raSSfi HBHB ROSCOE'S DIGEST OF THE LAW OF EVIDENCE ON THE TRIAL OF Srtumfi at |hst ^rtus- EIGHTEENTH EDITION. BY MAURICE POWELL, M.A., OF THE INNER TKMPLE, ESQUIRE, BARRISTEK-AT-LAW, LATE SCHOLAR OF TRINITY COLLEGE, CAMBRIDGE. IN TWO VOLUMES. VOL. I. LONDON : STEVENS AND SONS, Limited, 119 and 120, CHANCERY LANE. SWEET AND MAXWELL, Limited, 3, CHANCERY LANK. ILafo IJJublisfjcrs. 1907. T \9t>n ( Ki ) ADVERTISEMENT TO THE EIGHTEENTH EDITION. The same arrangement and subject matter as in the previous edition has been retained. The subject of civil liability for Conspiracy recently attained so much importance that the law relating thereto has now been treated under a separate heading, and the fundamental changes in that law, as well as in the law of Nuisance and Seduction, caused by the Trades' Disputes Act, 1906, are pointed out under those headings. The Marine Insurance Act, 1906, has been fully incorporated in the division of the work relating to that subject. Other statutes, too numerous to mention here, have also been inserted. The decisions and statutes have been brought down to the commencement of the present month. The number of fresh cases inserted is considerably in excess of one thousand. M. P. Temple, • July, L907. a 2 736327 ( nr ) THE AUTHOR AND FOBMER EDITORS AND EDITIONS OF THIS WORK. 1st to 4th editions (1827-36), by Henry Roscoe (the Author).* ;lth edition (1839), by Charles Crompton f and Edward Smirke. | 6th to 8th editions (1844-51), by Edward Smirke. 9th edition (1858), by Edward Smirke and Samuel Prentice.§ 10th edition (1861), by Edward Smirke. 11th edition (1866), by William Mills and William Markby. || 12th and 13th editions (1870-75), by John Charles Day^I and the present Editor. 14th edition (1879), by John Charles Day and the present Editor assisted by Hungerford Tudor Boddam §§). 15th to 17th editions (1884-1900), by the present Editor. * Died 1836. f Puisne Judge, Q.B. % Vice-warden of the Stannaries. § County Court Judge. 1 Puisne Judge, Calcutta, f Puisne Judge, Q.B.D. & K.B.D. §§ Puisne Judge, Madras. TABLE OF CONTENTS. Advertisement to the Eighteenth Edition Former Editions and Editors Table op Contents Table op Reports contemporary with the Law Reports, 1865-75 1875-85 1885-90 1890-1900 1900-1907 Table op Cases cited.. Table op Statutes cited Table op Rules of the Supreme Court op Judicature, 1883, CITED Addenda PACK iii iv xui xiv XV xvi xvii xix cxlvii clxxvii clxxxi PART I. EVIDENCE IN GENERAL Nature of Evidence. Primary evidence .. Secondary evidence Oral evidence to explain or add to documents Presumptive evidence Hearsay Admissions 1 4 15 33 44 61 Object op Evidence. Evidence confined to the issue The substance of the issue only need be proved Onus probandi 79 89 94 Proof ok Documents. Proof by copies exemplification office copy . . examined copy certified copy 96 id. 97 id. 98 VI Tabh of ( 'ont( nts. Custody of ancient writings Proof of particular documents Acts and Journals of Parliament proclamations and orders letters patent of the Crown records and judgments fines and common recoveries verdicts writs inquisitions rules or orders of court, and judges' orders .. decrees and answers in Chancery depositions and affidavits .. oral testimony on a former trial proceedings in the Ecclesiastical and Admiralty Courts judgments in inferior courts proceedings in courts of summary jurisdiction probates and letters of administration court rolls proceedings in bankruptcy foreign law foreign judgments entries in public books, postmarks, &c. bankers' books corporation books registers of births, baptisms, marriages, &c. . . merchant shipping documents corporation deeds private deeds and writings proof of wills of personalty of land execution of powers awards TAGE 102 103 id. 105 107 id. 109 110 id. Ill id. 112 114 116 id. 117 id. 118 119 120 id. 122 id. 123 124 125 130 131 132 144 id. 152 153 Oral Proof by Witnesses. Attendance of witnesses Examination of witnesses .. Proof by Affidavits or Depositions 154 159 185 Effect of Documentary Evidence. Effect of Acts of Parliament proclamations, Gazette, state papers, &c. Parliamentary journals judgments, &c, as estoppels, or as evidence . . judgments in rem . . verdicts writs inquisitions, &c. .. rules or orders of court proceedings in Chancery depositions and examinations in other suits .. sentences in the Ecclesiastical and Divorce Courts probate and letters of administration sentences in Admiralty Courts judgments of inferior courts convictions 189 id. 190 id. 194 195 196 id. 198 199 201 202 203 204 205 206 Table of Contents. vn PAGR of sentences of visitors, &c. .. 207 judgments of foreign courts court rolls and manor books .. 208 ..210 public books and public documents ..211 corporation books parish registers, &c. ship's register awards ..217 id. ..218 . . 219 Stamps. Stamp duty — how charged .. 221 Stamp on affidavit 231 agreement . . 232 appraisