
 the maintenance of eaves or gutters projecting over a street being an indictable 
 offense, negligence is not necessary to make the owner of the building liable to a 
 person injured as a result of such nuisance. 
 
 The decision of the Exchequer Chamber was cited in Scanlon v. Wedger, 150 
 Mass. 4(32, 10 L.R.A. 395, 31 N. E. 642 (dissenting opinion), on the liability for 
 injuries to a spectator, on a public street, by a display of fireworks. 
 — Blasting operations or use of explosives. 
 
 Cited in Georgetown, B. & L. R. Co. v. Eagles, 9 Colo. 544, 13 Pac. 696, hold- 
 ing that the railroad company was liable for injuries occasioned by blasting on 
 its right of way even if it exercised due care; Colton v. Onderdonk, 69 Cal. 155, 
 58 Am. Rep. 556, 10 Pac. 395, holding same as to blasting on city lot by owner; 
 Longtin v. Persell, 30 Mont. 306, 65 L.R.A. 655, 104 Am. St. Rep. 723, 76 Pac. 
 699, 2 Ann. Cas. 198, holding that a person carrying on blasting operations with- 
 in a platted district of a city is liable for injuries to property owing to con- 
 cussions of the air from the blasting, irrespective of care exercised ; Kleebauer v. 
 Western Fuse & Explosives Co. 6 Cal. Unrep. 933, 60 L.R.A. 377, 69 Pac. 246, 
 holding that the maintenance of a fuse factory in which was stored a large 
 quantity of powder was a nuisance per se so that the defendant was liable where 
 it was maliciously exploded by a servant (reversed on rehearing) ; Bradford 
 Glycerine Co. v. St. Marys Woolen Mfg. Co. 60 Ohio St. 560, 45 L.R.A. 658, 71 
 Am. St. Rep. 740, 54 N. E. 528, holding that one storing nitroglycerine upon his 
 premises is liable for any injuries caused by an explosion thereof, even though 
 such storage was not prohibited by law, nor the owner negligent; Parrott v. 
 Barney, 2 Abb. (U. S.) 197, Fed. Cas. No. 10,773, holding that a common carrier 
 was not liable for injuries to surrounding property, caused by an explosion of 
 nitroglycerine delivered to it for shipment, where it did not know the contents 
 of the package; Burke v. Anderson. 16 C. C. A. 442, 34 U. S. App. 132, 69 Fed. 
 814, holding that the master was liable to a servant for injuries received from 
 a stick of dynamite remaining after a blast, unless the latter was warned of his 
 danger or knew it. 
 
 Cited in note in 16 L.R.A. (N.S.) 692, on storage of explosives as nuisances. 
 
 Cited in 1 Thompson Neg. 699, on liability of railroad conrpany for damages 
 caused by explosion of steam boilers: 1 Thompson Neg. 703, on liability for dam- 
 ages caused by blasting rock; 2 Thomas Neg. 2d ed. 2062, on liability for injury 
 to neighbor from explosion on one's premises; 2 Thomas Neg. 2d ed. 2073, on 
 liability for injury by blasting under operation of contractor.
 
 47 NOTES OX ENGLISH RULING CASES. |l E. EL C. 236 
 
 Distinguished in Barnes v. Zettlcmoyer, 25 Tex. Civ. App. U.S. 62 S. W. 111, 
 holding that the keeping of a quantity of dynamite by hardware merchants, for 
 sale is not a nuisance so as to make them liable if it explodes, unless they arc- 
 negligent; Klepsch v. Donald, 4 Wash. 436, 31 Am. St. Rep. !»36, 30 Pac. 991. 
 holding that there is no presumption of negligence, where a person was injured 
 by a blast while standing at a great distance from where it was discharged. 
 
 Disapproved in The Ingrid, 195 Fed. .578, holding that carrier of explosives 
 cannot be held liable as insurer against injuries which may result to others from 
 accidental explosion, but is only liable on ground of negligence; Bishop v. Brown. 
 14 Colo. App. 535, 61 Pac. 50, holding that in the absence of negligence the owner 
 of a steam boiler is not liable if it explodes, injuring others. 
 
 The decision of the Exchequer Chamber was cited in Burke v. Anderson, 16 
 C. C. A. 442, 34 U. S. App. 132, 69 Fed. 814, holding that contractor is liable to 
 servant caused by explosion of dynamite struck with pick where seivant was set 
 to work digging with pick at spot where blasting had been done day before, with 
 out warning of possible danger; Scanlon v. Wedger, 156 Mass. 462, 16 L.R.A. 395. 
 31 N. E. 642 (dissenting opinion), on liability for injury to person on street 
 caused by explosion of bomb during display of fireworks under license from city: 
 McGhee v. Norfolk & S. R. Co. 147 N. C. 142, 24 L.R.A.(N.S-) 119, 60 S. E. 912 
 (dissenting opinion), on liability of railroad company for injury caused by 
 explosion of dynamite stored near highway; Henderson v. Sullivan, 16 L.R.A. 
 (N.S.) 691, S6 C. C. A. 236, 159 Fed. 46, 14 Ann. Cas. 590, holding that storage 
 on island in Detroit river of tons of dynamite which was liable to and did ex- 
 plode, constituted nuisance. 
 
 The decision of the Exchequer Chamber was distinguished in Cleveland Termi- 
 nal & Valley R. Co. v. Marsh, 63 Ohio St. 236, 52 L.R.A. 1.42, 58 N. E. 821, hold 
 ing that a railway company was not liable for injuries caused by the explosion 
 of a signal torpedo placed along its track, sustained by a boy employed by the 
 agent to assist in caring for switch lights. 
 
 The decision of the Exchequer Chamber was disapproved in Marshall v. Wei 
 wood, 3S N. J. L. 339, 20 Am. Rep. 394; Losee v. Buchanan, 51 N. Y. 476, 10 Am. 
 Rep. 623: Veith v. Hope Salt & Coal Co. 51 W. Va. 96, 57 L.R.A. 410, 41 S. E. 
 187, — holding that one maintaining a steamboiler upon his premises in the 
 operation of a lawful business is not liable for injuries caused by its explosion 
 in the absence of negligence. 
 — Escape of animals. 
 
 Cited in Baker v. Snell [1908] 2 K. B. 825, 2 B. R. C. 1, 77 L. J. K. B. N. S. 
 1090, 24 Times L. R. 811, 52 Sol. Jo. 681 (dissenting opinion), on liability of 
 owner of dog incited by servant to attack stranger; Childs v. Ilea in, 43 L. J. 
 Exch. X. S. 100, L. R. 9 Exch. 176, 22 Week. Rep. 864, on the liability lor injuries 
 caused by animals escaping from land. 
 
 Cited in note in 37 L.R.A. (N.S.) 720, on liability, in absence of negligence, for 
 damage by runaway horse. 
 
 Distinguished in Caughlin v. Campbell-Sell Baking Co. 39 Colo. 148. 8 L.R.A. 
 (N.S.) 1001, 121 Am. St. Rep. 158, 89 Pac. 53, holding that one leaving a team 
 standing on a highway, restrained by a weight is not liable lor injuries caused 
 by their running away unless he is negligent. 
 
 Disapproved in Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372, holding that 
 a person whose horses become frightened by a locomotive is not liable for dam- 
 ages caused by their running upon adjoining land where it is not his fault. 
 
 The decision of the Exchequer Chamber was cited in Ward v. 1'aducah & M. 1!. 
 Go. 4 Fed. S62, holding that if crops be damaged by animals of owner, adjoining
 
 1 E. R. C. 23G] NOTES ON ENGLISH RULING CASES. 48 
 
 proprietor can only be liable when by some prescription, contract, or statutory 
 duty, such liability is imposed upon him ; Patterson v. Fanning, 2 Ont. L. Rep. 
 4G2, holding that the owner of a horse, which was unlawfully upon a highway 
 through the owner's negligence was liable for injuries caused by it. 
 
 The decision of the Exchequer Chamber was distinguished in Zumstein v. 
 Shrumm, 22 Ont. App. Rep. 263, holding that the owner of a turkey gobbler was 
 not liable if it escaped from his premises and frightened a horse being driven 
 along a highway, injuring the plaintiff. 
 
 The decision of the Court of Exchequer was cited in Brown v. Collins, 53 N. 
 H. 442, 16 Am. Rep. 372, holding that person whose horses run away because 
 frightened by locomotive and break post upon another's land, is not liable for 
 damage, if it was not caused by any fault on his part. 
 
 — Injuries by wild or vicious animals. 
 
 Cited in Montgomery v. Koester, 35 La. Ann. 1091, 48 Am. Rep. 253, holding 
 that one who keeps a dangerous animal upon his premises is bound, knowing 
 him to be such, to keep him safe from hurting innocent persons, and the owner is 
 liable if for want of reasonable care he injures another; Shaw v. McCreary, 19 
 Ont. Rep. 39, holding that the wife was liable for injuries caused by the escape 
 of a bear confined by her husband upon her separate property ; Filburn v. 
 People's Palace Co. 59 L. J. Q. B. N. S. 471, L. R. 25 Q. B. Div. 258, 38 Week. 
 Rep. 706, 55 J. P. 181, holding that defendants were liable for injuries caused 
 by escape of an elephant, which was kept by them on exhibition; Brady v. 
 Warren [1900] 2 Ir. Q. B. 632, holding that where deer were kept in a game 
 preserve, the owner was liable for trespass by them and injury to neighbor's 
 crops, but not so, as to rabbits which were upon the preserve, as he did nothing 
 to care for them. 
 
 The decision of the Exchequer Chamber was cited in Chase v. McDonald, 25 
 U. C. C. P. 129, holding that person injured by horse at large on highway cannot 
 recover under declaration failing to allege that owner had knowledge of vicious 
 nature of horse; Behan v. Vredenburg, 33 La. Ann. 627, 1 Am. Neg. Cas. 347, 
 holding that keeping of ferocious animals is unlawful act, and injury done by 
 them when they get loose, gives rise to action for damages; Peterson v. Conlan, 
 18 N. D. 205, 119 N. W. 367, holding that owner of alleged vicious animal cannot 
 be held liable for injury by it regardless of question of his negligence in per- 
 mitting its escape from his premises. 
 
 The decision of the Exchequer Chamber was disapproved in De Gray v. Murray, 
 69 N. J. L. 458, 55 Atl. 237, holding that one who kept a vicious dog upon his 
 premises was liable for injuries caused by it if it escaped through negligence in 
 fastening or restraining it. 
 
 — When dangerous thing is brought by another under authority of owner. 
 Cited in Gillson v. North Grey R. Co. 35 U. C. Q. B. 475, on the liability of a 
 
 land owner for the escape of a dangerous instrumentality from his land, brought 
 there by a contractor. 
 
 Distinguished in The Thetis, 38 L. J. Prob. N. S. 42, L. R. 2 Adm. & Eccl. 365, 
 22 L. T. N. S. 276, holding that where one ship collided with and sank another 
 while performing salvage services for it, the owners were liable for the damages, 
 the master of it being negligent; Ward v. Caledon, 19 Ont. App. Rep. 69, hold- 
 ing that where a town authorized certain persons to erect a dam, which caused a 
 part of the road to be flooded, the town was not liable for his negligence in 
 erecting the dam. 
 What is a dangerous instrumentality. 
 
 Distinguished in McCord Rubber Co. v. St. Joseph Water Co. 181 Mo. 678, 81
 
 49 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 262 
 
 S. W. 189, holding that water brought into houses through pipes in a manner 
 usually used in cities is not a dangerous agent, so that the company will be 
 liable for injuries caused by a breaking of the pipe. 
 
 The decision of the Exchequer Chamber was cited in Henderson v. Sullivan, 16 
 L.R.A.(N.S.) 69], S6 C. C. A. 236, 14 Ann. Cas. 590, 159 Fed. 46, holding that 
 dynamite is a dangerous substance which is stored at the owner's risk. 
 Property along highway as being held subject to inevitable risk. 
 
 Cited in Tillett v. Ward, 52 L. J. Q. B. N. S. 61, L. R. 10 Q. B. Div. 17, 47 L. 
 T. N. S. 546, 31 Week. Rep. 197, 47 J. P. 438, holding that where the ox which 
 the defendant was driving along the street, entered the plaintiff's store and did 
 damage, and the defendant was not negligent, the latter was not liable. 
 Burden of proving negligence. 
 
 Cited in note in 18 E. R. C. 707, on burden of proving negligence. 
 Liability for acts of independent contractor. 
 
 Cited in notes in 14 L.R.A. S30, on exception to rule that an employer is not 
 liable for acts of independent contractor; 66 L.R.A. 147, on liability for acts of 
 independent contractor where injuries result from employer's nonperformance 
 of absolute duties. 
 
 Cited in 1 Thomas Neg. 2d ed. 655, on liability for negligence of independent 
 contractor. 
 
 1 E. R. C. 262, NICHOLS v. MARSLAND, L. R. 2 Exch. Div. 1, 35 L. T. N. S. 
 725, 25 Week. Rep. 173, 46 L. J. Exch. N. S. 174, affirming the decision of 
 the Court of Exchequer, reported in L. R. 10 Exch. 255, 44 L. J. Exch. 134. 
 Permissible use of property resulting in injury to others. 
 
 Cited in note in 2 B. R. C. 15, on liability of keeper of dangerous animal in 
 absence of negligence on his part. 
 
 The decision of the Court of Exchequer was cited in Cumberland Teleph. & 
 Teleg. Co. v. United Electric R. Co. 12 L.R.A. 544, 42 Fed. 273, holding that the 
 telephone company was without remedy if its service was interfered with by 
 the escape of electricity from the rails of a street railway system; Hannaher 
 v. St. Paul, M. & M. R. Co. 5 Dak. 1, 37 N. W. 717, holding that a railroad com- 
 pany was not liable for damages caused by the overflowing of land because of 
 the construction of its roadbed if the latter was not improperly constructed; 
 Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 57 Am. Rep. 445, 6 Atl. 453. 
 18 W. N. C. 1S1, 43 Phila. Leg. Int. 4G7, holding that damages resulting to 
 another from the natural and lawful use of his land by the owner thereof are in 
 the absence of negligence or malice, damnum absque injuria. 
 
 Liability of owner for escape of dangerous instrumentality from his 
 land. 
 
 Cited in Canada Southern R. Co. v. Phelps, 14 Can. S. C. 132, holding that a 
 railroad company was liable for the destruction of buildings by sparks from its 
 engines, where it was negligent; Chaz v. Les Cisterciens Reformes, 12 Manitoba 
 L. Rep. 330, holding that where the defendants had used every precaution to put 
 out a fire after burning a fire break, they were not liable if the fire revived and 
 escaped to other lands; Grant v. Canadian P. R. Co. 36 N. B. 528, holding that a 
 railroad company was liable for the escape of fire used in clearing ite right of 
 way, whether it was negligent or not. 
 
 Cited in note in 15 L.R.A. (N. S.) 547, on liability for escape of dangerous 
 substance stored on premises. 
 
 Notes on E. R. C— 4.
 
 ] E. R. C. 262] NOTES ON ENGLISH RULING CASES. 50 
 
 The decision of the Court of Exchequer was cited in Southwestern Teleg. & 
 Teleph. Co. v. Beatty, 63 Ark. 65, 37 S. W. 570, holding that a telephone com- 
 pany was not liable for injuries to a person on a street caused by the falling of 
 a brick from a pier used to support its wires, unless it was negligent; Triple- 
 State Natural Gas & Oil Co. v. Wellman, 114 Ky. 79, 70 S. W. 49, 1 Ann. Cas. 
 64, holding that a manufacturer of lighting gas is not an insurer so as to be 
 liable in case of injury because of an explosion of the gas, unless he is negligent; 
 Waller v. Ross, 100 Minn. 7, 12 L.R.A.(N.S.) 721, 117 Am. St. Rep. 661, 110 N. 
 W. 252, 10 Ann. Cas. 715, holding that one maintaining an awning over a side- 
 walk was not liable for injuries to a person on the street by the falling of the 
 awning in the absence of negligence; Roberts v. Mitchell, 21 Ont. App. Rep. 433, 
 holding that one was. not liable if a cornice on his building became loosened in 
 course of time by natural causes, and fell to the street injuring another, unless 
 he was negligent. 
 
 The decision of the Court of Exchequer was distinguished in Jennings v. Davis, 
 109 C. C. A. 451, 187 Fed. 703, holding that owner of pipe line used for trans- 
 portation of petroleum is bound to exercise only degree of care man of ordinary 
 prudence would exercise under same circumstances, if whole risk was his own. 
 
 — Caused by act of third party over whom lie has no control. 
 
 Cited in Baker v. Snell, [1908] K. B. 825, 2 B. R. C. 1, 77 L. J. K. B. N. S. 
 1090, 24 Times L. R. 811, 52 Sol. Jo. 681 (dissenting opinion), on liability of 
 person keeping savage animal for injury done by it, where immediate cause of 
 injury is act of third person. 
 
 The decision of the Court of Exchequer was cited in Mahoney v. Libbey, 123 
 Mass. 20, 25 Am. Rep. 6, holding that where the walls of a building were left 
 standing after a fire, and became dangerous by the removal of the walls of an- 
 other building owned by a third party the owner of the former was not liable for 
 injuries by their fall, unless he had notice of their condition. 
 
 — By latent defects in construction. 
 
 The opinion of the Exchequer Court was cited in Gorham v. Gross, 125 Mass. 
 232, 28 Am. Rep. 224, holding that where one party erected a party wall between 
 his land and another's, the former was liable for injuries sustained by the latter 
 if the wall fell because of defects in its erection. 
 
 — Escape of water artificially stored. 
 
 Cited in Hart v. McMullin, 32 N. S. 340, holding that one who stores up 
 large quantities of water on his lands is responsible for its safe keeping; Box 
 v. Judd, L. R. 4 Exch. Div. 76, 48 L. J. Exch. N. S. 417, 41 L. T. N. S. 97, 27 
 Week. Rep. 415, holding that if a person who has gathered water upon his 
 premises is not negligent and the water escapes through no fault of his, he is not 
 liable; Thomas v. Birmingham Canal Co. 49 L. J. Q. B. N. S. 851, 43 L. T. N. S. 
 435, 45 J. P. 21, holding that where a sluice way from the defendant's canal was 
 opened to leave out water during a rainfall which was unprecedented as to 
 amount and duration, and unless the water was released it would have broken 
 out with the same result, the defendants were not liable. 
 
 Cited in notes in 1 E. R. C. 266, on liability for injury by water, etc., escaping 
 from place where it is stored; 25 E. R. C. 423, on liability for injury to adjoining 
 land due to protecting one's own land from flood. 
 
 Cited in 3 Farnham Waters 2548, on liability for injuries caused by giving 
 way of dam; 3 Farnham Waters, 2805, on liability for injury by stored waters; 
 3 Farnham Waters, 2821, on liability for contributing to injury by flood. 
 
 Distinguished in Simonton v. Loring, 68 Me. 164, 2S Am. Rep. 29, holding that
 
 51 NOTES ON ENGLISH RULING CASES. |l E. R. C. 262 
 
 where the tenants on the second floor of a tenement left the water faucet open 
 and flooded the lower tenement, they were liable to the occupants of the lower 
 one; Dixon v. Metropolitan l!d. of Works, L. R. 7 Q. B. Div. 418, 50 L. J. Q. B. 
 N. S. 772, 45 L. T. N. S. 412, 30 Week. Rep. 83, 46 J. P. 4, holding that where the 
 defendants maintained a sewer, and during a heavy rain the flood gates from the 
 sewer were opened to relieve the over supply of water therefrom, and thereby 
 caused injury to the plaintiff's dock, the defendants were liable unless authorized 
 by law. 
 
 The decision of the Court of Exchequer was distinguished in St. John Y. M. C. 
 
 A. v. Hutchinson, 18 N. B. 523, holding that where the water gathered in the 
 cellar of a building which had been burned, and soaked through to an adjoining 
 cellar, the owner of the former was not liable to the owner of the latter; Clarke 
 v. Rama Timber Transport Co. 9 Ont. Rep. 68, holding that where the defendants 
 were authorized to build a canal alongside of a stream, they were not liable for 
 the breaking of the artificial bank, thereby causing the plaintiff's land to become 
 flooded, whether caused by act of God or not. 
 
 Storms and floods as vis major or act of God. 
 
 Cited in Ohio & M. R. Co. v. Ramey, 139 111. 9, 32 Am. St. Rep. 176, 28 N. E. 
 1087, holding that a flood in order to come within the meaning of the phrase, 
 Act of God, must not only be more than extraordinary but must be such as not 
 to be reasonably anticipated from experience; Carney v. Caraquet R. Co. 29 N. 
 
 B. 425, holding that the test as to whether a storm is an act of God within the 
 meaning of that term is whether it could have been reasonably anticipated, not 
 whether it was unprecedented; Garfield v. Toronto, 22 Ont. App. Rep. 128, hold- 
 ing that an extraordinary rainfall may be properly treated as an act of God, 
 though it is not unprecedented, if there is nothing in the former experience to 
 point to its recurrence; Sawyer v. Ives, Rap. Jud. Quebec, 4 Q. B. 374, holding 
 that a rain storm, extraordinary but not unprecedented, nor of such violence 
 that it could not reasonably have been anticipated does not constitute vis major; 
 Nitro-Phosphate & Odam's Chemical Manure Co. v. London & St. K. Docks Co. 
 L. R. 9 Ch. Div. 503, 37 L. T. N. S. 330, 27 Week. Rep. 267, 1 E. R. C. 276, hold- 
 ing that in order that an extraordinary natural event should be an act of God in 
 the legal sense, it is sufficient that its happening could not have been reasonably 
 expected, though it has happened before, and nothing leads to the inference that it 
 will not happen again. 
 
 The decision of the Court of Exchequer was cited in Central Trust Co. v. 
 Wabash, St. L. & P. R. Co. 57 Fed. 441, holding that railroad company was not 
 liable for injury from water of extraordinary flood which broke embankment 
 flooding plaintiff's property. 
 
 Vis major or act of God excusing owner for damage by dangerous instru- 
 mentalities. 
 
 Cited in Cork v. Blossom, 102 Mass. 330, 26 L.R.A. 256, 44 Am. St. Rep. 362. 
 38 N. E. 495, holding that one who builds a tall chimney must make it so that 
 it will withstand any gales which experience shows are reasonably to be ex- 
 perienced in that locality; Ward v. Caledon, 19 Ont. App. Rep. 69, holding that 
 the act of Cod or vis major will excuse any one storing water in large quantities 
 upon his land, if he uses all care possible to keep it safely; McMillan v. Southwest 
 Boom Co. 17 N. B. 715, holding that boom company was not bound to protect 
 navigation of river against extraordinary floods, and they were not liable for ob- 
 struction to navigation caused by vis major, and not through its own negligence. 
 
 Distinguished in Tennant v. Hall, 27 N. B. 499, holding that where a drain
 
 1 E. E. C. 262] NOTES ON ENGLISH RULING CASES. 52 
 
 pipe was maintained from a roof for the benefit of two tenants, and during a 
 severe rainstorm it proved insufficient to carry off the water one tenant who 
 maintained the pipe was not liable for injuries to the other. 
 
 The decision of the Court of Exchequer was cited in Murphy v. Gillum, 73 Mo. 
 App. 487, holding that the action of the frost in making water percolate through 
 the banks of a reservoir was an act of God so that the owner thereof was not 
 liable. 
 New trial where verdict is against the evidence. 
 
 Decision of the Court of Exchequer was cited in Walton v. York County, 32 U. 
 C. C. P. 35, on the granting of a new trial on grounds that verdict is against 
 the evidence. 
 Remoteness of damages. 
 
 Cited in note in 8 E. R. C. 412, on remoteness of damages. 
 
 1 E. R. C. 276, NITRO-PHOSPHATE CO. v. LONDON & ST. K. DOCKS CO. L, 
 
 R. 9 Ch. Div. 503, 39 L. T. N. S. 433, 27 Week. Rep. 267. 
 Liability for failure to fulfil statutory duty. 
 
 Cited in Great Western R. Co. v. Brown, 3 Can. S. C. 159, holding that railway 
 company is guilty of negligence in failing to apply air breaks at sufficient dis- 
 tance from crossing to enable it to stop before crossing other railroad as required 
 by statute; White v. Gosfield, 10 Ont. App. Rep. 555, holding that where a drain 
 was constructed by a municipality and it neglected to repair it, and injury was 
 occasioned thereby the municipality was liable for the breach of the statutory 
 duty to repair. 
 — As excusing damages resulting from negligence or accident. 
 
 Cited in De Grazia v. Piccardo, 15 Pa. Super. Ct. 107, holding that where the 
 injury was the result of negligence on the part of the employer connected with a 
 risk assumed by the servant, the damages may be separated as compared to each 
 cause. 
 Extraordinary events as acts of God. 
 
 Lited in Willson v. Boise City, 20 Idaho, 133, 36 L.R.A.(N.S.) 1158, 117 Pac. 
 115, 1 N. C. C. A. 203, holding that rainfall or cloudburst which has irregularly 
 and infrequently occurred a number of times within memory of man in par- 
 ticular locality, and caused heavy freshets, is not classed as "act of God" in law 
 of negligence; Ohio & M. R. Co. v. Ramey, 139 111. 9, 32 Am. St. Rep. 176, 28 N. 
 E. 10S7, holding that railroad must provide in making embankments, for escape 
 of waters of such unusual or extraordinary floods as it should have anticipated 
 would occur, because they had occasionally occurred at intervals of irregular 
 duration; Cork v. Blossom, 162 Mass. 330, 26 L.R.A. 256, 44 Am. St. Rep. 362, 38 
 N. E. 495, holding that one maintaining a high chimney on his land was liable to 
 injuries to adjoining property occasioned by a fall thereof caused by an extraordi- 
 nary high wind which might reasonably have been expected; Garfield v. Toronto, 
 22 Ont. App. Rep. 128, holding that in order that an extraordinary rainfall in 
 order to be treated as an act of God, need only be such as could not reasonably be 
 expected, though it had occurred one or more times previously ; Mackenzie v. West 
 Flamborough, 26 Ont. App. Rep. 198, holding that damage by reason of flood be- 
 cause a drain is out of repair is not excused because the injury was caused by 
 an extraordinary rainfall, unless it would have occurred if the drain were in 
 proper condition; Sawyer v. Ives, Rap. Jud. Quebec, 4 B. R. 374, holding extra- 
 ordinary rainstorm causing dam to give way, not vis major; Burt v. Victoria
 
 53 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 296 
 
 Graving Dock Co. 47 L. T. N. S. 378, holding that where the defendants were 
 negligent in maintaining the height of the frontage wall, they were not excused 
 from liability because an act of God intervened to cause the damages. 
 
 Distinguished in Dixon v. Metropolitan Bd. of Works, L. R. 7 Q. B. Div. 418, 
 50 L. J. Q. B. N. S. 772, 45 L. T. N. S. 312, 30 Week. Rep. 83, 46 J. P. 4, holding 
 that where the defendants opened the flood gates to a sewer to let out an ac- 
 cumulation of water which had gathered there from a hard rain, the defendants 
 were liable as the injury did not result from an act of God. 
 
 Apportionment of damage resulting from independent contributing 
 causes. 
 
 Cited in Carhart v. State, 115 App. Div. 1, 100 N. Y. Supp. 499, holding that 
 state was only liable for such part of damage sustained as would not have re- 
 sulted except for its negligence, where water course overflowed in part because of 
 rainfall and in part by state's negligence in turning water from canal into 
 watercourse; Mundy v. New York, L. E. & W. R. Co. 75 Hun, 479, 27 N. Y. Supp. 
 409, on the apportionment of damages resulting from two independent causes; 
 Deegan v. Gutta Percha & Rubber Mfg. Co. 131 App. Div. 101, 115 N. Y. Supp. 
 291, to the point that jury had right to determine compensation for injury to 
 employer's hand and arm in view of increased injury caused by negligence of de- 
 fendant although some injury would have occurred in absence of such negligence. 
 Duty to maintain sea walls. 
 
 Cited in 2 Farnham Waters, 1331, 1332, on duty to construct and maintain 
 artificial sea walls. 
 
 1 E. R. C. 296, VAUGHAN v. TAFF VALE R. CO. 5 Hurlst. & N. 679, 6 Jur. N. 
 S. 899, 2 L. T. N. S. 394, 8 Week. Rep. 549, 29 L. J. Exch. N. S. 247, reversing 
 the decision of the Court of Exchequer, reported in 3 Hurlst. & N. 743, 28 
 L. J. Ex. 41. 
 Liability for injuries resulting from the operation of a railroad. 
 
 Cited in Hannaher v. St. Paul, M. & M. R. Co. 5 Dak. 1, 37 N. W. 717, holding 
 that railroad company is not liable for damages to land, through which it 
 purchased right of way, caused by surface water overflowing land, where road 
 was constructed with ordinary skill and precaution; Hammersmith & C. R. 
 Co. v. Brand, L. R. 4 H. L. 171, 38 L. J. Q. B. N. S. 265, 21 L. T. N. S. 
 238, 18 Week. Rep. 12, 1 Eng. Rul. Cas. 623, 7 Eng Rul. Cas. 380, reversing 
 L. R. 2 Q. B. 223, holding that a land owner cannot recover compensation 
 under the statute from a railroad for inconvenience and damage caused by 
 vibration from running of trains, even though the property decreases in value 
 thereby; R. v. Sheward, L. R. 9 Q. B. Div. 741, 49 L. J. Q. B. N. S. 716, on the 
 right to compensation for injuries caused by the operation of a railroad. 
 Liability of railroad company for fires started by sparks from their en- 
 gines. 
 Cited in Tilley v. St. Louis & S. F. R. Co. 49 Ark. 535, 6 S. W. 8, holding that 
 under statute prima facie case is made in action against railroad company for 
 damage caused by fire, when it is proved that fire originated from engine, and 
 company can exonerate itself only by showing absence of negligence; Phila- 
 delphia & R. R. Co. v. Hendrickson, 80 Pa. 182, 21 Am. Rep. 97, holding that 
 where railroad company uses most approved spark arresters, and proper care in 
 running their engines, landowner has no remedy for injury to property by fire 
 thrown from locomotive; Fraser v. Pere Marquette R. Co. 18 Ont. L. R. 589, 
 holding that a railway company was not liable for the destruction of bailed hay
 
 1 E. R. C. 20G] NOTES ON ENGLISH RULING CASES. 54 
 
 piled along side of its right of way while waiting to be shipped; Missouri, K. 
 &. T. R. Co. v. Wilder, 3 Ind. Terr. 85, 53 S. W. 490; Patton v. St. Louis & S. F. 
 R. Co. 87 Mo. 117, 56 Am. Rep. 440; Morris & E. R. Co. v. State, 36 N. J. L. 553; 
 H. & T. C. R. R. Co. v. McDonough, 1 Tex. App. Civ. Cas. (White & W.) 354; 
 Robinson v. New Brunswick, 23 N. B. 323; Ball v. Grand Trunk R. Co. 16 U. C. 
 C. P. 252; Jaffrey v. Toronto, G. & B. R. Co. 24 U. C. C. P. 271,— holding that a 
 railroad company was not liable for fires set by sparks from their locomotives 
 in the absence of negligence, where their use was authorized by law ; Michigan 
 C. R. Co. v. Wealleans, 24 Can. S. C. 309 (reversing 21 Ont. App. Rep. 297), hold- 
 ing same as to foreign railroad operating over the line of a domestic one; Oat- 
 man v. Michigan C. R. Co. ] Ont. L. Rep. 145, holding same and the burden is on 
 the plaintiff to show prima facie negligence; Mansfield Mut. Ins. Co. v. Cleveland, 
 C. C. & St. L. R. Co. 74 Ohio St. 30, 77 N. E. 269, 6 A. & E. Ann. Cas. 782; 
 St. Louis & S. F. R. Co. v. Mathews, 165 U. S. 1, 41 L. ed. 611, 17 Sup. Ct. Rep. 
 243; McGibbon v. Northern & N. W. R. Co. 11 Ont. Rep. 307 (dissenting opin- 
 ion) ; Canadian P. R. Co. v. Roy, Rap. Jud. Quebec, 9 B: R. 551 (reversed in Rap. 
 Jud. Quebec, 12 B. R. 543), — on the liability of a railway company for fires 
 started by sparks from their engines ; Canada C. R. Co. v. McLaren, 8 Ont. App. 
 Rep. 5C4, holding that railroad company was liable for injury caused by fire 
 originating from spark from locomotive having imperfect smokestack; Moxley v. 
 Canada Atlantic R. Co. 14 Ont. App. 309, holding that in action for loss by fire 
 alleged to be caused by spark from passing train presumption of fact arose upon 
 evidence from which jury might infer that certain engine was cause of fire; 
 Campbell v. McGregor, 29 N. B. 644 (dissenting opinion), on liability of rail- 
 road company for fire caused by spark from locomotive although owner did not 
 take measures to protect property; Bough ton v. Midland Great Western R. Co. 
 Ir. Rep. 7 C. L. 169; Fremantle v. London & N. W. R. Co. 31 L. J. C. P. N. S. 
 12, 10 C. B. N. S. 89, 9 Week. Rep. 611; London, B. & S. C. R. Co. v. Truman, 
 L. R. 11 App. Cas. 45, 55 L. J. Ch. N. S. 354, 54 L. T. N. S. 250, 34 Week. Rep. 
 657, 22 Eng. Rul. Cas. 80, 50 J. P. 388, (reversing L. R. 29 Ch. Div. 99) ; Buccleuch 
 v. Metropolitan Bd. of Works, L. R. 5 Exch. 221, 3 Eng. Rul. Cas. 455, L. R. 3 
 Exch. 300, L. R. 5 II. L. 418, 37 L. J. Exch. N. S. 177, 39 L. J. Exch. N. S. 130, 
 41 L. J. Exch. N. S. 137; Guardians Armagh Union v. Bell, [1900] 2 Ir. Q. B. 
 371, — on the liability of a railway for fires started by their engines where their 
 use was authorized by law. 
 
 Cited in 3 Elliott Railr. 2d ed. 501, on common law liability of railroad com- 
 pany for fires; 3 Elliott Railr. 2d ed. 510, on nonliability of railroad company 
 for fires where spark arresters in ordinary use were used; 2 Thompson Neg. 797, 
 on measure of care required by railroad company in use of fire. 
 
 Distinguished in Union P. R. Co. v. De Bush, 12 Colo. 294, 3 L.R.A. 350, 13 
 Am. St. Rep. 221, 20 Pac. 752, holding that under the laws of Colorado, a rail- 
 road was liable for all fires set by sparks from their engines; Grant v. Canadian 
 P. R. Co. 36 N. B. 528, holding that a railroad company was liable for fires ex- 
 tending from their right of way, where it was used for clearing purposes, to the 
 adjoining lands; Furlong v. Carroll, 7 Ont. App. Rep. 145, holding that where a 
 person accidentally set a fire on his land and thinking he had extinguished it left 
 it, and it spread, he was liable even in the absence of negligence; Hilliard v. 
 Thurston, 9 Ont. App. Rep. 514, holding same as to steamboats unauthorized to 
 do business; Jones v. Festiniog R. Co. L. R. 3 Q. B. 733, 37 L. J. Q. B. N. S. 214, 
 9 Best & S. 835, 18 L. T. N. S. 902, 17 Week. Rep. 28, holding that where the 
 statute authorized the building and operation of a railroad but did not authorize
 
 ,35 NOTES ON ENGLISH RULING ('ASICS. fl E. R. C. 296 
 
 the use of steam locomotives, the company was liable for fires set from their 
 engines even in the absence of negligence; Powell v. Fall, L. R. 5 Q. B. Div. 597, 
 49 L. J. Q. B. N. S. 428, 43 L. T. N. S. 562, holding that the defendant was liable 
 for fires started by sparks from a steam traction engine driven along a public 
 highway, though the engine conformed to the locomotive law. 
 
 The decision of the Court of Exchequer was cited in Kellogg v. Chicago & N. 
 W. R. Co. 26 AVis. 223, 7 Am. Rep. 69, holding that where sparks from engine 
 set fire to dry grass accumulated on railroad land and spread to plaintiff's land, 
 destroying his property, question whether railroad was negligent in leaving its 
 land in that condition was for jury; Lackawanna & B. R. Co. v. Doak, 52 Pa. 
 379, 91 Am: Dec. 166, 23 Phila. Leg. Int. 412, holding that it is duty of railroad 
 company to make use of latest improvements to prevent damage from spreading 
 fire, and failure to do so is negligence rendering it liable; Pennsylvania R. Co. v. 
 Hope, SO Pa. 373, 21 Am. Rep. 100, 2 W. N. C. 385, on the liability of a railroad 
 company for fires set by sparks from its locomotives. 
 
 The decision of the Court of Exchequer was distinguished in Rowell v. Railroad 
 Co. 57 N. H. 132, 24 Am. Rep. 59, holding that where the statute made the rail- 
 road company absolutely liable for all fires set along its roads the question of 
 contributory negligence did not enter. 
 
 — As affected by negligence. 
 
 Cited in Wallace v. New York, N. H. & H. R. Co. 208 Mass. 16, 94 N. E. 306, 
 holding that in absence of statute railroad company is not liable for injury to 
 adjoining property caused by fire in absence of negligence; Philadelphia & R. R. 
 Co. v. Hendrickson, 80 Pa. 182, 21 Am. Rep. 97, 33 Phila. Leg. Int. 184, holding 
 that where actual negligence in running engine is proved and loss from fire re- 
 sults, mere condition of landowner's property is no defense; Canada Southern R. 
 Co. v. Phelps, 14 Can. S. C. 132, holding that if a railroad company is guilty of 
 negligence in operating its locomotives it is liable for all damages necessarily 
 resulting; Campbell v. McGregor, 29 N. B. 644, holding that the railroad com- 
 pany was liable for the destruction of the plaintiff's barn full of ha3% through 
 sparks from a defective smokestack; Conlon v. City R. Co. 8 N. S. 209 (dissent- 
 ing opinion), on the liability of a railroad company for injuries without proof 
 of negligence; Rainville v. Grand Trunk R. Co. 25 Ont. App. Rep. 242; Holmes 
 v. Midland R. Co. 35 U. C. Q. B. 253, — holding that a railroad company was 
 liable where it allowed brushwood to gather along its track so that fire was 
 caused to spread to adjoining lands. 
 
 Distinguished in Weallcans v. Canada Southern R. Co. 21 Ont. App. Rep. 207, 
 holding that foreign railway company, in running engines over line of railway 
 in this province, is subject to common law liability for emitting fire and is liable 
 in damages therefor without proof of negligence. 
 
 — Of owners of steam engines, in general. 
 
 Cited in Brewer v. Humble, 26 N. B. 495, holding as to mill owners, that they 
 were liable only in case of negligence. 
 
 What constitutes negligence. 
 
 Cited in Scott v. Crews, 2 S. C. 522, holding that ordinary care by bank acting 
 as bailee of collateral signifies that care which men of common prudence generally 
 take of like articles of their own at time and place where question arises; Holden 
 v. Missouri B. Co. 108 Mo. App. 665, 84 S. W. 133, to the point that negligence 
 is absence of care, according to circumstances; Putney v. Keith, 08 111. App. 285, 
 holding housekeeper not liable for injury to infant visitor from falling into pail 
 of hot water on floor of kitchen; Dean v. Kansas City St. L. & C. R. Co. 100 Mo.
 
 1 E. E. C. 296] NOTES ON ENGLISH RULING CASES. 56 
 
 386, 97 S. W. 910, holding that negligence is the absence of due care, and is a 
 failure to act with due foresight; Longabaugh v. Virginia City & T. B. Co. 9 
 Nev. 271, holding that a failure of a railroad company to use best known ap- 
 pliances to prevent fires by sparks from the engines was negligence; Stewart t. 
 Long Island E. Co. 54 App. Div. 623, 66 N. Y. Supp. 436, on the degree of care 
 required to be exercised, so as not to be guilty of negligence; Lackawanna & B. 
 R. Co. v. Doak, 52 Pa. 379, 91 Am. Dec. 166, holding that the failure of the rail- 
 road company to use reasonable precautions to prevent the escape of sparks was 
 negligence; Goff v. Chippewa Eiver & M. E. Co. 86 Wis. 237, 56 N. W. 465, on 
 what constitutes actionable negligence; Dulieu v. White [1901] 2 K. B. 669, 70 
 L. J. K. B. N. S. 837, 50 Week. Rep. 76, 85 L. T. N. S. 126, 17 Times L. E. 555; 
 New Westminster v. Brighouse, 20 Can. S. C. 520, — on the definition of the word 
 negligence; Henderson v. St. John, 14 N. B. 72, on the breach of an obligation 
 to use care as constituting negligence; Eobertson v. Halifax Coal Co. 20 N. S. 
 517, holding that the defendant was negligent where it failed to erect a warning 
 sign at a railroad crossing maintained by it and failed to ring a bell or sound a 
 whistle on its trains at the crossing; Garfield v. Toronto, 22 Ont. App. Eep. 128, 
 holding that where the city had used all possible contrivances to prevent water 
 from flowing back from a sewer, it was not negligent if water flowed back on ae- 
 eount of an extraordinary rain. 
 
 Cited in note in 65 L.E.A. 635, on rationale of doctrine of absence of liability 
 of employer for negligence of independent contractor. 
 
 The decision of the Court of Exchequer was cited in Atkinson v. Goodrich 
 Transp. Co. 60 Wis. 141, 50 Am. Eep. 352, 18 N. W. 764, holding that a failure 
 to ward against a result which could not reasonably have been expected is not 
 negligence. 
 
 — Permitting accumulation of combustibles. 
 
 Cited in Jones v. Michigan C. E. Co. 59 Mich. 437, 26 N. W. 662; Salmon t. 
 Delaware, L. & W. E. Co. 38 N. J. L. 5, 20 Am. Eep. 356 ; Delaware, L. & W. E. 
 Co. v. Salmon, 39 N. J. L. 299, 23 Am. Eep. 214; Webb v. Eome, W. & O. E. Co. 
 49 N. Y. 420, 10 Am. Eep. 389, — holding that the failure to exercise a due degree 
 of care in keeping the track free from combustible materials was negligence; 
 Kellogg v. Chicago & N. W. E. Co. 26 Wis. 223, 7 Am. Eep. 69, holding that in 
 allowing dead grass and weeds to gather along the right of way the railroad com- 
 pany was negligent so as to become liable for fires set by its engines; Smith v. 
 London & S. W. E. Co. 40 L. J. C. P. N. S. 21, L. E. 6 C. P. 14, 23 L. T. N. S. 
 678, 19 Week. Eep. 230, 18 E. E. C. 726 (affirming L. E. 5 C. P. 98, 39 L. J. C. 
 P. 68, 21 L. T. N. S. 668, 18 Week. Eep. 343), holding that where a railroad com- 
 pany trimmed its hedges and cut the grass along its right of way and left the 
 trimmings and dead grass lie, it was negligent, though its engines were properly 
 constructed. 
 Contributory negligence. 
 
 The decision of the Court of Exchequer was cited in Central Branch Union P. E. 
 Co. v. Hotham, 22 Kan. 41, on what constitutes contributory negligence; Missis- 
 sippi Home Ins. Co. v. Louisville, N. O. & T. E. Co. 70 Miss. 119, 12 So. 156, 
 holding that owner of land adjacent to railroad is not bound to manage his 
 property so as to provide against danger from negligent emission of sparks by 
 passing locomotives. 
 
 — Accumulating combustibles near railroad. 
 
 Cited in Kimball v. Borden, 97 Va. 477, 34 S. E. 45, holding that the accumula- 
 tion of combustible material along a railroad right of way is not contributory
 
 57 NOTES OX ENGLISH RULING CASES. [1 E. R. C. 29G 
 
 negligence per se; Snyder v. Pittsburgh, C. C. & St. L. R. Co. 11 W. Va. 14, hold- 
 ing that it was not contributory negligence for a farmer to allow weeds to remain 
 on his land adjoining a railroad right of way, or to allow dead leaves to gather 
 there; Murphy v. Cbicago & N. W. R. Co. 45 Wis. 222, 30 Am. Rep." 721, on the 
 maintenance of combustible material beside the railroad right of way, as con- 
 tributory negligence; Winnipeg Oil Co. v. Canadian Northern R. Co. 21 Mani- 
 toba L. Rep. 274, holding that no contributory negligence on part of owner of 
 adjoining land unless wanton or such as amounts to fraud in increasing risk of 
 fire from railroad, is available as defense. 
 
 Cited in note in 12 L.R.A.(N.S.) 62G, on duty of abutter to prevent accumula- 
 tion of combustibles near railway. 
 
 The decision of the Court of Exchequer was cited in Indiana Clay Co. v. Balti- 
 more & 0. S. W. R. Co. 31 Ind. App. 25S, 67 N. E. 704, holding that one in enjoying 
 and using his property in the usual way witnout reference to the close proximity 
 of the railroad is not guilty of contributory negligence per se; Boston Excelsior 
 Co. v. Bangor and Aroostook Ry. Co. 93 Me. 52, 47 L.R.A. 82, 44 Atl. 13S, holding 
 that the plaintiff was not guilty of contributory negligence in piling wood along- 
 side of the railroad right of way; Briant v. Detroit, L. & N. R. Co. 104 Mich. 307, 
 62 N. W. 365, holding that in leaving shavings and sawdust around a saw mill tlio 
 plaintiff was not guilty of such contributory negligence as would excuse the 
 defendants; Philadelphia & R. R. Co. v. Hendrickson, 80 Pa. 182, 21 Am. Rep. 
 97, 2 W. N. C. 449, 33 Phila. Leg. Int. 1S4, holding that the erection of a barn 
 near the right of way, with a combustible roof was not contributory negligence 
 per se; Mathews v. St. Louis & S. F. R. Co. 121 Mo. 298, 25 L.R.A. 161, 24 S. W. 
 591; Jafrrey v. Toronto, G. & B. R. Co. 23 U. C. C. P. 553,— holding that it was not 
 contributory negligence per se for the plaintiff to allow combustible materials 
 together on his land along the right of way; McLaren v. Canada C. R. Co. 32 U. 
 C. C. P. 324, holding that the piling of lumber on the plaintiff's land adjoining 
 the right of way was not necessarily contributory negligence. 
 Inference of negligence from escape of fire. 
 
 Cited in Gagg v. Vetter, 41 Ind. 228, 13 Am. Rep. 322; Woodson v. Milwaukee 
 & St. P. R. Co. 21 Minn. 60, — on the escape of fire from a locomotive as prima 
 facie evidence of negligence; Fitch v. Pacific R. Co. 45 Mo. 322, holding that 
 there is a presumption of negligence if coals are scattered along a railroad track 
 from a locomotive; Kelsey v. Chicago & N. W. R. Co. 1 S. D. SO, 45 N. W. 204, 
 holding that if fire is shown to have been started by spark from locomotive of 
 passing train, presumption of negligence upon company's part is raised casting 
 burden upon it of showing that engine was properly equipped and managed. 
 Effect of legislative authority to do an act. 
 
 Cited in Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27, holding that legis 
 lative sanction made lawful the ringing of a bell which would otherwise have 
 been a nuisance; Gould v. Winona Gas Co. 100 Minn. 258, 10 L.R.A.(N.S.) 889, 
 111 N. W. 254, holding that liability of gas company in damages to owner of 
 trees on boulevard in front of premises caused by escape of gas, is determined by 
 principles of negligence applicable to authorized public works; Sayre v. Newark, 
 60 N. J. Eq. 361, 48 L.R.A. 722, S3 Am. St. Rep. 629, 45 Atl. 9S5, holding that 
 the legislature could authorize a city to use tidal waters for outlets to sewers: 
 Brown v. Bathurst Electric & Water Power Co. 3 N. B. Eq. 543, on legislative 
 authority to do an act as a defense to an action for doing such act except in 
 ease of negligence; Dungey v. London, 38 L. J. C. P. N. S. 298, 20 L. T. N. S. 
 921, 17 Week. Rep. 1106, holding that where an act was done in pursuance of
 
 1 E. R. C. 290] NOTES ON ENGLISH RULING CASES. 58 
 
 statutory authority, unless done negligently, did not render the doer liable; 
 Madras R. Co. v. Carvetinagarmn, L. R. 1 Ind. App. 384, 30 L. T. N. S. 770, 32 
 Week. Rep. 865, holding that where an act is authorized by statute, which act if 
 done without such authority would have rendered the doer liable even in the 
 absence of negligence, the party doing the act is not liable unless negligent. 
 
 Cited in notes in 1 L.R.A. (N.S.) 60, on effect of legislative authority upon lia- 
 bility for private nuisance; 1 Eng. Rul. Cas. 662, on nonliability for damage 
 necessarily arising from exercise of powers granted by statute; 7 E. R. C. 3S0, on 
 authorizing public corporation to exercise its powers so as to inflict injury on 
 third persons; 36 E. R. C. 420, on what are regarded as "sewers" within public 
 health act; 16 Eng. Rul. Cas. 583; 19 E. R. C. 273,— on local or statutory au- 
 thority as justification for nuisance. 
 
 Cited in Joyce Nuis. 108, on acts authorized by legislature as nuisances. 
 
 Distinguished in Hill v. Metropolitan Asylum Dist. L. R. 4 Q. B. Div. 433, 40 
 L. T. N. S. 491, holding that where the defendants operated a hospital where 
 infectious diseases were treated, in such a manner as to make it a nuisance, they 
 were liable though the duty was cast upon them by statute; Southwark & V. 
 Water Co. v. Wandsworth Dist. Bd. of Works [189S] 2 Ch. 603, 62 J. P. 756, 79 
 L. T. N. S. 132, 14 Times L. R. 576, 47 Week. Rep. 107, holding that in the exer- 
 cise of statutory conferred rights the party must act so as not to unreasonably 
 infringe upon the rights of others; Jordeson v. Sutton, S. & D. Gas. Co. [1898] 
 
 2 Ch. 614, 67 L. J. Ch. N. S. 666, 14 Times L. R. 567, holding that a gas com- 
 pany empowered by statute to purchase defined land by agreement and erect gas- 
 works thereon were not empowered to do so to the injury of neighboring property. 
 
 Disapproved in Cowper Essex v. Acton Local Board, L. R. 14 App. Cas. 153, 
 58 L. J. Q. B. N. S. 594, 61 L. T. N. S. 1, 38 Week. Rep. 209, 53 J. P. 756 (af- 
 firming L. R. 14 Q. B. Div. 753, L. R. 14 App. Cas. 153, 54 L. J. Q. B. N. S. 459, 
 52 L. T. N. S. 926, 33 Week. Rep. 214), on the effect of statutory authority to 
 commit that which would otherwise have infringed personal rights of others. 
 — Railroads and other public conveyors. 
 
 Cited in Gould v. Winona Gas Co. 100 Minn. 258, 10 L.R.A. (N.S..) 889, 111 N. 
 W. 254, holding that a gas company authorized to maintain gas mains along a 
 street was not liable for injuries to trees by escape of the gas, where the com- 
 pany was not negligent; Cogswell v. New York, N. H. & H. R. Co. 103 N. Y. 10, 
 57 Am. Rep. 701, 8 N. E. 537, on the right of the legislature to authorize the 
 maintenance of structures which under other circumstances being unauthorized 
 would constitute nuisances; Strawbridge v. Philadelphia, 2 Pennyp. 419, on the 
 liability of a city for an explosion of a gas main, where it was authorized by the 
 legislature to maintain it; Fisher v. Seaboard Air Line R. Co. 102 Va. 363, 46 
 S. E. 3S1, 1 Ann. Cas. 622, holding that where the legislature authorized the 
 operation of a railway, the company was not liable for injuries caused to adjoin- 
 ing property by noise and jarring of the ground in the absence of negligence; 
 Central Trust Co. v. Wabash, St. L. & P. R. Co. 57 Fed. 441, holding that a rail- 
 road company acting under legislative authority to do an act was not liable for 
 flooding of land, if it were not negligent in building its roadbed; McMillan v. 
 Southwest Boom Co. 17 N. B. 715, holding that where the legislature authorized 
 the erection of a boom that the company was not liable except in case of negli- 
 gence for its breaking for obstruction of navigation; Dever v. South Bay Boom 
 Co. 14 N. B. 109, holding same where lumber drifted ashore within the boom 
 limits, as to the injury to the adjoining land; Lea Conservancy Board v. Hert- 
 ford Corp. 48 J. P. 628, 1 Cab. & E. 299, holding that a city was not liable for
 
 59 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 308 
 
 the discharge of sewage into a river at the place and in the manner authorized 
 by statute: Diion v. Metropolitan Bd. of Works, L. R. 7 Q. B. Div. 418, 50 L. J. 
 Q. B. X. S. 772, 45 L. T. X. S. 312, 30 Week. Rep. S3, 46 J. P. 4, holding that 
 where a city constructed a sewer under the authority of law and the plaintiff's 
 dock was injured because the flood gates of the sewer were opened to relieve the 
 sewer in time of a flood; Evans v. Manchester, S. & L. R. Co. L. R. 3G Ch. Div. 
 626, 57 L. J. Ch. N. S. 153, 57 L. T. N. S. 194, 30 Week. Rep. 328, holding that 
 where a person was authorized by law to maintain a canal he was not liable for 
 water leaking through into a mill built on the bank thereof, unless he was negli- 
 gent; Dunn v. Birmingham Canal Navigation, L. R. S Q. B. 42, 42 L. J. Q. B. N. 
 S. 34, 27 L. T. N. S. 6S3, 21 Week. Eep. 266, holding same where water leaked 
 through into a mine; Atty.-Gen. v. Metropolitan R. Co. [1894] 1 Q. B. 384, 9 
 Reports, 598, 69 L. T. N. S. 811, 42 Week. Rep. 3S1, 5S J. P. 342, holding that 
 where the injury is the result of the operation of the railroad, which was author- 
 ized by law, the person injured is not entitled to compensation, unless there is 
 negligence; Emsley v. North Eastern R, Co. [1896] 1 Ch. 418, 65 L. J. Ch. N. S. 
 385, 74 L. T. N. S. 113, 60 J. P. 182, on the right of a railroad to operate its 
 road under statutory authority so as to commit an unavoidable nuisance. 
 
 Cited in note in 7 E. R. C. 381, on authorizing public corporation to exercise 
 its powers so as to inflict injury on third persons. 
 
 Distinguished in McKim v. Philadelphia, 217 Pa. 243, 19 L.R.A.(N.S.) 500, 66 
 Atl. 340, holding that a city was liable for the death of a person by reason of 
 an accident caused by a street railway negligently placing a pole in the center of 
 the street under authority of the city; Long Eaton Recreation Grounds Co. v. 
 Midland R. Co. 71 L. J. K. B. N. S. 74, S5 L. .T. N. S. 278, 50 Week. Rep. 120, 17 
 Times L. R. 775, holding that where the railway company were owners of land 
 subject to covenants and in operating their railroad broke these covenants they 
 were liable though authorized by law to operate the railroad. 
 Enhancement of damages by inevitable accident. 
 
 Cited in note in 18 E. R. C. 736, on enhancement by inevitable accident of 
 damages from negligence as a defense. 
 Validity of statute making railroad liable for fires. 
 
 Cited in 3 Elliott, Railr. 2d ed. 505, on constitutionality of statutes imposing 
 liability on railroad company for damage by fire. 
 What is accident. 
 
 Cited in 4 Elliott, Railr. 2d ed. 391, on what is an accident to a passenger. 
 
 1 E. R. C. 308, RIVER WEAR COMRS. v. ADAMSON, L. R. 2 App. Cas. 743, 3 
 
 Asp. Mar. L. Cas. 521, 37 L. T. N. S. 543, 20 Week. Rep. 217, 47 L. J. Q. B. 
 
 N. S. 193, affirming the decision of the Court of Appeal, reported in L. 11. 1 
 
 Q. B. Div. 546, 24 Week. Rep. 872, 46 L. J. Q. B. N. S. 83, 35 L. T. N. S. 118. 
 
 Liability of ship owner for injury caused by ship. 
 
 Cited in R. v. Mississippi & D. S. S. Co. 4 Can. Exch. 298, on the liability of a 
 ship owner under the statute making him liable for all injuries to docks, etc.. 
 where the ship has become a wreck; Whiteway v. Power, Newfoundl. Rep. 
 (1S84-96) 625, holding that where one ship is placed in a position of danger be- 
 cause of an infringement of traffic regulations by another, the latter is to blame, 
 though the former contributes to the injury through mistake of judgment; Stoom- 
 vaart Maatschappy Nederland v. Peninsular & O. Steam Nav. Co. L. R. 5 App. 
 Cas. 876, 23 Eng. Rul. Cas. 574, 43 L. T. N. S. 610, 29 Week. Tvep. 173, 4 Asp. 
 Mar. L. Cas. 360. holding that the owners of a ship were liable for a nonobserv-
 
 1 E. R. C. 308] NOTES ON ENGLISH RULING CASES. 60 
 
 ance of the shipping regulations by the master which act caused damage to plain- 
 tiffs; Eglinton v. Norman, 46 L. J. Exch. N. S. 557, 36 L. T. N. S. '888, 25 Week. 
 Rep. 656, 3 Asp. Mar. L. Cas. 471, on the liability of the ship owner for the cost of 
 removing the wreck from the harbor. 
 
 Cited in note in 64 L.R.A. 9S0, on liability for injuries caused by attempted 
 exercise of rights of navigation. 
 
 Cited in 1 Farnham, Waters, 149, on liability for injury by drifting vessel; 
 1 Farnham, Waters, 150, on liability of navigator for injuries. 
 
 Distinguished in Arrow Shipping Co. v. Tyne Improv. Comrs. [1894] A. C. 508, 
 63 L. J. Prob. N. S. 146, 6 Reports, 258, 71 L. T. N. S. 346, 7 Asp. Mar. L. Cas. 
 513, holding that where a ship sank at the mouth of a harbor through the neg- 
 ligence of the owners, they were not liable for the expense of removing it where 
 they had totally abandoned it before removal. 
 Statutory liability. 
 
 Cited in St. John & M. B. Co. v. Montgomery, 21 N. B. 441, holding that where 
 the railroad company was bound to fence its right of way, the company is liable 
 for all damages sustained by reason of such neglect. 
 Construction of statutes. 
 
 Cited in Montreal v. Cantin, C. R. [1906] A. C. 308, on interpretation of 
 statute, words of which admit of two interpretations; Barrett v. Winnipeg, 19 
 Can. S. C. 374 (reversing 7 Manitoba L. Rep. 273), on the construction of statutes 
 according to intention of the legislative body; La Compagnie Pour L'eclairage au 
 Gaz v. La Compagnie des Pouvoirs Hydrauliques, 25 Can. S. C. 168, on the con- 
 struction of private legislative enactments; Sayers v. British Columbia Electric 
 R. Co. 12 B. C. 102, holding that a court should place on the words of a statute 
 a meaning which the intention of the legislature justifies, though contrary to the 
 usual signification of the words; Baker v. Smart, 12 B. C. 129, holding that a 
 grant of power to regulate or impose restrictions does not import a grant of 
 power to prohibit; Ex parte Manchester, 25 N. B. 552, holding that in construing 
 a statute the words must not be construed in their strictest sense so as to defeat 
 the object of the act and lead to difficulty; Montreal v. Cantin, 35 Can. S. C. 223; 
 Ex parte Groves, 24 N. B. 57 ; McLeod v. Sandall, 26 N. B. 526,— holding that in 
 construing statutes effect must be given to every part; Leprohon v. Ottawa, 2 
 Ont. App. Rep. 522, on the rules of construction of statutes; Re Applicants for 
 License, 143 N. C. 1, 10 L.R.A.(N.S.) 2S8, 55 S. E. 635, 10 Ann. Cas. 1S7 (dis- 
 senting opinion ) ; Provincial Ins. Co. v. Worts, 9 Ont. App. Rep. 56, — on the con- 
 struction of legislative enactments according to the intention of the enacting 
 body; Meakin v. Samson, 28 U. C. C. P. 355, on the proper construction of 
 statutes; Shortell v. Sullivan, 21 N. S. 257, to the point that true meaning of 
 statute is to be found not merely in words of any passage, but in comparing it 
 with every other part of statute, and in ascertaining necessity of statute being 
 made; North British & M. Fire & Life Ins. Co. v. Lambe, 4 Dorion, Q. B. 112, 
 Montreal L. Rep. 1 Q. B. 122, holding that in construing a statute the intention 
 of the legislative body should govern ; Eastman Photographic Materials Co. v. 
 Comptroller-General [1S98] A. C. 571, 25 Eng. Rul. Cas. 240, 67 L. J. Ch. N. 
 S. 628, 15 Rep. Pat. Cas. 476, 79 L. T. N. S. 195, 14 Times L. R. 527, 47 Week. 
 Rep. 152, holding that reference may be had to the former statute repealed and to 
 the evils aimed at in order to ascertain the intention of the legislature, in con- 
 struing a statute; Badische Anilin und Soda Fabrik v. Hickson [1906] A. C. 419, 
 5 Ann. Cas. 669, on the construction of statutes to effect the intention of the 
 legislature.
 
 61 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 338 
 
 Cited in 2 Sutherland, Stat. Const. 2d ed. 911, on consideration given to effects 
 and consequences in construing statute. 
 — In derogation or addition to common law. 
 
 Cited in Western Counties R. Co. v. Windsor & A. R. Co. L. R. 7 App. Cas. 178, 
 51 L. J. P. C. N. S. 43, 46 L. T. N. S. 351, holding that a common law right will 
 not be taken away by a statute unless it appear by plain words or by plain im- 
 plication that it was the intention of the legislature to do so. 
 Strict meaning of words as affected by intention of party using them. 
 
 Cited in Wilson v. Beatty, 2 Ont. App. Rep. 417, holding that the strict mean- 
 ing of words used should yield to the intention of the party where the latter is 
 clear and in contradiction of the former; Grice v. Bartram, 3 D. L. R. 8C8, hold- 
 ing that in construing contract it is proper to consider circumstances and objtct 
 which parties had in view in order to arrive at intention of parties. 
 Act of God as exempting from liability. 
 
 Cited in McMillan v. Southwest Boom Co. 17 N. B. 715, holding that boom com- 
 pany was not liable for obstruction to navigation caused by vis major, and not 
 through its own negligence; Dixon v. Dixon, 22 Pa. Super. Ct. 340, holding that 
 where a contract is entered into, nonperformance thereof is excused by an act of 
 God, which human foresight could not have prevented. 
 
 Cited in Benjamin, Sales, 5th ed. 571, on effect of impossibility of performance 
 of thing possible in itself. 
 Respondeat superior. 
 
 Cited in notes in 37 L.R.A. 55, on whose servants are crew of chartered vessel; 
 24 E. R. C. 213, on prima facie evidence of ownership of ship from register to 
 show employer of persons in charge of ship. 
 
 1 E. R. C. 338, JACOBS v. CREDIT LYONNAIS, L. R. 12 Q. B. Div. 589, 50 L. 
 
 T. N. S. 194, 32 Week. Rep. 761, 53 L. J. Q. B. N. S. 156. 
 Impossibility of performance as excusing completion of a contract. 
 
 Cited in Tweedie Trading Co. v. James P. McDonald Co. 114 Fed. 985, holding 
 that contract to transport laborers valid when made is not terminated by reason 
 of enactment of foreign government prohibiting future embarkation of laborers, 
 nor. is such enactment defense in action for breach of contract; Middlesex Water 
 Co. v. Knappmann Whiting Co. 64 N. J. L. 240, 49 L.R.A. 572, 81 Am. St. Rep. 
 467, 45 Atl. 692, holding that a person was not excused from performing a con- 
 tract because prevented by some unforeseen accident which is not provided against 
 by the agreement; Atty.-Gen. v. Canadian P. R. Co. 1 B. C. pt. 2, 360, holding that 
 demurrer to defense in action on bond to secure performance of agreement, "that 
 nonperformance cannot be excused by setting up injunction," was bad. 
 
 Cited in notes in 6 E. R. C. 612, on impossibility as excuse for nonperform- 
 ance of contract; 15 E. R. C. 808, on statutory requirements as excuse for land- 
 lord's breach of covenant. 
 
 Cited in Benjamin, Sales, 5th ed. 573, on impossibility of performance of Eng- 
 lish contract intended to be performed abroad as an excuse by foreign law. 
 Conflict of laws applying to the enforcement of a contract. 
 
 Cited in Liverpool & G. W. Steam Co. v. Phenix Ins. Co. (The Montana), 129 
 U. S. 397, 32 L. ed. 788, 9 Sup. Ct. Rep. 469, holding that contract of affreight- 
 ment made in one country between residents thereof and performance of which 
 begins there must be" governed by law of that country, unless contrary intention 
 is clearly expressed; The Brantford City, 29 Fed. 373, holding that contract made
 
 1 E. E. C. 338] NOTES ON ENGLISH RULING CASES. 62 
 
 in Boston to ship by British steamer to England which releases carrier from neg- 
 ligence must be construed in accordance with law of Massachusetts; Millard v. 
 Brayton, 377 Mass. 533, 52 L.R.A. 117, 83 Am. St. Rep. 294, 59 N. E. 436, hold- 
 ing that rights of parties under insurance policy applied for in this state and 
 issued in New York but delivered to insured here and first premium paid is gov- 
 erned by laws of this state; Cannaday v. Atlantic Coast Line B. Co. 143 N. C. 
 439, 8 L.R.A. (N.S.) 939, 118 Am. St. Rep. S21, 55 S. E. S36, holding that matters 
 bearing upon execution, interpretation and validity of contract are determined by 
 law of place where it is made; Grand v. Livingston, 4 App. Div. 589, 38 N. Y. 
 Supp. 490, holding that contract made with express company in Massachusetts 
 to ship horses to New York which released company from liability for negligence 
 and which provision was void under Massachusetts law must be construed accord- 
 ing to law of Massachusetts; Mayer v. Roche, 77 N. J. L. 681, 26 L.R.A.(N.S.) 
 763, 75 Atl. 235, holding that proper law of contract in law by which parties 
 thereto intended, or may fairly be presumed to have intended, contract to be 
 governed; Robin v. Hart, 23 N. S. 316, holding that rules of local law must 
 govern in respect to all property and rights within Dominion ; Re Central Bank, 
 21 Ont. Rep. 515, holding that agreement to advance money having been made 
 and parties to it being domiciled in province, rights of parties to it must be de- 
 termined by law of his province and not those of Quebec; Bradburn v. Edin- 
 burgh Life Assur. Co. 5 Ont. L. Rep. 657, holding that law of Canada must govern 
 in relation to contract where loan of money on mortgage on land here was made 
 in Canada; National Trust Co. v. Hughes, 14 Manitoba L. Rep. 41, holding that 
 contract of life insurance made in Ontario with company having land office there 
 and providing for payment of insurance money there, is governed by Ontario 
 law, but dealing with benefits of policy made by insured in Manitoba will be 
 governed by law of Manitoba; Ex parte Dever, L. R. 18 Q. B. Div. 660, 56 L. J.' 
 Q. B. N. S. 552, on the law applicable to enforcement of a contract where made 
 and to be performed in different countries; Re Missouri S. S. Co. L. R. 42 Ch. 
 Div. 321, 58 L. J. Ch. N. S. 721, 61 L. T. N. S. 316, 37 Week. Rep. 696, 6 Asp. Mar. 
 L. Cas. 423, holding that when a contract is made in one country to be wholly or 
 partially performed in another, prima facie, the contract is to be construed and 
 enforced according to the place where the contract was entered into; South 
 African Breweries v. King [1899] 2 Ch. 173, 68 L. J. Ch. N. S. 530. 81 L. T. N 
 S. 76, 47 Week. Rep. 681, holding that in determining what law should govern 
 a contract, other things being equal, preference should be given to the place 
 where the transaction has the most connection. 
 
 Cited in notes in 63 L.R.A. 531, on conflict of laws as to carrier's contracts; 5 
 E. R. C. 886, 890, on presumption that parties to contract intended to adopt law 
 of place where contract was made. 
 
 Cited in 1 Beach. Contr. 697, on law of place of contract; 1 Beach. Contr. 711, 
 on law of place of performance as governing contract. 
 
 1 E. R. C. 351, ROTHES v. KIRKCALDY WATERWORKS COMRS. L. R. 7 App. 
 Cas. 694, 9 R. (H. L.) 10S, 19 S. L. R. 907, reversing the decision of the 
 Court of Sessions, reported in 6 Sc. Sess. Cas. 4th Series, 974. 
 Statutory construction. 
 
 Cited in Sanders v. State, 86 Ga. 717, 12 S. E. 105S, holding that where a 
 statute makes a specific enumeration of terms and ends with a general term, it 
 is limited to things of the same kind; Barrett v. Winnipeg, 19 Can. S. C. 374 (re- 
 versing 7 Manitoba L. Rep. 273), on statutes capable of two constructions not.
 
 63 NOTES U.\ ENGLISH RULING I USES. LI E. R. C. 368 
 
 equally reasonable; Toronto v. Bell Telcph. Co. G Out. L. Rep. 335 (dissenting 
 opinion), on the construction of statutes as controlled by provisos in amend 
 ments; Re O'Meara, 11 Out. Rep. 603, on the construction of the language of a 
 statute when there is a difficulty in interpretation. 
 Private statutes as contract between the parties acting under tliein. 
 
 Cited in Johnston v. Consumers' Gas Co. 27 Out. Rep. !), holding that where a 
 statute requiring a corporation to invest its surplus in certain bonds, as a con- 
 dition to consent to increase its capital, such a condition was binding as a con- 
 tract though imposed by the legislature; Davis v. Taff Vale R. Co. [1895] A. C. 
 542, 64 L. J. Q. B. N. S. 488, 11 Reports, 189, 72 L. T. N. S. 632, 44 Week. Rep. 
 172, holding that a clause in an act relating to two railroads, whereby the rates 
 for certain traffic were limited, was in effect a contract; Crosfield v. Manchester 
 Ship Canal Co. [1904] 2 Ch. 123, on private statutes as contracts between the 
 parties. 
 
 Distinguished in Re Manchester & M. R. Co. [1897] 1 Ch. 276, 66 L. J. Ch. 
 N. S. 139, 75 L. T. N. S. 416, 45 Week. Rep. 331, holding that a statute requiring 
 two or more railroad companies to repay money expended by one of them in 
 maintaining a joint station, was not a contract under a statute authorizing an 
 execution to be issued against rolling stock in an action on contract. 
 Liability for injuries from waterworks. 
 
 Cited in note in 61 L.R.A. 60, on liability of municipality for injuries from 
 waterworks. 
 
 1 E. R. C. 368, PINNEL'S CASE, 5 Coke, 117a. 
 Accord and satisfaction. 
 
 Cited in Thomas v. Hendrick, 11 Luzerne Leg. Reg. 191, holding that receipt 
 by creditor of property of unascertained value may be sufficient consideration to 
 discharge debt. 
 
 Cited in note in 6 E. R. C. 574, on discharge of contract by accord and satis- 
 faction. 
 
 Cited in Benjamin, Sales, 5th ed. 768, on payment at a different place or com- 
 promising of action as a satisfaction of debt. 
 — By acceptance of less than cine. 
 
 Referred to as leading case in Reeside v. United States, 2 Ct. CI. 1, holding 
 release not under seal and without new consideration was not in accord and 
 satisfaction of government contract claim. 
 
 Cited in Haas Bros. v. Hamburg-Bremen F. Ins. Co. 104 C. C. A. 354, 181 Fed. 
 916, holding that parol evidence was admissible to show that "receipt in full" 
 for loss under insurance policy was given in pursuance of agreement that if other 
 creditors received greater percentage plaintiff would be entitled to same per- 
 centage; Aiken v. Price, Dud. L. 50, holding that' assignment by debtor for credit- 
 ors, with parol understanding that creditor accepting part should release re- 
 mainder of his claim, is binding on creditor accepting dividend; Davis v. Barwick. 
 SS S. C. 355, 70 S. E. 1007, holding void, agreement to accept less than amount 
 due as satisfaction; Martin v. White, 40 111. App. 2S1, holding that to amount to 
 accord and satisfaction, where sum less than amount due is accepted, creditor 
 must receive some actual benefit that he would not otherwise have had; Moly- 
 neaux v. Collier, 13 Ga. 406, holding security of equal degree for a smaller sum, 
 cannot be pleaded in an action for the larger sum; Allison v. Abendroth, 108 N. 
 Y. 470, 3 5 N. E. COG, to the point that promise by debtor to pay part of admitted 
 debt followed by actual payment of such part is not good accord and satisfac-
 
 1 E. R. C. 30SJ NOTES ON ENGLISH RULING CASES. 64 
 
 tion; Hayes v. Massachusetts Mut. L. Ins. Co. 125 111. 626, 1 L.R.A. 303, 18 N., 
 E. 322, holding acceptance of one half the sum of money due on an insurance 
 policy in full satisfaction, operates as a discharge pro tanto only; Howe v. 
 Mackay, 5 Pick. 44, holding a payment of a money judgment in land operates as 
 a satisfaction only to the extent of the value of the land; Clough v. Murray, 3 
 Robt. 7, on what constitutes an accord and satisfaction so as to bar an action for 
 the debt; Savage v. Everman, 70 Pa. 315, 10 Am. Rep. 676, 29 Phila. Leg. Int. 
 45, holding that agreement to give less sum for greater, if time of payment be 
 anticipated, is binding; Hope v. Johnston, 11 Rich. L. 135, holding payment of 
 one-half amount of note by a joint maker after it became due, and giving of re- 
 ceipt, not under seal, releasing the one making payment, is no defense to action 
 for balance; Wheeler v. Wheeler, 11 Vt. 60, Eve v. Mosely, 2 Strobh. L. 203, — 
 holding partial payment of a debt, liquidated and payable, will not operate as a 
 discharge of debt though accepted as such; Martin v. United States, 5 Ct. CI. 
 215 (dissenting opinion), on inconclusiveness of payment of part in full of debt; 
 Foakes v. Beer, L. R. 9 App. Cas. 605, 54 L. J. Q. B. N. S. 130, 1 Eng. Rul. Cas. 370, 
 holding that an agreement whereby a judgment creditor agreed to refrain from 
 enforcing his judgment if the debtor would pay part in cash and the rest in in- 
 stalments was not a valid agreement to bind creditor from enforcing interest; 
 Bidder v. Bridges, L. R. 37 Ch. Div. 406, 57 L. J. Ch. N. S. 300, 1 Eng. Rul. Cas. 
 393, holding that where the solicitor accepted a cheque in full for costs from the 
 defendant, it was an accord and satisfaction of the costs, though it did not cover 
 the interest thereon to which the plaintiff was entitled. 
 
 Cited in notes in 11 L.R.A. (N.S.) 1020, on part payment as consideration for 
 discharge of liquidated and undisputed debt; 20 L.R.A. 7S5, 793; 1 E. R. C. 391 — 
 on part payment as accord and satisfaction. 
 
 Cited in 1 Beach, Contr. 189, 519, on accord and satisfaction by payment of 
 less than amount due; Benjamin, Sales, 5th ed. 767, 769, on acceptance of smaller 
 amount than due as satisfaction of debt; Hollingsworth, Contr. 126, on nonin- 
 quiry into adequacy of consideration for contract if it is something of value in 
 contemplation of law. 
 
 Distinguished in Lincoln Sav. Bank & S. D. Co. v. Allen, 27 C. C. A. 87, 49 U. 
 S. App. 498, 82 Fed. 14S, holding an agreement to accept part payment and sur- 
 render of part of collateral where debt is secured by notes as collateral is enforce- 
 able; Silvers v. Reynolds, 17 N. J. L. 275, holding where the evidence of indebted- 
 ness is wilfully destroyed for a lesser sum than its face this is in effect a 
 technical release of difference. 
 
 Limited in Ex parte Zeigler, 83 S. C. 78, 21 L.R.A. (N.S.) 1005, 64 S. E. 513, 
 holding the payment of a sum less than judgment by a discharged obligor at re- 
 quest of a co-obligor still bound for the debt satisfies the debt, where creditor 
 accepted payment as satisfaction. 
 
 Criticised in Clayton v. Clark, 74 Miss. 499, 37 L.R.A. 771, 60 Am. St. Rep. 
 521, 21 So. 565, holding the acceptance of a sum less than called for by note and 
 surrender of note with agreement that it is extinguished by the payment, ex- 
 tinguishes the note; Dreyfus v. Roberts, 75 Ark. 354, 69 L.R.A. 823, 112 Am. St. 
 Rep. 67, 87 S. W. 641, 5 Ann. Cas. 521, holding an acceptance, evidenced by writ- 
 ten receipt, of a lesser sum in full satisfaction of a greater one is a valid release; 
 Jaffray v. Davis, 124 N. Y. 164, 11 L.R.A. 710, 26 N. E. 351, 4 Silv. Ct. App. 
 315 (reversing 48 Hun, 500, 1 N. Y. Supp. 814), holding the giving of note for 
 one half an open book account, secured by chattel mortgage, will discharge the 
 debt where given and accepted in full satisfaction of the debt; Seymour v. Good-
 
 05 NOTES ON ENGLISH RULING CASKS. |1 E. R. C. 3GS 
 
 rich, 80 Va. 303, holding payment of part of firm debt by two of firm's members 
 upon agreement that it release them from further liability is a satisfaction ; 
 Shelton v. Jackson, 20 Tex. Civ. App. 443, 49 S. W. 415, holding payment of a 
 lesser sum where debtors were insolvent was sufficient consideration to support 
 release of balance on bond. 
 
 Disapproved in Frey v. Kubbell, 74 N. II. 358, 17 L.R.A.(N.S.) 1197, OS At I. 
 325, holding acceptance of a less sum in full satisfaction of a debt is a defense to 
 an action for the balance; Harper v. Graham, 20 Ohio, 100, holding payment of a 
 portion of judgment and attorney's fees upon agreement that judgment shall be 
 extinguished and a receipt given in full discharges such judgment debt. 
 
 — Where security from third party is accepted. 
 
 Cited in Pulliam v. Taylor, 50 Miss. 251, holding the acceptance of debtor's 
 note and security, or note of third persons, for less than the whole debt will 
 afford consideration to support a compounding of the debt; Brooks v. White, 2 
 Met. 283, 37 Am. Dec. 95, holding acceptance of note of third party for a sum less 
 than amount of debt will be a bar to suit for recovery of full amount; Lee v. 
 Oppenheimer, 32 Me. 253, holding the acceptance of the note of a third person 
 in accordance with agreement to release debtor will support such discharge though 
 the note is for a less amount than the debt; Colburn v. Gould, 1 N. H. 279, hold- 
 ing that if creditor agree with insolvent debtor, that if he will procure security of 
 friend for certain part of debt, he will release residue, and debtor performs agree- 
 ment, it constitutes valid contract. 
 
 Cited in 1 Beach, Contr. 538, on necessity for new consideration in settlement 
 by third person. 
 
 — Where release is under seal. 
 
 Cited in Union Bank v. Call, 5 Fla. 409, holding where the release is under 
 seal it is not necessary that there be a full consideration. 
 
 — Where claim is unliquidated. 
 
 Cited in Bateman v. Daniels, 5 Blackf. 71, holding where damages are un- 
 liquidated, the payment of a less sum than that demanded may be pleaded as a 
 satisfaction of the whole demand; Lestienne v. Ernst, 5 App. Div. 373, 39 N. V. 
 Supp. 199; Bingham v. Browning, 97 111. App. 442, — holding where there is an un- 
 liquidated demand and the one making tender and payment expressly stipulates 
 that the sum tendered is to be a full satisfaction, acceptance constituted a full 
 discharge; Treat v. Price, 47 Neb. 875, 66 N. W. 834, holding in ease of a disputed 
 claim a tender and acceptance of a lesser amount will discharge the claim: 
 Mathis v. Brown, 49 N. C. (4 Jones, L.) 508, holding where amount is unascer- 
 tained and in dispute, payment of a less sum than claimed, if received in dis- 
 charge, will support plea of accord and satisfaction; Chicago, R. I. & P. R. Co. 
 v. Mills, 18 Colo. App. 8, 69 Pac. 317, holding the acceptance by an employee of 
 $50 each month and receipt for same is a full satisfaction where employee claimed 
 $55 a month and the employer claimed such sum was contingent upon a condition 
 never performed. 
 
 Cited in note in 26 L. ed. U. S. 1187, on compromise of disputed claim. 
 
 Distinguished in Comstock v. United States, 9 Ct. CI. 141, holding acceptance 
 from government of sum tendered in full for impressed goods was a discharge. 
 
 Limited in Riggs.v. Home Mut. F. Protective Asso. 61 S. C. 448, 39 S. E. 614, 
 holding the rule that a leaser sum cannot satisfy a greater one has no application 
 to unliquidated claims. 
 
 — Where other thing or property is accepted in satisfaction. 
 
 Cited in Singleton v. Thomas, 73 Ala. 205, on sufficiency of goods as considera- 
 Notes on E. R. C— 5.
 
 1 E. R. C. 3G8] NOTES ON ENGLISH RULING CASES. 66 
 
 tion for accord and satisfaction; Bush v. Abraham, 25 Or. 336, 35 Pac. 1066, hold- 
 ing an agreement to accept something in lieu of money in satisfaction of a debt, 
 when -carried into effect, satisfies such debt; Savage v. Everman, 70 Pa. 315, 10 
 Am. Rep. 676, 20 Phila. Leg. Int. 45, holding a delivery and acceptance of land in 
 satisfaction of a debt will discharge the debt; Missouri-American Electric Co. v. 
 Hamilton-Brown Shoe Co. 91 C. C. A. 251, 165 Fed. 283; Very v. Levy, 13 How. 
 345, 14 L. ed. 173, — holding a delivery of specific articles a good satisfaction of a 
 money debt; Watkinson v. Inglesby, 5 Johns. 3S6, holding delivery and acceptance 
 of stock in trade and assignment of outstanding debts where accepted in full 
 satisfaction of a debt extinguishes it; State Bank v. Chetwood, 8 N. J. L. 1, hold- 
 ing the acceptance of other things for which party was not bound on a bond may 
 be considered a satisfaction of bond. 
 — Where onerous terms are added to payment or prepayment is made. 
 
 Cited in Pope v. Tunstall, 2 Ark. 209, holding plea of payment of part on terms 
 more onerous to the payor may be good as accord and satisfaction; Brooks v. 
 White, 2 Met. 283, 37 Am. Dec. 95; Singer Sewing Mach. Co. v. Lee, 105 Ind. 663, 
 66 Atl. 628; Chicora Fertilizer Co. v. Dunan, 91 Md. 144, 50 L.R.A. 401, 413 Atl. 
 347, — holding an agreement to give a less sum for a greater, if the time of pay- 
 ment is anticipated, is binding; Turner v. Bowerman, 29 U. C. Q. B. 187, holding 
 payment before due of a smaller sum in satisfaction of a greater sum is a good 
 defense; Columbia Bldg. & L. Asso. v. Bollinger, 12 Rich. Eq. 124, 78 Am. Dec. 
 463; Austin v. Dorwin, 21 Vt. 38; Thurber v. Smith, 25 R. I. 60, 54 Atl. 790,— 
 holding payment of money before it is due is a good consideration for a contract ; 
 Bantz v. Basnett, 12 W. Va. 772, holding payment but two days before debt be- 
 comes due will support an acceptance of a part payment; Sonnenberg v. Riedel, 
 16 Minn. 83, Gil. 72, holding payment of a smaller sum where accepted in full 
 of a debt not due, discharges the debt; Bonaffe v. Woodberry, 12 Pick. 456, hold- 
 ing a bottomry bond extinguished by payment of a less amount than called for by 
 bond where payment was made while ship was on voyage; Bowker v. Childs, 3 
 Allen, 434, holding where four notes, three of which were not due, were given 
 up upon payment of sixty per cent as one entire transaction there was a good 
 satisfaction in law; Tomlin v. M'Chord, 6 J. J. Marsh. 1, holding one covenant 
 may be discharged by one more advantageous than the first; Adams v. Dubuque, 
 86 Iowa, 166, 53 N. W. 105, holding where, in settlement of litigation, the city 
 agreed to pay costs for which it was not liable in addition to amount paid a 
 judgment creditor there was a consideration to support compromise; Smith v. 
 Brown, 10 N. C. (3 Hawks) 580, holding payment of a less sum as freight 
 charges, than claimed will support an accord and satisfaction where paid before 
 freight was due; Peace v. Nailing, 16 N. C. (1 Dev. Eq.) 2S9, to the point that 
 payment of part of debt before day, if accepted in full, will discharge debt. 
 
 Distinguished in Pierce & Co. v. Jones, 8 S. C. 273, 28 Am. Rep. 288, holding 
 where creditors by written agreement with insolvent creditors agree to accept 
 twenty-five cents on the dollar provided all creditors agree, such agreement being 
 complied with is a satisfaction of claims of all accepting payment. 
 What constitutes a detriment. 
 
 Distinguished in Saunders v. Whitcomb, 177 Mass. 457, 59 N. E. 192, holding 
 payment of a dishonored bill in Massachusetts instead of at London, where no 
 expense had been incurred in placing funds for payment in London, is not a 
 detriment. 
 Effect of a parol accord and satisfaction on bond. 
 
 Cited in Keeler v. Salisbury, 27 Barb. 485, holding after condition of a bond is
 
 07 NOTES ON ENGLISH RULING .CASES. [1 E. R. C. 370 
 
 broken a valid satisfaction may be made upon an agreement which is not by 
 deed. 
 
 Distinguished in Strang v. Holmes, 7 Cow. 224, holding by reason of statutes 
 a parol accord and satisfaction of conditions of a penal bond, after same is due, 
 is a bar to action on the bond. 
 Accord and satisfaction as a defense. 
 
 Cited in Oliver v. Phelps, 20 N. J. L. 180, holding a tenant may show an accord 
 and satisfaction as defense to an action for rent due; Parker v. Mayes, 85 S. C. 
 419, 137 Am. St. Rep. 912, 67 S. E. 559, holding that joint and several maker of 
 note cannot plead as defense oral agreement by which he had been released from 
 liability by payment of one-half of note. 
 Pleading accord and satisfaction. 
 
 Cited in Schlessinger v. Schlessinger, 39 Colo. 44, 8 L.P.A. (N.S.) 803, 88 Pac. 
 970, holding that plea of payment of less amount than was due, which was bor- 
 rowed for purpose, and satisfaction and release of all claims, is not sufficient 
 as one of accord and satisfaction; Blanchard v. Noyes, 3 N. H. 518, holding a 
 ' plea simply alleging the acceptance of a smaller sum of money, in satisfaction of 
 a larger sum is bad; Hancombe v. Macdonald, 4 U. C. C. P. 190, on effect of a 
 mere plea of satisfaction. 
 Application of money paid where creditor has several claims. 
 
 Cited in Caldwell v. Wentworth, 14 N. H. 431, holding a debtor has a right to 
 direct the application of money paid where creditor has several claims against 
 him; Hilton v. Burley, 2 N. H. 193, holding where no direction is given by debtor, 
 the creditor may appropriate it to any legal demand then due him from debtor ; 
 Pattison v. Hull, 9 Cow. 747, on right of party paying to direct manner of appli- 
 cation. 
 Necessity and nature of acceptance of accord to liquidate claim. 
 
 Cited in Nassoiy v. Tomlinson, 148 N. Y. 326, 51 Am. St. Eep. 695, 42 N. E. 
 715, holding the acceptance can only be in terms of tender. 
 
 Distinguished in Spruneberger v. Dentler, 4 Watts, 126, holding an agreement 
 to pay less sum and to deliver goods in payment of greater sum must have been 
 accepted in satisfaction to discharge the debt. 
 
 1 E. P. C. 370, FOAKES v. BEEP. L. P. 9 App. Cas. 005, 51 L. T. N. S. 833, 33 
 
 Week. Rep. 233, 54 L. J. Q. B. N. S. 130. 
 Discharge of a liquid debt by acceptance of smaller sum in satisfaction. 
 
 Cited in Dreyfus v. Roberts, 75 Ark. 354, 69 L.R.A. 82:1, 112 Am. St. Rep. 67, 
 87 S. W. 641, 5 Ann. Cas. 521, holding acceptance of lessor sum for greater where 
 evidenced by written receipt in full satisfaction effects a discharge of debt; Slade 
 v. Mutrie, 156 Mass. 19, 30 N. E. 168, holding payment of part of a debt after 
 whole debt payable is not a sufficient consideration to support a promise, not 
 under seal, to discharge the remainder; Ex parte Zeigler, 83 S. C. 78, 21 L.R.A. 
 (N.S.) 1005, 64 S. E. 513, holding that payment by one joint debtor, who has been 
 discharged in bankruptcy, of sum less than is due on joint debt which is accepted 
 in satisfaction, will operate in favor of other debtor; Dalby v. Lauritzcn, 98 Minn 
 75, 107 N. W. 826, on sufficiency of consideration to support discharge of debt ; 
 Winter v. Kansas City Cable R. Co. 160 Mo. 159, 61 S. W. 606, 73 Mo. App. 173 
 (in dissenting opinion of court of appeals), on lesser sum as satisfaction by 
 agreement; Henson v. Stever, 69 Mo. App. 136, holding where agreement included 
 compromise of other differences between the parties a sufficient consideration is
 
 1 E. R. C. 370] NOTES ON ENGLISH RULING CASES. 68 
 
 shown; McKenzie v. Harrison, 120 N. Y. 260, 8 L.R.A. 257, 17 Am. St. Rep. 63S, 
 
 24 N. E. 458, holding where payment is made under an agreement recognized as 
 valid by the parties and has been fully executed the objection cannot be raised; 
 Jaffray v. Davis, 124 N. Y. 164, 11 L.R.A. 710, 20 N. E. 351, 4 Silv. Ct. App. 
 315 (reversing 48 Hun, 500, 1 N. Y. Supp. 814), holding receipt of debtor's note 
 for one-half amount of debt for goods sold, secured by a chattel mortgage on 
 debtor's property, will support agreement of discharge; Seymour v. Goodrich, 80 
 Va. 303, holding payment by one member of a firm of part of firm indebtedness 
 upon agreement that certain members shall be released is binding; Price v. 
 Mitchell, 23 Wash. 742, 63 Pac. 514, holding an agreement to accept a smaller 
 sum in payment of a larger one is not binding; Lee v. Wagner, 71 Wis. 191, 36 
 N. W. 597, holding payment of part of debt when due upon agreement that it 
 shall be in full satisfaction of the whole, is nudum pactum; Re Freeman, 117 Fed. 
 680, holding where something is given and accepted of value it is a good pay- 
 ment to that extent: Fire Ins. Asso. v. Wickham, 141 U. S. 564, 35 L. ed. 860, 
 12 Sup. Ct. Rep. 84, on accord and satisfaction of an unliquidated amount; 
 Burgess v. Conway, 14 Can. S. C. 90, holding party not bound by acceptance of 
 a sum of money, if more was due to him, even though he accepted it absolutely as 
 in satisfaction and discharge; Mason v. Meston, 14 B. C. 22, holding that contract 
 to accept lesser sum in payment of greater is nudum pactum; Pitfield v. Kimball, 
 
 25 N. B. 193, holding a payment of $55 did not amount to satisfaction of a liqui- 
 dated demand of $105. 
 
 Cited in notes in 20 L.R.A. 795; 1 Eng. Rul. Cas. 390, — on part payment as 
 accord and satifaction ; 1 E. R. C. 397, on obligation of third person for smaller 
 amount as a satisfaction. 
 
 Cited in 1 Beach, Contr. 189, on existing legal obligation as a consideration ; 
 1 Beach, Contr. 519, on accord and satisfaction by payment of less than amount 
 due; Benjamin, Sales, 5th ed. 70S, 769, on acceptance of smaller amount than 
 due as satisfaction of debt; Hollingsworth, Contr. 126, on noninquiry into 
 adequacy of consideration for contract if it is something of value in contemplation 
 of law. 
 
 Distinguished in Lincoln Sav. Bank & S. D. Co. v. Allen, 27 C. C. A. 87, 49 U. S. 
 App. 498, 82 Fed. 148, holding notes taken and part payment a sufficient con- 
 sideration for surrender of collateral formerly held. 
 
 Criticised in Shelton v. Jackson, 20 Tex. Civ. App. 443, 49 S. W. 415, holding 
 where maker of bond was insolvent acceptance of part of indebtedness discharged 
 the bond. 
 
 Disapproved in Frye v. Hubbell, 74 N. H. 358, 17 L.R.A. (N.S.) 1197, OS Atl. 
 325, holding money paid and received from an insolvent debtor is a benefit such 
 as will bar a further recovery; Clayton v. Clark, 74 Miss. 499, 37 L.R.A. 771, 
 00 Am. St. Rep. 521, 21 So. 565; holding an agreement to receive lesser sum in 
 satisfaction of larger one where accompanied by giving up of note discharges 
 the debt. 
 — Release of judgment. 
 
 Cited in Benedict v. Rea, 35 Hun, 34, on insufficiency of part payment to dis- 
 charge a judgment; Roberts v. Brandies, 44 Hun, 468, holding compounding of 
 judgment and interest by cash and notes by strangers was good; Soder v. Yorke, 
 5 B. C. 133, on the inefficacy of an unsealed release of judgment; Under- 
 wood v. Underwood [1894] P. 204, 03 L. J. Prob. N. S. 109, 6 Reports, 604, 70 
 L. T. N. S. 390, 42 Week. Rep. 372, holding that an agreement to release the hus- 
 band from all claims for alimony in consideration of the payment of a lesser sum 
 was void as without consideration.
 
 69 NOTES <>\ ENGLISH RULING (ASKS. [1 E. R. C. 393 
 
 Payment of principal without interest. 
 
 Cited in note in 40 L.R.A. I N.S.) 591, 599, on acceptance of principal as affect- 
 ing right to interest. 
 
 Distinguished in Bidder v. Bridges, L. R. 37 Ch. Div. 406, 57 L. J. Ch. N. S. 
 300, 5& L. T. N. S. 656, 1 Eng. Rul. Cas. 393, holding that the acceptance of a 
 cheque by the solicitor, for costs was an accord and satisfaction of the costs 
 though it did not contain the interest on the costs, to which the plaintiff \\:is 
 entitled. 
 
 — Acceptance of goods. 
 
 Cited in Seeley v. Cox, 28 N. S. 210, holding that agreement to accept goods in 
 satisfaction of indebtedness in larger amount is binding. 
 
 — Of an unliquidated demand. 
 
 Cited in Redmond v. Atlanta & B. Air-Line R. Co. 129 Ga. 133, 58 S. E. 874, 
 holding an unliquidated demand extinguished by check for a lesser amount than 
 claimed, where creditor signed a receipt under seal releasing debtor from the 
 entire claim; Chicago, M. & St. P. R. Co. v. Clark, 178 U. S. 353, 44 L. ed. 1099, 
 20 Sup. Ct. Rep. 924, holding a release of part of a disputed claim and payment 
 and receipt in full bars a further recovery. 
 
 Cited m note in 1 Eng. Rul. Cas. 402, on part payment of claim for unliqui- 
 dated damages as a satisfaction. 
 Acceptance necessary to accord and satisfaction. 
 
 Cited in Skinner v. Franklin County, 3 Pa. Co. Ct. 448, holding the acceptance 
 must have the elements of an agreement; Mason v. Johnston, 20 Ont. App. Rep. 
 412, holding the part payment must be expressly accepted in satisfaction of judg- 
 ment to have that effect ; Rielle v. Reid, 28 Ont. Rep. 497, holding the assent to an 
 accord was a question of intention, consideration and agreement. 
 Effect to be given to accepted but questioned decisions of courts. 
 
 Cited in Porteous v. Muir, 8 Ont. Rep. 127, holding the authority of unques- 
 tioned decisions must prevail. 
 Consideration for contract. 
 
 Cited in note in 6 Eng. Rul. Cas. 20, on what may constitute consideration for 
 contract. 
 
 1 E. R. C. 393, BIDDER v. BRIDGES, L. R. 37 Ch. Div. 406, 58 L. T. N. S. 656, 
 
 57 L. J. Ch. N. S. 300. 
 Satisfaction of debt by acceptance of smaller amount. 
 
 Cited in Ex parte Zeigler, 83 S. C. 78, 21 L.R.A.(N.S.) 1005, 64 S. E. 513, hold- 
 ing that payment by one joint debtor who has been discharged in bankruptcy, 
 of sum less than is due on joint debt, which is accepted in satisfaction of whole 
 debt, will operate as such in favor of other debtor. 
 
 Cited in notes in 20 L.R.A. 795, on accord and satisfaction by part payment; 
 40 L.R.A. (N.S.) 591, on acceptance of principal as affecting right to interest. 
 
 Cited in Benjamin, Sales, 5th ed. 768, on payment by negotiable security for 
 less than amount due as a satisfaction. 
 Acceptance of stranger's obligation or security. 
 
 Cited in Mason v. Johnston, 20 Ont. App. Rep. 412, holding there was no satis- 
 faction of debt where a draft for a lesser amount was accepted only as a pro 
 tanto payment. 
 
 Cited in note in 20 L.R.A. 795, on accord and satisfaction by part payment by 
 third party. 
 
 Criticised in Frye v. Hubbell, 74 N. H. 358, 17 L.R.A. (N.S.) 1197, 6S Atl. 325,
 
 1 E. R. C. 303] NOTES ON ENGLISH RULING CASES. 70 
 
 condemning cases which hold that furnishing security for a part of the debt is a 
 sufficient consideration for a discharge of the residue. 
 
 Disapproved in Jaffray v. Davis, 48 Hun, 500, 1 N. Y. Supp. 814, holding debtor 
 is not discharged by giving note for one half the claim, secured by chattel mort- 
 gage on his property which note is paid. 
 
 1 E. R. C. 398, RICHARDS & BARTLET'S CASE, 1 Leonard, 19. 
 Executory matters as accord and satisfaction. 
 
 Cited in Sheetz v. Marks, 2 Pearson (Pa.) 302, holding title to trust property 
 not divested by assigning it for creditors, it not yet having passed further. 
 
 1 E. R. C. 400, ADAMS v. TAPLING, 4 Mod. 88. 
 
 Accord and satisfaction of uncertain obligation or liability. 
 
 Cited in Wilson v. Spencer, 11 Leigh, 261, holding conveyance of a tract of land 
 with an incumbrance can be no satisfaction of the obligation to convey the same 
 land without incumbrance. 
 
 Distinguished in Foakes v. Beer, L. R. 9 App. Cas. 605, 1 Eng. Rul. Cas. 370, 
 holding an agreement whereby a judgment creditor agreed to desist from enforc- 
 ing his judgment if the debtor would pay a part in cash and part in instalments 
 was void as without consideration. 
 
 — By payment of less sum. 
 
 Cited in Sprungberger v. Dentler, 4 Watts, 126, holding that agreement to pay 
 less sum and to deliver goods, in discharge of greater sum, must be fully executed 
 and money and goods accepted in satisfaction, to operate as extinguishment of 
 original debt. 
 
 Distinguished in Silvers v. Reynolds, 17 N. J. L. 275, holding that debtor may 
 be discharged from his debt, without technical release, even on payment of less 
 sum than is due, by parol agreement executed, or canceling evidence of debt. 
 
 — Of sealed obligation. 
 
 Cited in Morris Canal & Bkg. Co. v. Van Vorst, 21 N. J. L. 100, to the point 
 that if satisfaction of sealed instrument for payment of money is under seal, it is 
 binding although less sum is paid than is due. 
 Performance of existing- contract as consideration. 
 
 Cited in note in 34 L.R.A. 36, on performance of existing contract obligation to 
 comply with lease as consideration for new promise. 
 
 1 E. R. C. 403, CASE v. BARBER, T. Raym. 450. 
 
 Accord and satisfaction by mutual executory promises. 
 
 Cited in Bradshaw v. Davis, 12 Tex. 336, holding that where there is agreement 
 to receive goods at future day in payment of antecedent indebtedness, tender of 
 goods within time discharges indebtedness; Goodrich v. Stanley, 24 Conn. 613, 
 holding upon an agreement to labor in satisfaction of a note, and acceptance of 
 such labor, there is a satisfaction and extinguishment of the note; Shoemaker v. 
 Fegley. 14 Pa. Dist. R. 850, on accord and satisfaction by mutual executory 
 promises; Belcher v. Cook, 4 U. C. Q. B. 401 (dissenting opinion), on an un- 
 executed accord as a defense. 
 
 Disapproved in Frentress v. Markle, 2 G. Greene, 553, holding an unexecuted 
 accord is no bar to an action ; Waydell v. Luer, 5 Hill, 448, holding the note of one 
 of several joint debtors for an antecedent debt will not extinguish liability of 
 such joint debtors though accepted by the creditor in full satisfaction; Bates v. 
 Starr, 2 Vt. 536, 26 Am. Dec. 568, holding an accord without satisfaction^ not
 
 71 NOTES ON ENGLISH RULING CASKS. [1 E. 11. C. 403 
 
 binding upon the creditor; Coit v. Houston, 3 Johns. Cas. 243, holding an agree- 
 ment to be a bar, must be executed and satisfied with a recompense in fact, >>r 
 with an action, or other remedy to execute it and recover a recompense. 
 — Assumption of obligation by third parties. 
 
 Cited in Pope v. Tunstall, 2 Ark. 201), holding the addition of third parties to 
 the obligation supports plea of an accord. 
 
 Distinguished in Cozens v. Wier, 5 N. S. 123, holding a plea setting forth agree 
 ment of release and substitution of third parties and that such third parties as- 
 sumed the debt, is good. 
 Discharge of contract after breach. 
 
 Cited in Morse v. Hueston, 4 N. S. 61, holding after breach of contract it can- 
 not be discharged without a valid agreement being substituted. 
 Pleading legality of matter in discharge. 
 
 Cited in Armstrong v. Masten, 11 Johns. 1S9, holding it is not requisite ior the 
 defendant, in pleading an award in bar of an action, to allege performance. 
 Pleading an agreement in defense which is within statute of frauds. 
 
 Cited in Stern v. Drinker, 2 E. D. Smith, 401, holding that demurrer to com- 
 plaint on ground that promise was not alleged to be in writing cannot be sus- 
 tained; Bradley v. Blodget, Kirby, 22, 1 Am. Dec. 11 (dissenting opinion), on 
 showing parol agreement relative to sale of land; Holbrook v. Armstrong, 10 Me. 
 31, holding where action is upon implied promise and defendant would avoid it 
 by showing a special agreement required to be in writing, he must plead it to be 
 in writing; Grafton Bank v. Woodward, 5 N. H. 99, 20 Am. Dec. 566, holding 
 where a contract to give time is not averred to have been in writing it must be 
 considered as not in writing; Morehouse v. Cotheal, 21 N. J. L. 4S0, holding a 
 title by devise must be shown in pleading such a title; Palmer v. White, 65 N. 
 J. L. 69, 46 Atl. 706; Reinheimer v. Carter, 31 Ohio St. 579,— holding the plea, 
 whether the agreement or promise must be in writing, must show such fact: 
 Dewey v. Hoag, 15 Barb. 365, on necessity of defendant's stating agreement in bar 
 to be in writing; Crooks v. Dickson, 15 U. C. C. P. 23, holding a plea setting up 
 contract or an alteration, required to be in writing, must allege it was made 
 in writing; Moore v. Sullivan, 21 U. C. Q. B. 445. holding where in a plea a 
 contract is relied on which is binding only in writing, it is necessary to aver 
 that it was in writing; Hall v. Francis, 4 U. C. C. P. 210, holding that if agree- 
 ment stated in pica, should be in writing, to render it valid, it should have been 
 so alleged in plea; Dalgleish v. Conboy, 26 U. C. C. P. 254, to the point that before 
 common-law procedure act it was necessary to aver in plea that contract was in 
 writing when written contract was required; Allcroft v. Adams, 3S Can. S. C. 
 365 (dissenting opinion), on necessity of showing defense to statute of frauds; 
 Young v. Austen, L. R. 4 C. P. 553, 38 L. J. C. P. N. S. 233, 20 L. T. N. S. 396, 
 17 Week. Rep. 706, on the right to demur to a plea of an oral agreement affecting 
 a written instrument. 
 
 Cited in Browne, Stat. Frauds, 5th ed. 626, on necessity for defendant pleading 
 statute of frauds as a defense. 
 
 Distinguished in Green v. Seymour, 59 Vt. 459, 12 Atl. 206, holding that in 
 replication to plea of statute of limitations wherein is set forth defendant's 
 promise to waive said statute, it is not necessary to allege that promise was in 
 writing. 
 
 Disapproved in Bradford Invest. Co. v. Joost, 117 Cal. 204, 48 Pac. 1083, 
 holding where answer alleges an agreement by way of defense, which is required 
 to be in writing, it is not necessary that it be set forth as in writing.
 
 1 E. R. C. 403] NOTES ON ENGLISH RULING CASES. 72 
 
 Necessity of setting forth writing in declaration on same. 
 
 Cited in Kizer v. Lock, 9 Ala. 2G9; Miller v. Drake, 1 Caines, 45, — holding it is 
 not necessary that the writing be set forth in the declaration. 
 Agreements required to be in writing. 
 
 Cited in Cochran v. Hislop, 3 U. C. C. P. 440, holding that purchase of growing 
 timber must be evidenced by writing to be valid; Hurlburt v. Thomas, 3 U. C. Q. 
 B. 258, on whether new agreement not within statute of frauds, substituted for 
 original agreement within statute, must be in writing. 
 
 Cited in Browne, State Frauds, 5th ed. 270, on inapplicability of statute of 
 frauds as to guaranties to purchase the debt itself. 
 
 1 E. R. C. 406, TAFF VALE R. CO. v. NIXON, 1 H. L. Cas. Ill, affirming the 
 
 decision of the Vice Chancellor, reported in 7 Hare, 130. 
 Equity jurisdiction of complicated accounts. 
 
 Cited in Bellingham v. Palmer, 54 N. J. Eq. 136, 33 Atl. 199, holding jurisdic- 
 tion of equity must rest upon the intricate character of the accounts which must 
 be complicated that it cannot be tried at nisi prius with any certainty that an 
 accurate result would be reached; Davis v. Dyer, 62 N. H. 231, holding that in 
 assumpsit upon account, of which court has equitable jurisdiction, and items of 
 which are so numerous and complicated that jury cannot understand case, no 
 absolute right to trial by jury exists; Cranford Twp. v. Watters, 61 N. J. Eq. 
 284, 48 Atl. 316, holding the test is, are the issues so numerous and. so distinct, 
 and the evidence to sustain them so variant that a jury is incompetent to intelli- 
 gently deal with them; Uhlman v. New York L. Ins. Co. 109 N. Y. 421, 4 Am. St. 
 Rep. 482, 17 N. E. 363, holding mere fact of account being complicated does not 
 give equity jurisdiction; Black v. Boyd, 50 Ohio St. 46, 33 N. E. 207, holding 
 jurisdiction of equity is sustained in cases of complicated mutual accounts; Fenno 
 v. Primrose, 116 Fed. 49, holding equity has jurisdiction of matters of dispute 
 between factor and principal where dealings were numerous and taking an 'ac- 
 count by common-law proceedings, is impracticable: Whitehead v. Buffalo & L. 
 H. R. Co. 7 Grant, Ch. (U. C.) 351, upholding bill in equity because of intricacy 
 of account; Falls v. Powell, 20 Grant, Ch. (U. C. ) 454, holding it being a matter 
 of account, the jurisdiction of a court of equity is' concurrent with that of a 
 court of law, and the question in each case is which court is best fitted to deal 
 with it; Blodgett v. Foster, 114 Mich. 688, 68 Am. St. Rep. 504, 72 N. W. 100, 
 holding a suit in equity is proper Avhere great complication or difficulty is in the 
 way of adequate relief at law, though the accounts are all on one side; Daley v. 
 Kennett, 75 N. H. 536, 39 L.R.A.(N.S.) 45, 78 Atl. 123. holding that in trover 
 by holder of chattel mortgage to recover possession of chattels from one denying 
 title, court cannot deny defendant jury trial because matters are complicated, 
 where no equitable relief is necessary; Gilbert v. Jarvis, 20 Grant, Ch. (U. C.) 
 465, holding that demurrer to bill for discovery would not be sustained where 
 claim for fees was made which involved items excluding 1000 in number and 
 settlement was refused and no other means was available. 
 Right to jury trial. 
 
 Cited in note in 39 L.R.A.lN.S. ) 49. 52, on denial of jury trial because matters 
 in issue complicated. 
 — Diversity of parties. 
 
 Cited in Price v. Middleton, 75 S. C. 105, 55 S. E. 156, holding equity may take 
 jurisdiction of suit for damages for breach of partnership contract where a long 
 and intricate accounting of profits for years is necessary; Armstrong v. Robert- 
 son, N. B. Eq. Cas. 24!), holding equitable accounting proper where parties are
 
 73 NOTES o.\ ENGLISH§RULING (ASKS. [l E. R. C. -12:. 
 
 diverse; Franke v. McGrath, 22 X. B. 456, holding an account can be had more 
 conveniently in equity between copartners where one partner held legal title to 
 property with power of sale to reimburse himself for outlay. 
 — Rights under contracts. 
 
 Cited in Dabbs v. Nugent, 13 L. T. X. S. 396, 14 Week. Rep. 94, 11 Jur. N. S. 
 943, holding that a contractor was entitled to resort to equity for an inquiry as to 
 what was due him from the employer on a contract. 
 Repudiation of onerous part of contract. 
 
 The decision of the Vice Chancellor was cited in Winnipeg & II. B. R. Co. v. 
 Mann, 7 Manitoba L. R. 81, holding that railway company could not take benefit 
 of part of contract entered into on its behalf by president and repudiate contract 
 as to another part. 
 
 1 E. R. C. 419, SMITH v. LEVEAUX, 2 De G. J. & S. 1, 3 Xew Reports, 18, 9 
 Jur. X. S. 1140, 9 L. T. X. S. 313, 12 Week. Rep. 31, 33 L. J. Ch. X. S. 167, 
 reversing the decision of the Vice Chancellor, reported in 1 Hem. & Mill. 123. 
 Jurisdiction of equity where agent seeks an accounting' by principal. 
 
 Cited in Xash v. Burchard, S7 Mich. 85, 49 X. W. 492, holding equity has no 
 jurisdiction where bill for an accounting is brought by an agent against his 
 principal; Badger v. McXamara, 123 Mass. 117, holding same where bill is 
 brought to recover a lixed commission upon goods consigned; James v. Snarr, 15 
 Grant, Ch. (U. C.) 229, holding that ordinarily, bill for account will not lie by 
 agent against principal. 
 
 Cited in note in 1 E. R. C. 423, on jurisdiction of equity over bill for an ac- 
 counting where adequate remedy at law exists. 
 — Necessity of showing- mutual or complicated accounts. 
 
 Cited in Tiffany, Ag. 463, on right of agent to accounting in equity when ac- 
 counts are complicated. 
 
 Disapproved in Falls v. Powell, 20 Grant, Ch. (U. C.) 454, holding it is not 
 necessary to show, either that there are mutual accounts, or that the accounts 
 are complicated. 
 
 Right to jury trial of complicated matters. 
 
 Cited in note in 39 L.R.A.(X.S.) 52, on denial of jury trial because matters in 
 issue complicated. 
 
 1 E. R. C. 425, LAYCOCK v. PICKLES, 4 Best & S. 497. 10 Jur. X. S. 336, 9 L. 
 
 T. X. S. 378, 12 Week. Rep. 76. 33 L. J. Q. B. X. S. 43. 
 Essentials of an account stated. 
 
 Cited in St. Louis, I. M. & S. R. Co. v. Camden Bank, 47 Ark. 541, 1 S. W. 704, 
 holding the auditing of the account by an authorized agent of the company and 
 acceptance of statement by laborers, constituted, in each case, an account stated; 
 R. v. Dunn, 11 Can. S. C. 385, on admission of liability as necessary to an ac- 
 count stated; Fraser v. McLeod, 18 X. S. 286, holding it not an account stated 
 where one party assumed as part of it debt to pay debt of his brother; Lynch v. 
 William Richards Co. 38 X. B. 160, to the point that essence of account stated is 
 that in consideration of discharge of items on either side if balance is agreed to be 
 due; Murray v. Moffat, 19 X. B. 481, holding that in order to recover on account 
 stated it must appear that account was stated in reference to former transactions 
 between parties; Brennan v. Crawley, 16 Week. Rep. 754, on what constitutes 
 an account stated. 
 
 Cited in note in 27 L.R.A. 812, on what constitutes an account stated.
 
 1 E. R. C. 425] NOTES ON ENGLISH RULING CASES. 74 
 
 — Mutuality of accounts. 
 
 Cited in State, Weigel, Prosecutor v. Hartman Steel Co. 51 N. J. L. 446, 20 
 Atl. 67, holding it is not essential that there should be mutual or counter ac- 
 counts between the parties to support an action for an account stated. 
 
 — Parol statement of accounts involving writings. 
 
 Cited in Frost v. Brennan, 9 N. S. 40, holding notwithstanding consideration of 
 note as for an interest in land a recovery may be had on an account stated, the 
 debt being admitted and a promise made to pay; Wilson v. Marshall, Ir. Rep. 2 
 Ch. 356, holding account may be stated upon items one of which was upon a con- 
 tract within statute of frauds. 
 Nature of an account stated. 
 
 Cited in Vanbebber v. Plunkett, 26 Or. 562, 27 L.R.A. 811, 38 Pac. 707, holding 
 an account stated is merely evidence of the debt; Sparling v. Savage, 25 U. C. 
 Q. B. 259, on the nature of an account stated. 
 
 — Balance as actionable debt. 
 
 Cited in Rand v. Wright, 129 Mass. 50, holding an answer sufficient which al- 
 leged an accounting together and adjustment of items and agreement as to 
 amount of money due. 
 
 Distinguished in Lynch v. William Richards Co. 38 N. B. 160, where the action 
 was not to recover the balance struck. 
 Right of creditor to appropriate payment to nonactionable debt. 
 
 Cited in Benjamin, Sales, 5th ed. 799, on lawfulness of appropriation of pay- 
 ment by creditor to debt not recoverable by action. 
 
 1 E. R. C. 433, COCKING v. WARD, 1 C. B. 858, 15 L. J. C. P. N. S. 245. 
 Recovery on account stated. 
 
 Cited in Gross v. Bricker, 18 U.'C. Q. B. 410, holding that if grantor acknowl- 
 edged that he agreed to pay certain sum if grantee would cancel agreement and 
 give up possession of land, after such cancelation and surrender, action on account 
 stated was sustainable; Great Western R. Co. v. Grand Trunk R. Co. 24 U. C. Q. 
 B. 107, to the point that parties to ultra vires agreement might state account of 
 mutual claims upon which account balance might be recovered; Runkle v. Ketter- 
 ing, 127 Iowa, 6, 102 N. W. 142, holding that one who for consideration, 
 agrees with another to pay for him future balance of his open account, is liable 
 therefor when such balance is found on his investigation to be due. 
 
 Distinguished in Zimmerman v. Woodruff, 17 U. C. Q. B. 584, holding that action 
 on account stated could not be sustained by one party to sealed contract, where 
 by its terms, payment was to be made to plaintiff jointly with another. 
 Recovery on an account stated containing items within statute of frauds. 
 
 Cited in Murray v. Moffat, 19 N. B. 481 (dissenting opinion), on recovery upon 
 an account stated under contract within statute of frauds; Frost v. Brennan, 9 
 N. S. 40, holding amount of consideration of note may be recovered on an account 
 stated though note is for an interest in land where the debt was acknowledged 
 and a promise to pay made. 
 
 Cited in note in 27 L.R.A. 819, on what constitutes an account stated to circum- 
 vent statute. 
 
 Distinguished in Fraser v. McLeod, 18 N. S. 286, holding an account stated can- 
 not be relied on for creating the liability in the first instance, unless it has a 
 new consideration.
 
 75 NOTES (J.\ ENGLISH RULING CASES. LI E- R. C. 433 
 
 Effect of statute of frauds on executed part of agreement. 
 
 Cited in Carter v. Brown, 3 S. C. 29S, holding that although verbal agreement 
 to serve as overseer, made in August 1864, for year 18G5, for quantity of cotton 
 to be delivered January 1st, 18G6, was void, recovery might be had on implied 
 promise arising at completion of service; Hodges v. Green, 28 Yt. 358; Ascutney 
 Bank v. McKormaby, 2S Vt. 721, — holding that action may be maintained upon 
 parol agreement to pay consideration for deed of land which has been delivered; 
 Wetherbee v. Potter, 99 Mass. 354, holding that oral agreement to reimburse one 
 who furnishes money to buy land for joint benefit is not within statute of frauds; 
 McMillan v. Williams, 9 Manitoba L. Bep. 627, holding balance of purchase* money 
 cannot be recovered in action on contract to sell land though deed has passed; 
 Holmwood v. Gillespie, 11 Manitoba L. Bep. 1S6, holding that an implied contract 
 arising out of performance on one side is enforceable; Giles v. McEwan, 11 .Mani- 
 toba L. Bep. 168, to like effect; Mason v. Scott, 22 Grant, Ch. (U. C.) 59, holding 
 fact that part of a verbal agreement which is within statute is executed, does not 
 cure the defect in respect of the other part; Meek v. Gass, 11 N. S. 243, holding 
 while no action can be sustained on the agreement which is within the statute 
 of frauds, a recover}' as of money paid can be had, from one who has received 
 payment and who repudiates the contract; Knowlman v. Bluett, 43 L. J. Exch. 
 N. S. 151, L. B. 9 Exch. 307, 32 L. T. N. S. 262, 22 Week. Bep. 758, holding that 
 mother, having maintained illegitimate children pursuant to verbal agreement 
 of father to pay therefor, can recover agreed sum ; Sanderson v. Graves, L. B. 
 10 Exch. 234, 44 L. J. Exch. N. S. 210, 33 L. T. N. S. 269, 23 Week. Bep. 797, on 
 the application of the statute of frauds to contracts executed on one part only ; 
 Wilson v. Marshall, Ir. Bep. 2 C. L. 356, holding account may be stated upon 
 items one of which was within statute. 
 
 Distinguished in Proctor v. Thompson, 13 Abb. N. C. 340, holding that con- 
 tract for sale of land, required to be in writing, may be rescinded by subsequent 
 parol agreement; Pulbrook v. Lawes, L. B. 1 Q. B. Div. 284, 45 L. J. Q. B. N. S. 
 178, 34 L. T. N. S. 95, holding that where a prospective lessee improved the prop- 
 erty with the lessor's consent, he could recover for such improvements if he was 
 prevented from taking possession of the premises through the lessor's failure to 
 carry out his part of a parol agreement to lease; Angell v. Duke, L. B. 10 Q. B. 
 174, 44 L. J. Q. B. N. S. 78, 32 L. T. N. S. 25, 23 Week. Bep. 307, holding that 
 where the collateral promise and agreement were not within the statute of 
 frauds an action could be maintained on it; Savage v. Canning, Ir. Bep. 1 C. L. 
 434, 16 Week. Bep. 133, holding that where work was done and accepted under 
 a contract void under the statute of frauds, the plaintiff could recover quantum 
 meruit, though he sued on a special contract. 
 
 Implied promise to pay under unenforceable contract. 
 
 Cited in Wilson v. Mason, 38 U. C. Q. B. 14, holding that fact that contract 
 is void because not in writing will not prevent action for money had and received 
 to recover back money involuntarily paid under it; Bivers v. Doe, 4 U. C. C. P. 
 21. holding that where plaintiff, teller of bank, was compelled to make good de- 
 ficiency in amount due on defendant's note to bank because of mistake in receiving 
 less than amount due thereon, he may recover against defendant in action for 
 money paid for his use. 
 
 Distinguished in Kennedy v. Broun, 9 Jur. N. S. 119, 13 C. B. N. S. 677, 32 L. 
 J. C. P. N. S. 137, 7 L. T. N. S. 626, 11 Week. Bep. 284, 1 Eng. Bui. Cas. 789, 
 holding that an acknowledgment by a client at the termination of the litigation 
 as to the value of the legal services of the advocate, was not a promise to pay 
 upon which he could recover.
 
 1 E. R. C. 433] NOTES ON ENGLISH RULUsG CASES. 76 
 
 Illegality of claim as defense to account stated. 
 
 Cited in Dunbar v. Johnson, 108 Mass. 519, holding that in action on account 
 stated defendant may plead that whole claim was founded in illegal transaction. 
 Necessity of new consideration. 
 
 Cited in Stryker v. Vanderbilt, 27 N. J. L. 68, holding that promise to extend 
 time of performing contract will not be binding unless made upon some new con- 
 sideration. 
 Parol evidence of land contract. 
 
 Cited in King v. Woodruff, 23 Conn. 56, 60 Am. Dec. 625, holding that parol 
 evidence is admissible to prove sum agreed to be paid, where tenant, under parol 
 agreement, has enjoyed use of land according to stipulated terms of that agree- 
 ment. 
 Recovery of price of land. 
 
 Cited in Johnstone v. Cowan, 25 U. C. Q. B. 470, to the point that promise of 
 grantee to pay purchase money after delivery of deed may be enforced, although 
 deed contains receipt for purchase price; Green v. Bvtrtch, 1 U. C. C. P. 313, hold- 
 ing that assignment of right to land executed under seal, in which receipt of pur- 
 chase price is acknowledged, will not support action for purchase money; Spar- 
 ling v. Savage, 25 U. C. Q. B. 259; Casey v. McCall, 19 U. C. C. P. 90,— holding 
 that grantor was concluded by receipt in deed for purchase money. 
 .Sufficiency of consideration for promise. 
 
 Cited in Rees v. Howcutt, 4 U. C. C. P. 284, holding that executed consideration 
 would not support promise to allow passage over lot sold by promisor to promisee; 
 Jackson v. Yeomans, 39 U. C. Q.. B. 280, holding that forbearance to take proceed- 
 ings on mortgage for instalment due upon promise of mortgagor to pay overdue 
 instalment at certain time will not support action on promise, where mortgage 
 contained no covenant to pay. 
 Enforcibility of contracts. 
 
 Cited in Brown v. Marsh, 1 U. C. C. P. 438, holding that promise by adminis- 
 trator to pay note endorsed by intestate, although notice of dishonor was not 
 given on account of indorser's death, was enforcible; Taylor v. Knowles, 30 U. C. 
 Q. B. 200, holding that where parol evidence was required to connect memo- 
 randum with previous letter in order to make complete contract relating to land, 
 specific performance would not be enforced. 
 
 Cited in Benjamin Sales, 5th ed. 183, on what are acts within statute of 
 frauds; Benjamin Sales, 5th ed. 307, on meaning of phrase "not enforcible by 
 action." 
 Contracts relating to interest in land. 
 
 Cited in 1 Underbill Land. & T. 380, on agreement to surrender tenancy to 
 another and secure acceptance of landlord as sale of interest in land. 
 
 1 E. R. C. 439, DUNBAR v. LEM, 1 Bro. P. C. 3. 
 Opening of accounts between partners for error. 
 
 Cited in Parsons Partn. 4th ed. 515, on opening of accounts between partners 
 for error. 
 Sufficiency of title or claim to support action. 
 
 Cited in Sheldon v. Chisholm, 3 Grant, Ch. (U. C.) 655, holding the purchase of 
 a reversion will not be disturbed in his enjoyment of the property where plain- 
 tiff has no claim or pretense for disturbing him.
 
 77 NOTES UN ENGLISH RULING CASES. LI E. Et. C. 449 
 
 1 E. R. C. 440, BROWNWELL v. BROWNWELL, 2 Bro. Ch. 02. 
 (Ground for opening settled account. 
 
 Cited in Swayze v. Swayze, 37 N. J. Eq. 180, holding where facts prove that 
 party possessed and abused confidence which was reposed in him strong ground 
 is presented for opening an account. 
 
 Cited in Parsons Tartu. 4th ed. 515, on opening of accounts between partners 
 for error. 
 
 — Surcharge and falsification. 
 
 Cited in Bay State Gas Co. v. Lawson, 188 Mass. 502, 74 N. E. 921, holding 
 a bill alleging accounts of officers of corporation were falsely and fraudulently 
 made, with prayer that accounts be opened or that they be surcharged and falsi- 
 fied sets forth ground for equitable relief; Philips v. Belden, 2 Edw. Ch. 21, 
 holding where enough appears to induce a belief of errors having occurred, the 
 court shall give leave to surcharge and falsify; Bullock v. Boyd, Hoff. Ch. 204, 
 (cites Lord Colchester's note of the case, 2 Br. c. c. 62), on right to falsify ac- 
 count at large; Atwell v. Milton, 4 Hen. & M. 253, holding party may falsify ac- 
 count of administrator settled before appointed commissioners, if capable of pro- 
 ducing evidence to that purpose: Bainbridge v. Wilcox, Baldw. 530, Fed. Cas. 
 No. 755, holding the errors must be specified and will not be corrected on doubt- 
 ful or only probable testimony. 
 
 — Where account is stale. 
 
 Cited in Manhattan Co. v. Lydig, 4 Johns. 377, 4 Am. Dec. 280, holding though 
 whole account cannot be opened after such a lapse of time yet particular items 
 may be falsified; Ray v. Bogart, 2 Johns. Cas. 432 (dissenting opinion), on 
 opening a stale account. 
 
 — Burden of proof. 
 
 Cited in Paulling v. Creagh, 54 Ala. 640, holding where errors and omissions 
 only are charged, the onus probandi rests upon the party complaining of them, 
 (iiounds for equitable relief. 
 
 Cited in Baker v. Biddle, Baldw. 394, Fed. Cas. No. 704, holding the relief 
 must be an incident or consequence of the discovery, or the party after obtaining 
 it will be sent to law for his final remedy. 
 Stale claims. 
 
 Cited in Mellislrs Estate, 1 Pars. Sel. Eq. Cas. 482, holding lapse of time 
 alone will not bar accounting by trustee. 
 
 1 E. R. C. 449, HENDERSON v. EASON, 17 Q. B. 701, 10 Jur. 518, 21 L. J. Q. B. 
 
 N. S. 82. 
 Accountability of a co-tenant for use and occupation of common property. 
 Cited in Woolever v. Knapp, 18 Barb. 265, holding that one tenant in common 
 in possession, without any demand by other tenants to be allowed to enjoy 
 premises with him, is not liable to account to cotenants: Rich v. Rich, 50 Hun. 
 199, 2 N. Y. Supp. 770, holding that tenant in common who occupies premises 
 himself is not liable to his cotenant for value of use of property so occupied-. 
 Israel v. Israel, 30 Md. 120, 90 Am. Dec. 571 : Crane v. Waggoner, 27 Ind. 52, 89 
 Am. Dec. 493, — holding that one tenant in common, unless he has been excluded 
 from possession by his cotenant, cannot maintain action against latter for use 
 and occupation; Stanhope v. Suplce, 2 Brevvst. (Pa.) 455, holding that if one 
 tenant in common occupy property, and take produce for his own benefit, his 
 cotenant cannot maintain account against him; Ragan v. McCoy. 29 Mo. 356,
 
 J E. R. C. 449] NOTES ON ENGLISH RULING CASES. 78 
 
 holding that one tenant in common who receives benefit from land, but who does 
 not interfere with cotenant's use of land, is not bound to account for proportion- 
 ate share of benefit received; McCord v. Oakland Quicksilver Min. Co. 64 Cal. 
 134, 49 Am. Rep. 686, 27 Pac. 863, holding that one of several tenants in common 
 of mine, who does not exclude his cotenants may work mine in usual way, without 
 being liable in damages to cotenants; Hayden v. Merrill, 44 Vt. 336, 8 Am. Rep. 
 372, holding that under statute occupancy of one tenant in common is beneficial, 
 and at profit, and is exclusive, he is bound to account for what he has received 
 more than his share; Ayotte v. Nadeau, 32 Mont. 498, 81 Pac. 145, holding that 
 under code action for reasonable value of use and occupation of city lot is main- 
 tainable by one cotenant against another as to net profits resulting from such 
 occupation; Reynolds v. Wilmeth, 45 Iowa, 693, holding that tenant in common 
 is not liable to his cotenants for use and occupancy of land in absence of agree- 
 ment; Hawley v. Burd, 6 111. App. 454, holding that in action of account issue 
 before court is whether there should be accounting and evidence as to whether 
 tenant in common had received more than his share is inadmissible; Bird v. 
 Bird, 15 Fla. 424, 21 Am. Rep. 296, holding that where there is liability of occupy- 
 ing, cotenant, because of exclusion of others, it extends only to accounting for 
 what he has received beyond his share; Hall v. Fisher, 20 Barb. 441, 12 Mor. Min. 
 Rep. S8, to the point that tenant in common is not liable for negligence or misuse 
 of common property, nor what he made by diligence, unless appointed bailiff; Dres- 
 ser v. Dresser, 40 Barb. 300, holding that one cotenant cannot recover for use and 
 occupation of premises by his cotenant for period subsequent to expiration of lease 
 of premises, where no new agreement is made; Elwell v. Burnside, 44 Barb. 447, 
 holding that where several tenants in common enters upon land and cuts and 
 removes timber and converts it to his own use he is guilty of waste and liable 
 to cotenants under statute; Dewing v. Dewing, 165 Mass. 230, 42 N. E. 1128, 
 holding the cotenant called upon to account for occupancy is entitled to be al- 
 lowed for his services and board and for use of his animals and utensils; Fenton 
 v. Miller, 110 Mich. 45, 72 Am. St. Rep. 502, 74 N. W. 384, holding exclusive 
 occupancy is not enough to create liability under statute; Kean v. Connelly, 25 
 Minn. 222, 33 Am. Rep. 458, holding one tenant in common cannot recover of his 
 cotenant for taking and converting to his own use the. products of the common 
 land; Webster v. Calef, 47 N. H. 289, holding assumpsit will not lie in favor of 
 a cotenant for an accounting for use and occupation of common property: Sailer 
 v. Sailer, 41 N. J. Eq. 398, 5 Atl. 319, holding in order to render one cotenant 
 liable to another for rent or use and occupation there must be something more 
 than mere occupancy by one and forbearance to occupy by the other; LaBarron 
 v. Babcock, 122 N. Y. 153, 9 L.R.A. 625, 19 Am. St. Rep. 488, 25 N. E. 253, hold- 
 ing where he has occupied the common property without having ousted or denied 
 the rights of his cotenants, he is not liable to account; Chaffee v. Franklin, 11 
 R. I. 578, holding a cotenant cannot sue his cotenant for use and occupation 
 except on an agreement; Wright v. Wright, 59 How. Pr. 176, holding that where 
 tenants in common sell and convey property and one receives entire purchase 
 money, other can maintain action for money had and received to recover portion 
 of purchase price; Munsie v. Lindsay, 10 Ont. Pr. Rep. 173, holding that tenant 
 in common occupying common property is not chargeable with value of timber 
 rut by him on such property during his occupancy; Guptill v. Ingersoll, 2 N. B. 
 Eq. Rep. 252, holding that tenant in common of fishing year cannot require ac- 
 count from cotenants who used same under license procured by latter where such 
 license was required by law; Young v Heron, 14 Grant, Ch. (U. C. 580, on
 
 79 NOTES ON ENGLISH RULING CASES. LI E. R. C. 449 
 
 tenant in common as bound to account to cotenant in respect to occupation of 
 property owned in common; Hill v. Hiekin [1S97] 2 Cli. 579, 66 L. J. Ch. N. S. 
 717, 77 L. T. N. S. 127, 46 Week. Rep. 137, holding that the statute relative to 
 accounts between tenants in common, did not apply to actions where the defend- 
 ant had not been a tenant or bailee of his co-owner. 
 
 Cited in note in 1 E. R. C. 456, on account between tenants in common. 
 
 Distinguished in Coleman v. Coleman, 1 Pearson (Pa.) 470, holding that 
 tenants in common of ore bank can demand account from their cotenants when- 
 ever they take more than their share of ore; Ayotte v. Nadeau, 32 Mont. 498, 81 
 Pac. 145, holding under the code of civil procedure in force one cotenant may 
 maintain suit for reasonable value of the use and occupation of city lot by his 
 cotenant; Edsall v. Merrill, 37 N. J. Eq. 114, holding statute makes one tenant 
 in common liable to account as bailee, where he takes possession and makes use 
 of property as his own; West v. Weyer, 46 Ohio St. 66, 15 Am. St. Rep. 552, 18 
 N. E. 537, holding a tenant in common liable for use of common estate though 
 used merely to pasture stock; Hazard v. Albro, 17 R. I. 181, 20 Atl. 834, holding 
 statutes make a tenant in common who receives more than comes to his just 
 share, ipso facto, bailee for his cotenant for the excess. 
 
 Disapproved in Gage v. Gage, 66 N. H. 282, 28 L.R.A. 829, 29 Atl. 543, holding 
 a cotenant liable for a balance due his cotenant where he uses more than his 
 share of common property. 
 Liability for rents and profits. 
 
 Cited in Wilcox v. Wilcox, 48 Barb. 327, holding husband of tenant in com- 
 mon not liable for rent, in absence of agreement therefor; Zapp v. Miller, 109 N. 
 Y. 51, 15 N. E. 889, holding that one tenant in common who was induced to leave 
 premises by fraud and undue influence of cotenant could maintain action to 
 recover profits; Lancaster v. Flowers, 208 Pa. 199, 57 Atl. 526, holding that under 
 act of 1895 one tenant in common may recover from cotenant share of rent which 
 cotenant had received, or if cotenant is in actual possession may demand and 
 recover share of occupation rents; Kelley v. Kelley, 13 Phila. 179, 36 Phila. Leg. 
 Int. 284, holding that heirs cannot require widow who has occupied premises to 
 account for share of annual value of premises, where she received no rent: 
 Borscheld's Estate, 16 Phila. 234, 40 Phila. Leg. Int. 141, holding that widovv 
 who is guardian of children and cotenant with them of deceased husband's 
 estate, is not chargeable with rent, except that which she actually received: 
 Norris v. Gould, 17 Phila, 318, 41 Phila. Leg. Int. 377, 15 W. N. C. 187, 
 holding that cotenant may maintain action for account where his co- 
 tenant receives rent for property from third person; Humphries v. 
 Davis, 100 Ind. 369, holding he is not bound to pay rent unless he 
 excludes his cotenant; Reynolds v. Wilmeth, 45 Iowa, 693, holding in absence 
 of agreement or refusal to surrender possession, he is not liable unless he has 
 received rent for common premises from third party; Monro v. Toronto R. Co. 4 
 Ont. L. Rep. 36, holding the right to recover for mesne profits depends upon ques- 
 tion whether the cotenant had been excluded, there having been no actual receipt 
 of rents; Oland v. McNeil, 34 N. S. 453; Re Kirkpatrick. 10 Ont. Pr. Rep. 4 — 
 holding that cotenant was not liable for profits taken by him from common prop- 
 erty when there was no exclusion or ouster; Rice v. George, 20 Grant, Ch. (U. C. ) 
 221, holding that tenant in common in actual possession of joint property is not 
 chargeable with rent; Farquharson v. Stewart, 1 D. L. R. 581, on right of one ten- 
 ant in common to compel accounting by cotenant for profits derived from common 
 property; McPherson v. McPherson, 10 Ont. Pr. Rep. 140, holding that claim of
 
 1 E. R. C. 449] NOTES ON ENGLISH RULING CASES. SO 
 
 cotenants against one having received more than his share of rent does not become 
 charge on land until judgment is obtained; Frost v. Disbrow, 12 N. B. 73, holding 
 that tenant in common cannot maintain action for money had and received against 
 cotenant for profits, unless account has been settled and balance agreed on ; 
 Coleman's Appeal, 62 Pa. 252, holding as to fructus industria les sole enjoyment 
 merely of common property does not render cotenant accountable even though 
 profit is made by the enjoyment. 
 
 Cited in note in 28 L.R.A. 830, on liability of cotenants to account for use and 
 occupation and rents and profits. 
 
 Distinguished in Woolley v. Schrader, 116 111. 29, 4 N. E. 658; McParland v. 
 Larkin, 155 111. 84, 39 N. E. 609,— holding he is liable for all he shall take and 
 use of profits or benefits of the estate in greater proportion than his interest. 
 
 Disapproved in Dodson v. Hays, 29 W. Va. 577, 2 S. E. 415; Early v. Friend, 
 16 Gratt. 21, 78 Am. Dec. 649, — holding one tenant in common may maintain a 
 suit in equity for an account of rents and profits where the cotenant has occu- 
 pied the whole of the common property. 
 Remedy for recovery against co-owner. 
 
 Cited in Hope v. Ferris, 30 U. C. C. P. 520, on remedy for recovery of a claim 
 due to co-owner. 
 
 1 E. R. C. 458, R. v. YARBOROUGH, 5 Bing. 163. 2 Bligh, N. R. 147, 1 Dow & 
 C. 178, affirming the decision of the Court of King's Bench, reported in 3 
 Barn. & C. 91, 4 Dowl. & R. 790. 
 Ownership of land formed by accretion. 
 
 Cited in Ocean City Asso. v. Shriver, 64 N. J. L. 550, 51 L.R.A. 425, 46 Atl. 
 690, holding title of grantee of land bordering on ocean, by force of the descrip- 
 tion itself, extends to high water mark and includes the accumulated soil that 
 has arisen from alluvial formations; St. Clair County v. Lovingston, 23 Wall. 
 46, 23 L. ed. 59, holding the accretion is the results of deposits made by the 
 water and it is immaterial whether flow of water was natural or affected by 
 artificial means ; Leverich v. Mobile, 110 Fed. 170, on the right of riparian pro- 
 prietors to alluvium; St. John v. Smith, 8 N. B. 103, holding where the line of 
 low water recedes by imperceptible degrees, the accretion belongs to the owner of 
 the land ; Parker v. Elliott, 1 U. C. C. P. 470, on question of right by accretion ; 
 Throop v. Cobourg & P. R. Co. 5 U. C. C. P. 509, holding that owner of lands ad- 
 joining lake was entitled to extension of land by accretion; Hindson v. Ashby 
 [1896] 2 Ch. 1, 65 L. J. Ch. N. S. 515, 74 L. T. N. S. 327, 60 J. P. 484, 45 Week. 
 Rep. 252, on accretions to land as belonging to the owner of the shore line; Foster 
 v. Wright, L. R. 4 C. P. Div. 43S, 49 L. J. C. P. N. S. 97, 44 J. P. 7, holding that 
 the gradual accretions of land from water belong to the owner of the land added 
 to; Scratton v. Brown, 6 Dowl. & R. 536, 4 Barn. & C. 485, 28 Revised Rep. 
 344, holding that where the accretion had been imperceptible, it passed to the 
 owner of the shoreline. 
 
 Cited in notes in 58 L.R.A. 193, 194, 200, 204, on accretion to shore lands; 
 1 E. R. C. 477, on right to land formed by accretion; 12 E. R. C. 191, on public 
 right of fishing in navigable and tidal waters. 
 
 Cited in 1 Farnham Waters, 324, 326, on riparian owner's right to accretion: 
 3 Washburn Real Prop. 6th ed. 72, on effect of change of course of stream due 
 to sudden convulsions of nature on rule as to thread of stream constituting 
 boundary; 3 Washburn Real Prop. 6th ed. 75, on right to accretions on sea- 
 shore.
 
 81 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 458 
 
 The decision of the King's Bench was cited in Lovingston v. St. Clair County, 
 64 111. r>G, 16 Am. Rep. 510, holding alluvion on the .Mississippi belongs to the 
 riparian owner; Babson v. Tainter, 79 Me. 368, in Atl. 63, holding the owner of 
 flats has no fixed and absolute title thereto but the ana may be extended or 
 lessened by accretion; Gerrish v. Clough, 4S X. H. 9, 2 Am. Rep. 105, 97 Am. Dee. 
 561, holding land formed on one side of a stream by variations of the channel, 
 caused by the natural flowing of the water therein, belongs to the owner of the 
 land on that side of stream; Gould v. Hudson River R. Co. 6 N. Y. 522 (dis- 
 senting opinion), on ownership by alluvion; Throop v. Cobourg & P. R. Co. •"> I . 
 C. C. P. 509, holding the owner under a deed, conveying to the '"bank of lake 
 Ontario*' entitled to new soil attaching itself to the bank of the lake. 
 — As against the king or the public 
 
 Cited in barman v. Benson, 8 Mich. 18, 77 Am. Dee. 435, holding the linn land, 
 which is made by alluvium, becomes private and not public property. 
 
 Cited in note in 23 E. R. C. 737, on prescriptive right of crown to foreshore. 
 
 The decision of the King's Bench was cited in Nebraska v. Iowa, 143 U. S. 359, 
 36 L. ed. 1S6, 12 Sup. Ct. Rep. 396, holding accretion leaves the state boundary 
 still the center of the old channel; Topping v. Colin, 71 Xeb. 559, 99 X. W. 372, 
 holding that conveyance by grantee of United States land bounded in part by 
 river bank, without describing such lands by metes and bounds, but by survey 
 number, passes title to accretion thereto; Kraut v. Crawford. IS Iowa, 549, 87 
 Am. Dec. 414, holding accretions between meander line and water's edge on 
 navigable stream belong to the riparian owner. 
 — Imperceptibility of process. 
 
 Cited in Camden & A. Land Co. v. Lippincott, 45 X. J. L. 405. holding although 
 a visible increase took place from year to year the increase belonged to the 
 owner of the land bounded by the sea: Jefferis v. East Omaha Land Co. 134 U. S. 
 178, 33 L. ed. S72, 10 Sup. Ct. Rep. 518, holding where bill alleges land was 
 formed during a period of 20 years by '"imperceptible degrees" it is sufficient ; 
 Shey v. MeHeffey, 7 X. S. 350, holding that where accretion has not occurred so 
 rapidly as to have been perceptible at any one moment, it must be considered 
 alluvion by slow and imperceptible degrees. 
 
 Distinguished in Atty. Gen. v. Reeve, 1 Times L. R. 675, holding that where it 
 ■was possible to ascertain by marks and measures what land was being added, the 
 increase was not imperceptible. 
 
 The decision of the King's Bench was cited in Nix v. Pfeifer, 73 Ark. 199, SS 
 S. W. 951, holding that test of what is '"gradual and imperceptible" in sense of 
 rule in regard to accretion, is that, though witnesses may see from time to time 
 that progress has been made, they could not see it while process was going on; 
 Hempstead v. Lawrence, 147 App. Div. 624, 132 X. Y. Supp. 615, holding that 
 where intervals of weeks and months were necessary to show changes by accretion 
 such change might be considered "imperceptible;" Philadelphia Co. v. Stimson. 
 223 U. S. 605, 56 L. ed. 570, 32 Sup. Ct. Rep. 340; Shively v. Bowlby, 152 U. S. 
 35, 38 L. ed. 331, 14 Sup. Ct. Rep. 548, — to the point that where land encroaches 
 upon water by gradual and inperceptible degrees, accretion belongs to owner 
 of land; Mulry v. Xorton, 29 Hun, 660, holding that owner of shore land will 
 not acquire title to island and beaches added to it by shifting of inlet, as such 
 accretions did not occur by small and imperceptible degrees: Hagan v. Campbell, 
 8 Port. (Ala.) 9, 33 Am. Dec. 267, holding where increase was occasioned by a 
 process so slow and secret as to render it impossible to discover how much is 
 added in each moment of time it belongs to the riparian proprietor: Wallace v. 
 Xotes on E. R. C. — 6.
 
 1 E. E. C. 458] NOTES ON ENGLISH RULING CASES. 82 
 
 Driver, 61 Ark. 429, 31 L.R.A. 317, 33 S. W. G41, holding it is not necessary that 
 the formation be indiscernible by comparison at two distinct points of time; 
 Mahon v. McCully, 7 N. S. 323, to the point that word "imperceptibly" means im- 
 perceptible in progress and not imperceptible after long lapse of time; Linthicum 
 v. Coan, 64 Md. 439, 54 Am. Rep. 775, 2 Atl. 826, holding the word "impercepti- 
 ble" means imperceptible in its progress; Mulry v. Norton, 100 N. Y. 424, 53 Am. 
 Rep. 206, 3 N. E. 581 (affirming 29 Hun, 660), holding the increase must be by 
 such imperceptible degrees that the progress at the time could not be perceived; 
 Boorman v. Sunnuchs, 42 Wis. 233, on proof of character of reliction; Shey v. 
 McHeffey, 7 N. S. 350, holding that where accretion has not occurred so rapidly 
 as to have been perceptible at any one time, it must be considered as allusion by 
 slow and imperceptible degrees. 
 
 The decision of the King's Bench was distinguished in Benson v. Morrow, 61 
 Mo. 345, holding the alluvion formed by the Missouri river is not explainable by 
 the terms "avulsion" and "gradual accretion." 
 Erosion. , 
 
 Cited in Penker v. Canter, G2 Kan. 363, 63 Pac. 617, holding one, who originally 
 had no riparian rights, entitled to the alluvion formed where river cuts away 
 other land and by gradual recession leaves new soil attached to his freehold; 
 Champlain & St. L. R. Co. v. Valentine, 19 Barb. 484, holding where the en- 
 croachment is gradual, and its progress imperceptible, the owner of the bank 
 may lose his land. 
 — Law or custom as basis of right. 
 
 Cited in Mercer v. Denne [1905] 2 Ch. 538, 21 Times L. R. 760, 70 J. P. 65, 54 
 Week. Rep. 303 [1904] 2 Ch. 534, 20 Times L. R. 609, holding that an accretion 
 which is added to a shore which is subject to a custom, will also become subject 
 to such custom. 
 
 The decision of the King's Bench was cited in Shively v. Bowlby, 152 U. S. 1, 38 
 L. ed. 331, 14 Sup. Ct. Rep. 54S, holding the rule that the accretion belongs to 
 the owner of the land is independent of the law governing the title to the soil 
 covered by the water. 
 Public domain. 
 
 Cited in Baltimore v. McKim, 3 Bland, Ch. 453, on the impersonal and un- 
 divided nature of public land ownership. 
 Commission for inquisition as to title of Crown to lands. 
 
 Cited in Atty. Gen. v. Dominion Coal Co. 44 N. S. 423, on power of Crown to 
 issue commission to hold inquest as to title of Crown to land. 
 
 1 E. R. C. 480, DOE EX DEM. CHRISTMAS v. OLIVER, 5 Mann. & R. 202. 
 Estoppel. 
 
 Cited in Miller v. Hampton, 37 Ala. 342, holding that delivery bond, which 
 does not recite any fact showing that defendant had possession of property at 
 service of writ does not estop him from showing that he did not have possession 
 of property at that time: MeCusker v. McEvey, 10 R. I. 606 Appx. (dissenting 
 opinion), on effect of covenant of title by person not owning property as estoppel 
 against persons not in privity of contract or of estate; Chapman v. Abrahams, 
 61 Ala. 108, holding that mortgage on wife's land executed by husband and wife, 
 containing covenant of warranty, though void as to wife, estops husband from 
 denying its validity as to his life interest : Taggart v. Risley, 4 Or. 235, holding 
 that matter in deed to operate as estoppel must be of such character that, if
 
 S3 NOTES ON ENGLISH RULING CASKS. | 1 K. R. C. -ISO 
 
 untrue, party alleging it would be liable in some form of action, to respond in 
 damages to party injured for covenant broken or for deceit and fraud; Caldwell 
 v. Auger, 4 Minn. 217, Gil. 156, 77 Am. Dec. 515, holding that joint owners of 
 property levied upon for debt of one joint owner, is estopped from showing that 
 latter had no interest in property where he informed sheriff at time of levy thai 
 debtor had interest in it; Pass v. Lea, 32 N. C. 410, holding that person entitled 
 to distributive share in certain slaves belonging to estate, is estopped from 
 denying title to slaves at time he gave deed of certain of said slaves specifically 
 and by name, when afterwards sued by grantee to recover slaves; Stewart v. 
 Walters, 38 N. J. L. 274, holding that estoppel of judgment in personam only 
 binds parties and privies; Kansas City use of Enright v. Ratekin, 30 Mo. App. 
 416 (dissenting opinion), on equitable estoppel as arising to prevent legal title 
 to property from being used as means of injustice; Gove v. White, 20 Wis. 420, 
 holding that one essential element of equitable estoppel by which man is to be 
 precluded from claiming what is his own, is that purchaser and party claiming 
 benefit of such estoppel should have been ignorant of true state of title; Doe ex 
 dem. Potts v. Dowdall, 3 Houst. (Del.) 369, 11 Am. Rep. 757, holding the estop- 
 pel only closes the mouth of one, when to let him speak, would be contrary to 
 honesty and good conscience; St. Joseph v. Landis, 54 Mo. App. 315, holding that 
 it is no defense to tax bill for construction of sewer that it was built on private 
 property, where it was so built with owner's consent, as he would be estopped to 
 object to oust city; Re Sixteenth Street Opening, 4 Pa. Co. Ct. 124, holding that 
 doctrine of estoppel can never be applied to indirectly accomplish result which 
 cannot be directly accomplished by act of party sought to be estopped for want of 
 capacity. 
 
 Cited in note in 15 E. R. C. 304, on estoppel of tenant to deny landlord's title. 
 . Cited in Benjamin Sales, 5th ed. 106, on quasi mutual consent to contract by 
 estoppel; Benjamin Sales, 5th ed. 112, on estoppel to deny that intention as mani- 
 fested was party's real intention. 
 — To set up after-acquired title. 
 
 Cited in Crittenden v. Johnson, 14 Ark. 447, holding that before enactment of 
 statute (Dig. Ch. 37, section 4) after-acquired title by grantor related to and 
 perfected title of grantee only where he had conveyed by deed with covenant of 
 warranty; Dodd v. Williams, 3 Mo. App. 278, holding that doctrine of enurement 
 and estoppel, that covenants of title in deed operate to transfer after-acquired 
 title by operation of law, is not to be enforced as against purchasers under laws 
 for registry of deeds: Hart v. Gregg, 32 Ohio St. 502, holding that deed by son 
 of expectancy in land, containing no covenants of warranty, does not estop 
 grantor from asserting after-acquired title; Barwick v. Wood, 48 N. C. 316, hold- 
 ing that deed of remainderman in title of slaves during existence of life estate, 
 will enure to benefit of grantee, by relation back, upon expiration of life estate; 
 McCusker v. McEvey, 9 R. I. 528, 11 Am. Rep. 275, holding that if one having no 
 title to land, conveys same with warranty by deed duly recorded, and he after- 
 wards acquires title and conveys to another, purchaser of latter is estopped to 
 aver that original grantor was not seized at time of his conveyance to first 
 grantee; McAdams v. Bailey, 169 Ind. 518, 13 L.R.A.(N.S.) 1003," 124 Am. St. 
 Rep. 240, 82 N. E. 1057, holding that irrespective of jurisdiction of courts of 
 equity, it has always been possible to convey subsequently acquired interests by 
 operation of principle of estoppel; Adickes v. Allison, 21 S. C. 245, on estoppel of 
 parties from asserting claim as against him, six years after sale by sheriff, under 
 it and when sheriff could no longer protect himself, where such lien was recognized
 
 1 E. R. C. 480]' NOTES ON ENGLISH RULING CASES. 84 
 
 by interested parties at time of sale; Turner v. Cnrran, 2 B. C. 51, holding that 
 agreement for sale of pre-emption claim is void under land act of 1888 and is not 
 made valid by subsequent grant to assignor; Canadian P. R. Co. v. Vancouver, 2 
 B. C. 306, holding that subsequently acquired title cannot be set up against dedi- 
 cation of land for public way by person making dedication ; Doe ex dem. Kerr v. 
 Wetmore, 8 N. B. 140, holding that where S conveyed to defendant by deed poll 
 land of which he had neither title or possession, but he afterward acquired title, 
 which was purchased by plaintiff at sheriff's sale, without notice of prior convey- 
 ance, defendant had no estate by estoppel ; Doe v. Breakenridge, 1 U. C. C. P. 492, 
 holding that heir is estopped from setting up against his grantee, title subse- 
 quently acquired from person claiming under deed from intestate. 
 Conclusiveness of judgment. 
 
 Cited in Graver v. Faurot, 64 Fed. 241, to the point that dismissal of bill 
 in chancery will be presumed to be final and conclusive adjudication upon merits, 
 unless contrary is apparent on face of pleadings or in decree; Schwan v. Kelly, 
 173 Pa. 72, 33 Atl. 1107, 27 Pittsb. L. J. N. S. 70, holding that in order to ren- 
 der judgment effectual as bar it must appear that cause of action is same in 
 substance and can be sustained by same evidence; Hadden v. Hadden, G B. C. 340, 
 to the point that in action on foreign judgment court must be satisfied that ad- 
 judication was final and conclusive. 
 
 1 E. R. C. 486, SWAN v. WESTERN BANK, 4 Sc. Sess. Cas. 3d Series, 678. 
 Title by estoppel. 
 
 Cited in note in 1 E. R. C. 495, on accretion of title by way of estoppel. 
 
 1 E. R. C. 498, THELLUSSON v. WOODFORD, 11 Ves. Jr. 112, 1 Bos. & P. N. 
 R. 357, 8 Revised Rep. 104, affirming the decision of the Court of Chancery, 
 reported in 4 Ves. Jr. 227, 4 Revised Rep. 205. 
 Valid accumulations under will. 
 
 Cited in Hascall v. King, 162 N. Y. 134, 76 Am. St. Rep. 302, 56 N. E. 515, 
 holding that application of part of income of trust estate to payment of mort- 
 gages thereon constitutes accumulation, and is prohibited under statute; Gold- 
 tree v. Thompson, 79 Cal. 613, 22 Pac. 50, holding accumulations for the benefit 
 of minors in being to end with their minority, to be valid; Bryan v. Knicker- 
 backer, 1 Barb. Ch. 409, holding trust for accumu 1 .:. Lion of rents and profits dur- 
 ing life of a person in being to be valid; Odell v. Odell, 10 Allen, 1; Pray v. 
 liegeman, 92 N. Y. 508, — on accumulations of rents and profits of land being 
 permissible for the period of lives in being and twenty-one years thereafter prior 
 to statute governing the subject; Hascall v. King, 162 N. Y. 134, 76 Am. St. Rep. 
 302, 56 N. E. 515, as illustrating the extremes to which accumulations under will 
 were carried and the restrictive legislation resulting therefrom. 
 
 Cited in 2 Washburn Real Prop. 6th ed. 676, on validity of provision for ac- 
 cumulation of income of estate; 2 Beach Trusts. 1520, on perpetuities and 
 accumulations. 
 
 Distinguished in Vail v. Vail, 4 Paige, 317, holding trust for the accumulation 
 of the income of property until youngest beneficiary should reach a certain age 
 to be void under statute. 
 
 The decision of the Court of Chancery was cited in Jones v. Hamersley, 4 Dem. 
 427, on the determination of the validity of a will whereby property was left 
 in trust to receive the rents and profits, and giving the widow a power of appoint- 
 ment as to who should receive it; Rogers v. Ross, 4 Johns. Ch. 388, holding pro-
 
 S5 NOTES ON ENGLISH RULING CASKS. [i K. R. c. 498 
 
 vision for accumulation until the vesting of an executory devise valid: Ash 
 hurst v. Given, 5 Watts & S. 323, holding that trust providing for accumulation 
 during a life in being, is valid; Williams v. Williams, 8 N. Y. 525, on limitation 
 upon trusts for accumulation under statute passed in consequence of the decision 
 in the Thelluson Case; Carr v. Green, 2 M'Cord, L. 75, as an illustration of a 
 testator's withdrawing the enjoyment of an estate from three generations of his 
 family; Beckam v. De Saussure, 9 Rich. L. 531, on period of accumulation being 
 extended to unborn issue of unborn sons as should be living at time of ancestor's 
 death; Turvin v. Newcome, 3 Kay & J. 1G, 3 Jur. N. S. 203, 5 Week. Rep. 35, 
 holding provision for accumulation during minority of successive tenants in tail, 
 void. 
 
 Future limitations and execution clevises offensive to rule against per- 
 petuities. 
 
 Cited in Anderson v. Jackson, 16 Johns. 381, 8 Am. Dec. 330 (dissenting opin- 
 ion), as exemplifying the inconveniences and dangers arising from executory 
 devises. 
 
 Cited in note in 20 L.R.A. 509, on effect on prior takers of failure of gift be- 
 cause it violates rule against perpetuities. 
 
 Cited in 2 Washburn Real Prop. 6th ed. 641, on validity of devise of freehold 
 estate to commence in future 
 
 Distinguished in Hinckley's Estate, 58 Cal. 457, holding perpetual trusts for 
 charities valid. 
 
 The decision of the Court of Chancery was cited in Fitchle v. Brown, 211 U. S. 
 321, 53 L. ed. 202, 29 Sup. Ct. Rep. 106, holding that rule against perpetuities is 
 not violated by will creating trust for "as long period as is legally possible;" 
 Hall v. Chaffee, 14 N. H. 215, holding that where devise is made to "A" in fee 
 and if "A" should die without issue, then to B in fee, limitation over to B by 
 way of executory devise is void for its remoteness; Bender v. Bender, 225 Pa. 434, 
 74 Atl. 246 (affirming 26 Lane. L. Rev. 33), holding that interest is not obnoxious 
 to rule against perpetuities, if it begin within life in being and twenty-one years 
 thereafter, though it may extend beyond; Literarj' Fund v. Dawson, 1 Rob. (Va. ) 
 402, holding executory devise valid if, from the intention expressed in the will, 
 the contingency upon which it is limited, is to happen within a reasonable time;- 
 Hall v. Chaffee, 14 N. H. 215, holding executory devise to take effect upon indefi- 
 nite failure of issue to be void; Edgerly v. Barker, 66 N. H. 434, 28 L.R.A. 328, 
 31 Atl. 900, holding that devise which suspends alienation for lives in being and 
 until their sons shall reach 40 years of age is invalid as to the last 19 years and 
 vests in the takers when the latter becomes 21 years; Lovett v. Lovett, 10 Phila. 
 537, 31 Phila. Leg. Int. 349, holding that executory devise is valid if limited 
 upon a contingency which must happen within lives in being or twenty-one years 
 thereafter; Ferguson v. Ferguson, 39 U. C. Q. B. 232, holding devise to unborn 
 grandson to be void for remoteness; Campbell v. Rawdon, 19 Barb. 494; Lorillard 
 v. Coster, 5 Paige, 172, on validity of restraint of alienation for lives in being 
 and twenty-one years and nine months thereafter; Henry v. Archer, Bail. Eq. 535, 
 Riley Eq. 247, as giving full review of doctrine of perpetuities. 
 — Based on numerous lives. 
 
 Cited in Edgerly v. Barker, 66 N. H. 434, 28 L.R.A. 32S, 31 Atl. 900, holding 
 that gift to testator's grandchildren when youngest arrives at age of forty years, 
 may be sustained by modifying provision so as to make gift take effect on reach- 
 ing twenty-one years instead of forty; Coster v. Lorillard, 14 Wend. 265, holding 
 devise to trustees for lives of twelve nephews and nieces remainder in fee to their
 
 1 E. R. C. 49S] NOTES ON ENGLISH RULING CASES. 86 
 
 children valid at common lav/ but void under the statute: Madison v. Larmon, 
 170 111. 65, 02 Am. St. Rep. 356, 48 N. E. 556, on rule that estate may be limited 
 upon any number of lives in being, and such lives need bave no interest in the 
 estate so limited; Mills v. Mills, 50 App. Div. 221, 63 N. Y. Supp. 771, on sus- 
 pension of alienation being permissible for any number of lives in being and 
 twenty-one years thereafter. 
 
 Cited in Gray Perpet. 2d ed. 149, 150, 152, 156, 157, 163, 164, 184, 185, 188, on 
 validity of suspension of alienation for life or lives in being and twenty-one years 
 and the fraction allowed for gestation thereafter. 
 — For charity. 
 
 The decision of the Court of Chancery was cited in Miller v. Chittinden, 4 Iowa, 
 252, holding grant to trustees for the benefit of a church to be organized valid; 
 Henderson v. Rost, 5 La. Ann. 441, holding that a bequest for charity does not 
 fail immediately upon the death of testator though there be no legatee in which 
 it could vest at that time: Derby v. Derby, 4 R. I. 414, holding bequest "in trust 
 to apply the same to the relief of the destitute in such manner as charity is 
 usually distributed by the minister at large" in a specified city valid; Re Lewis, 
 33 N. J. Eq. 219, on validity of bequest to pa} - off debt of the United States 
 incurred during the War of the Rebellion; Income Tax Comrs. v. Pemsel [1891] 
 A. C. 531, 61 L. J. Q. B. N. S. 265, 65 L. T. N. S. 621, 55 J. P. S05, on what 
 constitutes a charitable purpose. 
 Right of infant in ventre sa mere. 
 
 Cited in Smith v. McConnell, 17 111. 135, 63 Am. Dec. 340, holding that child 
 in ventre sa mere at time of death of ancestor takes with other heirs of the 
 estate; Cogan v. McC'abe, 23 Misc. 730, 52 N. Y. Supp. 4S, holding that an estate 
 may be limited upon a child in ventre sa mere at the time of testator's death ; 
 State ex rel. Niece v. Soale, 36 Ind. App. 73, 74 N. E. 1111, holding that child 
 en ventre sa mere at the time of the death of its father caused by the unlawful 
 sale of liquor, can, after its birth, maintain suit for loss of its means of support; 
 Re Wilmer [1903] 1 Ch. 874, holding that when child en ventre sa mere at time 
 of testator's death, is born alive the law treats him as having been in being at 
 the time the will limiting an estate came into effect, whether it is to the child's 
 advantage or to his disadvantage to be so treated; Re Burrows [1895] 2 Ch. 497, 
 65 L. J. Ch. N. S. 52, 13 Reports, 689, 73 L. T. N. S. 148, 43 Week. Rep. 683, 
 holding that child in ventre sa mere is included in "issue living." 
 
 The decision of the Court of Chancery was cited in Hewitt v. Green, 77 N. J. Eq. 
 345, 77 Atl. 25, holding that phrase "surviving grandchild" when used in testa- 
 mentary gift to grandchildren, includes any grandchild who may be at time of 
 death of testator en ventre sa mere; Steadfast ex dem. Nicoll v. Nicoll, 3 
 Johns. Cas. 18, holding that posthumous son took estate in remainder devised in 
 tail to first son, in same manner a? if he had been born in lifetime of father; 
 Grace v. Rittenberry, 14 Ga. 232, holding that for purpose of taking a bequest 
 of personal property a child in ventre sa mere at the death of the testator will 
 be considered as in esse; Hall v. Hancock, 15 Pick. 255, 26 Am. Dec. 598, holding 
 that child in ventre sa mere at time of death of testator takes under devise to 
 "children living at his decease;" Prescott v. Robinson, 74 N. H. 460, 17 L.R.A. 
 (N.S.) 594, 124 Am. St. Rep. 987, 69 Atl. 522, on right of infant after birth to 
 recover for injuries to it while in ventre sa mere; Cooper v. Hcatherton, 65 App. 
 Div. 561, 73 N. Y. Supp. 14, holding that a child in ventre sa mere is to be con- 
 sidered in being within the statute governing perpetuities; Marsellis v. Thal- 
 himer, 2 Paige, 35, 21 Am. Dec. 66, holding that child in ventre sa mere is to be
 
 87 NOTES OX ENGLISH RULING CASKS. [1 E. E. C. 498 
 
 considered in esse for the purpose of taking an estate or any other purpose of 
 benefit to it if born alive; Watkins v. Flora, 30 N. C. (8 Ired. L.) 374, holding 
 that child in ventre sa mere is capable of taking by descent or by purchase as 
 the "child" or "heir" of testator; Deal v. Sexton, 144 N. C. 157, 119 Am. St. Rep. 
 943, 56 S. E. 691, holding that upon death of father the Inheritance to his lands 
 will vest immediately in his child though in ventre sa mere; State v. Atwood, .VI 
 Or. 526, 102 Pac. 295, 21 Ann. Cas. 516, holding that term ""en ventre sa mere" 
 comes clearly within description "a child living at time of its father's death;" 
 Pearson v. Carlton, 18 S. C. 47, holding that child born after the death of its 
 father inherits as heir to his estate; Wells v. Ritter, 3 Whart. 208, holding that 
 devise to child in ventre sa mere is valid; Nelson v. Galveston, H. & S. A. R. 
 Co. 78 Tex. 621, 11 L.R.A. 391, 22 Am. St. Rep. 81, 14 S. W. 1021, holding that 
 posthumous child is one of "children" who are given cause of action by statute 
 for injuries causing death of father; Villar v. Gilbey [1907] A. C. 139, 1 B. R. C. 
 568, 76 L. J. Ch. (N.S.) 339, 96 L. T. N. S. 511, 23 Times L. R. 392 (reversing 
 [1906] 1 Ch. 583, 75 L. J. Ch. (N.S.) 308, 54 Week. Rep. 473, 94 L. T. N. S. 424, 
 22 Times L. R. 347), holding that rule of construction that child was born in 
 lifetime of testator because it was at that time en ventre sa mere, is limited to 
 cases where construction of word "born" is necessary for benefit of unborn child ; 
 Blackburn v. Stables, 2 Ves. & B. 367, 13 Revised Rep. 120, holding that child 
 in ventre sa mere is to be considered in being in matters for his benefit. 
 Construction of wills, according - lo intent. 
 
 Cited in Loring v. Sumner, 23 Pick. 98, holding that however ill chosen or in- 
 appropriate the language used may be, if the intention of the testator can be 
 gathered therefrom, it must be given effect; Covenhoven v. Shuler, 2 Paige, 
 122, 21 Am. Dec. 73; Gibbons v. Dunn, 18 N. C. (1 Dev. & B. L.) 446; Hankins" 
 Estate, 4 Watts & S. 300, — holding that where not inconsistent with the rules of 
 law the intention of testator as gathered from the entire will must govern over 
 strict grammatical construction and punctuation; Puryear v. Edmondson, 4 
 Heisk. 43, on same point. 
 
 Cited in 1 Beach, Trusts, 762, on cy pres doctrine. 
 
 The decision of the Court of Chancery was cited in Dulany v. Middleton, 72 Md. 
 67, 19 Atl. 146; Hauer v. Shitz, 3 Yeates, 205; Smith v. Bell. 6 Pet. 68, 8 L. ed. 
 322, — holding that intention of testator if ascertainable governs, regardless of 
 strict grammatical construction; Paine v. Guyton, 11 Humph. 402, holding thai 
 technical words used in will will be construed according to their technical mean- 
 ing unless it clearly appears from the whole will that testator did not so intend: 
 Young v. Kinnebrew, 36 Ala. 97; Lasher v. Lasher, 13 Barb. 106, — on same point: 
 Fuller v. Anderson, 20 Ont. Rep. 424, holding that under bequest of personal 
 property to "my wife to have and to hold unto her and the heirs of her body 
 through her marriage with me" the wife takes such personalty absolutely as 
 against a posthumous child; Bond v. Moore, 236 111. 576, 19 L.R.A. (N.S.) 540, 
 86 N. E. 386 (dissenting opinion), on intention as gathered from the whole will, 
 giving each word its common and natural import, as governing meaning of will; 
 Areson v. Areson, 5 Hill, 410, on effect and application of qualifying words at the 
 end of a sentence in a will; Carr v. Green, 2 M'Cord, L. 75; Waller v. Ward, 2 
 Speers, L. 786 (dissenting opinion) ; Ferril v. Talbot, Riley, Eq. 247, Bail, Eq. 
 535, — on intention of testator as governing construction of will. 
 — In favor of validity. 
 
 Cited in Gray, Perpet. 2d ed. 477, on construction of ambiguous provision so 
 as to make it valid within rule against perpetuities.
 
 1 E. R. C. 49S] NOTES ON ENGLISH RULING CASES. SS 
 
 The decision of the Court of Chancery was cited in Shaw v. Hussey, 41 Me. 495 ; 
 Tappan v. Deblois, 45 Me. 122, — holding that intention of testator should be 
 carried out if it can he done consistently with the rules of law; Dubois v. Ray, 
 35 N. Y. 162, 33 How. Pr. 292, holding that where will is capable of two con- 
 structions, it is the duty of the court to construe it so as to make it valid if it 
 can be done in harmony with rules and with intent of testator; Root v. Stuy- 
 vesant, 18 Wend. 257 (dissenting opinion), on same point. 
 — Effect of partial illegality. 
 
 The decision of the Court of Chancery was cited in Philadelphia v. Girard, 45 
 Pa. 9, S4 Am. Dec. 470, 20 Phila. Leg. Int. 220, holding that when a definite charity 
 is created by will, it will be carried out though the particular mode pointed out 
 by testator may fail; Bonard's Will, 16 Abb. Pr. N. S. 128; Re Philadelphia, 2 
 Brewst. (Pa.) 462; Pell v. Mercer, 14 R. I. 412, — holding that where general in- 
 tent of testator is clear it will be carried out though some special direction as to 
 the mode of doing so may fail; Re Fair, 132 Cal. 523, 84 Am. St. Rep. 70, 
 60 Pac. 442; Franklin's Succession, 7 La. Ann. 395 (dissenting opinion) ; Bart- 
 let v. King, 12 Mass. 537, 7 Am. Dec. 99, — on same point; Dunlop v. Harrison, 
 14 Gratt. 251; Inglis v. Sailor's Snug Harbor, 3 Pet. 99, 7 L. ed. 617,— holding 
 that where intention as expressed in will is not inconsistent with the rules of 
 law it should be given efl'ect though the particular mode pointed out by testator 
 is illegal; Whateley v. Whateley, 14 Grant, Ch. (U. C.) 430; Viger v. Pothier, 
 Stuart, L. C. Rep. 394, — on same point; Christian v. Christian, 3 Port. (Ala.) 
 350, on intention of testator being given effect as far as it can though it cannot 
 take effect to its full extent. 
 
 The decision of the Court of Chancery was distinguished in Shepperd v. Fisher, 
 206 Mo. 208, 103 S. W. 989, holding that where valid and invalid provisions in 
 will are part of a general plan of distribution of property, the valid provisions 
 will fall with the invalid. 
 Right to have will construed. 
 
 The decision of the Court of Chancery was cited in Hamcrsley's Estate, 9 N. 
 Y. Civ. Proc. Rep. 293, on interest necessary to right to have validity of provision 
 in will jjassed upon by the court. 
 Effect of appeal. 
 
 The decision of the Court of Chancery was disapproved in Green v. Winter, 1 
 Johns. Ch. 77, holding that an appeal stays proceedings in the lower court. 
 
 1 E. R. C. 514, SOUTHAMPTON v. HERTFORD, 2 Ves. & B. 54, 13 Revised Rep. 
 
 18. 
 Validity of trusts for accumulation. 
 
 Cited in Philadelphia v. Girard, 45 Pa. 9, 84 Am. Dec. 470, holding that where 
 a vested estate is given by will it is not defeated though a trust for accumula- 
 tion is annexed to it which is void; Harrison v. Spencer, 15 Ont. Rep. 692, hold- 
 ing that law in Canada as to accumulations is same as it was in England before 
 passage of act called Thelluson Act, 39-40 Geo. III. Ch. 9; Tewart v. Lawson, L. 
 R. 18 Eq. 490, 43 L. J. Ch. N. S. 673, 22 Week. Rep. 822, holding trust for ac- 
 cumulation of rents and profits for the payment of debts to be valid; Turvin v. 
 Newcome, 3 Kay & J. 16, 3 Jur. N. S. 203, 5 Week. Rep. 35, he' ding trust for 
 accumulation during possible minority of successive heirs in tail of the estate to 
 be void; Browne v. Stoughton, 14 Sim. 369, holding that trust for accumulation 
 which may by possibility go on without limit, is wholly void; Smith v. Cuning-
 
 89 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 52] 
 
 hame, Ir. L. R. 13 Eq. 480, holding that a trust for accumulation, void because 
 involving a perpetuity, cannot be cut down, and held valid to the legal extent. 
 
 Cited in note in 1 E. R. C. 518, on invalidity of trust for accumulation beyond 
 period allowed by law. 
 
 Cited in Gray, Perpet. 2d ed. 3GS, on invalidity of limitation after estate tail; 
 Gray, Perpet. 2d ed. 501, 502, on validity as against objection of remoteness of 
 provision for accumulations; Underhill, Am. Ed. Trusts, 68, on legality of ex- 
 pressed object of trust. 
 Effect of invalid suspension of power of alienation. 
 
 Cited in Hawley v. James, 16 Wend. 61, holding that where estate in remainder 
 was void for suspension of alienation contrary to statute, all the life estates 
 and contingent remainders dependent thereon were also void; Craig v. Hone, 2 
 Edw. Ch. 554, holding that trust in personal property, void because of suspension 
 of alienation, cannot be given effect for any purpose, though the conditions un- 
 duly extending the time might never arise; Philadelphia v. Girard, 20 Phila. Leg. 
 Int. 220, holding that vested estate is not void because illegal restrictions or re- 
 straints are annexed to it, such restraints as conditions only being void; Ker 
 v. Dungannon, 1 Drury & War. 509, 1 Connor & L. 335, 4 Ir. Eq. Rep. 343, hold- 
 ing that where provisions void for remoteness are included in the same descrip- 
 tion as valid ones, all must fail. 
 
 Cited in note in 20 L.R.A. 515, on effect on prior takers of failure of gift 
 because of remoteness. 
 
 Cited in Gray, Perpet. 2d ed. 500, on right of unborn or unascertained person 
 to take accumulations after birth or ascertainment. 
 
 1 E. R. C. 521, ASHBY v. WHITE, 1 Bro. P. C. 62, Holt, 524, 2 Ld. Raym. 938, 14 
 How. St. Tr. 695, 1 Salk. 19, 3 Salk. 17, 1 Smith Lead. Cas. 11th ed. 240, 8 
 St. Tr. 89, 3 L. Raym. 320, 6 Mod. 45. 
 
 Right to vote. 
 
 Cited in Anderson v. Baker, 23 Md. 531; Blair v. Ridgely, 41 Mo. 63, 97 Am. 
 Dec. 248, — holding that the right to vote is not a natural right but is subject to 
 limitations prescribed by statute; Primary Election Case, 80 Misc. 617, 32 So. 
 286, on right of suffrage as resting upon as secure basis as the right of life, 
 liberty and property; White v. Multnomah County, 13 Or. 317, 57 Am. Rep. 20, 
 10 Pac. 484, on the important nature of a man's right to vote. 
 
 — Actionable denial of. 
 
 Cited in Morris v. Colorado Midland R. Co. 48 Colo. 147, 31 L.R.A. (N.S.) 
 1106, 139 Am. St. Rep. 268, 109 Pac. 430, 20 Ann. Cas. 1006, holding that carrier 
 is not liable for so negligently operating its train that passenger does not reach 
 his destination in time to be able to vote at general election ; Swift v. Chamber- 
 lain, 3 Conn. 537, holding that action on the case will lie against one who ma- 
 liciously prevents another from exercising his right to vote; Com. ex rel. Grier v. 
 Coxe, 1 Leg. Chron. R. 89, holding that mandamus is proper remedy to com- 
 pel inspectors to receive and count votes by proxy of policyholders of corporation ; 
 Fausler v. Parsons, 6 W. Va. 4S6, 20 Am. Rep. 43 i, holding that contestant must 
 show, in petition or notice of grounds of contest, by direct averments what was 
 result of election as declared by returning officers; Crawford v. St. John, 34 N. 
 B. 560, holding that action will lie against a city for the acts of its officers in 
 depriving an elector of the exercise of his right to vote; Dartmouth College v. 
 Woodward, 4 Wheat. 518, 4 L. ed. 029, on recompense in damages for obstruc- 
 tion of exercise of right to vote; Curry v. Cabliss, 37 Mo. 330, holding that peti-
 
 1 E. It. C. 521] NOTES ON ENGLISH RULING CASES. 90 
 
 tion in suit against judges for wrongfully refusing plaintiff's vote, must set out 
 facts which show his cause of action, and how he was entitled to vote, by giving 
 qualifications. 
 
 Cited in note in 31 L.R.A. (N.S.) 1106, on right to damages for being prevented 
 from voting. 
 Right of action against election officers. 
 
 Cited in Lane v. Mitchell, 153 Iowa, 139, 36 L.R.A. (N.S.) 968, 133 N. W. 381, 
 Ann. Cas. 191 3D, 1243, holding that recovery by voter whose ballet is wilfully 
 and maliciously rejected, against election officers, is not limited to nominal dam- 
 ages; Chrisman v. Bruce, 1 Duv. 63, 85 Am. Dec. 603, holding that action may 
 be maintained against judge of election for unlawfully refusing to receive vote 
 of qualified voter; Hanlon v. Partridge, 69 N. H. SS, 44 Atl. 807, holding election 
 officers liable to civil action for wilfully and maliciously depriving an elector of 
 his right to vote; Goetcheus v. Matthewson, 61 N. Y. 420, holding election in- 
 spectors liable in civil action for rejecting a vote on a ground not within their 
 statutory authority; Lincoln v. Hapgood, 11 Mass. 350; Jeffries v. Ankeny, 11 
 Ohio, 372, — holding that action lies against election officers for refusing a legal 
 vote without proof of malice; Bevard v. Hoffman, 18 Md. 479, 81 Am. Dec. 618; 
 Wheeler v. Patterson, 1 N. H. 88, 8 Am. Dec. 41; Jenkins v. Waldron, 11 Johns. 
 114, 6 Am. Dee. 359; Moran v. Rennard, 27 Phila. Leg. Int. 30, 3 Brewst. (Pa.) 
 601, — holding election officer not liable in damages for rejecting a legal note in 
 the absence of proof of dishonesty or malice; YYeckerly v. Geyer, 11 Serg. & R. 
 35; Keenan v. Cook, 12 R. I. 52, — holding election officers not liable for refusing 
 to place name on voting list in the absence of a showing that they acted dis- 
 honestly or maliciously; United States ex rel. Langley v. Bowen, 6 D. C. 196; 
 Patterson v. D'Autrive. 9 La. Ann. 35 (dissenting opinion) ; Metz v. Maddox, 121 
 App. Div. 147, 105 N. Y. Supp. 702 (dissenting opinion), — on liability of election 
 officers to civil actions for damages for not permitting a legal voter to cast his 
 vote; Ferguson v. Allen, 7 Utah, 263, 26 Pac. 570, on elector's right of action 
 against election officers, where not permitted to cast his ballot; Anderson v. 
 Hicks, 35 N. S. 161, holding that in order to make election officer liable for re- 
 fusing to receive vote, malice must be shown; Reg. v. Prudhomme, 4 Manitoba 
 L. Rep. 259, on power of courts to interfere with conduct of election in absence 
 of statutory authority; McLeod v. Noble, 28 Ont. Rep. 528, holding that high 
 court of justice had no jurisdiction to enjoin prosecution of proceedings connected 
 with controverted elections such as recount under statute. 
 
 Cited in note in 11 L.R.A. (N.S.) 502, on personal liability of election officer for 
 rejecting ballots. 
 
 Cited in 1 Dillon, liun. Corp. 5th ed. 774, on personal liability of election 
 officers for refusing to receive vote; 2 Kinkead, Torts, 991, on liability of election 
 officers for denying right of suffrage. 
 
 Disapproved in Anderson v. Baker, 23 Md. 531, holding that no civil action 
 would lie against election officers refusing an elector the right to vote. 
 Actionable wrongs by officers. 
 
 Cited in Valentine v. Englewood, 76 N. J. L. 509, 19 L.R.A. (N.S.) 262, 71 Atl. 
 344, 16 Ann. Cas. 731, holding that members of health board acting in good faith 
 are not personally liable for damages arising out of their acts in establishing 
 quarantine; Strong v. Campbell, 11 Barb. 135, holding that no action lies in be- 
 half of newspaper publisher against postmaster for breach of duty in refusing 
 to receive proofs in regard to circulation of paper and give to him list 
 of undelivered letters for publication according to act of congress; People v. Nor-
 
 91 NOTES ON ENGLISH RULING CASKS. [1 E. R. C. 52] 
 
 ton, 7 Barb. 477, to the point that rule that judge is not indictable for error 
 in judgment extended at common law only to judges in courts of record and not 
 to ministerial officers; Raynsford v. Phelps, 43 Mich. 342, 38 Am. Rep. 189, 5 N. 
 W. 403, holding that one who has equity of redemption from mortgage foreclosure, 
 may maintain action against tax collector, where he is compelled to redeem from 
 tax sale on account of his failure to levy on personal property for the tax: 
 Brown v. Maplewood Cemetery Asso. 85 Minn. 498, S9 N. W. 872, holding that lot 
 owners may maintain equitable action to compel members of cemetery association 
 to restore moneys appropriated by them to the treasury for the proper care of 
 such cemetery; Tompkins v. Sands, 8 Wend. 462, 24 Am. Dec. 46, holding that 
 action lies against a justice of the peace who wilfully and maliciously refuses to 
 approve the surety in an appeal bond; Dynes v. Hoover, 20 How. 65, 15 L. ed. 838, 
 holding that civil action for false imprisonment will not lie against officer execut- 
 ing the judgment of a court having jurisdiction over the subject-matter; Harris 
 v. Willard, Smith (N. H.) 63, holding town officers not liable to purchasers of tax 
 title which proves to be invalid for errors in the assessment, in the absence of 
 fraud, malice or wilful neglect; Cunningham v. Bucklin, 8 Cow. 178, 18 Am. Dec. 
 432, holding that commissioner acting judicially is not liable in civil action 
 though he act corruptly and damage is caused thereby; Garland v. Davis, 4 How. 
 131, 11 L. ed. 915, on liability of nonjudicial officers for misfeasance in matters 
 in which they have no discretion; Schonwald v. Ragains, 32 Okla. 223, 39 L.R.A. 
 (N.S.) 854, 122 Pac. 203, holding that it is actionable tort for one to malicious- 
 ly interfere with contract between two parties and induce one of them to break 
 contract to other's injury. 
 
 Cited in note in 15 Eng. Rul. Cas. 53, on civil liability of judges. 
 
 Cited in 1 Cooley, Torts, 3d ed. 801, on immunity of judicial officers from 
 private suits. 
 
 Distinguished in South v. Maryland, 18 How. 396, 15 L. ed. 435, holding sheriff 
 not liable to civil action for failure or neglect to preserve the peace and protect 
 private property from injury from mob violence; State use of Cocking v. Wade, 
 87 Md. 529, 40 L.R.A. 628, 40 Atl. 104, holding sheriff not liable to civil action 
 for failure to prevent lynching of prisoner by mob; Butler v. Kent, 19 Johns. 
 223, 10 Am. Dec. 219, holding that agent having lottery tickets for sale cannot 
 maintain action against managers of public lottery for mismanagement of its 
 affairs through which he lost the sale of his tickets for want of purchasers. 
 Actionable right generally. 
 
 Cited in Howard College v. Turner, 71 Ala. 429, 46 Am. Rep. 326, holding that 
 action lies for breach of obligation contained in certificate of permanent scholar- 
 ship issued by trustees of college in consideration of money paid; McKennan v. 
 Bodine, 6 Phila. 5S2, 25 Phila. Leg. Int. 109, holding that inspector of flour is 
 liable in action on case for negligence to person injured by his negligent in- 
 spection; Foley v. Phelps, 1 App. Div. 551, 37 N. Y. Supp. 471, holding that sur- 
 viving wife has right of action against person who wantonly or unlawfully muti- 
 lates husband's body before burial; Maia v. Eastern State Hospital, 97 Va. 507, 
 47 L.R.A. 577, 34 S. E. 617, holding that public hospital is not liable for injury 
 to inmate occasioned by negligence of persons in charge of hospital: Lamb v. 
 Stone, 11 Pick. 527, holding that action on case for fraud of defendant in pur- 
 chasing personal property of plaintiff's debtor and aiding debtor to abscond, can- 
 not be sustained; Garing v. Fraser, 76 Me. 37, holding that at common law action 
 does not lie against witness for perjury; Kestler v. Kern, 2 Ind. App. 488, 28 
 N. E. 726, holding that resident of this state who assigns his claim without con-
 
 1 E. R. C. 521] NOTES ON ENGLISH RULING CASES. 92 
 
 sideration against employee of interstate railroad to resident of another state for 
 purpose of avoiding exemption laws of this state is liable in damages to debtor, 
 where assignee attached earnings in other state; Talbot Paving Co. v. Detroit, 
 109 Mich. 657, 63 Am. St. Rep. 604, 67 N. W. 979, holding that fact that munici- 
 pal contract is awarded to one other than lowest bidder thereon does not give 
 latter right of action to recover profits which he might have made; Venard v. 
 Cross, 8 Kan. 248, holding that individual sustaining injury from public nuisance 
 differing in kind from that sustained by community in general, may maintain ac- 
 tion therefor; Like v. McKinstry, 41 Barb. 186, holding that action lies for dam- 
 ages for slander of title to personal property; Clark v. Harlan, 1 Cin. Sup. Ct. 
 Rep. 418, holding that wife may maintain action against a third person for en- 
 ticing away and harboring her husband; Heacock v. Heacock, 108 Iowa, 540, 75 
 Am. St. Rep. 273, 79 N. W. 353, holding that wife cannot sue her husband on his 
 personal contract; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. ed. 
 773 (dissenting opinion), on right of action where one is forcibly prevented from 
 crossing a toll bridge; Mohler's Appeal, 8 Pa. 26, holding that where annuity is 
 charged on land devised, right of action arises against alienee of devisee for 
 arrears accruing during continuance of estate; Canadian P. R. Co. v. McBryan, 
 5 B. C. 187, on right of action as arising from construction of dam on water 
 course, merely because it might be injurious to proprietor higher up; Bowen v. 
 Hall, 1 E. R. C. 717, L. R. 6 Q. B. Div. 333, 50 L. J. Q. B. N. S. 305, holding that 
 action on case will lie against persons for enticing away servant from his em- 
 ployer. 
 
 Cited in notes in 62 L.R.A. 720, on effect of bad motive to make actionable what 
 would otherwise not be; 1 Eng. Rul. Cas. 555, on right of action of member to 
 class not specially injured for infringement of right belonging to such class: 
 25 E. R. C. 81, on liability for wilfully and intentionally harming another in 
 exercise of a legal right. 
 
 Cited in 2 Washburn, Real Prop. 6th ed. 348, on remedies for obstructions to 
 easements; 1 Cooley, Torts, 3d cd. 154, on private right of action for public 
 nuisance. 
 
 Distinguished in Kennedy v. Ray, 22 Barb. 511, holding that action will not lie 
 against school district librarian for refusal to allow a resident and his children 
 access to the library or permission to take books therefrom in the absence of any 
 rules governing such use; Dufiies v. Duffies, 76 Wis. 374, 8 L.R.A. 420, 20 Am. St. 
 Rep. 79, 45 N. W. 522, holding that wife cannot maintain an action for the loss of 
 the society and support of her husband against one enticing him away. 
 — Necessity of showing actual damage. 
 
 Cited in Holler v. Weiner, 15 Pa. 242, holding that action lies for breach of con- 
 tract by foreign house that person should act as its agent here; Webb v. Portland 
 Mfg. Co. 3 Sumn. 189, Fed. Cas. No. 17,322; Searles v. Cronk, 38 How. Pr. 320; 
 Allaire v. Whitney, 1 Hill, 484; Seneca Road Co. v. Auburn & R. R. Co. 5 Hill, 
 170; Collins v. St. Peters, 65 Vt. 61S, 27 Atl. 425,— holding that plaintiff need 
 not show actual damages to entitle him to maintain action for an invasion of his 
 rights; Hastings v. Livermore, 7 Gray, 194; Eller v. Carolina & N. W. R. Co. 140 
 N. C. 140, 3 L.R.A. (N.S.) 225, 52 S. E. 305, 6 Ann. Cas. 40,— on same point; 
 Baltimore & O. R. Co. v. Boyd, 67 Md. 32, 1 Am. St. Rep. 362, 10 Atl. 315; 
 Whittaker v. Stangvick, 100 Minn. 3S6, 10 L.R.A.(N.S.) 921, 117 Am. St. Rep. 
 703, 111 N. W. 295, 10 Ann. Cas. 528,— holding that extent of damage is imma- 
 terial to right of action for trespass to land; McDonald v. English, 85 111. 232, 
 holding that where obstruction in street is public offense and special injury there-
 
 93 NOTES ON ENGLISH RULING CASKS. [1. K. It. c. 521 
 
 by results to person, latter may maintain action against wrongdoer; Moore v. 
 Linneman, 143 Kv. 231, 136 S. W. 232, holding that nominal damages arc always 
 recoverable in breaches of contract and generally in tort, even though no actual 
 damages be proved; Paterson v. East Jersey Water Co. 74 N. .1. Eq. 41), 70 Atl. 
 472, holding that complainant as preliminary condition for equitable relief, will 
 not be required to bring action at law to establish title and damage: llendrick v. 
 Cook, 4 Ga. 241, holding that riparian owner may maintain action of trespass 
 against one backing the water in a stream by means of a dam, without showing 
 actual damage: Parker v. Griswold, 17 Conn. 288, 42 Am. Dec. 739; Plumleigh 
 v. Dawson, 6 111. 544, 41 Am. Dec. 199, — holding that action will lie for the 
 diversion of a water course without a showing of actual damage: Lux v. Haggin, 
 09 Cal. 255, 10 Pac. 074, on same point: Brent v. Kimball, GO 111. 211, 14 Am. Rep. 
 35. holding that plaintiff need not prove pecuniary value to entitle him to at 
 least nominal damages for the killing of his dog: Deverdorf v. Wert, 42 Barb. 
 227. holding that plaintiff is entitled to nominal damages for the breach of a 
 contract where no actual loss resulted; Moore v. New York Elev. R. Co. 
 30 Abb. N. C. 306; Searles v. Cronk, 38 How. Pr. 320,— holding that a viola- 
 tion of a legal right imports at least nominal damages; Fullam v. Stearns, 30 Vt. 
 443, holding that every violation of a right imports some damage and maxim "de 
 minimis non curat lex" applies to the injury not to the resulting damage; Gold- 
 smith v. Joy, 61 Vt. 488, 4 L.R.A. 500, 15 Am. St. Rep. 923, 17 Atl. 1010, as illus- 
 trating that action will lie for any invasion of a right regardless of actual dam- 
 age; Thrall v. Knapp, 17 Iowa. 468, on legal remedy as being available for every 
 assault however slight. 
 
 Distinguished in Irwin v. Cook, 24 Tex. 244, holding that nominal damages only 
 are recoverable as a matter of right in an action for slander where no actual dam- 
 age was alleged or proven. 
 Co-existence of right and remedy. 
 
 Cited in Bond v. Hilton, 47 N. C. (2 Jones, L.) 149, holding that for every 
 breach of duty arising out of contract, law* awards some damages; Pierce v. Swan 
 Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667, 4 Legal Gaz. 265, to the point 
 that if person has right, he must of necessity have means to vindicate and main- 
 tain it; White v. Nashville & N. R. Co. 7 Heisk. 518, holding that where no 
 remedy for a wrong is available at law equity will grant a remedy ; Hale v. 
 Hardon, 37 C. C. A. 240, 95 Fed. 747; Ensor v. Bolgiano, 67 Md. 190, 9 Atl. 529 
 (dissenting opinion) ; Rich v. 1 landers, 39 N. H. 304 (dissenting opinion) ; Par- 
 sons v. Crabb, 31 U. C. Q. B. 434; Edes v. Boardman, 58 N. H. 580, — on there 
 being a remedy for every legal right, want of remedy and want of right being 
 reciprocal; United States v. New Bedford Bridge, 1 Woodb. & M. 401, Fed. Cas. 
 No. 1 5,867: Riley v. Carter, 76 Md. 581, 19 L.R.A. 489, 35 Am. St. Rep. 443, 25 
 Atl. 667; Gage v. Gage, 66 N. H. 282, 28 L.R.A. 829, 29 Atl. 543 (dissenting opin- 
 ion) ; People ex rel. Pells v. Ulster County, 65 N. Y. 300 (dissenting opinion), — 
 on remedy for every right. 
 
 Cited, in note in 1 Eng. Rul. Cas. 527, 529, 531, 533, on right of action arising 
 from every injury. 
 
 Cited in 1 Cooley, Torts, 3d ed. 23, 24, on wrong being without a remedy; 1 
 Cooley, Torts, 3d ed. 84, 85, on concurrence of wrong and damage as essential 
 to tort: Joyce, Nuis. 68, on allowance of nominal damages only although right 
 and invasion thereof are both clear. 
 
 Distinguished in Campbell v. Rogers, 2 Handy (Ohio) 110, holding that rule 
 that "where there is a right there is a remedy" is applicable only to legal rights.
 
 1 E. R. C. 521] NOTES ON ENGLISH RULING CASES. 94 
 
 — To enforce right given by statute. 
 
 Cited in Eisenhauer v. Dill, 6 Ind. App. 188, 33 N. E. 220, to the point that if 
 statute gives right common law will give remedy to maintain that right; Col- 
 lins v. O'Laverty, 136 Cal. 31, G8 Pac. 327, holding that where a right and duty 
 is imposed by statute a right of action commensurate therewith also exists; 
 Vandeventer v. New York & N. H. R. Co. 27 Barb. 244; Whitford v. Panama R. 
 Co. 23 N. Y. 465, — holding that statutes giving action for damages resulting from 
 death caused by negligence, do not apply where injury is not committed in state, 
 but in foreign country; Stearns v. Atlantic & St. L. R. Co. 46 Me. 95; Graves v. 
 Briggs, 6 Abb. N. C. 38, — holding that where a statute confers a right it implied- 
 ly gives a remedy to enforce it; Re Niagara Election Case, 29 U. C. C. P. 270; 
 Wooten v. Gwin, 56 Miss. 422 (dissenting opinion), — on same point; Willis v. 
 Mabon (Willis v. St. Paul Sanitation Co.) 48 Minn. 140, 16 L.R.A. 281, 31 Am. 
 St. Rep. 626, 50 N. W. 1110; Campbell v. Rogers, 2 Handy (Ohio) 110,— holding 
 that action cannot be maintained by administrator of deceased person under sec- 
 tion 6134 Revised Statutes, requiring compensation for causing death by wrong- 
 ful act, when act causing death occurred outside state; Johnson v. Parkersburg, 
 16 W. Va. 402, 37 Am. Rep. 779, holding that action will lie to enforce a right 
 conferred by the constitution though no remedy to enforce it is provided by the 
 constitution or by statute; Moore v. Barry, 30 S. C. 530, 4 L.R.A. 294, 9 S. E. 
 589, holding petitioning land owners liable for work done by order of county com- 
 missioners pursuant to petition where statutory provision for payment thereof 
 failed and statute provided no other mode of recovery for the labor; Long v. 
 Long, 1 Watts, 265, holding that where law confers right, it will afford remedy by 
 action of some kind, and it is duty of court to adopt suitable remedy. 
 
 Cited in note in 1 Eng. Rul. Cas. 684, on right of action to recover pecuniary 
 obligation created by statute directing ascertainment of amount due in a pre- 
 scribed summary manner. 
 
 — Novelty of the action. 
 
 Cited in People v. Richards, 67 Cal. 412, 56 Am. Rep. 716, 7 Pac. 828, 6 Am. 
 Crim. Rep. 112, holding that when case is new in instance, hut not new in prin- 
 ciple, mere failure to discover precedent in which principle was applied is of little 
 weight; Smart v. Aroostook Lumber Co. 103 Me. 37, 14 L.R.A. (N.S.) 1083, 68 
 Atl. 527, on multiplication of actions to meet necessity where men multiply in- 
 juries; Johnson v. Girdwood, 7 Misc. 651, 28 N. Y. Supp. 151, holding that the 
 law affords a remedy to one wrongfully injured in his good name or person, re- 
 gardless of precedents for the action; Lacaze v. State, Addison (Pa.) 59, holding 
 that action on bond given in court of admiralty will lie in courts of common law, 
 even though no precedent can be found for such action; Carrington v. Carson, 1 
 N. C. pt. 2, p. 216, on failure to find report of similar action as argument that 
 no such action can be maintained. 
 Judicial and ministerial acts. 
 
 Cited in Re Massey Mfg. Co. 11 Ont. Rep. 444, holding that action of provincial 
 secretary in issuing, for publication, notice of increase of stock of corporation 
 is ministerial. 
 
 — Election acts. 
 
 Cited in People ex rel. Smith v. Pease, 27 N. Y. 45, 84 Am. Dec. 242; People 
 ex rel. Smith v. Pease, 30 Barb. 588, — holding that election inspectors, in receiv- 
 ing the ballots and counting the votes act ministerially.
 
 95 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 533 
 
 Opinions based on different reasons. 
 
 Cited in Pollock v. C. Hennicke Co. 64 Ark. 180, 4G S. W. 185, holding that 
 where a majority of the court agree that a judgment should be affirmed, though 
 they differ as to the reasons therefor, it will be affirmed; Gilford v. Livingston, 
 2 Denio, 380, on differences in reasons for a judgment as not being a difference 
 of opinion. 
 Jurisdiction of courts over matters concerning Parliament. 
 
 Cited in Reg. v. Bunting, 7 Ont. Rep. 524, on jurisdiction of courts over prosi 
 cution for conspiracy to bribe members of parliament. 
 
 1 E. R. C. 533, SCOTT v. SEYMOUR, 1 Hurlst. & C. 219, 1 New Reports, 129, 
 9 Jur. N. S. 522, 8 L. T. N. S. 511, 11 Week. Rep. 169, 32 L. J. Exch. N. S. 61. 
 affirming the decision of the Court of Exchequer, reported in 8 Jur. N. S. 
 568, 6 L. T. N. S. 607, 10 Week. Rep. 739, 31 L. J. Exch. N. S. 457. 
 Right of action for cause arising in foreign jurisdiction. 
 
 Cited in Fisher v. Fielding, 67 Conn. 91, 32 L.R.A. 236, 52 Am. St. Rep. 270, 
 34 Atl. 714 (dissenting opinion), on transactions arising in foreign jurisdictions 
 being enforceable in the local courts where not illegal under laws of either ; 
 O'Reilly v. New York & N. E. R. Co. 16 R. I. 3S8, 6 L.R.A. 719, 19 Atl. 244, 
 holding that right of action created by statute in one state is enforceable in an- 
 other only when the two states have statutes on the subject which are substantial- 
 ly similar; Slater v. Mexican Nat. R. Co. 194 U. S. 120, 4S L. ed. 900, 24 Sup. 
 Ct. Rep. 5S1 (dissenting opinion), on right to maintain action for death by 
 wrongful act occurring in foreign jurisdiction; Stuart v. Baldwin, 41 U. C. Q. 
 B. 446, holding that title to ore taken from land in Quebec may be tried in 
 Ontario though action could not be maintained for such purpose in Quebec until 
 title to the lands from which it was taken, had been adjudicated; Dupont v. Que- 
 bec S. S. Co. Rap. Jud. Quebec 11 S. C. 188, sustaining right of action, governed 
 by the laws of Quebec, where a resident thereof was injured while loading a ship 
 upon which he was employed at a foreign port; Smith v. Smith, 25 Grant, Ch. 
 (U. C.) 317, on jurisdiction of courts of one state over cause of action for death 
 by wrongful act occurring in another state; Toponce v. Martin, 38 U. C. Q B. 
 411, on right to invoke a civil remedy in a foreign country though such remedy 
 was as a matter of local policy, suspended in place where transaction originated: 
 Hart v. Gumpach, L. R. 4 P. C. 439, 42 L. J. P. C. N. S. 25, 9 Moore, P. C. N. S. 
 241, 21 Week. Rep. 365, holding that actions for libel arising in a foreign country 
 may be brought in the English courts. 
 
 Cited in note in 56 L.R.A. 195, 222, on conflict of laws as to action for death 
 or bodily injury. 
 — Laws governing. 
 
 Cited in Cuba R. Co. v. Crosby, 95 C. C. A. 539, 170 led. 369, holding that in 
 action by servant for personal injury received in foreign country court will apply 
 law of forum which will be presumed to be that also of country where injury was 
 received.; Papageorgiou v. Turner, 37 N. B. 449, holding that civil liability for act 
 done in a foreign country is governed by the laws of that country; Crusby v. 
 Cuba R. Co. 158 Fed. 144, holding that action for personal injury caused by 
 negligence and occurring in a foreign jurisdiction may be maintained without 
 pleading and proof of the statutes of such foreign state; Phillips v. Eyre, L. R. 
 4 Q. B. 225, 240, 38 L. J. Q. B. N. S. 113, 19 L. T. N. S. 770, 17 Week. Rep. 375, 
 on right to recover damages for act in a foreign country under the laws of which 
 no damages were recoverable therefor.
 
 1 E. R. C. 533] NOTES ON ENGLISH RULING CASES. 96 
 
 Distinguished in Corapanhia de Mocambique v. British South Africa Co. 
 [1S92] 2 Q. B. 358, on presumption as to an act being unlawful under laws of a 
 foreign country. 
 Pendency of foreign action as defense. 
 
 Cited in Howard Guernsey Mfg. Co. v. King, Rap. Jud. Quebec 5 C. S. 182 : 
 Fowler- v. Malada, Nevvfoundl. Rep. (1874-S4) 263, — holding that pendency of 
 another action in a foreign court cannot be set up as a defense; Direct United 
 States Cable Co. v. Dominion Teleg. Co. 8 Ont. App. Rep. 416. holding that 
 pendency of foreign action for the same cause cannot be set up by demurrer. 
 
 The decision of the Court of Exchequer was cited in Smith v. Lathrop, 44 Pa. 
 .'526, 82 Am. Dec. 44S, holding that plea of lis pendens in another state, is not de- 
 fense to suit between same parties, for same cause of action at same time here. 
 
 1 E. R. C. 547, HARROP v. HIRST, L. R. 4 Exch. 43, 19 L. T. N. S. 426, 17 Week. 
 
 Rep. 164, 38 L. J. Exch. N. S. 1. 
 Actionable invasion of personal rights. 
 
 Cited in McCartney v. Londonderry & L. S. R. Co. [1904] A. C. 301, 73 L. J. 
 P. C. N. S. 73, 91 L. T. N. S. 105, 53 Week. Rep. 385: Melrose v. Cutter, 159 
 Mass. 461, 34 N. E. 695, — holding that showing of actual damage is not necessary 
 to injunction against an invasion of plaintiff's rights: Brocklebank v. Thompson 
 [1903] 2 Ch. 344, 72 L. J. Ch. N. S. 626, 89 L. T. N. S. 209, 19 Times L. R. 285, 
 on same point; Bragg v. Laraway, 65 Vt. 673, 27 Atl. 492, holding that action 
 will lie for entry upon plaintiff's land though no actual damage is shown. 
 
 — Wrongs tending toward prescription. 
 
 Cited in Goodhart v. Hyett, L. R. 25 Ch. Div. 1S2, 53 L. J. Ch. N. S. 219, 50 
 L. T. N. S. 95, 32 Week. Rep. 165, 48 J. P. 293; George v. Lysaght, 49 L. T. N. 
 S. 49, 47 J. P. 696, — on right to maintain action to restrain an act done as of 
 tight and which would if continued create a right. 
 
 Cited in note in 8 E. R. C. 346, on right to claim profit in land of another by 
 custom or otherwise. 
 
 — Injury to easements. 
 
 Cited in Collins v. St. Peters, 65 Vt. 618, 27 Atl. 425, holding that action will 
 lie for the obstruction of an easement of way without any showing of actual dam- 
 ages; Burton v. Dougherty, 19 N. B. 51, holding that action for obstruction of 
 highway will not lie in favor of one who does not attempt to use it, though he 
 was put to expense by going another way when learning of the obstruction. 
 
 Cited in notes in 68 L.R.A. 689, on liability for removal of lateral or subjacent 
 support of land in its natural condition: 10 E. R. C. 313, on mandatory injunc- 
 tion for protection of easement. 
 
 — Common rights in waters. 
 
 Cited in Townsend v. Bell, 62 Hun, 306, 17 N. Y. Supp. 210, holding that in- 
 junction will lie to prevent the continued discharge of impure matter into a 
 stream and plaintiff need not show actual damage to entitle him thereto; Byron 
 v. Stimpson, 17 N. B. 697, holding that riparian proprietor may maintain action 
 for obstruction of access to navigable water without showing particular damage; 
 Beamish v. Barrett, 16 Grant, Ch. (U. C.) 318 (dissenting opinion), on right of 
 riparian owners to enjoin use of stop logs on dam where their use might raise 
 the water on their, lands under certain circumstances, though it had never 
 occurred.
 
 97 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 560 
 
 Cited in note in 41 L.R.A. 756, on correlative rights of upper and lower pro- 
 prietors as to use and flow of stream. 
 
 1 E. R. C. 555, WEDGEWOOD v. BAILEY, T. Rayin. 403. 
 Effect of death of party while action is pending. 
 
 Cited in Brewer v. Porch, 17 N. J. L. 377, holding that where action survives 
 the death of a defendant, it is not too late to suggest the death of one of the de- 
 fendants upon the return of the postea, even though the death occurred before the 
 trial. 
 
 Distinguished in Freeborn v. Denman, 8 N. J. L. 116, holding that authority 
 of referees in cause referred to them is not revoked by the death of one of several 
 plaintiff's therein, but suggestion of such death may be entered on the record: 
 Winn v. Cole, Walk. (Miss.) 119, on right of heir to recover on a demise laid in 
 his name during life of ancestor who dies before judgment. 
 
 1 E. R. C. 560, CROSBY v. LONG, 12 East, 409, 11 Revised Rep. 437. 
 Civil action for a felony, necessity of prior criminal prosecution. 
 
 Cited in Morgan v. Rhodes, 1 Stew. (Ala.) 70, holding that master cannot 
 maintain action for killing his slave, if slayer by his collusion, has been dis- 
 charged from prosecution for felony; Middleton v. Holmes, 3 Tort. (Ala.) 424, 
 holding that in civil action for the killing of a slave the declaration must show 
 that the defendant has been tried for the criminal offense; Boston & W. R. Corp. 
 v. Dana, 1 Gray. S3, holding that for goods feloniously taken action lies against 
 felon, before institution of criminal proceedings against him; Adams v. Lee, 5 
 Ga. 404, holding that suspension of civil remedy until after criminal prosecution 
 applies only to treason and felonies; Wyatt v. Williams, 43 N. H. 102; Hyatt v. 
 Adams, 16 Mich. 180, — on suspension of the civil remedy until after criminal 
 prosecution and the reasons therefor; Struthers v. Peckham, 22 R. I. 8, 45 Atl. 
 742, holding that trover does not lie for the recovery of money embezzled or 
 stolen until after complaint and issue of process for the crime; Leeman v. Public 
 Service R. Co. 77 N. J. L. 420, 72 Atl. 8, holding that failure to prosecute crimi- 
 nally, where civil remedy is sought can be urged only for delaying trial until 
 public duty has been performed — not for judgment of nonsuit; Walsh v. Nattress, 
 19 U. C. C. P. 453, holding that action for seduction should be suspended until 
 criminal offense has been disposed of, where charge constitutes felony; Taylor v. 
 McCullough, S Ont. Rep. 309, holding that civil action for assault and battery 
 may be suspended until criminal action is disposed of; Pease v. M'Aloon, 3 N. B. 
 Ill, holding that trover will not lie to recover a horse from a purchaser from one 
 who stole it, unless effort has been made to prosecute the thief; Schohl v. Kay. 
 10 N. B. 244, holding that civil action for assault amounting to "grievous bodily 
 harm" will not lie unless defendant has been prosecuted for the felony; Lamothe 
 v. Chevalier, 4 Lower Can. Rep. 160, holding that where assault charged would 
 amount to felony, plaintiff may proceed in action for damages, without being 
 obliged to prosecute criminally; Paquet v. Lavoie, Bap. Jud. Quebec, 7 B. R. 277. 
 on satisfying the criminal law before the private civil law in a felony case; Mid- 
 land Ins. Co. v. Smith, L. R. 6 Q. B. Div. 501, 50 L. .1. Q. B. X. S. 329, 45 L. T. 
 N. S. 411, 29 Week. Rep. 850, 45 J. P. 699, on duty not to institute civil action 
 until criminal prosecution has been had. 
 
 Cited in 1 Cooley, Torts, 3d ed. 152. on order of proceeding when an action 
 is both a public and a private offense; 6 Thompson, Neg. 142, on civil liability 
 for death by wrongful act amounting to a felony after conviction of the felony 
 Notes on E. R. C— 7.
 
 1. E. R. C. 560] NOTES ON ENGLISH RULING CASES. 98 
 
 Distinguished in Shields v. Yonge, 15 Ga. 349, 60 Am. Dec. 698, holding that 
 civil action for "involuntary manslaughter in doing a lawful act" is not suspend- 
 ed until after prosecution for the misdemeanor. 
 
 Disapproved in Pettingill v. Rideout, 6 N. H. 454, 25 Am. Dec. 473, holding that 
 civil action will lie without prior criminal prosecution; Green v. Hudson River 
 R. Co. 10 How. Pr. 230, on same point; McBlain v. Edgar, 65 N. J. L. 634, 48 Atl. 
 600, holding that civil action will lie though indictment for the felony has not 
 been prosecuted to a conviction or an acquittal; White v. Fort, 10 N. C. (3 
 Hawks) 251, holding defendant liable in civil action for the burning of a house 
 without previous conviction or acquittal for the felony; White v. McKiel, 28 N. 
 
 B. 39, holding that civil action need not be suspended where it does not appear 
 from the evidence that defendant has not been criminally prosecuted. 
 
 — Judgment in criminal prosecution as bar. 
 
 Cited in Grafton Bank v. Flanders, 4 N. H. 239; Macdonald v. Ketchum, 7 U. 
 
 C. C. P. 484, — holding that civil action lies after criminal prosecution is termi- 
 nated, whether by conviction or by acquittal; Ocean Ins. Co. v. Fields, 2 Story, 59, 
 Fed. Cas. No. 10,406; Hall v. Nashville & C. R. Co. 1 Shannon, Cas. 141, Thomp. 
 Tenn. Cas. 204— on same point; Cole v. Hubble, 26 Ont. Rep. 279, holding that 
 acquittal in prosecution for rape is not a bar to subsequent civil action by the 
 father of the female for enticing away and having carnal connection with his 
 daughter. 
 
 — Merger of civil injury in the felony. 
 
 Cited in Plummer v. Webb, 1 Ware, 69, Fed. Cas. No. 11,234, holding that doc- 
 trine of merger of private injury in .the felony does not obtain in this jurisdic- 
 tion; Nash v. Primm, 1 Mo. 17S, holding that private injury is not merged' in the 
 felony so as to prevent civil action for the killing of plaintiff's slave; Davis v. 
 Justice, 31 Ohio St. 359, 27 Am. Rep. 514 (dissenting opinion), on liability to 
 civil action where death is caused by felony. 
 Collateral attack on judgment for collusion. 
 
 Cited in Atkinson v. Allen, 12 Vt. 619, 36 Am. Dec. 361, holding that third 
 person may attack judgment collaterally by showing collusion; Michaels v. Post, 
 21 Wall. 398, 22 L. ed. 520, on same point. • 
 
 Autrefois acquit. 
 
 Cited in State v. Sias, 17 N. H. 558, holding that acquittal on charge of larceny, 
 was no bar to subsequent indictment for conspiring with others unlawfully to ob- 
 tain goods for which larceny was charged. 
 
 1 E. R. C. 567, ATTY. GEN. v. SHREWSBURY BRIDGE CO. L. R. 21 Ch. Div. 
 
 752, 51 L. J. Ch. N. S. 746, 46 L. T. N. S. 6S7, 30 Week: Rep. 916. 
 Public action to restrain act tending to the injury of the public. 
 
 Cited in Respass v. Com. 131 Ky. 807, 21 L.R.A.(N.S.) 836, 115 S. W. 1131, 
 holding that attorney general possesses common-law power to maintain proceed- 
 ings to enjoin nuisance, where state's interest demands it; Atty. Gen. v. Wil- 
 liams (Knowlton v. Williams) 174 Mass. 476, 47 L.R.A. 314, 55 N. E. 77, hold- 
 ing that attorney general may bring suit to restrain violation of statute govern- 
 ing the height of buildings; State ex rel. Board of Health v. Diamond Mills Paper 
 Co. 63 N. J. Eq. Ill, 51 Atl. 1019, sustaining validity of act authorizing state 
 board of health to bring action to enjoin the discharge of sewage and other im- 
 pure matters into streams used for water supply; Hart v. Macllreith, 41 N. S. 351,
 
 99 NOTES OX ENGLISH RULING CASKS. LI E. R. C. 374 
 
 on necessity of joining attorney general in suit against mayor and city council to 
 
 recover moneys alleged to have been illegally paid out. 
 
 — To restrain corporation or franchise holder from excess of power. 
 
 Cited in Muncie Natural Gas Co. v. Muncie, 1G0 Jud. 97, GO L.R.A. 822, 66 X. 
 E. 43G, holding that city may bring action to restrain gas company from operat- 
 ing under a franchise where it is violating a provision therein governing price 
 to be charged; Stockton v. Central R. Co. 50 N. J. Eq. 52, 17 L.R.A. 97, 24 Atl. 
 964, holding that attorney general may maintain suit to restrain acts in excess of 
 corporate power where a tendency to public injury is shown; Grey ex rel. Morris 
 & C. Dredging Co. v. Greenville, 59 N. J. Eq. 372, 46 Atl. 638, holding that at- 
 torney general may maintain suit to enjoin railroad company from constructing 
 branch line without authority, without any showing of actual damage; Mc- 
 Carter v. Firemen's Ins. Co. 74 N. J. Eq. 372, 29 L.R.A. (X.S.) 1194, 135 Am. St. 
 Rep. 70S, 73 Atl. 80, IS Ann. Cas. 1048, holding that ultra vires acts of corpora- 
 tion, contrary to public policy, may be restrained at suit of attorney general, 
 without regard to whether actual injury has resulted; Wilson v. Hudson County 
 Water Co. 76 N. J. Eq. 543, 76 Atl. 560, holding that proposed excavation and 
 laying of pipe line through lands of state by water company may be enjoined at 
 suit of attorney general without showing irreparable injury to state's rights; 
 Atty. Gen. v. Bergen, 29 N. S. 135, holding that attorney general may maintain 
 suit to restrain incorporators of railway company from proceeding with con- 
 struction of railway on ground that the company was not legally organized; 
 West v. Parkdale, 12 Ont. App. Rep. 393; Re Bronson, 1 Ont. Rep. 415,— on in- 
 junction at instance of attorney general to restrain corporation from exceeding 
 their statutory powers; Atty .-Gen. v. London & X. W. R. Co. [1S99] 1 Q. B. 72, 
 68 L. J. Q. B. X. S. 4, 79 L. T. X. S. 412, 15 Times L. R. 39, affirmed in [1900] 
 1 Q. B. 78, 69 L. J. Q. B. X. S. 26, 63 J. P. 772, 81 L. T. X. S. 649, 16 Times L. R. 
 30, holding that attorney general may maintain suit to restrain company- from 
 acting in excess of its authority without showing damage. 
 
 Cited in notes in 59 L.R.A. 65, on right to obstruct or destroy rights of naviga- 
 tion by bridges; 22 Eng. Rul. Cas. 129, on injunction against ultra vires acts of 
 railroad. v 
 
 Distinguished in Atty. Gen. v. Xiagara Falls, W. P. & C. Tramway Co. 18 Ont. 
 App. Rep. 453 (affirming 19 Ont. Rep. 624), holding that injunction will, not 
 lie at instance of attorney general, to restrain railroad from running trains on 
 Sunday though such act may be illegal ; London Asso. of Shipowners v. London 
 & I. Docks Joint Committee [1S92] 3 Ch. 242, 62 L. J. Ch. X. S. 294, 2 Reports, 
 23, 67 L. T. X. S. 238, 7 Asp. Mar. L. Cas. 195, holding that parties bringing 
 action to restrain company from committing legal acts, without joining the at- 
 torney general as plaintiff must show that they would incur special damage. 
 
 1 E. R. C. 574, RICKET v. METROPOLITAX R. CO. 5 Best & S. 156, L. B. 2 H. L. 
 175, 16 L. T. X. S. 542, 15 Week. Rep. 937, 36 L. J. Q. B. X. S. 205, affirming 
 the decision of the Exchequer Chamber, reported in 11 Jur. \. S. 260, 12 
 L. T. X. S. 79, 13 Week. Rep. 455, 34 L. J. Q. B. X. S. 257, which reverses the 
 decision of the Court of Queen's Bench, reported in 5 Best & S. 150. 
 
 Right to compensation for injury from public work — railroads. 
 
 Cited in Austin v. Augusta Terminal R. Co. 108 Ga. 671, 47 L.R.A. 755, 34 S. E. 
 
 852, holding railroad not liable for the depreciation in value of property resulting 
 
 from the noise, smoke and cinders from the lawful operation of the road ; 
 
 Gottschalk v. Chicago, B. & Q. R. Co. 14 Xeb. 550, 17 X. W. 120 (dissent-
 
 1 E. R. C. 574] NOTES ON ENGLISH RULING CASES. 100 
 
 ing opinion), on compensation under railway statutes being allowed only where 
 damages could have been recovered in the absence of the statute; E. J. Brooks 
 Co. v. Delaware, L. & W. R. Co. 80 N. J. L. 676, 78 Atl. 51, holding that 
 where railroad company tore down fence and gateway upon plaintiff's prem- 
 ises and obstructed passage of driveway, plaintiff suffered "special damage" 
 and was entitled to recover same; Taylor v. Metropolitan Elev. R. Co. 18 Jones 
 & S. 311, holding that erection of elevated railroad in street constituted tak- 
 ing of private property only to extent that such structure was inconsistent 
 with and in excess of ordinary uses of street, and only to that extent was com- 
 pany liable to make compensation ; Smith v. St. Paul, M. & M. R. Co. 39 Wash 
 355, 70 L.R.A. 1018, 109 Am. St. Rep. 889, 81 Pac. 840, holding railroad 
 operating trains on its own land liable to adjoining owners only where their 
 property is physically affected by the jarring of the earth or by casting soot, 
 cinders and smoke thereon; Hornby v. New Westminster Southern R. Co. 6 
 B. C. 588, holding that owner of lands flooded by the construction of a railroad 
 embankment and ditch constructed under legislative authority, cannot recover for 
 damages caused thereby; Paradis v. R. 1 Can. Exch. 191, on conflicting decisions 
 on law of compensation by railroad companies; Re Scott, 6 Manitoba L. Rep. 193, 
 holding that compensation may be allowed for depreciation in value of land not 
 taken necessarily resulting from the operation of the railroad; McArthnr v. 
 Northern & P. Junction R. Co. 17 Out. App. Rep. 86, on compensation being the 
 remedy for acts of the railway company within its statutory authority only; 
 Widder v. Buffalo & L. H. R. Co. 27 U. C. Q. B. 425; Widder v. Buffalo & L. H. 
 R. Co. 29 U. C. Q. B. 154, — on liability of railroad to compensation for land in- 
 juriously affected, where no land was actually taken; Compagnie Du Chemin De 
 Fer Du Nord. 12 Quebec L. R. 205, holding riparian owners could not recover from 
 railroad company for damages done to the conduct of their business by the con- 
 struction of a railroad upon the river bank; Debois v. R. 1 Has. & War. (Pr. 
 Edw. Isl.) 398, on liability of railroad company to compensate land owners for 
 land taken or damaged; Wood v. Atlantic & N. W. R. Co. Rap. Jud. Quebec 2 
 B. R. 335, holding that where railroad has taken part of land, it is liable for 
 the direct injury to the remaining land resulting from the construction and 
 operation of the railway line; Glasgow Union R. Co. v. Hunter, L. R. 2 H. L. 
 Sc. App. Cas. 78, holding that compensation should not be given on account of 
 noise and smoke of trains, though part of claimants' land is taken; Hammer- 
 smith & C. R. Co. v. Brand, L. R. 4 H. L. 171, 38 L. J. Q. B. N. S. 265, 21 L. T. 
 N. S. 238, 18 Week. Rep. 12, 1 Eng. Rul. Cas. 623 (affirming L. R. 1 Q. B. 
 130, L. R. 2 Q. B. 223, 36 L. J. Q. B. N. S. 139; Pennsylvania R. Co. v. 
 Marchant, 45 Phila. Leg. Int. 196, 21 W. N. C. 300,— holding railroad not liable for 
 injury, from noise, smoke, dirt, cinders or jarring from operation of its road, to 
 property no part of which was taken for the construction of the road; R. v. 
 Poulter, 56 L. J. Q. B. N. S. 581, holding owner of building entitled to compensa- 
 tion where its use is interfered with by the cutting off of the light by the erection 
 of a railroad warehouse.' 
 
 Distinguished in R. v. Cambrian R. Co. L. R. 6 Q. B. 422. 40 L. J. Q. B. N. 
 S. 169, 25 L. T. N. S. 84, 19 Week. Rep. 1138, holding ferry owner entitled to com- 
 pensation for reduced traffic where railroad company under legislative authority 
 built a railroad bridge with toll foot-way for passengers. 
 
 The decision of the Court of Queen's Bench was cited in Renaud v. Quebec, 
 8 Quebec L. R. 102, holding damages recoverable under (statute for inconveniences 
 caused property owner by operation of railroad.
 
 101 NOTES ON ENGLISH RULING CASKS. [l E. R. C. 574 
 
 — Other public works. 
 
 Cited in Peel v. Atlanta, 85 Ga. 138, 8 L.R.A. 7S7. 11 S. E. 582, holding that 
 loss of privacy from the opening of a public street on adjoining lot is not ground 
 for compensation; Howard v. Bibb County, 127 Ga. 291, 56 S. E. lis, to the point 
 that liability of municipality for damages caused by public improvements, damage 
 must be to land itself; Lincoln v. Com. 164 Mass. 36S, 41 N. E. 489, on what 
 amounts to a "taking" so as to require compensation; Columbia Delaware Bridgi 
 Co. v. Geisse, 35 N. J. L. 558, holding owners of ferry entitled to compensation 
 for injury from building of bridge, where such ferry owners would have been 
 entitled to damages had the bridge been built without legislative authority; Re 
 Squire, 4 Silv. Ct. App. 325, 26 N. E. 142, holding that owner of house on lot 
 adjoining one taken for temporary use for engine house, etc., in construction of 
 aqueduct, is not entitled to damages because of noise, smoke and dust; Stewart 
 v. Rutland, 58 Vt. 12,- 4 Atl. 420, holding that in assessing compensation for 
 taking land for sewer purposes damages cannot be allowed for consequential in- 
 jury caused by the noxious vapors rendering the property less enjoyable; Mc- 
 Pherson v. R. 1 Can. Exeh. 53, on cases where damage was done to the land 
 itself; R. v. Metropolitan Bd. of Works, L. R. 4 Q. B. 358, 38 L. J. Q. B. N. S. 
 201, 10 Best & S. 391, 17 Week. Rep. 1094, holding land owner not entitled to 
 compensation for injury from construction of embankment along river whereby 
 his access for purposes of drawing water, and of using public draw dock was cut 
 off; Rhodes v. Airedale Drainage Comrs. L. R. 1 C. I'. Div. 380, 45 L. J. C. P. 
 N. S. 861, 35 L. T. N. S. 46. 24 Week. Rep. 1053, on damage under statute as 
 being confined to such as would have been actionable in the absence of the 
 statute; Burgess v. Northwich Local Board, L. R. 6 Q. B. Div. 264, 50 L. J. Q. 
 B. N. S. 219, 44 L. T. N. S. 154, 29 Week. Rep. 931, 45 J. P. 256, holding abutting 
 owner not entitled to compensation for cost of raising buildings to conform to 
 raise of street by municipality, where both land in street and under buildings 
 had settled from natural causes; R. v. Essex, L. R. 17 Q. B. Div. 447, holding that 
 compensation for injury to value of other land not connected with land taken for 
 sewage farm cannot be allowed though owned by the same person; Buccleuch v. 
 Metropolitan Bd. of Works, L. R. 5 H. L. 418, 5 Exch. 221. 39 L. J. Excb. 
 N. S. 130, 3 Eng. Rul. Cas. 455 (which affirmed L. R. 3 Exch. 306, 37 L. J. Exch. 
 N. S. 177, reversing 41 L. J. Exch. N. S. 137), holding landowner not entitled 
 to compensation for depreciation in value of premises because cut off from direct 
 access to river by a public work but if any part is taken he may so recover. 
 
 Cited in 4 Dillon, Mon. Corp. 5th ed. 2935, on abutting owner's right to com- 
 pensation for loss of trade due to lowering roadway. 
 
 — Obstruction of street or other public easement. 
 
 Cited in Hot Springs R. Co. v. Williamson, 45 Ark. 420. holding that abutting 
 owner is entitled to compensation where access to his premises is cut off by 
 railroad in the street though he has no title to the street; Reardon v. San Fran- 
 cisco, 66 Cal. 492, 56 Am. Rep. 109, 6 Pac. 317, holding owner of land adjoining 
 street entitled to compensation for damage to foundations of buildings caused by 
 street improvement; Denver v. Bayer, 7 Colo. 113, 2 Pac. 0, bidding abutting 
 owner entitled to compensation for injury caused by the construction and opera- 
 tion of a railroad in the street in front of his property, though it is constructed 
 by authority from the city; Baker v. Boston Elev. R. Co. 183 Mass. ITS. 66 N. E. 
 711, holding that compensation can be recovered for noise of elevated railway 
 where it is such as would have constituted a private nuisance if not authorized: 
 Ryerson v. Morris Canal & Bkg. Co. 69 N. J. L. 505, 55 Atl. 98, to the point that
 
 1. E. R. C. 574] NOTES OX ENGLISH RULING GASES. 102 
 
 only landowners whose property is adjacent to nuisance can maintain private 
 action on account of nuisance; Smith v. St. Paul, M. & M. R. Co. 39 Wash. 355, 
 70 L.R.A. 1018, 109 Am. St. Rep. 889, 81 Pac. 840, holding railroad excavating 
 in street not liable for injury to access to property not abutting on the street 
 affected; Re Nicholson, 7 Manitoba L. Rep. 400, holding that in awarding com- 
 pensation for the taking of land along a river, no allowance should be made for 
 interference with an endless chain used to take ice up from the river to storage 
 buildings; Re Devlin, 40 L T . C. Q. B. 160, holding that owner of building adjoin- 
 ing street cannot recover for injury thereto from vibration caused by the opera- 
 tion of a railroad in the street, built there by permission from the municipality: 
 Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146, holding adjoining 
 owner entitled to compensation where easement of light is interfered with by the 
 construction of an elevated railway in the street; R. v. Barry, 2 Can. Exch. 
 333, holding that landowner may recover compensation where railroad is con- 
 structed in front of his property so as to render it unfit for a purpose for which 
 it was fit and intended; Poin v. North Shore R. Co. 14 Can. S. C. 677 (dissenting 
 opinion), on no compensation for damage to landowner from being cut off from 
 navigable stream by the construction of a railroad: R. v. MacArthur, 34 Can. S. 
 C. 570 (reversing 8 Can. Exch. 245), holding owner of land not entitled to com- 
 pensation where, by the construction of a public work he is compelled to use a 
 longer and less convenient route to reach enother district; Yeomans v. Welling- 
 ton County, 4 Ont. App. Rep. 301, holding landowner entitled to compensation 
 where municipality raises the highway in front of his premises so as to cut off 
 ingress and egress to and from adjoining property; Eord v. Metropolitan & M. D. 
 R. Co. L. R. 17 Q. B. Div. 12, 55 L. J. Q. B. N. S. 290, 54 L. T. N. S. 71S, 34 Week. 
 Rep. 426, 50 J. P. 661, holding lessee of rooms entitled to compensation where 
 construction of railroad takes away an easement necessary for access thereto; 
 Metropolitan Bd of Works v. McCarthy, L. R. 7 H. L. 243, 43 L. J. C. P. N. S. 
 385, 31 L. T. N. S. 182, 23 Week. Rep. 115 (affirming T . R. S C. P. 191, 42 L. J. 
 C. P. N. S. 81, which affirmed L. R. 7 C. P. 50S), holding lessee entitled to 
 compensation where he was cut off from access to dock by public embankment, 
 whereby the value of the premises for his use was materially diminished. 
 
 Distinguished in Caledonian R. Co. v. Walker, L. R. 7 App. Cas. 259, 46 L. T. 
 N. S. 826, 30 Week. Rep. 509, 46 J. P. 676, holding owner of property entitled to 
 compensation where access thereto is so interfered with as to materially diminish 
 its value; Beckett v. Midland R. Co. L. R. 3 C. P. 82, 37 L. J. C. P. N. S. 11, 
 17 L. T. N. S. 499, 16 Week. Rep. 221, holding owner of house fronting on high- 
 way entitled to compensation where access thereto of light and air is obstructed 
 and its recital value materially diminished by railroad embankment in highway. 
 
 Disapproved in Bowen v. Canada Southern R. Co. 14 Ont. App. Rep. 1, holding 
 that interference with access to property may give right to compensation though 
 it does not occur immediately in front of, or adjoining the premises affected. 
 — Temporary injury. 
 
 Cited in Re Squire, 125 N. Y. 131, 26 N. E. 142, holding adjoining owner not 
 entitled to compensation for temporary inconvenience caused by the construction 
 of a public work; Re Toronto, H. & B. R. Co. 28 Ont. Rep. 14, holding that 
 structural damages to buildings from explosions during construction and damages 
 for personal inconvenience from interference with means of access cannot be con- 
 sidered in awarding compensation. 
 ■Measure of compensation for "taking*' or injuring- land. 
 
 Cited in Eaton v. Boston, C. & M. R. Co. 51 N. H. 504, 12 Am. Rep. 147, on
 
 103. NOTES ON ENGLISH RULING CASES. [1 E. R. C. 574 
 
 meaning of "consequential damages;" Lefebvre v. R. ] Can. Exch. 121, holding the 
 prospective capabilities of the land should be considered; Re Canadian N. R. Co. 
 17 .Manitoba L. Rep. 396, holding that upon a compulsory taking of land, the 
 price should be fixed at its actual value to the owner. 
 
 Cited in 3 Dillon, Mun. Corp. 5th ed. 2047, on rule as to damages to abutting 
 owner for continuing nuisance in highway. 
 
 The decision of Court of Queens Bench was cited in Paradis v. R. 1 Can. Exch. 
 191, on saleable value of premises not having been diminished as not being conclu- 
 sive in question of injury to the premises; Anderson v. Doty, 33 Hun, 160, on con- 
 sequential injury rendering premises less desirable or less valuable as not being 
 ground for damage, where no physical injury is done to the property. 
 Elements of damage to land in use for trade. 
 
 Cited in Sawyer v. Com. 1S2 Mass. 245, 59 L.R.A. 726, 65 N. E. 520. holding 
 that damage to the business fom the taking of the land cannot be considered in 
 determining compensation for land taken under water supply act; Ex parte 
 Bergin, Ir. L. R. 13 Eq. 245, holding that sum awarded for trade loss is part of 
 compensation for the taking of the premises; Montreal v. Drummond, L. R. 1 
 App. Cas. 384, 45 L. J. C. P. N. S. 33, 35 L. T. N. S. 106, on loss of customer- as 
 not being proper matter for compensation; Bigg v. London, L. R. 15 Eq. 376, 28 
 L. T. N. S. 336, holding that compensation will not be allowed for loss of trade 
 from public work in street. 
 
 Cited in notes in 13 L.R.A. (N.S.) 256, on loss of customers as element of dam- 
 ages from obstruction of highway; 51 L.R.A. 229, 330, on damages in eminent do- 
 main cases as affected by loss of profits. 
 
 Distinguished in Ripley v. Great Northern R. Co. L. R. 10 Ch. 435, 31 L. T. N. S. 
 869, 23 Week. Rep. 685, holding that where land intended for cotton mills is taken 
 by railway, compensation should be allowed for loss of prospective profits from 
 supplying water to the mills from reservoir built on another part of the land: 
 Re McCauley, 18 Ont. Rep. 416, holding that where some land is actually taken. 
 damage to the good will of a trade carried on upon the premises may be con- 
 sidered. 
 
 Disapproved in Great Western R. Co. v. Warner, 19 Grant, Ch. (U. C.) 506, 
 holding that "depreciation to farm generally" resulting from tbe permanent oc- 
 cupation of the land by a railway may be considered in assessing compensation 
 under railway act. 
 — Of damage to easement. 
 
 Cited in Stadler v. Milwaukee, 34 Wis. 98, holding owner entitled to com- 
 pensation for injuries to land and mill from change of street grade and for cost 
 of adapting the mill to the change but not for loss of use of mill during time 
 used for raising it and adapting it to such change; Beach v. R. 37 Can. S. C. 259, 
 on measure of damages for stoppage of water in water power canal leased from 
 the crown. 
 
 Distinguished in Eagle v. Charing Cross R. Co. L. R. 2 C. P. 638, 36 L. J. C. 
 P. N. S. 297, 16 L. T. N. S. 593, 15 Week. Rep. 1016, holding owner of building 
 entitled to compensation where light is cut off by railroad to the injury of 
 the business carried on, though saleable value of property is not diminished. 
 Duty of railway company in exercising its powers. 
 
 Cited in Biscoe v. Great Eastern R. Co. L. R. 16 Eq. 636, 21 Week. Rep. 902, 
 holding railway company bound to exercise the powers granted it by statute with 
 due regard for rights of others and not negligently.
 
 1 E. R. C. 574] NOTES ON ENGLISH RULING CASES. 104 
 
 Action for obstruction of highway. 
 
 Cited in Little Rock & H. S. W. R. Co. v. Newman, 73 Ark. 12, 108 Am. St. Rep. 
 17, 83 S. W. 653, holding that landowner whose land does not abut upon the 
 track cannot maintain suit for damages because railroad is built along the high- 
 way; Robinson v. Brown, 182 Mass. 266, 65 N. E. 377, holding that owner of land 
 abutting upon highway cannot maintain action for an obstruction thereof which 
 is not 'opposite his own land; Burton v. Dougherty, 19 N. B. 51, holding plaintiff 
 not entitled to maintain action for obstruction of the highway where he heard of 
 the obstruction and therefore went another way at some inconvenience and, ex- 
 pense; Baird v. Wilson, 22 L T . C. C. P. 491, holding that to maintain action for 
 the obstruction of a public way the plaintiff must show some damage peculiar to 
 himself ; Plewes v. Hall, 29 U. C. Q. B. 472, holding that a private person cannot 
 maintain action for damage for obstructing navigable stream without showing 
 peculiar injury to himself; Winterbottom v. Derby, L. R. 2 Exch. 316, 36 L. J. 
 Exch. N. S. 194, 16 L. T. X. S. 771, 16 Week. Bep. 15, 12 Eng. Bui. Cas. 511, hold- 
 ing that private person cannot maintain action for obstruction of public way be- 
 cause he has been delayed in passing along it and compelled to go some less direct 
 way. 
 
 Distinguished in Ryerson v. Morris Canal & Bkg. Co. (i!> N. J. L. 505, 55 Atl. 
 98, holding that one owning farms at different places may maintain action for 
 failure to keep public bridge in repair, against one having the duty to do so. 
 where his communication between his farms is interfered with; Fritz v. Hobson, 
 L. R. 14 Ch. Div. 542, 49 L. J. Ch. N. S. 321, 42 L. T. N. S. 225, 28 Week. Rep. 
 459, holding adjoining owner entitled to damages for loss of trade for obstruction 
 of highway in front of his place by defendant. 
 
 The decision of Exchequer Chamber was cited in Baird v. Wilson, 22 U. C. C. 
 P. 491, holding that only lie who lias sustained some damage peculiar to himself 
 can maintain action for obstruction of a highway. 
 Presumption from change in statute. 
 
 Cited in People ex rel. Creem v. Palmer, 13 Misc. 727, 35 X. Y. Supp. 231, on 
 presumption that change is made for some purpose, which should be given effect 
 if it can be ascertained. 
 "Good will" of a trade. 
 
 Cited in Inland Revenue Comrs. v. Muller [1901] A. C. 217, 70 L. J. K. B. X. S. 
 677, 84 L. T. N. S. 729, 49 Week. Rep. 003. 17 Times, L. R. 53, on "good will" 
 of a trade as being connected with the property itself. 
 Special injury as essential to right of action. 
 
 Cited in notes in 1 Eng. Rul. Cas. 553, on right of action of member of class 
 not specially injured for infringement of right belonging to such class; 7 Eng. 
 Rul. Cas. 482, on liability to injunction at instance of private person injured, 
 or public service corporation exceeding its powers; 8 E. R. C. 403, on necessity of 
 alleging and proving special damages. 
 
 1 E. R. C. 601, LYME REGIS v. HENLEY, 2 Clark & F. 331. 8 Bligh, X. R. 690. 
 1 Bing. N. C. 222, 1 Scott, 29 affirming the decision of the Court of King's 
 Bench, reported in 3 Barn. & Ad. 77, which affirms the decision of the Court 
 of Common Pleas, reported in 5 Bing. 91, 3 Moore & P. 278. 
 
 Tort liability of municipal corporations. 
 
 Cited in Lenzen v. Xew Braunfels, 13 Tex. Civ. App. 335, 35 S. W. 341, holding 
 
 that city is liable to patron for loss by fire caused by city's negligence in failing 
 
 to supply water with which to extinguish fire.
 
 105 NOTES ON ENGLISH RULING CASKS. |i E. Et. C. 60] 
 
 Cited in 1 Dillon, Mun. Corp. 5th ed. 589, on forfeiture of charter <>f municipal 
 corporation by reason of misconduct of officers. 
 
 The decision of the Court of King's Bench was cited in Lees v. Carleton County, 
 33 U. C. Q. B. 409, holding county liable for damage to county officer for breach 
 of its duty to furnish him necessary and proper accommodations as such officer. 
 
 The decision of the Court of Common Fleas was cited in Lucas v. Tippecanoe 
 County, 44 Ind. 524, 15 Am. Rep. 245 (dissenting opinion), on liability of munici- 
 pality for injury caused by negligence of officers or servants; Buffalo v. Vattan. 
 1 Sheldon, 4S3, to the point that municipality is liable for neglect to perforin 
 duty as well as for its negligent exercise of duty; Patch v. Covington, 17 B. Mun 
 722, GG Am. Dec. 186, holding that city is not responsible to owner of property 
 consumed by fire, on ground that it failed to keep cisterns filled with water, 
 whereby fire might have been extinguished. 
 Defective streets, bridges and the like. 
 
 Cited in Weet v. Brockport, 1G N. Y. 161 note, holding city liable for injury 
 caused by unguarded hole in sidewalk which was under construction under direc- 
 tion of its street commissioners; Hutson v. New York, 5 Sandf. 289, holding that 
 whenever an indictment lies against a corporation for non-repair, an action will 
 lie at the suit of an individual sustaining any peculiar damages, arising from 
 malfeasance or misfeasance; Hyatt v. Bondout, 44 Barb. 385, holding that where 
 statute imposes upon a village the duty to keep its highways in repair, it is liable 
 for injury resulting from its failure to place guard rails along the side of the 
 highway where necessary; Aldrich v. Tripp, 11 B. I. 141, 23 Am. Bep. 434, hold- 
 ing city liable for injury resulting from the street being made unsafe through the 
 negligent acts of its water commissioners and their employees; Weightman v. 
 Washington, 1 Black, 39, 17 L. ed. 52, holding municipal corporation, required by 
 its charter to keep bridge in repair, liable for injuries resulting from its failure 
 to do so; Naumburg v. Milwaukee, 77 C. C. A. 67, 146 Fed. 641, holding city liable 
 for injury caused by negligence of draw bridge tender employed by it; Barnes v. 
 District of Columbia, 91 LI. S. 540, 23 L. ed. 440, holding the District of Colum- 
 bia liable for injury caused by the defective and negligent condition of its 
 streets; Halifax v. Walker, Cameron (Can.) 569 (affirming 16 N. S. 371), 
 holding city liable to owner of omnibus line for injury to vehicles and loss ol 
 custom caused by accumulations of snow and ice permitted to remain in the 
 streets; Patterson v. Victoria, 5 B. C. 628, holding municipality liable for injury 
 from defect in bridge under its control where it knew or ought to have known 
 that it was unsafe; Adams v. Halifax, 13 X. S. 344, holding city liable for in- 
 jury from rails permitted to be left in street after discontinuance of a street 
 railway thereon; Harrold v. Simcoe County, 16 F T . C. C. I'. 4:>. holding county 
 liable for injury resulting from its failure to keep public bridge in repair: 
 Portland v. Griffiths, 11 Can. S. C. 333, on municipality being liable for damagi 
 from nonrepair of highway only where the nonrepair was such that an in- 
 dictment would lie against the corporation therefor. 
 
 Distinguished in Highway Comrs. v. Martin, 4 .Mich. 557, 69 Am. Dec. 333, 
 holding towns not liable for injuries resulting from defective highways; Albany 
 v. Cunlifl", 2 N. Y. 165, holding city not liable for injury resulting from negligent 
 construction of a bridge built by it without authority: Griffin v. New York, 9 
 N. Y. 456, Gl Am. Dec. 700, holding city not liable for injury from obstruction 
 in street, placed there by a third person, and of which it had no notice: Nan- 
 dyke v. Cincinnati, 1 Disney (Ohio) 532, holding city not liable for injury from 
 temporary accumulation of snow and ice on sidewalk of which it had no notice;
 
 1 E. R. C. 601] NOTES ON ENGLISH RULING CASES. 106 
 
 Steele v. York, 15 Ont. App. Rep. 666, holding county not liable for injury to one 
 on unimproved part of toll road allowance, not resulting from any defect or non- 
 repair of the toll road itself. 
 
 The decision of Court 6f King's Bench was cited in Waltham v. Kemper, 55 111. 
 346, 8 Am. Rep. 652, holding town not liable for injury from failure to keep road 
 in repair; Vancouver v. McPhalen, 45 Can. S. C. 194, holding that municipality 
 is liable for injury caused by its negligence in failing to keep its streets in repair. 
 
 The decision of the Court of King's Bench was distinguished in Dwyer v. Port- 
 land, 20 N. B. 423, holding that no action will lie against town for injuries from 
 nonrepair of street in the absence of statutory obligation to repair. 
 
 The decision of the Court of Common Pleas was cited in Denver v. Dunsmore, 7 
 Colo. 328, 3 Pac. 705; Ericsson v. Manchester, 3 Hughes, 196. Fed. Cas. No. 
 4,511, — holding that municipality may be held liable for injury to individual 
 caused by defective street; Navasota v. Pearce, 46 Tex. 525, 26 Am. Rep. 279, 
 holding that no action lies against municipality by party who has suffered in- 
 jury occasioned through want of repair of street; Peck v. Batavia, 32 Barb. 634, 
 holding that municipal corporation is not liable in damages to individual, for 
 injuries sustained because of defective sidewalk, where no absolute duty to repair 
 walks is imposed upon it; Jones v. New Haven, 34 Conn. 1, holding that city was 
 liable to one struck by dead limb that fell from tree where city was negligent; 
 Ludlow v. Com. 147 Ky. 706, 39 L.R.A..(N.S. ) 411, 145 S. W. 405, Ann. Cas. 
 1913D, 301, holding that city is criminally liable if its officers permit one of its 
 streets to become so out of repair that it constitutes public nuisance; Baltimore 
 v. Marriott, 9 Md. 160, 66 Am. Dec. 326, holding that person injured by slipping 
 upon sidewalk caused by city's negligence in failing to remove snow and ice may 
 recover for injury. 
 — Defective public works and buildings. 
 
 Cited in Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485, holding city liable 
 for injury from negligence in caring for building owned by it but used partly 
 for renting to private parties for profit; Bailey v. New York, 3 Hill, 531, 38 Am. 
 Dec. 669, holding city liable for injury from negligent construction of dam intend- 
 ed for use in its water supply system; Lenzen v. New Braunfels, 13 Tex. Civ. App. 
 335, 35 S. W. 341, holding city operating waterworks liable for negligently fail- 
 ing to furnish adequate water supply to extinguish a fire. 
 
 Distinguished in Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332, holding city 
 not liable for injury to pupil attending public school, for injury caused by de- 
 fective stairway in the school house; Eastman v. Meredith, 36 N. H. 284, 72 Am. 
 Dec. 302, holding town not liable to one injured through the defective construction 
 of building erected by it for town-house; Hawkeshaw v. Dalhousie Dist. 7 U. C. Q. 
 B. 590, holding district council not liable for injury resulting from nonrepair of 
 court house steps where duty as to repair of public buildings was by law placed 
 upon another officer; Buckingham v. Fisher, 70 111. 121, holding owner of private 
 wharf not liable for injury resulting from failure to provide guard rails on sides 
 of wharf where he owned no statutory duty to do so. 
 
 The decision of the Court of King's Bench was cited in Pittsburgh v. Grier, 22 
 Pa. 54, 60 Am. Dec. 65, holding city liable for injury resulting from its failure to 
 keep wharf, exclusively within its control, in repair; Degan v. Dunlap, 39 Phila. 
 Leg. Int. 32, 15 Phila. 69, on rights of the public as to having wharves kept in 
 repair; Lephron v. R. 4 Can. Exch. 100, holding the Crown not liable for injury 
 resulting from failure to remove or cover ice gathered on step of public build- 
 ing.
 
 107 NOTES ON ENGLISH RULING CASES. [1 E. R. C. GUI 
 
 The decision of the Court of King's Bench was distinguished in Welsh v. Km 
 land, 56 Yt. 228, 4S Am.*Rep. 7G2, holding village not liable for injuries resulting 
 from negligence of engineer of fire department in thawing out a hydrant. 
 
 The decision of the Court of Common Pleas was cited in Garrison v. New York. 
 5 Bosw. 407 (dissenting opinion), on liability for injury caused by failure to keep 
 public wharf in safe condition; Mendel v. Wheeling, 28 W. Va. 233, 57 Am. Rep. 
 664, holding that city is not liable for damages caused by its failure to exercise 
 its power in organizing and regulating waterworks. 
 -—Legal imposed duty or condition of charter as source of liability. 
 
 Cited in Browning v. Springfield, 17 111. 143, 63 Am. Dee. 345 ; Tritz v. I 
 City, 84 Mo. 632; Noble v. Richmond, 31 Gratt. 271, 31 Am. Rep. 726; Galveston 
 v. Posnaiusky, 62 Tex. 118, 50 Am. Rep. 517, — holding eitj- existing under special 
 charter giving it control over its streets, liable for injury from defective sidewalk: 
 Rowe v. Portsmouth, 56 N. H. 291, 22 Am. Rep. 464; New York v. Furze, 3 Hill, 
 612, — holding city having statutory authority to construct sewers liable to one 
 specially injured by its failure to keep them in repair; Lucas v. Tippecanoe 
 County, 44 Ind. 524 (dissenting opinion), on liability of municipal corporation 
 as to duties imposed by its charter; dissenting opinions in Detroit v. Blackeby, 
 21 Mich. S4, 4 Am. Rep. 450; Bell v. West Point, 51 Miss. 262, — on municipality 
 being liable for injury from defect in streets only where duty to keep them in 
 repair is imposed by statute. 
 
 Distinguished in Wallis v. Assiniboia, 4 Manitoba L. Rep. S9, holding munici- 
 pality not liable for damages from defective roads or bridges in the absence of 
 statute imposing such liability. 
 
 The decision of the Court of Common Pleas was cited in Rochester White Lead 
 Co. v. Rochester, 3 N. Y. 463, 53 Am. Dec. 316, holding city liable for damages 
 from negligent construction of culvert. 
 
 The decision of the Court of Common Pleas was distinguished in Gibson v. 
 Preston, L. R. 5 Q. B. 218, 10 Best. & S. 942, 39 L. J. Q. B. N. S. 131, 22 L. T. 
 N. S. 293, 18 Week. Rep. 689, where duties under the Public Health Act as to 
 highways were discussed; Bathurst v. Macpherson, L. R. 4 App. Cas. 256, 48 L. 
 J. P. C. N. S. 61, holding borough charged with care of streets liable to any one 
 injured by negligent defect. 
 — Assumed public duty of lessees or contractors. 
 
 Cited in Lampert v. Laclede Gaslight Co. 14 Mo. App. 376, holding one con- 
 tracting with city to perform a public duty liable to private person injured by lii^ 
 negligence in its performance; Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. 
 Dec. 713, holding contractor, employed by the state to keep public canal in re- 
 pair liable, for neglect of that duty, to one specially damaged thereby; Radway 
 v. Briggs, 37 N. Y. 256, holding that city's lessee of wharf was liable for value 
 of horse and load of merchandise, which, for want of suitable guard, had been 
 lost by backing off wharf into river; R. v. Mills, 17 U. C. C. P. 654, holding lessee, 
 from the Crown, of toll road indictable at the instance of the public for failure to 
 keep the road in repair; Winch v. Conservators of the Thames, L. R. 7 C. P. 458, 
 on duties assumed as part of franchise for a tow path. 
 
 Distinguished in Cunningham v. Furniss, 4 U. C. C. P. 514, holding contractor 
 supplying hydrants to city not liable to individual taxpayer for injury resulting 
 from their inadequacy to supply sufficient water to extinguish a fire; Simpson v. 
 Atty. Gen. [1904] App. Cas. 476, 20 Times L. R. 761, 74 L. J. Ch. N. S. 1, (.9 J. P. 
 85, 91 L. T. N. S. 610, 3 L. G. R. 190, when the question was as to presuming a 
 patent imposing a duty to keep up locks.
 
 1 E. R. C. 001] NOTES ON ENGLISH RULING CASES. 108 
 
 The decision of the Court of King's Bench was cited in Wendell v. Baxter, 12 
 Gray, 494, holding wharf proprietor liable for injury from defects if he failed in 
 reasonable care; Radway v. Briggs, 35 How. Pr. 422, holding lessee of public 
 wharf liable for injury resulting from his failure to keep proper guard rails 
 along its sides. • 
 
 — Pleading duty of municipality. 
 
 Cited in Hickok v. Plattsburgh, 15 Baib. 427, holding that in suit against 
 municipality for injury from defect in highway, its duty to keep the highway in 
 repair must be alleged and proven; Barry v. Port Jervis, 64 App. Div. 268, 72 N. 
 Y. Supp. 104, on necessity of showing neglect of a duty for which the corporation 
 would be liable to an indictment and special injury to plaintiff therefrom. 
 
 The decision of the Court of King's Bench was cited in Shelby County v. Deprez, 
 87 Ind. 509, holding that complaint for injury resulting from failure to keep 
 bridge in repair must show the duty to keep it in repair. 
 Construction of pleading. 
 
 Cited in People v. Braman, 30 Mich. 460, on words in pleading an instrument 
 being taken to have the same meaning as the same words in the instrument 
 itself. 
 Necessity of showing special damage to sue for breach of public duty. 
 
 Cited in Stetson v. Faxon, 19 Pick. 147, 31 Am. Dec. 123, holding that private 
 person sustaining special damage for the obstruction of a street may maintain 
 an action therefor; Rudder v. Koopmann, 116 Ala. 332, 37 L.R.A. 489, 22 So. tiO 1 ; 
 Myers v. Malcom, 6 Hill, 292, 41 Am. Dec. 744, — holding that private person sus- 
 taining special damage from the keeping of gunpowder in such quantity as to 
 constitute a public nuisance, may recover therefor; Farrelly v. Cincinnati, 2 Dis-, 
 ney (Ohio) 516, holding that private action cannot be maintained for defective 
 highway without a showing of special damage; St. Paul Water Co. v. Ware, 16 
 Wall. 56G, 21 L. ed. 485; Path v. Tower Grove & L. R. Co. 105 Mo. 537, 13 L.R.A. 
 74, 10 S. W. 913; Sawyer v. Rutland & B. R. Co. 27 Vt. 370,— on right of private 
 party injured through neglect of public duty to maintain action therefor; Cline v. 
 Cornwall, 21 Grant, Ch. (U. C. ) 129, holding that municipality should be re- 
 strained from constructing weighing scales on corner of principal street, at 
 suit of one who kept store at such corner, on ground of nuisance. 
 
 Cited in note in 1 Eng. Rul. Cas. 621, on right of action by individual specially 
 damaged by nonperformance of duty. 
 
 The decision of the Court of Common Pleas was cited in McConnell v. Dewey. 
 5 Neb. 385, holding that action at common law, will not lie against supervisor 
 of public roads, by individual for injury occasioned to his person or property, by 
 reason of defect in road or bridge; McKennan v. Bodine, 6 Phila. 582, 25 Phila. 
 Leg. Int. 109, holding that inspector of flour is liable in action on case for negli- 
 gence to person injured by his negligent inspection ; Harrison v. Brega, 20 U. 
 C. Q. B. 324, holding that action for damages lies against register for negligent 
 omission to mention mortgage in certificate to plaintiff's damage; Walker v. 
 Halifax, 10 N. S. 371, holding that owner of line of omnibuses may recover for 
 injury to vehicles and loss of custom caused by failure of city to remove snow and 
 ice from street. 
 
 The decision of the Court of Common Pleas was distinguished in House v. 
 Houston Waterworks Co. 88 Tex. 233, 28 L.R.A. 532, 31 S. W. 179, holding that 
 waterworks company operating under contract with city is not liable at suit of 
 property owner for damages from fire on ground that company had not kept water 
 pressure up to its contract gauge.
 
 109 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 601 
 
 Effect of acceptance of city or public charter. . 
 
 Cited in State v. Manchester & L. R. Co. til) X. II. :;.">. 38 Atl. 736, on corpora- 
 tion accepting a charter being hound by its provisions. 
 
 The decision of the Court of Common Pleas was cited in Coram v. St. John, 12 
 N. B. 443, holding city not bound by its charter to build and keep in repair 
 wharves and sea walls for the protection of adjoining lands. 
 Indictment for violation of duty. 
 
 Cited in Irwin v. Dixion, 9 How. 10, 13 L. ed. 25, on indictment as being the 
 proper remedy for violation of public duty: Stein v. State. 37 Ala. 123, on indict- 
 ment for violation of public duty. 
 
 Cited in 4 Dillon, Mun. Corp. 5th ed. 2S01, on remedy by indictment against 
 municipality. 
 
 The decision of the Court of Common Pleas was cited in Illinois C. R. Co. v. 
 Holland, 147 Ky. 69!), 145 S. W. 389, holding that city may be indicted for main- 
 taining common nuisance where it permits streets to be dangerous for travel, 
 although officers may be liable to indictment therefor. 
 — Of corporation for breach of charter duty. 
 
 The decision of the Court of King's Bench was cited in Com. v. Hancock Free 
 Bridge Corp. 2 Gray, 58, holding toll-road corporation liable to indictment for 
 failure to keep the road in repair; Pittsburgh, V. & C. R. Co. v. Com. 101 Pa. 
 192, 12 W. N. C. 280, 40 Phila. Leg. Int. 09. holding that indictment will lie 
 against corporation for violation of duty imposed by its charter. 
 Public duty respecting shores of sea. 
 
 Cited in note in 58 L.R.A. 757, 760, on levees as public improvements. 
 
 Cited in 2 Farnham, Waters, 1329, 1330, on duty to construct and maintain 
 artificial sea walls. 
 
 The decision of the Court of Common Pleas was cited in Coram v. St. John, 12 
 N. B. 443, holding city of St. John not bound by charter to maintain sea wall: 
 Atty. Gen. v. Tomline, L. R. 12 Ch. Div. 214; Hudson v. Tabor. L. R. 2 Q. B. Div. 
 290, 46 L. J. Q. B. N. S. 463, 36 L. T. N. S. 492, 25 Week. Rep. 740, on dictum 
 as to King's duty to protect the shore. 
 Liability of corporation having- public grant. 
 
 Cited in Dundas v. Hamilton & M. Road Co. IS Grant, Ch. (U. C.) 311, holding 
 that canal company which failed to keep bridge in repair could not restrain in- 
 corporated road company from erecting fixed bridge, which would have effect to 
 impede navigation. 
 
 The decision of the Court of Common Pleas was cited in Phelps v. Grand Trunk 
 Nav. Co. 12 U. C. Q. B. 245, holding that navigation company is liable under 
 charter for injuries caused by obstructions in any part of natural channel; Hol- 
 lister v. Union Co. 9 Conn. 436, 25 Am. Rep. 36, holding that corporation created 
 by state to remove obstructions from navigable stream is not liable for injury to 
 adjoining land by washing away of bank, where work was done in careful and 
 prudent manner; Burroughs v. Housatonic R. Co. 15 Conn. 124, 38 Am. Dec. 64. 
 holding that railroad company in absence of negligence was not liable for de- 
 struction by fire of building near railroad; Dennis v. Larkin, 19 Iowa, 434, to 
 the point that landowner was entitled to damages caused by negligent failure of 
 corporation to repair sea wall, which it was directed t<> and required to repair. 
 
 Who are public officers. 
 
 Cited in note in 17 L.R.A. 243, on who are public officers. 
 
 The decision of the Court of Common Pleas was cited in People ex rel. Bradley
 
 1 E. E. C. 601] NOTES ON ENGLISH RULING CASES. 110 
 
 v. Stevens, 51 How. Pr. 103, to the point that every office is considered public, 
 duties of which concern public; Dempsey v. New York C. & H. R. E. Co. 146 N. 
 Y. 290, 40 N. E. 867, holding that person appointed to office of railroad police- 
 man, under Eailroad Law, is public officer within meaning of constitution pro- 
 hibiting acceptance of free pass from corporation; People ex rel. Kelly v. Brook- 
 lyn, 77 N. Y. 503, 33 Am. Eep. 659, holding that representative in Congress holds 
 "public office" within meaning of charter of city of Brooklyn, which prohibits 
 alderman from holding any other public office; Conner v. New York, 2 Sandf. 355, 
 holding that public officer is agent elected or appointed to perform certain politi- 
 cal duties in administration of government; Archibald v. Haldan, 30 U. C. Q. 
 B. 30, to the point that every one who is appointed to discharge public duty and 
 receives compensation, is constituted public officer; People v. Hayes, 7 How. Pr. 
 248, holding that commissioners appointed by act of legislature to lay out and 
 build road for use of public, are public officers; Michael v. State, 163 Ala. 425, 
 .10 So. 929, holding that office of city treasurer is public office; Foltz v. Kerlin, 105 
 Ind. 221, 55 Am. Eep. 197, 4 N. E. 439, holding that postmasters are Federal 
 officers under provision of state constitution; Bicker's Petition, 66 N. H. 207, 24 
 L.E.A. 740, 29 Atl. 559, holding that member of bar is not public officer, for 
 which women are disqualified by common law. 
 — Liability for misfeasance or nonfeasance. 
 
 Cited in note in 22 L.E.A. 830, 835, on personal liability of highway officers for 
 negligence. 
 
 Cited in 1 Thomas, Neg. 2d ed. 77, on liability of public officer for failure to 
 keep highway in repair. 
 
 The decision of the Court of Common Pleas was cited in Hover v. Barkhoof, 44 
 N". Y. 113, holding that public officers whose duties are not judicial, are answer- 
 able in damages to any one specially injured by negligent performance of, 
 or omission to perform duties of office; Sells v. Dermody, 114 Iowa, 344, 86 N. 
 W. 325, holding that fact that person elected road supervisor is subject to penalty 
 for refusing to accept office does not relieve such officer from individual liability 
 for negligence in failing to keep road in repair. 
 
 The decision of the Court of Common Pleas was distinguished in Williams v. 
 Adams, 3 Allen, 171, holding that prisoner cannot maintain action against master 
 of house of correction for neglect to provide him with sufficient food if he is kept 
 in usual way and there is no evidence of express malice, or of such gross neg- 
 ligence as to imply malice. 
 Amendment of verdict. 
 
 The decision of the Court of Common Pleas was cited in Baldwin v. Henderson, 
 4 U. C. Q. B. 361, holding that where plaintiff has general verdict upon record 
 containing several counts and defendant moves to arrest judgment on ground 
 that some of counts are defective if evidence applies equally to good and bad 
 counts verdict may be amended by confining it to good count. 
 Liability for breach of duty. 
 
 Cited in Congreve v. Morgan, 4 Duer, 439, holding that owner of premises is not 
 liable for injury to child of tenant caused by breaking of stone covering of vault, 
 in absence of proof of negligence. 
 
 1 E. E. C. 623, HAMMERSMITH E. CO. v. BRAND, L. R. 4 H. L. 171. 21 L. T. 
 
 N. S. 238, IS Week. Rep. 12, 38, L. J. Q. B. N. S. 265. 
 Liability of railroad company for damages arising- from use of railway. 
 
 Cited in Austin v. Augusta Terminal R. Co. 10S Ga. 671, 47 L.R.A. 755, 34 S.
 
 Ill NOTES ON ENGLISH RULING CASES. [1 E. R. C. 623 
 
 E. 852; Atchison, T. & S. F. R. Co. v. Armstrong, 71 Kan. 366, 1 L.R.A.(N.S.) 
 113, 114 Am. St. Rep. 474, 80 Pac. 97S; Pennsylvania R. Co. v. Marchant, 119 
 Pa. 541, 4 Am. St. Rep. 659, 13 Atl. 690, 21 W. N. C. 300, 45 Phila. Leg. Int. 
 196; Fisher v. Seaboard Air Line R. Co. 102 Va. 363, 46 S. E. 381, 1 Ann. Cas. 
 622, — holding that a railroad company authorized by law is not liable to an ad- 
 jacent landowner for damages resulting from noises, jarring and shaking of build- 
 ings, dust and smoke incident to the running of trains; Qnillinan v. Canada 
 Southern R. Co. 6 Ont. Rep. 567, on the necessity of a railway company giving 
 compensation to owners of land abutting on street where railway is operated; 
 St. Catharines R. Co. v. Norris, 17 Ont. Rep. GG7, holding that a person could not 
 recover for loss of custom at his mill caused by the operation of a railroad; Re 
 Devlin, 40 U. C. Q. B. 160, holding that under the railroad act, a person owning 
 a house along a street upon which a railroad was constructed could not re- 
 cover for damages resulting from vibration resulting in no structural injuries; 
 Powell v. Toronto, H. & B. R. Co. 25 Ont. App. Rep. 209, holding same, unless 
 compensation was fixed and allowed by the act giving permission to use the 
 street for railway purposes; Re Canada Southern R. Co. 41 U. C. Q. B. 195; 
 Pion v. North Shore R. Co. 14 Can. S. C. 677, — on compensation for injury from 
 railroad when no part of the claimant's land is taken; Canadian P. R. Co. v 
 Roy, Rap. Jud. Quebec, 12 B. R. 543, holding railway company, authorized by stat- 
 ute, not liable for injury resulting from the operation of the railway, in the ab- 
 sence of negligence. 
 
 Cited in notes in 17 L.R.A.(N.S.) 1056, on smoke, noise, etc., incident to ordi- 
 nary operation of railroad as a "damaging" of property within constitutional 
 provision for compensation; 1 Eng. Rul. Cas. 596, 597, on right to compensation 
 for damages from operation of railway. 
 
 Distinguished in Baker v. Boston Elev. R. Co. 1S3 Mass. 17S, 66 N. E. 711, 
 holding that noise arising from the operation of a railroad causes such injury to 
 adjoining property, that it may be recovered for under the statute of that state: 
 Cogswell v. New York, N. H. & H. R. Co. 103 N. Y. 10, 57 Am. Rep. 701, 8 N. E. 
 537, holding railroad liable for injury to adjoining owner from soot, coal dust 
 and cinders from its coal house, though it had authority to construct and operate 
 its road; Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 9 L.R.A. 208, 22 Am. 
 St. Rep. 42, 14 S. W. 259, holding railroad company liable for injury from the 
 construction and operation of its road though no part of the claimant's land was 
 taken; Re Birely, 28 Ont. Rep. 468, holding that under the railroad law of that 
 province, a person owning property along a street upon which was operated a 
 railroad, was entitled to damages, although no part of his land was taken; R. v. 
 Barry, 2 Can. Exch. 333, holding adjoining owner entitled to compensation where 
 access to the land was interfered with and its frontage on the street destroyed 
 by the construction of a railway siding along the sidewalk ; Renaud v. De Quebec, 
 8 Quebec L. R. 102, holding damages recoverable under statute for inconveniences 
 caused property owner by operation of railroad. 
 — For fires started by its engines. 
 
 Cited in St. Louis & S. F. R. Co. v. Mathews, 165 U. S. 1, 41 L. ed. 611, 17 Sup. 
 Ct. Rep. 243, on the liability of a railroad company for fires set by its engines, 
 where company was authorized by law; H. & T. C. R. Co. v. McDonough, 1 Tex. 
 App. Civ. Cas. (White & W.) 354; Missouri, K. & T. R. Co. v. Wilder, 3 Ind. 
 Terr. 85, 53 S. W. 490, — holding that a railroad company authorized by a law is 
 not liable for fires started from sparks from their engines, in the absence of neg- 
 ligence; Furlong v. Carroll, 7 Ont. App. Rep. 145. on the liability of a railroad
 
 1 E. R. C. 623] NOTES ON ENGLISH RULING CASES. 112 
 
 company for fires started by fires from its engines, where the company is licensed 
 by statute to use them; Oatman v. Michigan, C. R. Co. 1 Ont. L. Rep. 145, 
 holding that a railroad company was not liable for fires set by sparks from its 
 engines unless it was negligent; Jaffrey v. Toronto, G. & B. R. Co. 23 U. C. C. P. 
 553, on the liability of a railway company for fires caused by an accumulation of 
 rubbish along their right of way. 
 
 Cited in note in 23 L. ed. U. S. 357, on liability of railroad company for fires 
 set by it along its line. 
 
 Distinguished in Canadian P. R. Co. v. Roy, Rap. Jud. Quebec, 12 B. R. 543 
 (reversing Rap. Jud. Quebec, 9 B. R. 551), holding that a railroad company was 
 not liable for fires started by its engines unless it was negligent; Wealleams v. 
 Canada S. R. Co. 21 Ont. App. Rep. 297, holding that a foreign railroad com- 
 pany operating over the lines of a domestic company is subject to the common- 
 law liability for fire set by its engines, unless licensed by law. 
 — Of owners of steam engines. 
 
 Cited in Brewer v. Humble, 26 N. B. 495, holding that where the owner of a 
 steam mill was bound by a covenant to keep the mill in operation, he was not 
 liable for the destruction of an adjoining building by sparks, unless he was negli- 
 gent. 
 Construction of words "by reason of the railway" as used in statutes. 
 
 Cited in Levesque v. New Brunswick R. Co. 29 N. B. 588 (dissenting opinion), 
 on the meaning of the words, "by reason of the railway" as used in the railway 
 statutes; May v. Ontario & Q. R. Co. 10 Ont. Rep. 70, holding that any damage 
 done by reason of negligence in the operation of a railroad in the carriage of 
 passengers is damage "by reason of the railway" under the statute; McCallum 
 v. Grand Trunk R. Co. 30 U. C. Q. B. 122, holding that a fire started by coals 
 dropped from an engine was an injury sustained "by reason of the railway" so 
 as to be barred by the lapse of the limited time under the statute. 
 Damages for injuries resulting from act authorized by legislative en- 
 actment. 
 
 Cited in Rigney v. Chicago, 102 111. 64, on nonliability at common law for in- 
 jury from act done without negligence and pursuant to statutory authority; Lin- 
 coln v. Com. 164 Mass. 368, 41 N. E. 489, holding that if the legislature 
 authorizes something to be done in a neighborhood of a person's land which di- 
 minishes its value, but would not have been actionable at common law if done by 
 a neighbor, and the statute does not award compensation, he cannot claim any; 
 Baker v. Boston Elev. R. Co. 183 Mass. 170, 66 N. E. 711, on right of action for a 
 nuisance as the test of liability for act done under authority of statute; Sayre 
 v. Newark, 60 N. J. Eq. 361, 48 L.R.A. 722, 83 Am. St. Rep. 629, 45 Atl. 985, 
 holding that the legislature had the authority to authorize a city to use a tidal 
 stream to carry off sewage, and if private property along it depreciated in value, 
 there could be no compensation therefor; Atlantic Coast Line R. Co. v. Golds- 
 boro, 155 N. C. 356, 71 S. E. 514, to the point that no court can treat that as 
 wrong which legislature has authorized; Sawyer v. Davis, 136 Mass. 239, 49 Am. 
 Rep. 27; Spencer v. Point Pleasant & O. River R. Co. 23 W. Va. 406, — on non- 
 liability, in the absence of negligence, for injury resulting from the doing of acts 
 authorized by statute ; Canadian P. R. Co. v. Parke, 6 B. C. 6. holding that owner 
 of water privilege for irrigation purposes is not liable for unavoidable injuries 
 incident to exercise of statutory rights ; Leahy v. Sydney, 37 Can. S. C. 464, hold- 
 ing that if a municipality is authorized to carry on a business not only is it pro- 
 tected against liability for damages arising as necessary and unavoidable, but
 
 113 NOTES ON ENGLISH RULING (ASKS. [1 E. 11. C. 62:$ 
 
 which but for being authorized would have sustained a cause of action therefor: 
 St. John v. Pattison, Cameron (Can.) 537, holding that where the statute gave i 
 city authority to alter the level of its streets, there was no limitation on its right 
 to do so except that it did not make them a public nuisance, and there could be 
 damages recovered because of an alteration; McMillan v. Southwest Boom Co. 17 
 N. B. 715, holding that a boom company authorized by law to build and main- 
 tain a boom was not liable for damages for obstructing navigation unlc.-s it was 
 negligent; Lirette v. Moncton, 36 N. B. 475, holding that in constructing a sewer 
 which was authorized by law, a city was not liable for damages incurred by the 
 sewer, unless the city has exceeded its authority or has been negligent; McArthur 
 v. Collingwood, 9 Ont. Rep. 3G8, holding that claim for damages from overllou 
 caused by insufficiency of a sewer, is not one for compensation under municipal 
 act; Garfield v. Toronto. 22 Ont. App. Rep. 128, holding that where an act was 
 authorized by law, the party doing it was not liable for necessary resulting in- 
 juries to other property unless he was negligent: Holliday v. Wakefield Corp. 
 [1891] A. C. 81, 60 L. J. Q. B. N. S. 36], 64 L. T. N. S. 1, 40 Week. Rep. 129, 
 55 J. P. 325, 17 Eng. Rul. Cas. 622, suggesting that a clause was put into an 
 enabling act to forestall the argument that consequential damages from a legal- 
 ized act could not be recovered 
 
 Cited in note in 1 Eng. Rul. Cas. 302. 306, on nonliability of public associations 
 or corporations for accidents occurring through use of statutory powers. 
 
 Distinguished in Dow v. Northern R. Co. 67 N. H. 1, 36 Atl. 510, holding that 
 under the constitution the legislature cannot authorize the doing of an act which 
 would amount to a taking of private property without compensation; Brown 
 v. Bathurst Electric & Water Power Co. 3 N. B. Eq. 543, holding that legislative 
 authority to do an act is not a defense to an action for injury resulting there- 
 from where the act is negligently performed; Davie v. Montreal Water & P. Co. 
 Rap. Jud. Quebec 23 C. S. 14], holding that a water company authorized by law 
 to erect and maintain a water system, was liable to the owners of property 
 adjacent to their pumping station for damages caused by noise and vibration. 
 Damages for injuries from legalized nuisances. 
 
 Cited in Sawyer v. Davis, 130 Mass. 239, 49 Am. Rep. 27, holding that where 
 the legislature authorized the blowing of factory whistles and ringing of bells, 
 the same, though a nuisance otherwise, became legal; Cogswell v. New York, N. 
 H. & H. R. Co. 103 N. Y. 10, 57 Am. Rep. 70], 8 N. E. 537, on the authority of the 
 legislature to authorize the doing of that which would without authority be a 
 nuisance; H. & T. C. R. Co. v. McDonough, 1 Tex. App. Civ. Cas. (White & W.i 
 354; Spencer v. Point Pleasant & O. River R. Co. 23 W. Va. 406, — holding that 
 where a person or corporation is authorized by the legislature to do an act which 
 but for the authority would have been a nuisance they are protected from all lia 
 bility provided they do not act negligently; Hopkin v. Hamilton Electric Light 
 & Cataract Power Co. 2 Ont. L. Rep. 240, holding that electric power company. 
 without authority to condemn land, is liable for damages caused to adjoining 
 property by vibration resulting from operation of engines in power house; Metro- 
 politan Asylum v. Hill, 6 App. Cas. 193. 50 L. J. Q. B. N. S. 353, 44 L. T. N. S. 
 653. 29 Week. Rep. 617, 45 J. P. 664, 16 Eng. Rul. Cas. 556, holding enabling 
 power to do what might become a nuisance was not a statutory protection like 
 a positive direction to do it; London, B. & S. C. R. Co. v. Truman, 11 App. Cas. 
 45, 55 L. J. Ch. N. S. 354, 54 L. T. N. S. 250, 34 Week. Rep. 657, 50 J. P. 388, 22 
 Eng. Rul. Cas. 80, holding it was not actionable to locate cattle yards on pur- 
 chased lands, it being done by parliamentary authority, though because of prox- 
 Notes on E. R. C— 8.
 
 1 E. R. C. 623] NOTES ON ENGLISH RULING CASES. 114 
 
 imity to plaintiff's land it might at common law have been a nuisance; 
 Canadian Pacific R. Co. v. Parke [1899] App. Cas. 535, 68 L. J. P. C. N. S. 89, 
 22 Eng. Rul. Cas. 99 (reversing 6 B. C. 6), holding permissive authority to make 
 irrigation works did not deprive a railway company, whose embankment was 
 injured by the water, of a right of action. 
 
 Cited in notes in 1 L.R.A. (N.S.) 60, on effect of legislative authority upon 
 liability for private nuisance; 16 Eng. Rul. Cas. 580, 582, 583, on local or statu- 
 tory authority as justification for a nuisance; 19 E. R. C. 273, on statutory au- 
 thority as justification for nuisance. 
 
 Distinguished in Montreal Street R. Co. v. Gareau, Rap. Jud. Quebec, 10 B. 
 R. 417, where local laws relative to liability of corporation authorized by legis- 
 lature to carry on business in nature of nuisance for damages caused thereby 
 differed from those of England written in French. 
 Compensation for private property taken for a public use. 
 
 Cited in McRae v. Toronto & N. R. Co. 22 U. C.'C. P. 1, on the compensation 
 to owners of property affected by the working of a railway; Re Collins, 42 U. C. 
 Q. B. 378, on the award of compensation where private property is taken for a 
 public use under .statutory authority; Re Scott, 6 Manitoba L. Rep. 193, hold- 
 ing that compensation for right of way for railroad should be difference between 
 value of land as it existed before, and of remaining portion after construction 
 of railroad; Vezina v. R. 17 Can. S. C. 1, holding that compensation for the 
 taking of land by railway company includes damages from the operation as well 
 as from the construction of the railroad; Grand Trunk P. R. Co. v. Ft. William, 
 43 Can. S. C. 412, holding that board of railway commissioners on application to 
 construct railway en highway had power to impose condition directing that 
 compensation should be made to abutting owners. 
 
 Distinguished in Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 9 L.R.A. 
 298, 22 Am. St. Rep. 42, 14 S. W. 259, holding that under the constitution of 
 the state, the land owner whose land is injured by the construction and opera- 
 tion of a railroad is entitled to compensation, though no part of his land is 
 taken. 
 
 — Award as cutting off compensation for injuries resulting from subse- 
 
 quent use of property taken. 
 Cited in McArthur v. Collingwood Corp. 9 Ont. Rep. 368, holding that where 
 a municipal drain has been constructed and in operation, the person damaged 
 by reason of its being inadequate can not resort to arbitration under the con- 
 demnation act authorizing it for compensation for the injury. 
 
 — Elements to be considered in fixing same. 
 
 Cited in Shenandoah Valley R. Co. v. Shepherd, 26 W. Va. 672, holding 
 that damages for injury to trade should not be considered in awarding com- 
 pensation for land taken by a railroad; Pion v. North Shore R. Co. 14 Can. S. 
 C. 677 (dissenting opinion), on the right of an owner to compensation where 
 no part of his land is taken but his injury is a personal one and not to the 
 land; Vezina v. R. 17 Can. S. C. 1, holding that damages awarded as compensa- 
 tion for the taking of land under the Canadian railway law, include all 
 damages resulting from its operation as well as the construction of the rail- 
 road; Paradis v. R. 1 Can. Exch. 191, holding that where no part of land is 
 taken, damages to a man's trade or business or any damage not arising out of 
 land itself are not grounds of compensation: R. v. Barry, 2 Can. Exch. 333, on 
 whether compensation is to be awarded for injurious affection of property arising 
 from a user of the works authorized by statute; Re Scott, 6 Manitoba L. Rep.
 
 115 NOTES ON ENGLISH RULING ( ASES. LI E. R. C. 667 
 
 193, holding that compensation was correctly allowed for depreciation in the 
 value of the land not taken, occasioned hy the anticipation of the subsequent 
 user of the railroad on the land taken; Great Western R. Co. v. Warner, 19 Grant, 
 Ch. (U. C.) 506, holding that in fixing the compensation for land taken for 
 railway purposes, it is right that matters other than the mere value of the 
 land taken, should be considered; Re Canada Southern R. Co. 41 U. C. Q. B. 
 195, holding that in fixing the value of land to be taken for a deviation, the 
 value of the land with the old line is to be considered and not the original 
 value. 
 
 Cited in 2 Elliott Railr. 2d ed. 623, on matters to be considered in estimating 
 damages for taking of land for railroad. 
 
 Distinguished in Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 
 418, 41 L. J. Exch. N. S. 137, L. R. 5 Exch. 221, 39 L. J. Exch. N. S. 130, L. R. 
 3 Exch. 306, 37 L. J. Exch. N. S. 177, 3 Eng. Rul. Cas. 455, holding damage for 
 noise, vibration, and the like might be included where part of the property was 
 taken. 
 
 Heading to different portions of statute as key to construction of doubt- 
 ful parts. 
 
 Cited in Vezina v. Reg. 17 Can. S. C. 1; Victoria v. Union Club, 3 B. C. 363; 
 Re Bell-Irving, 4 B. C. 219; Corbin v. Lookout Min. & Mill. Co. 5 B. C. 281; 
 R. v. Brooks, 9 B. C. 13, 1 B. R. C. 725; Davidge v. Kirby, 10 B. C. 231: 
 R. v. Connor, 2 Manitoba L. Rep. 235, 1 Terr. L. Rep. 4; Moran v. O'Regan, 38 
 N. B. 399; R. ex rel. Carr v. Cutlibert, 1 Ont. L. Rep. 211; R. v. Shand, 7 Ont 
 L. Rep. 190; Toronto, H. & B. R. Co. v. Simpson Brick Co. 17 Ont. L. Rep. 632,— 
 holding that the headings of the different portions of a statute are to be referred 
 to as a part of the statute to determine the sense in cases of doubtful meaning; 
 Toronto v. Toronto R. Co. C. R. [1907] A. C. 96; Fraser v. Hemming, [1911] 
 St. R. Qd. 144; Robinson v. Canadian Northern R. Co. 19 Manitoba L. Rep. 
 300, — to the point that headings of sections of act are regarded as furnishing 
 key to clauses ranged under such headings; Lawrie v. Rathbun, 38 N. C. Q. B. 
 255, holding that the divisions of a statute under which the clauses are ar- 
 ranged and classified may be looked to as affording a key to construction, where 
 language is doubtful. 
 
 Distinguished in Sewell v. British Columbia Towing & Transp. Co. 9 Can. S. 
 C. 527, holding that where the terms of the statute are not doubtful or repug- 
 nant, the headings are not to be referred to as governing the body of the act. 
 Use of averages in estimating amounts. 
 
 Cited in LeRoi Co. No. 2 v. Northport Smelting & Ref. Co. 10 B. C. 138, 
 holding that where the smelter man having sampled ore by a method other than 
 the one provided by contract, he can not complain if the method used by the court 
 in striking an average amount results more advantageously to the mine owner. 
 Construction against party leaving matter in doubt. 
 
 Cited in note in 2 Eng. Rul. Cas. 755, on construing ambiguous instrument most 
 strongly against grantor. 
 
 1 E. R. C. 667, BRADLAUGH v. CLARKE, 48 L. T. N. S. 681, 31 Week. Rep. 
 077, L. R. 8 App. Cas. 354, 52 L. J. Q. B. Div. N. S. 505, 47 J. P. 405, Re- 
 versing the decision of the Court of Appeal, reported in L. R. 7 Q. B. Div. 
 38, 45 J. P. 4S4. 
 
 Right of recovery of penalty imposed by statute. 
 
 Cited in Duval v. De St. Alexandre, Rap. Jud. Quebec, 24 S. C. 271, on the 
 
 sole right of the crown to recover a penalty imposed by statute.
 
 1 E. R. C. 667J NOTES ON ENGLISH RULING CASES. 116 
 
 Distinguished in Maires v. Baltimore & 0. R. Co. 73 App. Div. 265, 76 N. Y. 
 Supp. 838, holding that where the violation of the statute imposing the duty, 
 amounts to a felony no cause of action arises to a private person. 
 
 — Action on behalf of state. 
 
 Cited in Hand v. Warren, 7 B. C. 42, holding that under the mining law aa 
 action to set aside a certificate of improvements must be maintained by the At- 
 torney General on behalf of the state; Dixon v. Fairer L. R. 17 Q. B. Div. 658, 
 holding that in an action by the attorney general on behalf of the crown, the ac- 
 tion proceeds the same as an action by an individual and the crown is entitled 
 to the same privileges. 
 
 — By common informer. 
 
 Cited in Shrigley v. Taylor, 4 Ont. Rep. 396, holding that where the statute 
 gave the right to recover a penalty to any one who would sue for the same, any 
 offender can be sued by any one, who may be a common informer. 
 
 — By more than one party. 
 
 Cited in Chaput v. Robert, 14 Ont. App. Rep. 354, holding that where the 
 statute gave the right of action to any person who may sue, more than one 
 person might join as plaintiffs to recover the penalty. 
 Who is a common informer. 
 
 Cited in Garrett v. Roberts, 10 Ont. App. Rep. 650, holding that one suing for 
 a penalty given under the election statutes, is a common informer. 
 Nature of action to recover penalty. 
 
 Cited in Atty. Gen. v. Bradlaugh, L. R. 14 Q. B. Div. 667, 54 L. J. Q. B. N. S. 
 401, 52 L. T. N. S. 5S9, 33 Week. Rep. 673, 49 J. P. 500 (separate opinion) 
 holding an action by the attorney general to recover a penalty for voting in the 
 house of commons without taking an oath was a civil action. 
 Construction of statutes. 
 
 Cited in Winnipeg v. Brock, 20 Manitoba L. Rep. 669, to the point that in 
 construction of statute adherence should be had to ordinary meaning of worde, 
 unless that is at variance with intent of legislature, to be collected from stat- 
 ute itself as leads to any manifest absurdity, in which case language may be 
 varied. 
 
 Cited in note in 14 Eng. Rul. Cas. 831, on rules for interpretation of statute. 
 
 — By reference to statutes repealed. 
 
 Cited in Robson v. Regina, 4 Terr. L. Rep. 80, on the interpretation of stat- 
 utes; Montreal & St. L. Light & P. Co. v. Robert, C. R. [1906] A. O. 227 (re- 
 versing Rap. Jud. Quebec 25 S. C. 473) to the point reference to statute wholly 
 repealed is not safe for purpose of finding out meaning of substituted statute; 
 Bradlaugh v. Gossett L. R. 12 Q. B. Div. 271, 53 L. J. Q. B. N. S. 209, 53 L. T. 
 N. S. 620, 32 Week. Rep. 552, on the interpretation of statutes by the courts in- 
 stead of the body enacting them. 
 
 1 E. R. C. 082, ST. PANCRAS v. BATTERBURY. 2 C. B. N. S. 477, 3 Jur. N. S. 
 
 1106, 26 L. J. C. P. N. S. 243. 
 Kxclusiveness of remedy provided by statute. 
 
 Cited in Bigelow v. Nickerson, 30 L.R.A. 336, 17 C. C. A. 1, 34 U. S. App. 261, 
 70 Fed. 113 (dissenting opinion) ; Cape Breton v. McKay, 18 Can. S. C. 639, — 
 on the restriction to statutory remedies where new obligation is created by stat- 
 ute; Askew v. Myrick, 54 Ala. 30; Janney v. Buell, 55 Ala. 408; Bath v. Miller, 
 5 Me. 341; Ex parte Eagles, 13 N. B. 51; Vassie v. Vassie, 22 N. B. 76; Cruise
 
 117 . NOTES ON ENGLISH RULING CASKS. |1 E. R. C. 686 
 
 v. Moncton, 35 N. B. 249; Crombie v. Jackson, 34 U. C. Q. B. 575,— holding that 
 when a new obligation is created, and a remedy given, by statute, that is the 
 only one; Ryan v. llawes, 12 N. S. 595, to the point that where right and remedy 
 are both created by legislature, statutory remedy alone can be pursued; Vandecar 
 v. East Oxford, 3 Ont. App. Rep. 131, to the point that where right is created by 
 statute, remedy prescribed by statute and no other can be pursued; European k. 
 N. A, R. Co. v. Thomas, 14 N. B. 42, holding same as to pecuniary obligation; 
 Murray v. Dawson, 17 U. C. C. P. 580, holding that where the statute provided .. 
 remedy for a failure to complete a public ditch, that remedy must be followed or 
 no recovery can be had. 
 
 Cited in note in 34 L.R.A. 730. on right to enforce stockholder's liability out- 
 side of state of incorporation. 
 
 Cited in Constantineau Defacto Doc. 645, on effect of statutory proceedings to 
 try validity of elections on right to quo warranto. 
 
 Distinguished in Eastern Judicial Board v. Winnipeg, 3 Manitoba L. Rep. 537, 
 holding that the remedy to enforce taxes and assessments were cumulative and 
 not exclusive; McLeod v. Yeates, 10 N. B. 168, holding that the remedy not being 
 provided by the same section creating the liability, it was merely cumulative: 
 West v. School Dist. No. 5, 22 N. B. 56, holding that where the obligation exists 
 at common law, the statute gives an additional remedy; it is merely cumulative; 
 Van Egtnond v. Seaforth, 6 Ont. Rep. 599, holding that where the remedy was pro- 
 vided, but the act was one which could not legally be done, the party is not re- 
 stricted to the remedy; Cook v. Tate, 26 Ont. Rep. 403, holding that where the 
 case does not fall within the statute fixing the obligation, the party is not limited 
 by it; Barned's Bkg. Co. v. Reynolds, 36 U. C. Q. B. 256, holding that if the 
 remedy is cumulative or is not co-extensive with the right or duty, the party 
 is not restricted to the statutory remedy; Douglas v. Fox, 31 U. C. C. P. 140, 
 holding that where the remedy provided by statute was not a perfect remedy, the 
 person suing is not limited to the penalty fixed by statute 
 — Where the remedy is cumulative. 
 
 Cited in Beck Mfg. Co. v. Ontario Lumber Co. 12 Ont. L. Rep. 163, holding that 
 where the remedy provided is merely cumulative and not exclusive, the party 
 is not limited to it. 
 
 1 E. R, C. 686, LLOYD v. HARPER, L. R. 10 Ch. Div. 290, 43 1.. T. N. S. 481, 29 
 
 Week. Rep. 452, 50 L. J. Ch. N. S. 140. 
 Action on contract made for benefit or third party. 
 
 Cited in Bell v. Newton, 183 Mass. 481, 67 N. E. 599, holding 'that where the 
 title to the husband's land was in the wife when he made a contract with the 
 city, that she could maintain an action in her own name for his benefit for a 
 breach of the covenants of the contract; Re Flav.ell, L. R. 25 Ch. Div. 89, 53 L. J. 
 Ch. N. S. 185, 49 L. T. N. S. 690, 32 Week. Rep. 102, on the right to enforce con- 
 tract for the benefit of third parties. 
 
 Cited in note in 1 E. R. C. 704, on right of action arising out of contract with 
 a third person. 
 
 Cited in 2 Beach Contr. 2184, on nonliability under sealed contract not made 
 for benefit of one who was not a party, hut who acquires interest from party 
 thereto. 
 
 Distinguished in New England Dredging Co. v. Rockport Granite Co. 149 Mass. 
 381, 21 N. E. 947, holding that contracts under seal, between two for the doing of 
 certain work by the one to be paid for by the other, is not enforceable after the
 
 1 E. R. C. 686] NOTES ON ENGLISH RULING CASES. 118 
 
 work has been done as against others not parties to the instrument, either by 
 ratification or as partners. 
 
 — Contract by one in trust to plaintiff. 
 
 Cited in Virginia v. West Virginia, 220 U. S. 1, 55 L. ed. 353, 31 Sup. Ct. Rep. 
 330, to the point that in private litigation trustee may recover to extent of 
 interest of his cestui que trust; Walsh v. Packard, 165 Mass. 189, 40 L.R.A. 
 321, 52 Am. St. Rep. 508, 42 N. E. 577, holding that a trustee may recover 
 damages to the extent of the cestui que trust's interest; Boyden v. Hill, 19S 
 Mass. 477, 85 N. E. 413, holding that where a party becomes a trustee for a 
 party by acting for the latter in making a contract, afterward accepted by 
 the latter, he may sue in his own name on the contract. 
 Action by third party on agreement made for his benefit. 
 
 Cited in Farr v. Rouillard, 172 Mass. 303, 52 N. E. 443, holding that a statu- 
 tory bond given by a constable could be sued on by any person who under the 
 statute was entitled to; Shackamaxon Bank v. Yard, 143 Pa. 129, 24 Am. St. 
 Rep. 521, 22 Atl. 908, on right of one who employs agent on faith of under- 
 taking of third person to enforce undertaking even though surety dies; Hen- 
 derson v. Killey, 14 Ont. Rep. 137, on the right of a third party to maintain 
 action on agreement made for his benefit; Dawson v. Dawson, 23 Ont. L. Rep. 1, 
 holding that covenant of grantee of land to pay certain annuity to third person 
 is enforceable by beneficiary. 
 Revocation of a continuing' guarantee. 
 
 Cited in Snow v. Horgari. 18 R. I. 289, 27 Atl. 338, holding that a con- 
 tinuing guaranty was not revocable. 
 
 Cited in Stearns Suretyship 95, on revocation of guaranty. 
 
 — By death of the guarantor. 
 
 Cited in McClaskey v. Barr, 79 Fed. 408; Fewlass v. Keeshan, 32 C. C. 
 A. 8, 60 U. S. App. 133, 88 Fed. 573,— holding that a surety's liability on a 
 cost bond is not released by his death; Drummond v. Crane, 159 Mass. 577, 23 
 L.R.A. 707, 38 Am. St. Rep. 460, 35 N. E. 90; Kernochan v. Murray, 111 N. Y. 
 306, 2 L.R.A. 183, 7 Am. St. Rep. 744, 18 N. E. 868; Holthausen'v. Kells, 18 
 App. Div. 80, 45 N. Y. Supp. 471, — holding that where the consideration for a 
 guaranty is given once for all, it is a continuing one and is not revoked by the 
 death of the guarantor; National Eagle Bank v. Hunt, 16 R. I. 148, 13 Atl. 115, 
 holding that a continuing guaranty can not be revoked either by revocation 
 or death of the guarantor; Chisholm v. Chisholm, 2 D. L. R. 57, holding that 
 contract by testator to pay specified sum per annum, so long as he was able to 
 do so, is not terminated by death of testator, but continues against executions: 
 Exchange Bank v. Springer, 13 Ont. App. Rep. 390, holding that notice of the 
 death of a surety to the bank, did not relieve his estate from liability as such 
 surety for the cashier; Re Crace [1902] 1 Ch. 733, 2 B. R. C. 929, holding that 
 where bond is given by surety for integrity of person, in consideration of that per- 
 son being appointed to office by obligee of bond, liability of surety will not, unless 
 expressly stipulated in bond, be determined by his death. 
 
 Cited in notes in 23 L.R.A. 709; 2 Brit. Rul. Cas. 937: 21 Eng. Rul. Cas. 
 671, — on death as revocation of contract of suretyship or guaranty. 
 
 Cited in 1 Brandt Suretyship 3d ed. 311. on effect of death of guarantor to re- 
 voke guaranty; Stearns Suretyship, 184, on revocation of suretyship by death of 
 promisor. 
 
 Distinguished in Hyland v. Habich. 150 Mass. 112, 6 L.R.A. 3S3, 15 Am. St. 
 Rep. 174. 22 N. E. 765, holding that a guaranty of the payment of goods to
 
 119 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 609 
 
 be sold in the future, secured by a mortgage of land is revoked by tbe death of 
 the guarantor; Starrs v. Cosgrave Brewing & Malting Co. iJ2 Can. S. C. 571 
 (reversing 11 Ont. App. Rep. 156), holding that the death of the party to whom 
 the guarantee was made, he being a member of a partnership, dissolved the part- 
 nership, and put an end to the guarantee. 
 Withdrawal of offer. 
 
 Cited in Benjamin Sales, 5th ed. 70, as to when offer can be withdrawn. 
 
 1 E. R. C. 699, RE EMPRESS ENGINEERING CO. L. R. 16 Ch. Div. 125, 
 
 43 L. T. N. S. 742, 29 Week. Rep. 342. 
 Contracts for the benefit of third parties. 
 
 Cited in Coffin v. Adams, 131 Mass. 133, on the right of a mortgagee to sue the 
 grantee of the mortgagor, who has promised to assume the mortgage; Gillies v. 
 Commercial Bank, 10 Manitoba, L. Rep. 460, holding that where property is trans- 
 ferred and agreed to be transferred by Avay of mortgage, and moneys are to be 
 received by the mortgagee out of which covenanted payments are to be made, 
 a trust may be imposed upon such money and property; Edmison v. Couch, 
 26 Ont. App. Rep. 537, holding that where a land owner gave deed to certain par- 
 ties, making the land subject to his life estate, and upon good consideration, 
 and later gave another deed to other parties, of the same land, the first was en- 
 forceable by the grantees; Clarke v. Birley, L. R. 41 Ch. Div. 422, 58 L. J. 
 Ch. N. S. 616, 60 L. T. N. S. 948, 37 Week. Rep. 746, holding that a guarantee 
 given in consideration of a bank continuing to extend credit to a third party is 
 not a binding contract with the third party, he not having signed it. 
 
 Cited in 1 Elliott Railr. 2d ed. 513, on power of railroad company to ratify 
 unauthorized act outside of corporate pftwers ; Hollingsworth Contr. 293, on 
 impossibility of acquiring rights under contract to which one was not a 
 party. 
 — By the promoter of a company soon to be formed. 
 
 Cited in Tuttle v. Tuttle, 101 Me. 287, 64 Atl. 496, 8 Ann. Cas. 260, holding 
 that a contract made on behalf of a corporation to be formed does not bind 
 the latter unless it is adopted or ratified by the latter; Dunsmuir v. Colonist 
 Printing & Pub. Co. 9 B. C. 275, on the right of a party to enforce an agree- 
 ment made prior to the organization of a company, in its behalf; Abbott v. 
 Hapgood, 150 Mass. 24S, 5 L.R.A. 586, 15 Am. St. Rep. 193, 22 N. E. 907; Brad- 
 ford v. Metcalf, 185 Mass. 205, 70 N. E. 40; Cass v. McCutcheon, 15 Manitoba 
 L. Rep. 669, — holding that a contract made by an agent or promoter on be- 
 half of a company to be formed can not be adopted or ratified so as to be- 
 come binding on it when organized; Re Hess Mfg. Co. 21 Ont. App. Rep. 66, 
 holding that a corporation could become liable on contracts made in its behalf 
 either by express statement in its charter or by contract after its formation; 
 Halifax Street Carette Co. v. McManus, 27 N. S. 173, holding that offer <>f 
 subscriber to stock of proposed corporation made before incorporation to pay 
 certain sum to be relieved from obligation, cannot be taken advantage of after 
 incorporation. 
 
 Cited in note in 26 L.R.A. 548, on liability of corporations on contracts of pro- 
 moters. 
 
 Cited in 1 Elliott Railr. 2d ed. 28, as to when contracts of promoters are binding 
 on corporation; Hollingsworth Contr. 72, on inability of corporation to ratify 
 contract entered into before its incorporation; 2 Page Contr. 1573, on effect of ac-
 
 1 B. R. C. 699] NOTES ON ENGLISH RULING CASES. 120 
 
 ceptance by a corporation of contract by promoter; Tiffany Ag. 56, on ratification 
 by corporation of contracts of promoters. 
 
 Distinguished in Howard v. Patent Ivory Mfg. Co. L. R. 33 Ch. Div. 156, 
 57 L. J. Ch. N. S. 878, 58 L. T. N. S. 395, 36 Week. Rep. 801, holding that 
 where the adoption of the contract made on behalf of an unformed corporation 
 by its promoter, amounted to the making of a new contract the corporation 
 would be bound by it; MoArthur v. Times Printing Co. 48 Minn. 319, 31 Am. 
 St. Rep. 653, 51 N. W. 216, holding that a corporation may adopt as its own a 
 contract made in its behalf before its organization by a promoter, but the adop- 
 tion must amount to the making of a new contract; McCausland v. Hill, 23 Ont. 
 App. Rep. 738, holding -that an agreement made by dealers not to compete with 
 a company which they were forming could be enforced by other parties who 
 were shareholders in the company. 
 
 — Actions to enforce. 
 
 Cited in Clark v. Kendall, 4 B. C. 503, holding that where a party was substi- 
 tuted in a contract and by the terms of the substitution agreement, the former 
 party to it was to be paid certain proportion of consideration of the contract by 
 the other party to it, the former could enforce it; Re Flavell, L. R. 25 Ch. Div. 89, 
 53 L. J. Ch. N. S. 185, 49 L. T. N. S. 690, 32 Week. Rep. 102, on the right to 
 enforce contract for the benefit of third parties. 
 
 Distinguished in Re Shediac Boot & Shoe Co. 37 N. B. 98, holding that where 
 the proceeds of a fire insurance policy was made payable to a bank to the ex- 
 tent of its mortgage interest, it was entitled to be paid out of the assets of the 
 company, this amount where the business of the company was being wound up. 
 
 — Parties to action on contract. 
 
 Cited in Keller v. Ashford, 133 U. S. 610, 33 L. ed. 667, 10 Sup. Ct. Rep. 494, 
 holding that where the grantee of real estate assumes the payment of a 
 mortgage on it, the mortgagee cannot enforce the agreement, in the absence of 
 other conditions; Morrill v. Lane, 136 Mass. 93, holding that where one party 
 assigned goods to another, and the latter agrees to pay the amount owed by the 
 former to his employees for labor on the goods, the employees cannot maintain 
 an action on the promise; National Bank v. Texas Invest. Co. 74 Tex. 421, 12 
 S. W. 101, holding that where a corporation promises for a valuable considera- 
 tion to pay the debt of another, the party owning the claim may sue directly on 
 the promise; Osborne v. Henderson, Cameron (Can.) 323 (reversing 17 Ont. App. 
 Rep. 459, which affirmed 14 Ont. Rep. 137), holding that where a pai'tnership 
 was dissolved and one partner continued the business, and afterward formed 
 another partnership transferring to it all his property, subject to his debts, 
 the second member of the old firm could not enforce the last agreement as to his 
 debts; Henderson v. Killey, 17 Ont. App. Rep. 456 (affirming 14 Ont. Rep. 
 137), holding that where two partners dissolved partnership, and one gave the 
 other certain notes to pay for his share and afterward formed another part- 
 nership transferring all his property to it subject to his liabilities the holder 
 of the note could enforce the latter agreement; Henderson v. Killey, 14 Ont. 
 Rep. 137, holding that where one member of a partnership transferred to it all 
 of his property subject to his liabilities, a person holding a note against him 
 could enforce the agreement; Centre Star Min. Co. v. Rossland-Kootenay Min. 
 Co. 11 B. C. 231, holding that a successor of an old company whose debts and 
 liabilities it agrees to pay is not liable for a tort of the old company to a 
 stranger to the contract; Real Estate Loan Co. v. Molesworth, 3 Manitoba L. 
 Rep. 116, holding that a surety for the payment of a mortgage cannot be made
 
 121 NOTES ON ENGLISH RULING CASES. LI E. R. C. 707 
 
 a party to a foreclosure bill; Andrews v. Moodie, 17 Manitoba Law Rep. 1, 
 holding that where the wife sued for alimony but they met in this plaintiff's 
 office and agreed to become reconciled, and he promised to pay her attorney's 
 fees, the plaintiffs, her attorneys, could not recover on that promise; Robert- 
 son v. Lonsdale, 21 Ont. Rep. GOO, holding that on an agreement between two par- 
 ties whereby one of them was to pay a certain sum to a third party, no action 
 could be maintained by such third party; Faulkner v. Faulkner, 23 Ont. Rep. 
 252, holding that where the mother deeded to her daughters her land and took 
 back a mortgage and a covenant by them that they would educate their younger 
 brother, he could not maintain an action on the covenant; Mitchell v. Lon- 
 don Assur. Co. 15 Ont. App. Rep. 262, holding that where a tug was insured and 
 the amount was made payable to the extent of his interest, and he renewed 
 the policy, the mortgagor could sue on it for the amount of loss; Agricultural 
 Sav. & L. Co. v. Liverpool & L. & G. Ins. Co. 3 Ont. L. Rep. 127, holding that 
 mortgagees to whom by an insurance policy, loss is made payable to the 
 amount of their interest, may maintain an action upon the policy in their 
 own name but if there is no subrogation clause relative to the mortgage they are 
 subject to the same defenses as the insured; Gandy v. Gandy, L. R. 30 Ch. Div. 
 57, 3 Eng. Rul. Cas. 315, 54 L. J. Ch. N. S. 1154, 53 L. T. N. S. 306, 33 Week. 
 Rep. 803, holding that to entitle a person to sue on a contract made for his 
 benefit by others than himself, he must possess a beneficial right which places 
 him in the position of cestui que trust under the contract. 
 
 Oited in note in 25 L.R.A. 27!', on right of third party to sue upon contract 
 made for his benefit. 
 
 1 E. R. C. 707, LUMLEY v. G V 1~E, 2 El. & Bl. 216, 17 Jur. 327, 1 Week. Rep. 
 
 432, 22 L. J. Q. B. N. S. 463. 
 Damages for maliciously procuring a breach of a contract. 
 
 Cited in Angle v. Chicago, St. P. M. & O. R. Co. 151 U. S. 1, 38 L. ed. 55, 
 14 Sup. Ct. Rep. 240, holding that an action lies against one who maliciously in- 
 terferes with, and induces one of the parties to break, that contract; Heath 
 v. American Book Co. 97 Fed. 533, holding that where the plaintiff had a eon- 
 tract with the state to furnish school books for ten years, an action would be 
 against a person who induces the school boards to buy books elsewhere; Ma- 
 honey v. Roberts, 86 Ark. 130, 110 S. W. 225, holding that persons who aid an- 
 other to violate a contract with a stranger, whether for the purpose of injuring 
 him or benefiting themselves are liable for damages therefor; Doremus v. 
 Hennessy, 176 111. 608, 43 L.R.A. 797, 6S Am. St. Rep. 203, 52 N. E. 924 (af- 
 firming 62 111. App. 391), holding that where the plaintiff operated a laundry 
 and had contracts with persons to do the work for her, and the defendants ma- 
 liciously induced them to break these contracts, the latter were liable; Schon- 
 wald v. Ragains, 32 Okla. 223, 39 L.R.A. (N.S.) 854, 122 Pac. 203, holding that it 
 is actionable tort for one to maliciously interfere with contract between two 
 parties and induce one of thorn to break contract to other's damage; Wells & 
 R. Co. v. Abraham, 146 Fed. 190; Bobbs-Merrill Co. v. Straus, 15 L.R.A. 
 (N.S.) 766, 77 C. C. A. 607, 147 Fed. 15; Seelig v. Dumas, 48 La. Ann. 1494, 21 
 So. 91; Ensor v. Bolgiano, 67 Md. 190, 9 Atl. 529 (dissenting opinion); Van 
 Horn v. Van Horn, 52 N. J. L. 2S4, 10 L.R.A. 184, 20 Atl. 485,— on the liabil- 
 ity for maliciously procuring a breach of a contract; Van Horn v. Van Horn, 
 56 N. J. L. 318, 28 Atl. 669, holding that where a party was induced to 
 refuse to complete his contract for delivery of goods, by false and malicious
 
 1 E. R. C. 707] NOTES ON ENGLISH RULING CASES. 122 
 
 statements as to the credit of the other contracting party, a cause of action 
 arises in favor of the latter; Toledo, A. A. & N. M. R. Co. v. Pennsylvania R. 
 Co. 19 L.R.A. 387, 5 Inters. Com. Rep. 522, 54 Fed. 730; Swain v. Schieffelin, 
 134 N. Y. 471, 18 L.R.A. 3S5, 31 N. E. 1025,— on acts inducing a third party 
 to break his contract; People ex rel. Burnham v. Flynn, 49 Misc. 328, 99 N. 
 Y. Supp. 198, holding that an agreement to ignore a contract and occasion a 
 breach thereof constitutes an actionable wrong; Edison General Electric Co. v. 
 Vancouver & N. W. Tramway Co. 4 B. C. 4G0, on the right of action against one 
 persuading another to break his agreement with a third; Derry v. Derry, 19 
 N. B. 621, holding that an action would lie for maliciously and fraudulently 
 inducing a person to whom a deed had been delivered as an escrow, to prove 
 and record it contrary to his instructions; Quick v. Church, 23 Ont. Rep. 262, 
 holding that an action will lie for the alienation of the husband's affections ; 
 Nolin v. Pearson, 191 Mass. 283, 4 L.R.A.(N.S.) 643, 114 Am. St. Rep. 605, 
 77 N. E. 890, 6 Ann. Cas. 658, holding same and for the loss of his society and 
 aid; Ashford v. Choate, 20 U. C. C. P. 471, holding that for maliciously slander- 
 ing title whereby a contract for the sale of the land was prevented from be- 
 ing completed there could be a recovery; Glamorgan Coal Co. v. South Wales 
 Miners' Federation [1903] 1 K. B. 118, reversed in [1903] 2 K. B. 545; 72 
 L. J. K. B. N. S. 893, SO L. T. N. S. 393; 19 Times L. R. 708, 52 Week. Rep. 
 165, which was affirmed [1905] A. C. 239, 1 B. R. C. 1, 74 L. J. K. B. N. S. 525, 
 53 Week. Rep. 593, 92 L. T. N. S. 710; 21 Times L. R. 441, holding that procur- 
 ing a breach of contract is an actionable wrong unless there be justification 
 therefor. 
 
 Cited in notes in 21 L.R.A. 233, 238, on liability for inducing breach of con- 
 tract; 1 Eng. Rul. Cas. 727, 728, on right of action against one intentionally 
 inducing another person to break his contract. 
 
 Cited in Hollingsworth Contr. 289, on incurring liability from contract to which 
 one was not a party, by inducing party to break it; 3 Page Contr. 2050, 2051, on, 
 liability for interference by individual with existing contract. 
 
 Distinguished in Guethler v. Altman, 26 Ind. App. 587, 84 Am. St. Rep. 313, 
 60 N. E. 355, holding that a school teacher who advised her pupils not to trade 
 at a certain store was not liable therefor to the owner of the store; Heywood 
 v. Tillson, 75 Me. 225, 46 Am. Rep. 373, holding that it did not give rise to a 
 cause of action for a person to refuse to retain in his service any person who 
 rented certain premises, though done maliciously; Dudley v. Briggs, 141 Mass. 
 582, 55 Am. Rep. 494, 6 N. E. 717, holding that for preventing the plaintiff 
 from obtaining a contract for printing certain books, no action would lie as 
 no contract existed to be broken; Macauley Bros. v. Tierney, 19 R. I. 255, 37 
 L.R.A. 455, 61 Am. St. Rep. 770, 33 Atl. 1, holding that where wholesale dealers 
 refused to sell to certain persons because of notices from a labor union, no 
 action will lie against the latter in favor of the former; Gibbons v. Metcalfe, 
 15 Manitoba L. Rep. 560, holding that a combination in restraint of trade, not 
 maliciously entered into, and simply to promote their own business, not for 
 an illegal purpose does not give a right of action to a person affected by the 
 same through injury to his business; Duffies v. Duffies, 76 Wis. 374, 8 L.R.A. 
 420, 20 Am. St. Rep. 79, 45 N. W. 522, holding that no action will lie in favor 
 of the wife against one enticing away her husband, for the loss of his society 
 and support; Lawson v. Halifax, 12 N. S. 168, holding that where the plaintiff 
 owned a dance hall, which he let for hire, no action would lie for acts of the 
 defendants in inducing persons not to hire the same, as there were no contrac-
 
 123 NOTES ON ENGLISH RULING CASES. |1 E. R. C. 707 
 
 tual rights; Irvine v. Canadian Banlc, 23 U. C. C. P. 500, holding that for wrong- 
 fully protesting for nonacceptance a draft, after acceptance by the drawee, 
 there being no contract rights between the parties, there could be no recovery, 
 without malice being shown; Davis v. Barnett, 2(i U. C. Q. B. 109, holding thai 
 where the defendant and plaintiff both furnished special dresses to those wishing 
 to pass under Niagara Falls, and. the defendant through wrongful representa- 
 tions induced persons not to go to the plaintiff, the latter could not recover; 
 Cattle v. Stockton Waterworks Co. L. R. 10 Q. B. 453, 44 L. J. Q. B. N. S. 
 130, 33 L. T. N. S. 475, holding that where a leak in the defendant's mains caused 
 the plaintiff who had engaged to build a tunnel to quit his contract no action 
 would lie against the defendants, though resulting in pecuniary loss to him ; 
 Mogul S. S. Co. v. McGregor, L. R. 21 Q. B. Div. 544, L. R. 23 Q. B. Div. 598; 
 58 L. J. Q. B. N. S. 465, 61 L. T. N. S. 820, holding that a- combination to oh- 
 tain trade was not in itself illegal where no illegal methods were resorted to, to 
 obtain a monopoly. 
 — Contracts for personal services. 
 
 Cited in Brown v. Pillow, 98 C. C. A. 579, 174 Fed. 967, holding that one who 
 under claim of ownership took possession of dredge being operated by libellant, 
 cannot be held liable in damages on ground that by reason of such action libel - 
 lant's employees left his service in violation of their contracts, when he at 
 once retook possession of dredge; McGovern v. Fitzpatrick, 14S App. Div. 34, 
 131 N. Y. Supp. 1048, holding that for third party to be held liable for inducing 
 breach of contract for services it must appear that he has been guilty of some 
 wrongdoing amounting to tort; Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 
 780, holding that any person who, without lawful justification, induces for con- 
 sideration, one who has contracted to render personal service, to quit such serv- 
 ice is liable in damages to injured party; Jones v. Leslie, 61 Wash. 107, 48 L.R.A. 
 (N.S.) 893, 112 Pac. 81, Ann. Cas. 1912B, 1158, holding that damages are re- 
 coverable by servant, where on giving notice to employer that he was about to 
 take another job, employer notified prospective employer that if he did hire 
 plaintiff defendant would discontinue business with him; Pegram v. Stortz, 
 31 W. Va. 220, 6 S. E. 485, to the point that at common law, action on case 
 could be maintained by master for forcibly carrying off or enticing away serv- 
 ant; Beekman v. Marsters, 195 Mass. 205, 11 L.R.A.(N.S.) 201, 122 Am. St. 
 Rep. 232, 80 N. E. 817, 11 Ann. Cas. 332, holding that there is no distinc- 
 tion between a contract for hire and any other contract; Lucke v. Clothing 
 Cutters' & T. Assembly, 77 Md. 396, 19 L.R.A. 408, 39 Am. St. Rep. 421, 26 
 Atl. 505, holding that an action would lie in favor of a servant whose discharge 
 had been procured by a labor union because he was not a union man, and for 
 no other reason; Old Dominion S. S. Co. v. McKenna, 30 Fed. 48, 18 Abb. N. C. 
 262; Employing Printers' Club v. Doctor Blosser Co. 122 Ga. 509, 69 L.R.A. 
 90, 106 Am. St. Rep. 137, 50 S. E. 353, 2 Ann. Cas. 694; Walker v. Cronin, 
 107 Mass. 555, — holding that an action in tort will lie for wilfully inducing 
 servants to quit their employ and was thereby compelled to pay higher prices 
 to new ones; Perkins v. Pendleton, 90 Me. 166, 60 Am. St. Rep. 252, 38 Atl. 96; 
 Moran v. Dunphy, 177 Mass. 4S5, 52 L.R.A. 115, 83 Am. St. Rep. 2S9, 59 N. E. 
 125, — holding that to maliciously induce an employer to discharge an employee 
 is an actionable tort; Lally v. Cantwell, 30 Mo. App. 524, holding that a dec- 
 laration which states that the defendant maliciously uttered false statements 
 concerning him whereby he was discharged from his master's employment, 
 states a good cause of action; Cuff v. Newark & N. Y. R. Co. .35 X. J. L. 17,
 
 1 E. R. C. 707] NOTES ON ENGLISH RULING CASES. 124 
 
 10 Am. Rep. 205, on the liability for procuring the discharge of a servant; 
 Brennan v. United Hatters, N. A. Local No. 17, 73 N. J. L. 729, 9 L.R.A.(N.S.) 
 254, 118 Am. St. Rep. 727, 65 Atl. 165, 9 Ann. Cas. 698, holding that whoever 
 intentionally and without legal excuse induces a master to discharge his servant 
 to the damage of the latter, is liable in damages to him; Chain Belt Co. v. Von 
 Spreckelsen, 117 Wis. 106, 94 N. W. 78, on the right to damages where one 
 procures maliciously a breach of contract for exclusive personal services; 
 Beardsley v. Copeland, 8 N. B. 458, to the point that action will lie against 
 third person for inducing party to break contract for exclusive personal service; 
 De Francesco v. Barnum, 63 L. T. N. S. 514; American Asso. Base Ball 
 Club v. Pickett, 20 Phila. 298, 47 Phila. Leg. Int. 212, 8 Pa. Co. Ct. 232 — 
 holding that one who knowingly takes and keeps one who has broken his con- 
 tract with another for his services, is liable in damages to the party to the 
 former contract; Passaic Print Works v. Ely & W. Dry Goods Co. 62 L.R.A. 
 673, 44 C. C. A. 426, 105 Fed. 163; Gore v. Condon, 87 Md. 368, 40 L.R.A. 
 382, 67 Am. St. Rep. 352, 39 Atl. 1042; Knickerbocker Ice Co. v. Gardiner Dairy 
 Co. 107 Md. 556, 16 L.R.A. (N.S.) 746, 69 Atl. 405; Temperton v. Russell [1893] 
 
 1 Q. B. 715, 62 L. J. Q. B. N. S. 412, 4 Reports, 376, 69 L. T. N. S. 78, 41 
 Week. Rep. 565, 57 J. P. 676; Raymond v. Yarrington, 96 Tex. 443, 62 L.R.A. 
 962, 97 Am. St. Rep. 914, 73 S. W. 800, — holding that one who knowingly in- 
 duces another to break his contract with a third person, is liable to him for 
 the damages caused, whether the contract is for services or otherwise; Brauch 
 v. Roth, 10 Ont. L. Rep. 284, 4 Ann. Cas. 1024, holding that it is an actionable 
 wrong to persuade a servant to break his contract with his master, even though 
 it is not done wilfully and in bad faith; Hewitt v. Ontario Copper Lightning 
 Rod Co. 44 U. C. Q. B. 287, holding that plaintiff could recover where the de- 
 fendants had enticed certain of the former's servants to desert his service; Gas 
 Power Age v. Central Garage Co. 21 Manitoba L. Rep. 496, to the point that ac- 
 tion may be maintained against person who induces another under personal con- 
 tract, to break his contract; Lyons v. Wilkins [1899] 1 Ch. 255, 68 L. J. Ch. 
 N. S. 146, 63 J. P. 339, 47 Week. Rep. 291, 79 L. T. N. S. 709, 15 Times L. R. 
 128, on the liability of one who maliciously interferes with the relation of master 
 and servant: Bowen v. Hall, L. R. 6 Q. B. Div. 333, 50 L. J. Q. B. N. S. 305, 
 44 L. T. X. S. 75, 29 Week. Rep. 307, 45 J. P. 373, Eng. Rul. Cas. 717, holding 
 that an action lies against one who maliciously induces another to break his 
 contract for exclusive personal service with his employer, although the relation 
 of master and servant does not strictly exist; Read v. Friendly Soc. [1902] 
 
 2 K. B. 88, 71 L. J. K. B. N. S. 634, 50 Week. Rep. 619, 86 L. T. N. S. 593, 
 18 Times L. R. 577 (modified in [1902] 2 K. B. 732, 1 B. R. C. 503, 71 L. J. 
 K. B. N. S. 994, 87 L. T. N. S. 493, 51 Week. Rep. 115, 19 Times L. R. 20, 66 
 J. P. 822), holding that where the defendants procured the plaintiff's discharge 
 from an apprenticeship becauso his hiring was contrary to the rules of their 
 union, they were liable to him for damages caused thereby. 
 
 Cited in notes in 5 L.R.A. (N.S.) 1097, 1098, on civil liability for enticing serv- 
 ant to quit; 17 Eng. Rul. Cas. 352-356, on liability for inducing breach of con- 
 tract of service. 
 
 Cited in Tiffany Ag. 329, on liability of third person for causing loss of 
 service by wrongful act. 
 
 Distinguished in Glencoe Land Ik Gravel Co. v. Hudson Bros. Commission Co. 
 138 Mo. 439, 36 L.R.A. 804, 60 Am. St. Rep. 560. 40 S. W. 93; Johnston Har- 
 vester Co. v. Meinhardt, 60 How. Cr. 168, 9 Abb. X. C. 393,— holding that a
 
 125 NOTES ON ENGLISH RULING CASES. |1 E. R. C. 707 
 
 recovery for the enticement of servants, where the person enticed is a free 
 agent to come and go as he will, is not allowed: Allen v. Flood [180SJ A. C. 1, 
 67 L. J. Q. B. N. S. 119, 77 L. T. N. S. 717, 40 Week. Rep. 258, 62 J. P. 595, 17 
 Eng. Rul. Cas 285 (reversing [1895] 2 Q. B. 21, G4 L. J. Q. B. 665, 14 Reports 
 397, 43 Week. Rep. 453, 59 J. P. 388), holding that when' the defendants pro- 
 cured the plaintiffs' discharge by refusing to continue the work unless the 
 plaintiffs were discharged, no action will lie against the defendants, where the 
 discharge does not constitute a breach of contract. 
 
 Disapproved in Chambers v. Baldwin. 01 Ky. 121, 11 L.B.A. 545, 34 Am. St. 
 Rep. 165, 15 S. W. 57; Bourlier Bros. v. Macauley, 01 Ky. 135. 11 L.RA. 550, 
 34 Am. St. Rep. 171, 15 S. W. 60, — holding that an action will not lie for ma- 
 liciously procuring another to break his contract with a third, unless done by 
 coercion or deception, and caused contrary to the person's will and purpose. 
 
 — Pleadings in action for. 
 
 Oited in May v. Wood, 172 Mass. 11, 51 N. E. 191 (dissenting opinion), on 
 the form of declaration in such an action. 
 
 — Riglit to restrain by injunction. 
 
 Cited in Tubular Rivet & Stud Co. v. O'Brien, 93 Fed. 200, holding that one 
 who aids another in violating a contract will be enjoined ; Dr. Miles Medical 
 Co. v. Jaynes Drug Co. 149 Fed. 838, on the right to restrain the defendants 
 from inducing persons to violate their contract with the plaintiff; Johnston 
 Harvester Co. v. Meinhardt, 9 Abb. N. C. 393, holding that remedy against con- 
 federation of persons for enticing away servant is action for damages and not 
 injunction; Fleckenstein Bros. Co. v. Fleckenstein, 66 N. J. Eq. 252, 57 Atl. 1025, 
 holding that wife of one who covenanted not to engage in business upon sale of 
 good will, may be enjoined from holding out as active agent such covenantor, 
 where she has knowledge that purchaser is thereby being injured; George Jonas 
 Glass Co. v. Glass Bottle Blowers' Asso. 77 N. J. Eq. 219, 41 L.R.A. ( X.S.) 445, 
 79 Atl. 262, sustaining injunction restraining defendants from using either 
 coercion or persuasion in order to bring about breaches of contracts of per- 
 sonal service existing between complainant and its employees; Alderson v. 
 Maddison, L. R. 7 Q. B. Div. 174, 50 L. J. Q. B. N. S. 466, 45 L. T. N. S. 
 334, 29 Week. Rep. 556, to point that equity would restrain violation of contract 
 for personal service. 
 Malice necessary to constitute the wrongfulness of an act. 
 
 Cited in Tubular Rivet & Stud Co. v. Exeter Boot & Shoe Co. 86 C. C. A. 
 648, 159 Fed. 824, holding that plaintiff was entitled to recover for the defend- 
 ant having induced another to break his contract with the plaintiff, even with- 
 out proof of malice; Motley. G. & Co. v. Detroit Steel & Spring Co. 161 Fed. 389, 
 holding that the existence of malice is not necessary to render the defendants 
 liable for carrying out a conspiracy to break a contract made with one of 
 them: Sparks v.' MeCreary, 156 Ala. 382, 22 L.R.A. (N.S.) 12:24. 47 So. 332, 
 holding that wrongful interference with another's business is actionable with- 
 out regard to intent since intent only affects question of damages; Arnold v. 
 Moffitt, 30 R. I. 310, 75 Atl. 502, holding that in action for injury to business, 
 where there is no proof of any illegal act on part of defendant, it is of no con- 
 sequence that it might be made to appear that defendant was actuated by 
 malicious motives; Boyson v. Thorn, 98 Cal. 578, 21 L.R.A. 233, 33 Pac. 492, 
 on malice as making Avrongful an interference with a contract between other 
 persons: Tasker v. Stanley, 153 Mass. 148, 10 L.R.A. 468, 20 N. E. 417, holding 
 that in order to held a party liable for his advice to a married woman to
 
 1 E. R. C. 707] NOTES ON ENGLISH RULING CASES. 126 
 
 leave her husband, it must be shown that the advice was not honestly given and 
 was given from malevolent motives; McCann v. Wolff, 28 Mo. App. 447, holding 
 that a petition which did not allege that the person fraudulently or malicious- 
 ly interfered to procure the abandonment of a contract was bad on demurrer; 
 Anonymous, 29 U. C. Q. B. 456, on the inuendo necessary to make words libel- 
 lous. 
 
 Cited in note in 62 L.R.A. 679, 682, 706, 719, on effect of bad motive to make 
 actionable what would otherwise not be. 
 
 — Necessity of knowledge of contract broken. 
 
 Cited in McGurk v. Cronenwett, 199 Mass. 457, 19 L.R.A. (N.S.) 561, S5 
 N. E. 576, holding that in an action for maliciously procuring a breach of a 
 contract of employment, it must be shown that the party procuring it, had 
 knowledge of the contract. 
 Malicious procurement of a violation of a right as an actionable wrong. 
 
 Cited in O'Brien v. People, 216 111. 354, 108 Am. St. Rep. 219, 75 N. E. 108, 
 3 Ann. Cas. 966, holding that attempt to compel employer to sign agreement 
 to conduct business by employing only members of labor unions, under threats 
 of ordering strike, is unlawful; Doremus v. Hennessy, 02 111. App. 391, holding 
 that action may be maintained for malicious interference with business of an- 
 other, his occupation, profession, or way of obtaining livelihood; Joyce v. Great 
 Northern R. Co. 100 Minn. 225, 8 L.R.A. (N.S.) 756, 110 N. W. 975, holding that 
 the malicious prevention of the employment of third persons is an actionable 
 wrong; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 22 L.R.A. (N.S.) 607, 128 
 Am. St. Rep. 492, 114 S. W. 997, on malicious injury to trade as being action- 
 able; Southern R. Co. v. Chambers, 126 Ga. 404, 7 L.R.A. (N.S.) 926, 55 S. E. 
 37; Barr v. Essex Trades Council, 53 N. J. Eq. 101, 30 Atl. 881,— holding that 
 malicious injury to the business of another gives a right of action to the party 
 injured; Copeland-Ohatterson Co. v. Hatton, 10 Can. Exch. 224, holding that the 
 intentional procurement of a violation of an individual right, either contractual 
 or otherwise, gave rise to a cause of action. 
 
 Cited in note in 25 E. R. C. 82, on liability for wilfully and intentionally 
 harming another in exercise of a legal right. 
 
 Cited in 1 Thompson Neg. 527, on liability of principal for acts of agent in 
 boycotting a third person. 
 
 Distinguished in Gray v. Ottolengui, 12 Rich. L. 101, holding that where an ac- 
 tion is brought to recover damages from a breach of contract, some privity 
 must be shown between plaintiff and defendant. 
 
 — Conspiracy. 
 
 Cited in Continental Ins. Co. v. Fire Underwriters, 67 Fed. 310; State ex inf. 
 Hadley v. Standard Oil Co. 218 Mo. 1, 116 S. W. 902,— on the lawfulness of 
 conspiracies in restraint of trade; Globe & R. F. Ins. Co. v. Firemen's Fund 
 Ins. Co. 97 Miss. 148, 29 L.R.A. (N.S.) 869, 52 So. 454, holding' that corporations 
 or private persons cannot conspire to illegally destroy plaintiff's business by 
 wrongfully inducing his agents to leave his employment and enter their own ; 
 People ex rel. Gill v. Walsh, 6 N. Y. Crim. Rep. 292, on a labor strike as a con- 
 spiracy to injure trade; Martens v. Reilly, 109 Wis. 464, 84 N. W. 840, holding 
 that a breach of contract being an unlawful act, a conspiracy to procure a breach 
 of a contract gives rise to a cause of action against all persons so conspiring, 
 or connected therewith; McMillan v. Barton, 19 Ont. App. Rep. 602. on the 
 conspiracy to prevent a person recovering against another, by the substitution 
 of some other person for him. as being an actionable wrong: Quinn v. Leathern
 
 127 NOTES ON ENGLISH RULING CASES. |1 E. R. C. 717 
 
 [1901] A. C. 495, 1 13. R. C. 197, 70 L. J. P. C. N. S. 76, 65 J. P. 70S, 50 Week. 
 Rep. 339, S5 L. T. N. S. 289, 17 Times L. R. 749 (affirming [1899] 2 Ir. R. 
 067), holding that a conspiracy to induce customers and servants to break their 
 contracts with the plaintiffs is actionable. 
 
 Cited in 2 Cooley Torts, 3d ed. 594, on liability for conspiracy to prevent em- 
 ployment. 
 
 Distinguished in United States Teleph. Co. v. Centra! Union Teleph. Co. 171 
 Fed. 130, holding that agreement by local telephone company with long distance 
 company not to permit connections with any other company for ninety years 
 was void. 
 Judgment against joint wrongdoers. 
 
 Cited in Ferguson v. Roblin, 17 Out. L. Rep. 167, holding that in an action 
 against both master and servant for the servant's wrong doing, a judgment may 
 be entered against both. 
 Compelling- performance of contract for personal services. 
 
 Cited in Sharkey v. McDermott, 16 Mo. App. 80, on the restraining of a 
 party from doing an act contrary to the terms of his contract. 
 Master's liability for acts of servant. 
 
 Cited in 1 Thompson Neg. 481, on master's liability for acts of servant. 
 
 1 E. R. C. 717, BOWEN v. HALL, L. R. 6 Q. B. Div. 333, 44 L. T. N. S. 
 
 75, 29 Week. Rep. 367, 50 L. J. Q. B. N. S. 305, 45 J. P. 373. 
 Actionable procurement of another to break contract. 
 
 Cited in American Federation of Labor v. Buck's Stove & Range Co. 33 App. 
 D. C. 117, 32 L.R.A. (N.S.) 74S, holding that labor union may be enjoined from 
 placing name of concern on unfair list, to coerce its customers to refrain from 
 dealing with it; Kemp v. Division No. 241, 153 111. App. 344, holding that em- 
 ploye has cause of action against union for causing his discharge; Carter v. 
 Oster, 134 Mo. App. 146, 112 S. W. 995, holding that employees are answer- 
 able for keeping another out of employment when means used to do so are 
 unlawful; Globe & R. F. Ins. Co. v. Firemen's Fund Ins. Co. 97 Miss. 14S, 29 
 L.R.A. (N.S.) 869, 52 So. 454, holding that one is liable for maliciously en- 
 ticing away another's servant for sole purpose of harming master; Old Do- 
 minion S. S. Co. v. McKenna, 18 Abb. N. C. 262, 30 Fed. 48, holding that combi- 
 nations designed to interefere with perfect freedom of employers in proper 
 management of business are illegal and acts done in furtherance of such design, 
 accompanied by damage are actionable; Seelig v. Dumas. IS La. Ann. 1494, 
 21 So. 91, holding that lessor of furniture can recover it or its value from person 
 fraudulently buying it from lessee; Huskie v. Griffin, 75 N. 11. 345, 27 L.R.A. 
 (N.S.) 966, 74 Atl. 595, holding that one protesting against employment of 
 another, for sole purpose of injuring him, may be held liable for damages due 
 to consequent loss of employment; Schonwald v. Ra^ains. 32 Okla. 223. 39 
 L.R.A. (N.S.) S54, 122 Pac. 203, holding that it is actionable tort for one to 
 maliciously interfere with contract between two parties and induce one of them 
 to break contract to other's injury; Jones v. Leslie, 6L Wash. 107, 48 L.R.A. 
 (N.S.) 893, 112 Pac. 81, Ann. Cas. 1912B, 1158, holding that servant may re- 
 cover damages from former employer who notified prospective employer that if 
 he hired plaintiff defendant would discontinue business relations existing between 
 them; Dunfee v. Childs, 59 W. Va. 257, 53 S. E. 209, holding that employer has 
 cause of action against person maliciously enticing employe to quit; Brennan 
 v. United Hatters' of N. A. Local No. 17, 73 N. J. L. 729. 9 L.R.A. (N.S.)
 
 1 E. R. C. 717] NOTES ON ENGLISH RULING CASES. 128 
 
 254, 118 Am. St. Rep. 727, 65 Atl. 105, 9 Ann. Gas. 698; Lally v. Cantwcll, 30 
 Mo. App. 524, — holding making false statements in regard to plaintiff so that he 
 was discharged from his employment actionable; Chambers v. Baldwin, 91 Ky. 
 121, 11 L.R.A. 545, 34 Am. St. Rep. 165, 15 S. W. 57; McDonald v. Edwards, 
 20 Misc. 523, 46 N. Y. Supp. 672; Passaic Print Works v. Ely & W. Dry Goods 
 Co. 62 L.R.A. 673, 44 C. C. A. 426, 105 Fed. 163; McMillan v. Barton, 19 Ont. 
 App. 602; Mogul S. S. Co. v. McGregor, L. R. 21 Q. B. Div. 544, L. R. 23 Q. B. 
 Div. 598, 58 L. J. Q. B. N. S. 465, 61 L. T. N. S. 820; Allen v. Flood [1898] 
 
 A. C. 1, 67 L. J. Q, B. N. S. 119, 77 L. T. N. S. 717, 46 Week. Rep. 258, 62 J. P. 
 595, 17 Eng. Rul. Cas. 285, 14 Times L. R. 125 (reversing [1S95] 2 Q, B. 21, 
 64 L. J. Q. B. N. S. 665, 14 Reports 397, 43 Week. Rep. 453, 59 J. P. 388),— 
 as to when action lies for inducing third person to break contract with plaintiff; 
 Morehouse v. Terrill, 111 111. App. 460; Gore v. Condon, S7 Md. 368, 40 L.R.A. 
 382, 67 Am. St. Rep. 352, 39 Atl. 1042; Knickerbocker Ice Co. v. Gardiner Dairy 
 Co. 107 Md. 556, 16 L.R.A. (N.S.) 746, 69 Atl. 405; Beekman v. Marstcrs, 195 
 Mass. 205, 11 L.R.A. (N.S.) 201, 122 Am. St. Rep. 232, 80 N. E. 817, 11 Ann. 
 Cas. 332; McGurk v. Cronenwett, 199 Mass. 457, 19 L.R.A. (N.S.) 561, 85 N. 
 E. 576; Van Horn v. Van Horn, 56 N. J. L. 318, 28 Atl. 669; American 
 Law Book Co. v. Edward Thompson Co. 41 Misc. 396, 84 N. Y. Supp. 225; Ray- 
 mond v. Yarrington, 96 Tex. 443, 62 L.R.A. 962, 97 Am. St. Rep. 914, 73 S. W. 
 800; West Virginia Transp. Co. v. Standard Oil Co. 50 W. Va. 611, 56 L.R.A. 
 S04, 88 Am. St. Rep. 895, 40 S. E. 59] ; Martens v. Reilly, 109 Wis. 464, 84 N. 
 W. 840; Angle v. Chicago, St. P. M. & O. R. Co. 151 U. S. 1, 38 L. ed. 63, 14 
 Sup. Ct. Rep. 240; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 19 L.R.A. 
 387, 5 Inters. Com. Rep. 522, 54 Fed. 730; Wells & R. Co. v. Abraham, 146 Fed. 
 190; Dr. Miles Medical Co. v. Jaynes Drug Co. 149 Fed. 838; Temperton v. 
 Russell [1S93] 1 Q. B. 715, 62 L. J. Q. B. N. S. 412, 4 Reports 376, 69 L. T. N. S. 
 78, 41 Week. Rep. '565, 57 J. P. 676; Quinn v. Leathern [1001] A. C. 495, 1 
 
 B. R. C. 197, 70 L. J. P. C. N. S. 76, 65 J. P. 70S, 50 Week Rep. 139, 85 L. T. 
 N. S. 289, 17 Times L. R. 749 (affirming [1899] 2 Ir. R. 667) ,— holding one 
 who maliciously interferes and causes one party to break contract is liable to 
 other party injured thereby; London Guarantee & Acci. Co. v. Horn, 206 Til. 
 493, 99 Am. §t. Rep. 185, 69 N. E. 526 (affirming 101 111. App. 355), holding 
 one whose discharge frofn employment is produced by a third party has a right 
 of action against such party, where the employment, although terminable at 
 will, would have continued indefinitely but for his interference, and where 
 his only motive was to injure the employee because the latter refused to re- 
 lease a cause of action unconnected with the continuance of the employment, for 
 which such third party was liable; Perkins v. Pendleton, 90 Me. 166, 60 Am. St. 
 Rep. 252, 38 Atl. 96; Lucke v. Clothing Cutters' & T. Assembly No. 7507, K. L. 
 77 Md. 396, 19 L.R.A. 408, 39 Am. St. Rep. 421, 26 Atl. 505,— holding same where 
 the object was coercion because the plaintiff was not a member of a labor union; 
 Boyson v. Thorn, 98 Cal. 578, 21 L.R.A. 233, 33 Pac. 492, holding an action will 
 not lie against one, who, from malicious motives, but without threats, violence, 
 falsehood, deception, or benefit to himself, induces another to violate his con- 
 tract with plaintiff, witli whom he does not stand in the relation of master 
 and servant, or any other personal relation; Employing Printers' Club v. Doc- 
 tor Blosser Co. 122 Ga. 509, 69 L.R.A. 90. 306 Am. St. Rep. 137, 50 S. E. 353, 
 2 Ann. Cas. 694, holding the malicious procurement of a breach of contract of
 
 129 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 717 
 
 employment, resulting in damage, when the procurement was during the sub- 
 sistence of the contract, is an actionable wrong; Edison General Electric Co. v. 
 Vancouver & N. W. Tramway Co. 4 B. C. 460^ as to liability for pursuading 
 breach of such contract. 
 
 Cited in notes in 5 L.R.A. (N.S.) 1098, on civil liability for enticing servant 
 to quit; 21 L.R.A. 233, 235, 238, on liability for inducing breach of contract; 
 17 Eng. Rul. Cas. 353, on liability for inducing breach of contract of service. 
 
 Cited in Hollingsworth Contr. 290, on incurring liability from contract to 
 which one was not a party, by inducing party to break it; 2 (ooley Torts, 
 3d ed. 594, on liability for conspiracy to prevent employment; 2 Cooley Torts, 
 3d ed. 599, on liability for combination to interfere with trade and labor ; 
 1 Thompson Neg. 527, on liability of principal for acts of agent in boycotting 
 a third person; Tiffany Ag. 329, on liability of third person for causing loss of 
 service by wrongful act. 
 
 Distinguished in Glencoe Land & Gravel Co. v. Hudson Bros. Commission Co. 
 138 Mo. 439, 36 L.R.A. 804, 60 Am. St. Rep. 560, 40 S. W. 93, holding an ac- 
 tion cannot be maintained for inducing a third party to break his contract 
 with plaintiff, where the relation of master and servant does not exist be- 
 tween the parties to the contract; Macauley Bros. v. Tierney, 19 R. I. 255, 37 
 L.R.A. 455, 61 Am. St. Rep. 770, 33 Atl. 1, holding notices sent out by associa- 
 tion of master plumbers to wholesale dealers in plumbers supplies not to sell 
 to others than members of association under penalty of withdrawal of latters 
 patronage, violated no legal rights of the nonmembers. 
 
 — Threats causing employees to quit service. 
 
 Cited in O'Brien v. People, 216 111. 354, 108 Am. St. Rep. 219. 75 N. E. 108, 
 3 Ann. Cas. 966, holding inducing complainant's employees to leave their employ- 
 ment by threats and unlawful persuasion, an actionable wrong; George Jonas 
 Glass Co. v. Glass Bottle Blowers' Asso. 77 N. J. Eq. 219, 41 L.R.A. (N.S.) 
 445, 79 Atl. 262, sustaining injunction restraining defendants from using either 
 coercion or persuasion in order to bring about breaches of contracts of personal 
 service; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 22 L.R.A. (N.S.) 607, 
 128 Am. St. Rep. 492, 114 S. W. 997; Barr v. Essex Trades Council, 53 N. J. Eq. 
 101, 30 Atl. 881; Old Dominion S. S. Co. v. McKenna, 30 Fed. 4S; Hopkins v. 
 Oxley Stave Co. 28 C. C. A. 99, 49 U. S. App. 709, 83 Fed. 912; Doremus v. Hen- 
 nessy, 176 111. 608, 43 L.R.A. 797, 68 Am. St. Rep. 203, 52 N. E. 924 (affirming 
 62 111. App. 391), — holding boycott an actionable wrong; Brauch v. Roth, 10 
 Ont. L. Rep. 284; Barnes v. Chicago Typographical Union No. 16, 232 111. 
 424, 14 L.R.A.(N.S.) 1018, 83 N. E. 940, 13 Ann. Cas. 54,— holding a combination 
 by a labor union and its members for the purpose of intentionally injuring 
 the business of an employer of labor in order to compel him to accede to the de- 
 mands of the union which he has a legal right to refuse is unlawful, and it is 
 as unlawful to produce such illegal result by mere persuasion as it is to 
 produce it by resort to acts of physical violence. 
 
 — Element of malice. 
 
 Cited in Tubular Rivet & Stud Co. v. Exeter Boot & Shoe Co. 86 C. C. A. 648, 
 159 Fed. 824, holding where defendant corporation induced another to break 
 a contract to furnish certain machines, plaintiff was entitled to recover from 
 defendant damages sustained thereby, without proof that defendant was actuated 
 by actual malice or ill will; London Guarantee & Acci. Co. v. Horn, 101 111. App. 
 Notes on E. R. C— 9.
 
 1 E. R. C. 717] NOTES ON ENGLISH RULING CASES. 130 
 
 355, holding guarantee company liable to employe for maliciously causing 
 li is discharge; Heywood v. Tillson, 75 Me. 225, 46 Am. Rep. 373, holding that 
 landlord has no action against employer of tenant threatening to discharge 
 latter unless he left house, though act was malicious; South Wales Miners' 
 Federation v. Glamorgan Coal Co. [1905] A. C. 239, 1 B. R. C. 1, 2 Ann. 
 Cas. 436, 74 L. J. K. B. N. S. 525, 53 Week. Rep. 593, 92 L. T. N. S. 710, 21 
 Times L. R. 441 (affirming [1903] 2 K. B. 545, 72 L. J. K. B. N. S. 893, 89 
 L. T. N. S. 393 which reversed [1903] 1 K. B. 118, 71 L. J. K. B. N. S. 1001, 87 
 L. T. N. S. 232), on wrongful intent as element in tortious interference with 
 another's servants. 
 
 Cited in Freund Police P. 323, on intimidation and coercion by combinations 
 of laborers. 
 — Pleading and form of action. 
 
 Cited in May v. Wood, 172 Mass. Ill, 51 N. E. 191 (dissenting opinion), 
 as to sufficiency of declaration in. 
 Actionable wrongs operating through third persons. 
 
 Cited in Canada Permanent Mortg. Corp. v. School Dist. 16 Manitoba 
 Law (Can.) 61S, holding publication that plaintiff's house is haunted is ac- 
 tionable under statute if special damages result, though there be no actual 
 malice; Tasker v. Stanley, 153 Mass. 148, 10 L.R.A. 468, 26 N. E. 417, holding 
 in an action for procuring and enticing the plaintiff's wife to be separated from 
 him, the defendant may disprove any intent in advising the wife to cause a sepa- 
 ration, and show that his advice was honestly given; Nolin v. Pearson, 191 
 Mass. 283, 4 L.R.A. (N.S.) 643, 114 Am. St. Rep. 605, 77 N. E. 890, 6 Ann. Cas. 
 658; Quick v. Church, 23 Ont. Rep. 262, holding when a husband leaves his 
 Avife to live in adultery with another woman by her procurement, and lives 
 and continues by such procurement to live in adultery with her, whereby his 
 affections are alienated from his wife and she is deprived of her means of sup- 
 port, an action lies at common law by wife against such woman. 
 
 Distinguished in Duffries v. Duffries, 76 Wis. 374, 8 L.R.A. 420, 20 Am. St. 
 Rep. 79, 45 N. W. 522, holding neither at common law nor under the statutes 
 can a wife maintain an action against one enticing away her husband for the 
 loss of his society and support. 
 New trial on appeal. 
 
 ( ited in Wills v. Carman, 14 Ont. App. 656 (dissenting opinion), as to when 
 venire de novo should be awarded on allowing appeal. 
 Damnum absque injuria. 
 
 Distinguished in Woolley v. Broad [1892] 1 Q. B. 806, 61 L. J. Q. B. N. S. 
 259, 66 L. T. N. S. 680, 40 Week. Rep. 511, holding one who had the exclusive 
 trading rights in a copyrighted design suffered no legal injury which would 
 enable him to sue an infringer. 
 Liability for wilfully harming another in exercise of legal right. 
 
 Cited in Arnold v. Moffitt, 30 R. I. 310, 75 Atl. 502, holding that act lawful 
 in itself is not converted by malicious or bad motive into unlawful act so as to 
 make doer of act liable to civil action. 
 
 Cited in notes in 62 L.R.A. 679, 680, 682, 702, 706, 714, 719, on effect of bad 
 motive to make actionable what would otherwise not be; 25 E. R. C. 82, on 
 liability for wilfully and intentionally harming another in exercise of a legal 
 right.
 
 131 NOTES UN ENGLISH RULING CASES. [l E. R. C. 729 
 
 1 E. R. C. 729, CHASEMORE v. RICHARDS, 7 H. L. (as. 349, 5 Jur. N. S. 
 873, 7 Week. Rep. 685, 29 L. J. Exch. N. S. 81, affg. the decision of the 
 Court of Exchequer Chamber, reported in 2 Hurlst. & N. 1GS. 
 Rights of land owners in surface and percolating waters relatively to each 
 other. 
 Cited in Tampa Waterworks Co. v. Cline, 37 Fla. 5S0, 33 L.R.A. 376, 
 53 Am. St. Rep. 262, 20 So. 780, holding proprietor has right to reasonable use 
 of surface water flowing in well-defined channels; Ryan v. Quinlan, 45 .Mont. 
 521, 124 Pac. 512, holding that owner of land may use percolating water as he 
 pleases for improving his land, though such use may injure adjoining owner ; 
 Miller v. Black Rock Springs Improv. Co. 99 Va. 747, 80 Am. St. Rep. 924, 40 
 S. E. 27; Case v. Hoffman, 100 Wis. 314, 44 L.R.A. 72S, 72 N. W. 390,— holding 
 subsurface water deemed part of soil itself and to same extent subject to 
 whatever disposition the owner of the land may choose to make; Gagnon v. 
 French Lick Springs Hotel Co. 163 Ind. 687, 68 L.R.A. 175, 72 N. E. 849, hold- 
 ing a landowner cannot exercise unlimited and irresponsible control over subter- 
 ranean waters on his own land without regard to injuries to others, but local 
 conditions, the purpose of the diversion, the use intended, and all other circum- 
 stances are to be considered; McBryan v. Canadian P. R. Co. 29 Can. S. C. 359, 
 holding a laud owner might dam back irrigation overflow without liability to 
 a neighbor; Dawson v. Murray, 29 U. C. Q. B. 464, on absence of right to flow 
 of other than natural water courses; Nichol v. Canada Southern R. Co. 40 U. 
 C. Q. B. 5S3, holding failure of railroad to provide for escape of surface water 
 was not actionable; Williamson v. Jones, 39 W. Va. 231, 25 L.R.A. 222, 19 S. E. 
 436, on ownership of percolations in place in the soil; Jordeson v. Sutton, S. 
 & D. Gas Co. [1899] 2 Ch. 217, 68 L. J. Ch. N. S. 457, 80 L. T. N. S. 815, 63 
 J. P. 692, 15 Times L. R. 374, as to soil owner's rights in percolating waters; 
 Bower v. Sandford, 5 Times L. R. 570, as to right of landowner to subterranean 
 water running in a well defined channel; Beer v. Stroud, 19 Ont. Rep. 10, on 
 the distinction between surface water at large and such water running in a 
 defined course; Brain v. Marfell, 41 L. T. N. S. 455, 44 J. P. 56; R. v. Metro- 
 politan Bd. of Works, 32 L. J. Q. B. N. S. 105, 3 Best. & S. 710, 9 Jur. X. S 
 1008, S L. T. N. S. 23S, 11 Week. Rep. 492; Bradford Corp. v. Pickles [1S94] 
 3 Ch. 53 [1S95] A. C. 587, 64 L. J. Ch. N. S. 759, 11 Reports, 286, 73 L. T. N. S 
 353, 44 Week. Rep. 190, 60 J. P. C. 3, — holding owner of land containing under 
 ground water, which percolates by undefined channels and flows to land of a neigh- 
 bor, has the right to divert or appropriate the percolating water within his own 
 land so as to deprive his neighbor of it; M'Evoy v. Great Northern R. Co. 
 11900] 2 Ir. Q. B. 325, holding same and that a diverting channel was solely 
 the property of the diverting owner; Ballacorkish Silver Lead & Copper Min. 
 Co. v. Harrison. L. R. 5 P. C. 49, 43 L. J. P. C. N> S. 19, 29 L. T. N. S. 658, 22 
 Week. Rep. 277, holding same where mines worked under Crown lease destroyed 
 surface springs; Black v. Bally men a, Ir. L. R. 17 Eq. 459, holding same but 
 that the intercepted waters in question were not undefined; Ewart v. Belfast 
 Poor-Law Guardians, Ir. L. R. 9 Eq. 172, holding defendant had right to divert 
 water in underground channel which was not known though definable by exca- 
 vation; Bradford Corp. v. Ferrand [1902] 2 Oh. Div. 655, 71 L. J. Ch. N. S 
 859, 87 L. T. N. S. 388, 51 Week. Rep. 122, 67 J. P. 21, 18 Times L. R. 830, 
 holding if underground water flows in a definite channel into a well supply- 
 ing a stream above ground, but the existence and course of that channel are 
 not known and cannot be ascertained except by excavation, the lower riparian
 
 1 E. R. C. 729] KOTES ON ENGLISH RULING CASES. 132 
 
 proprietors on the banks of the stream have no right of action for the abstrac- 
 tion of the underground water. 
 
 Cited in notes in 64 L.R.A. 238, on correlative rights in percolating waters; 
 1 Eng. Rul. Cas. 271, on liability for injury by water, etc., escaping from 
 place where it is stored; 30 L.R.A. 667, on right of prior appropriation of 
 water. 
 
 Cited in 2 Kinkead Torts, 1300, 1301, on what are subterranean streams and 
 percolating waters; 1 Thompson Neg. 646, on liability of one artificially col- 
 lecting water on his own land for injuries to adjoining land from percolations 
 through soil. 
 
 Distinguished in Pixley v. Clark, 35 N. Y. 520, 91 Am. Dec. 72; Wilson v. 
 New Bedford, 108 Mass. 261, 11 Am. Rep. 352, — holding one who accumulates 
 water artificially on his own land is liable for injuries resulting to adjoining 
 land from percolations through the soil caused by the pressure of the accu- 
 mulated mass or from the obstruction, by that cause, of the natural passage 
 of water through the soil from such land; Ballard v: Tomlinson, L. R. 26 Ch. 
 Div. 194, L. R. 29 Ch. Div. 115, 54 L. J. Ch. N. S. 454, 52 L. T. N. S. 942. 
 33 Week. Rep. 533, 49 J. P. 692, holding land owner not entitled to render 
 underground water unfit for use by pouring sewage into it; Hodgkinson v. 
 Ennor, 4 Best. & S. 229, 32 L. J. Q. B. N. S. 231, 9 Jur. N. S. 1152, 8 L. T. 
 N. S. 451, 11 Week. Rep. 775, holding defendant liable for polluting under- 
 ground stream which opened into a well defined stream beside plaintiff's land 
 
 Disapproved in Hathorn v. Natural Carbonic Gas Co. 194 N. Y. 326, 23 
 L.R.A. (N.S.) 436, 12S Am. St. Rep. 555, 87 N. E. 504, 16 Ann. Cas. 989, 
 holding landowner has no right by use of pumps and other apparatus to greatly 
 increase flow of percolating mineral waters for purpose of sale; Pence v. Carney, 
 58 W. Va. 296, 6 L.R.A. (N.S.) 266, 112 Am. St. Rep. 963, 52 S. E. 702, hold- 
 ing the owner of land who explores for and produces subterranean percolating 
 water within the boundary of his land is limited to a reasonable and beneficial 
 use of such water when to otherwise use it would deplete the water supply of a 
 valuable natural spring of another on adjoining or neighboring land and impair 
 or destroy such spring. 
 
 ) The decision of the court of Exechequer Chamber was cited in Swett v. Cutts, 
 50 N. H. 439, 9 Am. Rep. 276, holding that owner of land may use percolat- 
 ing water as he pleases for improving his land, though such use may injure 
 adjoining owner. 
 — Interception by wells or the like. 
 
 Referred to as leading case in Erickson v. Crookston Waterworks, Power & 
 Light Co. 105 Minn. 182, 17 L.R.A. (N.S.) 650, 117 N. W. 435, holding right 
 to pump from artesian basin was correlative and subject to reasonable like uses. 
 
 Cited in Chesley v. King, 74 Me. 164, 43 Am. Rep. 569; Davis v. Spaulding, 
 157 Mass. 431, 19 L.R.A. 102, 32 N. E. 650.; Mosier v. Caldwell, 7 Nev. 363; 
 Chase v. Silverstone, 62 Me. 175, 16 Am. Rep. 419, — holding the defendant 
 having dug his well on his own land in good faith for the obtaining of water 
 for his domestic uses, is not liable for any damage which incidentally resulted 
 to the plaintiff by reason of thereby diverting the water which had been accus- 
 tomed to percolate or flow, in an unknown subterranean current, into the plain- 
 tiff's spring; Delhi v. Youmans, 45 N. Y. 362, 6 Am. Rep. 100 (affirming 50 
 Barb. 316), holding same, contra if the waters before interception had become 
 a stream; Van Wycklen v. Brooklyn, 118 N. Y. 424, 24 N. E. 179 (reversing 
 tin other grounds 41 Hun, 418), to same point; Wheelock v. Jacobs, 70 Vt. 162,
 
 133 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 720 
 
 43 L.R.A. 105, 67 Am. St. Rep. 659, 40 Atl. 41, holding rule applied to water 
 which seeped to an impervious stratum where it flowed indefinitely and was 
 collected; Ocean Grove Camp Meeting Asso. v. Asbury Park, 40 N. J. Eq. 447, 
 3 Atl. 168, holding waters so taken might be transported for use on other lands; 
 Houston & T. C. R. Co. v. East, 98 Tex. 146, 66 L.R.A. 738, 107 Am. St. Rep. 
 620, 81 S. W. 279, 4 Ann. Cas. 827, holding the uses to which such water may 
 fairly be put are unlimited; Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 9.'!, 
 holding interception done to cut off a well which tapped a spring by percola- 
 tion was not actionable; Covert v. Cranford, 141 N. Y. 521, 38 Am. St. Rep. 
 826, 36 N. E. 597, on rights in natural waters subterraneously tapped and low- 
 ered; Milton v. Glen-Moray Glenlivet Distillery Co. 1 Sc. Sess. Cas. (5 Series) 
 135, holding wells dug near a river and thereby intercepting waters by perco- 
 lation were not a wrong to other riparian owners. 
 
 Cited in note in 1 Eng. Rul. Cas. 763, on nonliability for diminution of water 
 on adjoining land by pumping from well on one's own land. 
 
 Cited in 2 Cooley Torts, 3d ed. 1199, 1203, on liability for drying off sub- 
 terranean waters of neighbor by excavation on own land; Freund Police P. 452, 
 on right of owner of land to intercept underground waters. 
 
 The decision of the court of Exchequer Chamber was cited in Willis v. Perry, 
 92 Iowa, 297, 26 L.R.A. 124, 60 N. W. 727, holding that use of water from flow- 
 ing well for usual domestic purposes cannot lawfully be impaired by pumping 
 from another well which renders same subterranean stream for city water 
 supply; Erickson v. Crookston Waterworks Power & Light Co. 100 Minn. 483, 
 8 L.R.A. (N.S.) 1250, 111 N. W. 391, 10 Ann. Cas. 843, holding that law of cor- 
 relative rights applies to use by adjoining landowners of waters drawn from 
 artesian basin; Frazier v. Brown. 12 Ohio St. 294, holding that no damages are 
 recoverable against one who digs "hole" on his land and thereby cuts off under- 
 ground waters from adjoining land. 
 — Diversion of surface waters and streams. 
 
 Cited in Katz v. Walkinshaw, 141 Cal. 116, 64 L.R.A. 236, 99 Am. St. Rep. 
 35, 70 Pac. 663; Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 265,— holding 
 owner of land may appropriate it to any use, and in any amount without 
 reference to the effect of such appropriation upon his neighbor's land or supply 
 of water but he may not thus indirectly destroy or diminish the flow of a nat- 
 ural surface stream to injury of a riparian owner thereof; Western Maryland 
 R. Co. v. Martin, 110 Md. 554, 73 Atl. 267, 'holding that party is not liable 
 for causing diversion of water running underground, unless such water was 
 accustomed to flow in fixed channel or in uniform direction; Meeker v. East 
 Orange, 77 N. J. L. 6*23, 25 L.R.A. (N.S.) 465, 134 Am. St. Rep. 798, 74 Atl. 
 379 (reversing 76 N. J. L. 435, 70 Atl. 360), holding that percolating under- 
 ground waters may not be withdrawn for distribution or sale, if it thereby 
 result that owner of adjacent land is interfered with in reasonable use of such 
 waters; .Taylor v. Fickas, 64 Ind. 167, 31 Am. Rep. 114; Livingston v. Mc- 
 Donald, 21 Iowa, ]60, 89 Am. Dec. 563, — holding the owner of the higher land 
 has an unqualified right to drain for agricultural purposes the surface water 
 or water flowing in no regular or definite channel upon his own lands; Smith 
 v. Brooklyn, 18 App. Div. 340, 46 N. Y. Supp. 141, holding that right of owner 
 of land to divert percolating water does not extend to authorizing destruction 
 of stream by cutting off source of supply when acts causing such result are not 
 done for beneficial result of land itself; Smith v. Brooklyn, 160 N. Y. 357, 45 
 L.R.A. 664, 54 N. E. 787, holding land owner may not divert and diminish the
 
 1 E. R. C. 729] NOTES ON ENGLISH RULING CASES. 134 
 
 natural flow of a surface stream by preventing its usual and natural supply or 
 by causing through suction or other methods, a subsidence of its waters; Wa- 
 tuppa Reservoir Co. v. Fall River, 147 Mass. 548, 1 L.R.A. 466, IS N. E. 465 
 (dissenting opinion), as to right of proprietor to divert water from stream; 
 Arthur v. Grand Trunk R. Co. 22 Ont. App. 89, holding that where water course 
 has been diverted by railroad company constructing line without filing maps 
 or giving notice, landowner has right of action. 
 
 Cited in notes in 17 E. R. C. 474, 548, — on right of mine owner to draw ofi 
 water by percolation. 
 
 Cited in 3 Farnham, Waters, 2713, on right to cut off spring or stream. 
 
 Distinguished in Grand Junction Canal Co. v. Shugar, L. R. 6 Ch. 483, 24 
 L. T. N. S. 402, 19 Week. Rep. 569, holding although a landowner will not 
 in general be restrained from drawing off the subterranean waters in the ad- 
 joining land, yet he will be restrained if, in so doing, he draws off the water 
 flowing in a defined channel through the adjoining land; Atty.-Gen. v. Tom- 
 line, L. R. 14 Ch. Div. 58, 49 L. J. Ch. N. S. 377, 42 L. T. N. S. 880, 2S 
 Week. Rep. 870, 44 J. P. 617, 23 Eng. Rul. Cas. 797, holding action will lie 
 in name of attorney general to prevent owner of land from removing natural 
 barrier thrown up by sea preventing inundations of other lands. 
 
 The decision of the Court of Exchequer Chamber was distinguished in Copper 
 King v. Wabash Min. Co. 114 Fed. 991, 22 Mor. Min. Rep. 164, holding that 
 where mining company has exclusive right to use water of creek, another com- 
 pany has no right to divert waters flowing into it by means of shaft. 
 Natural and prescribable rights and casements. 
 
 Cited in State ex rel. Hadley v. Standard Oil Co. 21S Mo. 1, 116 S. W. 902, 
 tc the point that there is no doctrine of law which compels person to use his 
 property in way that judges and juries may consider reasonable; Francis Kerr 
 Co. v. Seely, '44 Can. S. C. 629 (dissenting opinion), on right of lateral sup- 
 port in soil for adjoining buildings; Bryant v. Lefever, L. R. 4 C. P. Div. 
 172, 48 L. J. C. P. N. S. 380, 40 L. T. N. S. 579, 27 Week. Rep. 592, hold- 
 ing the access of air to the chimneys of a building cannot as against the 
 occupier of neighboring land, be claimed either as a natural right of prop- 
 erty, or as an easement by prescription ; Harris v. De Pinna, L. R. 33 Ch. Div. 
 238, 56 L. J. Ch. N. S. 344, 54 L. T. N. S. 770, 50 J. P. 4S6, on easements 
 in vague and indefiniable conditions; Mansell v. Valley Printing Co. [1908] 2 
 Ch. 441, 1 B. R. C. 187, 77 L. J.' Oh. N. S. 742, 99 L. T. N. S. 464, 24 Times 
 L. R. 802, 52 Sol. Jo. 660, holding that any person who publishes pirated 
 copy of unpublished picture, not registered under statute, is liable in damages 
 for infringement of owner's common-law right of property in picture. 
 
 Cited in note in 8 Eng. Rul. Cas. 346, on right to claim profit in land of 
 another by custom or otherwise. 
 
 Distinguished in Dalton v. Angus, L. R. 6 App. Cas. 740, 50 L. J. Q. B. 
 X. S. 689, 44 L. T. N. S. 844, 30 Week. Rep. 196, 46 J. P. 132, 10 Eng. Rul. 
 Cas. 98, L. R. 4 Q. B. Div. 162, L. R. 3 Q. B. Div. 85, where an easement in 
 artificial conditions was claimed; Bass v. Gregory, L. R. 25 Q. B. Div. 481, 
 59 L. J. Q, B. N. S. 574, 55 J. P. 119, 2 Eng. Rul: Cas. 562, holding an action- 
 able right existed in the flow of air through a defined channel. 
 Natural, riparian and water rights. 
 
 Cited in Sage v. New York, 10 App. Div. 294, 41 N. Y. Supp. 938 (dissenting 
 opinion), as to riparian rights being natural rights; McDonald v. Lake Simcoe 
 Ice & Cold Storage Co. 29 Ont. Rep. 247, holding the cutting of a channel
 
 13.3 NOTES ON ENGLISH RULING CASKS. [1 E. R. C. 729 
 
 through ice formed on a water lot in a navigable harbor, to enable ice cut out- 
 aide to be conveyed to the shore of the harbor, is a use of the water lot for 
 purposes of navigation, and owner of lot cannot interfere with such user; 
 Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Columbia River Lumber Co. v. Yull. 
 2 B. C. 237; Brown v. Bathurst Electric & Water Power Co. 3 N. B. Eq. 543; 
 Steadman v. Robertson, 18 N. B. 580; Hamilton v. Gould, 24 U. C. Q. B. 58; 
 Holman v. Green, 2 Has. & War. (Pr. Edw. Ial.) 329; North Shore R. Co. 
 v. Pion, 15 Quebec L. R. 228; M'Glone v. Smith, Ir. L. R. 22 C. L. 559; Lyon 
 v. Fishmongers' Co. L. R. 1 App. Cas. 062, 46 L. J. Ch. X. S. 68, 35 L. T. 
 N. S. 569, 25 Week. Rep. 165, 23 Eng. Rul. Cas. 141,— on rioht to enjoyment 
 of a water course being a natural right and not acquired by occupation-. Esqui 
 malt Waterworks Co. v. Victoria, C. R. [1907] A. C. 388 (reversing 12 1'.. C. 
 302), holding that rights of riparian owners at common law were carried 
 into all colonies with general body of common law; Merritt v. Toronto, 6 I). 
 1 . R. 152 (dissenting opinion), on rights of riparian owners on navigable river 
 as affected by public rights; R. v. Robertson, 6 Can. S. C. 52, on rights in 
 surface streams; North Shore R. Co. v. Pion, L. R. 14 App. Cas. 612, 59 L. 
 J. P. C. N. S. 25, 61 L. T. N. S. 525; holding riparian owner has right to 
 have water come to him in natural state and go from him without obstruction. 
 
 Cited in notes in 19 L.R.A. 93, 94, on rights in subterranean waters; 2 
 Brit. Rul. Cas. 1002, on character of water flowing underground in defined but 
 unknown channel; 10 E. R. C. 242, on right of riparian owner to purity of 
 water; 25 E. R. C. 408, on rights of riparian proprietor to use or divert water 
 of stream. 
 
 The decision of the Court of Exchequer Chamber was cited in Dawson v. 
 Murray, 29 U. C. Q. B. 464, holding that right to have flow of water, or use 
 it, applies only to water running in well defined channels, commonly called 
 watercourses; Bradford Corp. v. Ferrand, [1902] 2 Ch. 655, 2 B. R. C. 980, 
 71 L. J. Ch. N. S. 859, 51 Week. Rep. 122, 87 L. T. N. S. 388, 18 Times L. R. 
 830, 67 J. P. 21, holding that lower owner has no right of action for abstrac- 
 tion of underground water, even though it flows in well defined channel into 
 well supplying stream above ground. 
 Irrigation rights. 
 
 Cited in Canadian P. R. Co. v. Parke, 6 B. C. 6, holding right to use water for 
 irrigation statutory one. 
 
 Cited in 3 Farnham, Waters, 1896, on necessity of irrigation. 
 
 Ancient lights. 
 
 Cited in Gilmore V. Driscoll, 122 Mass. 199, 23 Am. Hep. 312, as to the 
 English doctrine. 
 
 Presumption of grant. 
 
 Cited in Lehigh Valley R. Co. v. McFarlan, 43 X. J. L. 605, as to when 
 and how rebutted; Ring v. Pugsley, 18 N. B. 303, holding presumption of grant 
 raised entirely from fact of uninterrupted possession of twenty years; Sturges 
 v. Bridgman, L. R. 11 Ch. Div. 852, 48 L. J. Ch. X. S. 785, 41 L. T. X. S. 
 219, 28 Week. Rep. 200; Lawrie v. Silsby, 76* Vt. 240, 104 Am. St. Rep. 927, 
 56 Atl. 1106, — holding presumption of a grant from long continued enjoyment 
 arises only where the person against whom the right is claimed could have 
 lawfully interrupted or prevented the exercise of the supposed right. 
 
 The decision of the Court of Exchequer Chamber was cited in Harrison v. 
 Harrison, 16 N. S. 338, holding that as to water not flowing in defined channels 
 over another's land, such flowing does not warrant presumption of grant.
 
 1 E. R. C. 729] NOTES ON ENGLISH RULING CASES. 136 
 
 Injuries actionable because of motive. 
 
 Cited in Rader v. Davis, 154 Iowa, 306, 38 L.R.A. (N.S.) 131, 134 N. W. 849, 
 to the point that act otherwise lawful is not unlawful because of malicious 
 intent; Burke v. Smith, 69 Mich. 380, 8 L.R.A. 184, 37 N. W. 838, on acts 
 made actionable by bad motive; Barger v. Barringer, 151 N. C. 433, 25 L.R.A. 
 (N.S.) 831, 66 S. E. 439, 19 Ann. Cas. 472 (dissenting opinion), on malice 
 as giving rise to cause of action for act which would otherwise not be basis 
 for cause of action; Letts v. Kessler, 54 Ohio St. 73, 40 L.R.A. 177, 42 N. E. 
 765, holding a spite fence was damnum absque injuria; Nagy v. Manitoba Free 
 Press Oo. 16 Manitoba L. Rep. 619; Hague v. Wheeler, 157 Pa. 324, 22 L.R.A. 141, 
 37 Am. St. Rep. 736, 27 Atl. 714, — as to one not having the right to do malicious- 
 ly what he might do if his motives were good. 
 
 Cited in Thornton Oil & Gas Co. 48, on maliciously boring oil or gas well to 
 injure another. 
 Torts and breach of contracts. 
 
 Cited in Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 598, 58 L. J. Q. 
 B. N. S. 465, 61 L. T. N. S. 820, 37 Week. Rep. 756, 53 J. P. 709, 6 Asp. Mar. L. 
 Cas. 455, as to the distinction. 
 
 1 E. R. C. 765, SUTTON v. JOHNSTONE, 1 Bro. P. C. 76, 1 Revised Rep. 269, 
 1 T. R. 784, affirming the decision of the Exchequer Chamber, reported in 1 
 T. R. 510, which reversed the decision of the Court of Exchequer, reported in 
 1 T. R. 493, 1 Revised Rep. 2.57. 
 Malicious prosecution. 
 
 Cited in Castro v. DeUriarte, 12 Fed. 250, 2 N. Y. Civ. Proc. Rep. (McCarty) 
 199, holding that malicious prosecution will lie against one who maliciously and 
 without probable cause, set on foot, legal proceedings, although such proceedings 
 were invalid; Johnson v. Gordwood, 7 Misc. 651, 28 N. Y. Supp. 151, holding that 
 action for malicious prosecution can be brought only for prosecution which is 
 manifestly legal on its face; Bartlett v. Brown, ~6 R. I. 37, 75 Am. Dec. 675; 
 Plummer v. Gheen, 10 N. C. (3 Hawks) 66, — holding that if man prosecute an- 
 other from apparent guilt, arising from circumstances, which he honestly believes, 
 he is not liable in action for malicious prosecution; Miller v. Grice, 1 Rich. L. 
 147, on the liability of magistrate for issuing a warrant and an arrest maliciously 
 and without having jurisdiction; Rex v. Stewart, 6 Manitoba L. Rep. 257, hold- 
 ing that action for malicious prosecution may arise although no criminal charge 
 had been sufficiently alleged in information; Young v. Nichol, 9 Ont. Rep. 347, 
 holding that action for malicious prosecution will lie for issuing search warrant 
 without probable cause; Bump v. Betts, 19 Wend. 421, holding action lies against 
 any person who maliciously, and without probable cause, prosecutes another, 
 whereby the party prosecuted sustains an injury either in person, property, or 
 reputation; Macdonald v. Henwood, 32 U. C. C. P. 433, as to the definition of 
 malicious "prosecution" for crime. 
 — Distinction from false imprisonment. 
 
 Cited in Davis v. Pacific Teleph. & Teleg. Co. 127 Cal. 312, 57 Pac. 764, holding 
 that where gist of action is for malicious prosecution for misdemeanor and 
 arrest therefor under legal process, there can be no recovery for false imprison- 
 ment, which must proceed upon allegation of arrest without legal authority; Col- 
 ter v. Lower, 35 Ind. 285, 9 Am. Rep. 735, holding that if imprisonment is under 
 legal process, but action is carried on maliciously and without probable cause, it is 
 malicious prosecution; Boaz v. Tate, 43 Ind. 60, holding that if imprisonment be
 
 137 NOTES ON ENGLISH RULING CASKS. [1 E. I;. C. 765 
 
 under legal process, but action has been commenced maliciously and without 
 probable cause, it is malicious prosecution; Southern R. Co. v. Shirley, 121 Ky. 
 863, 90 S. W. 597, 12 Ann. Cas. 33, holding that in action for false imprisonment, 
 it is not necessary to allege that arrest was without probable cause; Lark v. 
 Bande, 4 Mo. App. 186, holding that person making statement to officer tending to 
 show that another had committed felony is not liable for malicious arrest, if he 
 did not request arrest to be made, although no felony was committed; dissenting 
 opinions in Wolcott v. Bachman, 3 YVyo. 335, 23 Pac. 673: Henderson v. Jackson. 
 9 Abb. Pr. N. S. 293, 2 Sweeney, 324, 40 How. Pr. 168,— on distinction between ac- 
 tion for false imprisonment and action for malicious prosecution? Hobbs v. Kay. 
 18 R. I. 84, 25 Atl. 694, holding that trespass for false imprisonment does not lie 
 where made under lawful process, although wrongfully obtained; Neil v. Thorn, 
 88 N. Y. 270, as to whether evidence to sustain false imprisonment would sustain 
 an action for malicious prosecution. 
 
 — Favorable termination of prosecution. 
 
 Cited in Barrell v. Simonton, 2 Cranch, C. C. 657, Fed. Cas. No. 1,041, holding 
 the alleged malicious prosecution must have terminated in favor of plaintiff in the 
 action for malicious prosecution. 
 
 — Absence of probable cause. 
 
 Cited in Dinsman v. Wilkes, 12 How. 390, 13 L. ed. 1036, to the point that 
 action for malicious prosecution will lie only in cases where legal prosecution has 
 been carried on without probable cause; Vinson v. Flynn, 64 Ark. 453, 39 L.R.A. 
 415, 43 S. W. 146, holding that want of probable cause is necessary to cause of 
 action for malicious prosecution; Greenwade v. Mills, 31 Miss. 464, holding that 
 want of probable cause alone is not sufficient to maintain action for malicious 
 prosecution, — malice must also be shown; Furness v. Porter, Walk. (Miss.) 442, 
 holding that where facts have not feen found by jury, it is error to instruct jury 
 "that admitting all testimony in favor of plaintiff to be true, yet that he had not 
 shown want of probable cause;" Hill v. Palm, 38 Mo. 13, holding that in malicious 
 prosecution, it is not competent, in defense of probable cause, to show that party 
 was guilty of another and different offense; Warren v. Flood, 72 Mo. App. 199, 
 holding that complaining party is not liable where he fairly and fully states 
 facts to officer who sets on foot prosecution; Bulkeley v. Smith, 2 Duer, 261, hold- 
 ing that in malicious prosecution action, want of probable cause is essential 
 ground, and must be expressly proved; Dorendinger v. Tschechtelin, 12 Daly, 34, 
 holding that charge made must be shown to be wilfully false to establish want of 
 probable cause, in action for malicious prosecution; M'Cormick v. Sisson, 7 Cow. 
 715, holding that whether there is probable cause is mixed question of law 
 and fact; Baldwin v. Weed, 17 Wend. 224, holding that in action for malicious 
 prosecution for procuring indictment for obtaining goods under false pretences, 
 evidence that plaintiff had been guilty of conduct which to men unskilled in 
 technical rules of law, would excite well grounded suspicion that crime had been 
 committed, was sufficient to show probable cause; McHugh v. Pundt, 1 Bail. L. 
 441 ; Boyd v. Snyder, 207 Pa. 330, 56 Atl. 924 ; Apgar v. Woolston, 43 N. J. L. 57, 
 —holding that if court had jurisdiction and process was regular, only action sus- 
 tainable is for malicious motive and want of probable cause in promoting prose- 
 cution; Watt v. Greenlee, 9 N. C. (2 Hawks), 186, holding that essential 
 ground of action for malicious prosecution is, that legal prosecution was carried 
 on without probable cause, which must be expressly proved; Barron v. Mason, 31 
 Vt. 189, holding that in action for malicious prosecution, both want of probable 
 cause and malice must concur, to render prosecutor liable: Grant v. Beaudry, 2
 
 1 E. R. C. 765] NOTES OX ENGLISH RULING CASES. 138 
 
 Dorin (Quebec) 197, holding that malice and want of probable cause must Lie 
 combined to render mayor liable for arrest and prosecution of member of illegal 
 society threatening breach of peace; Wilson v. Tennant, 25 Ont. Rep. 339, holding 
 that in action for malicious prosecution of charge of theft of several articles, court 
 properly directed that no probable cause existed for charge as to some of articles, 
 and that fact that probable cause to charge theft of some of articles bore only on 
 question of damages; Brown v. Hawkes [1891] 2 Q. B. 718, 61 L. J. Q. B. N. S. 
 151, 65 L. T. N. S. 108, 55 J. P. 823, as to necessity of existence of probable 
 cause. 
 
 — Judgment as evidence of probable cause. 
 
 Cited in Evving v. Sanford, 19 Ala. 605, holding that order of commitment by 
 justice is sufficient evidence of probable cause, but is not conclusive upon plain- 
 tiff in malicious prosecution; McElroy v. Catholic Press. Co. 254 111. 290, 98 N. 
 E. 527, holding that judgment of conviction is prima facie evidence of existence of 
 probable cause for prosecution, even though judgment was reversed; Welch v. Bos- 
 ton & P. R. Corp. 14 R. I. 609, holding that, in absence of fraud, judicial rinding 
 in former action is conclusive of probable cause, even if such finding is reversed 
 on appeal; Womack v. Circle, 29 Gratt. 192, holding that judgment of justice, 
 though reversed, was prima facie evidence of probable cause in malicious prosecu- 
 tion action; Womack v. Circle, 32 Gratt. 324. holding that in malicious prosecu- 
 tion, judgment of justice requiring security for good behavior, though reversed, is 
 conclusive evidence of probable cause, unless complainant knew evidence before 
 justice was false; Ewing v. Sanford, 19 Ala. 605, holding judgment of justice or- 
 dering commitment sufficient evidence of probable cause but not conclusive; Burt 
 v. Place, 4 Wend. 591, holding recovery in a court of competent jurisdiction in 
 favor of plaintiff in a suit complained of as malicious, is not conclusive evidence 
 of probable cause; Miller v. Deere, 2 Abb. Pr. 1, holding that in an action for ma- 
 licious prosecution, the fact that the jury convicted the plaintiff in the prosecution 
 is conclusive evidence of probable cause unless the conviction was fraudulently 
 procured; Griffis v. Sellars, 19 N. C. (2 Dev. & B. L.)' 492, 31 Am. Dec. 422; 
 Macdonald v. Schroeder, 28 Pa. Super. Ct. 128; Short v. Spragins, 104 Ga. 628, 30 
 S. E. 810, — holding judgment of lower court convicting plaintiff, if not procured 
 by fraud or false testimony is, though afterwards set aside, conclusive evidence of 
 probable cause; Crescent City L. S. L. & S. H. Co. v. Butchers' Union, S. H. & L. 
 S. L. Co. 120 U. S. 141, 30 L. ed. 614, 7 Sup. Ct. Rep. 472, on same point; Her- 
 man v. Brookerhoff, 8 Watts, 240, holding in an action for maliciously suing out 
 a capias ad respondendum the plaintiff is estopped from denying the existence 
 of a probable cause of action, by the fact that a judgment was rendered against 
 him in the suit in which he was arrested. 
 
 Distinguished in Routhier v. McLaurin, 18 Ont. Rep. 112, holding where a man 
 has been prosecuted for an assault and brings an action for malicious prosecution, 
 the rinding that there was in fact an assault is not decisive of the question whether 
 there was reasonable and probable grounds for the prosecution; Peck v. Peck, 35 
 N. B. 484, holding it is no answer to an action for malicious prosecution that the 
 conviction against the plaintiff was quashed by reason of a proviso in the statute 
 creating the offense excusing the act charged. 
 — Inferences as to malice and want of probable cause. 
 
 Cited in Brown v. Selfridge. 224 U. S. 189, 56 L. ed. 728, 32 Sup. Ct. Rep. 444, 
 holding that burden of proving malice and want of probable cause rests upon 
 plaintiff in action for malicious prosecution: Ball v. Rawles, 93 Cal. 222, 27 Am. 
 St. Rep. 174, 28 Pac. 9.!7. holding in order to recover plaintiff must establish both
 
 139 NOTES ON ENGLISH RULING CASES. U B. R. C. 70.", 
 
 malice and want of probable cause; Stone v. Crocker, 24 Pick. 81 ; Wilder v. Holdon, 
 24 Pick. 8, — holding that in action for malicious prosecution plaintiff must prove 
 malice and want of probable cause; Southern R. Co. v. Mosby, 112 \ a. L69, 70 S. 
 E. 517, holding that in malicious prosecution malice may be implied from want of 
 probable cause if circumstances will warrant implication, but existence of malice 
 may be repelled by circumstances; McNellis v. Gartshore, 2 U. C. C. P. 464. hold- 
 ing that where complaint does not authorize justice of peace to issue search war- 
 rant, it must be proved that complainant acted maliciously and without probable 
 cause: Barbour v. Gettings, 26 U. C. Q. B. 544, holding that allegation of want 
 of probable cause must be proved and cannot be implied; Montreal v. Hall, 12 Can. 
 S. C. 74, to point that malice is implied from want of probable cause. 
 
 Cited in note in 3D L. ed. U. S. 483, on inferences in actions for malicious prose- 
 cution. 
 
 The decisions of the Exchequer Chamber was cited with special approval in 
 Barron v. Mason, 31 Vt. 189, on necessity of co-existence of both. 
 
 The decisions of the Exchequer Chamber was cited in Center v. Spring, 2 
 Iowa, 393; Adams v. Lisher, 3 Blackf. 241, 25 Am. Dec. 102; Thaule v. Krekeler, 
 81 N. Y. 428; Kirtley v. Deck, 2 Munf. 10, 5 Am. Dec. 445; Blunt v. Little, 
 :; Mason, 102, Fed. Cas. No. 1,578; Castro v. DeUriarte, 16 Fed. 93; Stewart 
 v. Sonneborn, 98 U. S. 187, 25 L. ed. 116; Grimes v. Miller, 23 Ont. App. Rep. 
 764; St. Denis v. Shoultz, 25 Ont. App. Rep. 131; Heyne v. Blair, 62 N. Y. 
 19,— as to proof of malice not supplying proof of want of probable cause: 
 Spengler v. Davy, 15 Gratt, 381, holding the improper motive, or want of 
 proper motive, inferable from a wrongful act based upon no reasonable ground, 
 constitutes of itself all the malice deemed essential in law to the maintenance 
 of the action for malicious prosecution; Crawford v. McLaren, 9 U. C. C. P. 215, 
 holding malice may be inferred from want of probable cause, but proof of express 
 malice is not evidence of want of probable cause. 
 — Court and jury questions. 
 
 Cited in Wheeler v. Nesbitt, 24 How. 544, 16 L. ed. 765, holding that want of 
 probable cause is evidence of malice for consideration of jury; but converse of 
 proposition cannot be sustained; Lewton v. Hower, 35 Fla. 5S, 16 So. 616; Mil- 
 ler v. Brown, 3 Mo. 131, 23 Am. Dec. 693, holding that probable cause is mixed 
 question of law and fact; Brown v. Connelly, 5 Blackf. 390; Pennsylvania Co. 
 v. Weddle. 100 Ind. 138, holding that in action for malicious prosecution, if 
 facts are not disputed, court must decide as matter of law, whether they consti- 
 tute probable cause; Bulkeley v. Keteltas, 6 N. Y. 3S4; Duffy v. Beirne, 30 App. 
 Div. 384, 51 N. Y. Supp. 626; Masten v. Deyo, 2 Wend. 424; Burns v. Erben, 
 40 N. Y. 463, — holding that where there is no conflict in evidence, question 
 of probable cause as reasonable grounds of suspicion is one of law ; Legget v. 
 Blount, 4 N. C. (Term. Rep. 123) 7 Am. Dec. 702; Bradley v. Morris, 44 N. C. 
 (Busbee, L.) 395; Beale v. Roberson, 29 N. C. (7 Ired. L.) 280,— holding that 
 in action for malicious prosecution jury should find as to facts relating to 
 probable cause but court should determine their sufficiency as matter of law ; 
 Wilkerson v. Wilkerson, 159 N. C. 265, 39 L.R.A.(N.S.) 1215, 74 S. E. 740, 
 holding that in malicious prosecution action it is the duty of court to point out 
 to jury what facts which evidence tends to support would, if found to exist, 
 constitute probable cause; French v. Smith, 4 Vt. 363, 24 Am. Dec. 616, holding 
 that it is for court to determine whether facts found constitute probable cause 
 in action for malicious prosecution; Riddell v. Brown, 24 U. C. Q. B. 90. holding
 
 1 E. R. C. 765] NOTES ON ENGLISH RULING CASES. 140 
 
 that whether circumstances alleged to show want of probable cause existed 
 is question of fact and whether they show it is question of law. 
 
 The decision of the Exchequer Chamber was referred to as leading case in 
 Panton v. Williams, 2 Q. B. 169; 1 Gale & D. 504, 10 L. J. Exch. N. S. 545; 
 Thelin v. Dorsey, 59 Md. 539, on question being a mixed one. 
 
 The decision of the Exchequer Chamber was cited in Ulmer v. Leland, 1 Me. 
 135, 10 Am. Dec. 48; Vinal v. Core, IS W. Va. 1; McDonald v. Atlantic & 
 P. R. Co. 3 Ariz. 96, 21 Pac. 338, — holding question of probable cause a mixed 
 one of law and fact; People v. Kilvington, 104 Cal. 86, 43 Am. St. 
 Rep. 73, 37 Pac. 799, as to question of probable cause being mixed is 
 one of law and fact; Atchison, F. & S. F. R. Co. v. Watson, 37 Kan. 
 773, 15 Pac. 877, holding that in action for malicious prosecution, if facts 
 are not disputed, court must decide as matter of law, whether they constitute 
 probable cause; Burton v. St. Paul, M. & M. R. Co. 33 Minn. 189, 22 N. W. 300, 
 holding what facts and whether particular facts constitute probable cause is a 
 question exclusively for the court; what facts exist in a particular case, where 
 there is a dispute in reference to them, is a question exclusively for the jury; 
 Haw ley v. Butler, 54 Barb. 490, holding the question whether the defendants had 
 probable cause for the arrest upon undisputed facts was a question for the court; 
 Lister v. Perryman, L. R. 4 H. L. 521, 39 L. J. Exch. N. S. 177, 23 L. T. N. S. 269, 
 19 Week. Rep. 9, L. R. 3 Exch. 197, holding jury must find the facts on which 
 the question of reasonable and probable cause depends but the judge must then 
 determine whether the facts found do constitute reasonable and probable cause. 
 Pleading malicious prosecution. 
 
 Cited in Gibson v. Waterhouse, 4 Me. 226, holding that in action for malicious 
 prosecution, want of probable cause is material allegation; Davis v. Clough, 8 
 N . H. 157, holding that declaration in action for maliciously commencing suit 
 where nothing was due should allege that fact, or in some terms show want of 
 probable cause, and that suit was terminated; Thornton V. Corbin, 3 Call (Va.) 
 384, holding that in action for malicious prosecution, declaration must aver 
 want of probable cause; Adams v. Lisher, 3 Blackf. 241, 25 Am. Dec. 102, on 
 the lesser certainty required in pleading the prosecution for a misdemeanor. 
 Immunity of military and governmental acts. 
 
 Cited in Dawkins v. Paulet, L. R. 5 Q. B. 94, 39 L. J. Q. B. N. S. 53, 9 Best 
 & S. 768, 21 L. T. N. S. 584, 18 Week. Rep. 336, holding military reports li- 
 belous of an officer were not actionable; Sullivan v. Spencer, Ir. Rep. 6 C. L. 
 173, holding an action is not maintainable in any Irish Court against the Lord 
 Lieutenant during his term of office for any act done by him in his politic 
 capacity. 
 Civil liability of public officers. 
 
 Cited in Duckworth v. Johnston, 7 Ala. 578, holding that officer who executed 
 warrant as well as person who caused it to be issued by justice of peace, is 
 liable where complaint does not state crime; Grant v. Deuel, 3 Rob. (La.) 17, 
 38 Am. Dec. 228, holding that prosecutor shall be protected, though his private 
 motives may have been malicious, provided he had probable cause for charge; 
 Maulsby v. Reifsnider, 69 Md. 143, 14 Atl. 505, holding that privilege of counsel 
 exempting him from actions of slander for defamatory words spoken in pro- 
 fessional capacity in trial of cause, is absolute and unqualified; Com. v. Dan- 
 dridge, 2 Va. Cas. 408, to the point that judge, acting within jurisdiction, shall 
 not be called to answer for his judgment, except by impeachment; Simard v. 
 Jenkins, Montreal Cond. Rep. (Ramsay & M.) 46, holding that jurors are not
 
 141 NOTES ON ENGLISH RULING CASES. U E. R. G. 70:» 
 
 liable to an action of libel, because in their verdict they directed attention to 
 evidence of a certain witness as indicating perjury; Somcrall v. Gibbes, 40 M'Cord, 
 L. 313, holding a master in equity is liable at law, to an action on the case, for 
 a neglect of duty, as an officer of that court, by any one who may be injured by 
 such neglect; Evans v. Foster, 1 N. H. 374, holding action does not lie against 
 a judicial officer for demanding excessive bail; McKim v. Odom, 3 Bland, Ch. 
 407; Baird v. Walker, Newfoundl. Rep. (1884-96) 490; Kearney v. Oakes, 20 
 N. S. 30, (dissenting opinion); Baker v. Ranney, 12 Grant, Ch. (U. C.) 228,— 
 as to officer's civil liability; Noble v. Richmond, 31 Gratt. 271, 31 Am. Rep. 
 726; Weet v. Brockport, 16 N. Y. 161, — on actionable breach of public duty. 
 Dunham v. Powers, 42 Vt. 1, holding a petit juror, while acting in discharge of 
 his duty as part of the court, is exempt from responsibility by civil action for 
 what he says in the jury room concerning the cause; Kendall v. Stokes, 3 How. 
 7S9, 11 L. ed. 824, (dissenting opinion), as to liability for failure to perform 
 duty; Brown v. United States, 6 Ct. CI. 171, as to liability of officer of state 
 for tortious act done by authority of state; Sumner v. Chandler, IS N. B. 17">. 
 as to contract liability of public officers; Milner v. Brydges, 18 N. B. 113, holding 
 servant of the Crown responsible for tortious act although done with authority 
 of the Crown. 
 
 Military and naval persons. 
 
 Cited in Maurice v. Worden, 54 Md. 233, 39 Am. Rep. 384, to the point that 
 action for malicious prosecution would not lie by naval commander against 
 commander in chief of naval squadron; Tyler v. Pomeroy, 8 Allen, 480, holding 
 that no acts of military officers or tribunals, can be revised or punished, civilly or 
 criminally, by common law courts; People ex rel. Smith v. Roe, 51 App. Div. 494, 
 64 N. Y. Supp. 642, holding that mandamus will not lie to compel commanding 
 officer of state militia, who relieved officer of his command with approval of 
 governor, to reinstate officer; Dennis v. Larkin, 19 Iowa, 434, holding person 
 drafted into army not liable to alternate who was obliged to serve by reason 
 of former absconding; Lampert v. Laclede Gaslight Co. 14 Mo. App. 376, as to 
 nonliability of military officers; Luther v. Borden, 7 How. 1, 12 L. ed. 581, 
 (dissenting opinion), as to liability of officers for injuries to soldiers; Grant 
 v. Secretary of State, L. R. 2 O. P. Div. 445, 46 L. J. C. P. N. S. 681, 37 L. T. 
 N. S. 188, 25 Week. Rep. 848, 8 Eng. Rul. Cas. 246, holding secretary of state 
 not liable for publication of an act done in respect to a military officer in pur- 
 suance of government orders and regulations applying to military service. 
 
 Questioned in Wilson v. Mackenzie, 7 Hill, 95, 42 Am. Dec. 51, holding trespass 
 may be maintained against an officer of the navy for illegally assaulting and 
 imprisoning one of his subordinates, though the act was done upon the high 
 seas, and under color of naval discipline. 
 — Remedy, form of action. 
 
 Cited in Rogers v. Brewster, 5 Johns. 125, on case as remedy for official op- 
 pression. 
 Presumption of officer doing- his duty. 
 
 Cited in Raymond v. Bell, 18 Conn. 81; Alliance v. Joyce, 49 Ohio St. 7, 30 
 N. E. 270; Rowan v. Lamb, 4 G. Greene, 468, holding he is presumed to have 
 done his duty. 
 
 Right of civil tribunals to interfere with military discipline. 
 
 Cited in Tyler v. Pomeroy, 8 Allen, 480, as to the right.
 
 1 E. R. C. 765] NOTES ON ENGLISH RULING CASES. 142 
 
 Courts martial. 
 
 Cited in Luther v. Borden, 7 How. 1, 12 L. ed. 581 (dissenting opinion), on 
 extent of operation of martial law as to persons against whom no probable 
 cause exists which may justify its operation; United States v. Mackenzie, 1 
 N. Y. Leg. Obs. 371, Fed. Cas. No. 18,313, as to their jurisdiction. 
 "31aliciously." 
 
 Cited in Adams v. Mills, 3 How. Pr. 219, as to it importing that words were 
 spoken falsely. 
 Pleading torts. 
 
 Cited in Webster v. Holmes, 62 N. J. L. 55, 40 Atl. 778, holding some form 
 of averment of falsity of defamatory words is indispensable. 
 Coexistence of remedy and wrong. 
 
 Cited in Reynolds v. ^Etna L. Ins. Co. 28 App. Div. 591, 51 N. Y. Supp. 446; 
 Hall v. Sugo, 27 Misc. 1, 57 N. Y. Supp. 920, — to the point that there can be 
 no wrong without remedy; State ex rel. Silver v. Kendall, 15 Neb. 262, 18 N. W. 
 85 (dissenting opinion), on existence of remedy, at common law, in all cases 
 where right exists; Newton v. Porter, 5 Lans. 416, to the point that law of equi- 
 ty will allow no wrong to be without remedy. 
 
 Cited in 1 Cooley Torts 3d ed. 23, on wrong being without a remedy. 
 
 Privilege of counsel. 
 
 Cited in note in 7 E. R. C. 727, on nonliability of advocate for defamatory 
 words used in judicial proceeding, though uttered maliciously. 
 
 1 E. R. C. 789, KENNEDY v. BROUN, 13 C. B. N. S. 677, 9 Jur. N. S. 119, 7 
 L. T. N. S. 626, 11 Week. Rep. 284, 32 L. J. C. P. N. S. 137. 
 
 Attorney and client. 
 
 Argument of counsel cited in Ricker's Petition, 66 N. H. 207, 24 L.R.A. 
 740, 29 Atl. 559, on common law meaning of "lawyer." 
 — Compensation and recovery thereof. 
 
 Cited in Regina v. Ellis, 32 N. B. 713, holding counsel fees cannot be includ- 
 ed in costs; Hope v. Caldwell, 21 U. C. C. P. 241, holding a security taken 
 from a client by an attorney or counsel for costs to accrue in respect of serv- 
 ices* to be rendered to the client, is invalid and cannot be enforced; Leslie v. 
 Ball, 22 U. C. Q. B. 512, as to right of counsel to recover fees and their exemp- 
 tion from liability; Re Richardson, 3 Ch. Cbamb. Rep. (Ont.) 144, to the point 
 that in case of barristers where there is express contract to pay for services, 
 there is legal title to remuneration; Re Le Brasseur [1896] 2 Ch. 487, 65 L. 
 J. Ch. N. S. 763, 74 L. T. N. S. 717, 45 Week. Rep. 87, holding court will not 
 assist counsel to recover his fees; McLeod v. Vaughan, 31 N. B. 1364; Miller 
 v. McCarthy, 27 U. C. C. P. 147; Re North Victoria Election, 39 U. C. Q. B. 
 147, — holding counsel can maintain no action for his fees; R. v. Doutre, 6 Can. 
 S. C. 389, 342, on right of barrister to action for fees. 
 
 Cited in note in 7 E. R. C. 727, on recovery of fees by barrister by action. 
 
 Cited in Hollingsworth Contr. 17, on right of physician or barrister to sue 
 for services rendered on request; Reinhard Ag. 239, 443, on compensation of 
 barrister or counsellor as dependent on client's generosity. 
 
 Distinguished in R. v. Doutre, L. R. 9 App. Cas. 745, 53 L. J. C. P. N. S. 84, 
 51 L. T. N. S. 669, holding according to law of Quebec a member of the Bar is 
 entitled, in the absence of special stipulation, to sue for and recover on a 
 quantum meruit in respect to professional services rendered by him: Schomp
 
 143 NOTES ON ENGLISH RULING CASES. [1 E. R. C. 802 
 
 v. Schenck, 40 N. J. L. 195, 29 Am. Rep. 219, holding a contract of an attorney 
 at law for a certain remuneration for his services is legal and can be enforced 
 by suit, such officer not standing on the same footing as an advocate; Ostrom 
 v. Benjamin, 20 Ont. App. Rep. 330, holding solicitor who is notary and acts 
 as such is not bound by statutory regulations affecting solicitor's charges. 
 
 Disapproved in Davis v. Weber, CG Ark. 190, 45 L.E.A. 19G, 74 Am. St. Rep. 
 81, 49 S. W. 822, holding a contract between an attorney and client, allowing 
 the former a contingent interest in the subject-matter of the litigation as com- 
 pensation for his services is not void; British Columbia Land & Invest. Agency 
 v. Wilson, 9 C. B. 412; Christin v. Lacoste, Rap. Jud. Quebec, 2 B. R. 142; 
 McDougall v. Campbell, 41 U. C. Q. B. 332, holding counsel has right to maintain 
 action for fees. 
 
 Contracts between attorney and client. 
 
 Cited in Boardman v. Thompson, 25 Iowa, 4S7, holding champertous contracts 
 void; Armour v. Kilmer, 28 Ont. Rep. 618, holding that solicitor employing 
 counsel has implied authority to pledge his client's credit for payment of coun- 
 sel fees; Mostyn v. Mostyn, L. R. 5 Ch. 457, 39 L. J. Ch. N. S. 780, 22 L. T. N. S. 
 461, 18 Week. Rep. 656, holding solicitor has no authority to pledge his client's 
 credit to counsel; Robertson v. Macdonoiigh, Ir. L. R. 6433, 14 Cox, C. C. 409, 
 holding advocate and client reciprocally incapable of contracting for fees for 
 attendance on court. 
 
 Cited in Holingsworth Contr. 281, on incapacity of attorney and client to con- 
 tract with each other; Weeks Attys. 2d ed. 455, on authority of attorney for col- 
 lection of debt to release securities on client's claim; Weeks Attys. 2d ed. 58, 
 645, on invalidity of contract by client to pay counsel for his advocacy. 
 Defense of illegal transaction in action on account stated. 
 
 Cited in Nash Wright Co. v. Wright, 156 111. App. 243, holding that if any 
 part of consideration entering into account stated is illegal, there can be no re- 
 covery of any part of claim under count for account stated; Dunbar v. Jobnson, 
 108 Mass. 519, holding it may be pleaded. 
 
 Cited in notes in 27 L.R.A. 819; 1 Eng. Rul. Cas. 438,— on illegality of con- 
 tract as defense to action on account stated. 
 Past consideration. 
 
 Cited in note in 6 Eng. Rul. Cas. 39, on expense already incurred as considera- 
 tion for subsequent promise for reimbursement. 
 
 1 E. R. C. 802, THE QUEEN v. LORDS COMRS. OF TREASURY, L. R. 7 Q. 
 B. 387, 12 Cox, C. C. 277, 20 Week. Rep. 336, 41 L. J. Q. B. N. S. 17S. 
 Suits against Crown or state. 
 
 Cited in Hereford R. Co. v. R. 24 Can. S. C. 1, holding where money is grant- 
 ed by legislature and its application prescribed in such a way as to confer 
 a discretion upon the Crown no trust is imposed enforceable against the Crown 
 by petition of right; Atty. Gen. v. Toronto Junction Recreation Club, 8 Ont. L. 
 Rep. 440, holding court has no jurisdiction at the suit of a subject to restrain 
 the Crown or its officers acting as its agents or or servants discharging discretion- 
 ary functions committed to them by the sovereign; Re Massey Mfg. Co. 13 Ont. 
 App. Rep. 446 (affirming 11 Ont. Rep. 444), holding mandamus will be granted 
 to compel public officer to perform a merely ministerial duty; R. v. Secretary of 
 State [1891] 2 Q. B. 326, 60 L. J. Q. B. N. S. 457, 64 L. T. N. S. 764, 40 Week. 
 Rep. 5, 56 J. P. 105, holding that mandamus will not lie to compel secretary 
 of state for war to carry out terms of royal warrant regulating pay of soldiers;
 
 1 E. R. C. 802] NOTES TO ENGLISH RULING CASES. 144 
 
 R. v. Joint Stock Companies Registrar, 57 L. J. Q. B. N. S. 433, L. R. 21 Q. 
 B. Div. 131, 59 L. T. N. S. 67, 36 Week. Rep. 695, 52 J. P. 710, holding that 
 mandamus will not lie to compel registrar of joint stock companies to file 
 contract insufficiently stamped; Dixon v. Farrar, L. R. 17 Q. B. Div. 658, 55 L. 
 J. Q. B. N. S. 497, 55 L. T. N. S. 658, holding that court is bound to change 
 venue to county selected by attorney general, of action against secretary of 
 board of trade for damages for detention of ship. 
 
 Cited in notes in 8 E. R. C. 274, on right to Crown to name court in which 
 proceedings against it shall be had; 16 E. R. C. 785, 787, on right to mandamus 
 against a public officer. 
 
 Distinguished in Armytage v. Wilkinson, L. R. 3 App. Cas. 355, 47 L. J. P. C. 
 N. S. 31, 38 L. T. N. S. 185, 26 Week. Rep. 559, holding that mandamus will lie 
 against master in equity in relation to duties claimed by him in his capacity of 
 revenue officer responsible to Crown. 
 — Action to compel officers of state to pay money. 
 
 Cited in Louisiana v. Jumel, 107 U. S. 711, 27 L. ed. 448, 2 Sup. Ct. Rep. 128, 
 holding it an action against state; dissenting opinions in United States v. Lee, 
 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 240; Butler v. Ellerbe, 44 S. C. 256, 
 22 S. E. 425, as to it being an action against the state; R. v. Inland Revenue 
 Comrs. L. R. 12 Q. B. Div. 461, 51 L. T. N. S. 46, 53 L. J. Q. B. N. S. 229, 32 
 Week. Rep. 543, 48 J. P. 1252, holding that mandamus will not lie to compel 
 commissioners of Inland Revenue to pay to administrator amount of duty over- 
 paid by him. 
 Control by court of officers of state. 
 
 Cited in Barnard v. Walk em, 1 B. C. 120, as to courts being loath to inter- 
 fere. 
 Relation of Crown to its servants. 
 
 Cited in R. v. Berriman, 4 Ont. Rep. 282, as to the relation. 
 Wlien mandamus lies. 
 
 Annotation cited in Lauritsen v. Seward, 99 Minn. 313, 109 N. W. 404, holding 
 that mandamus will not lie to determine election contest.
 
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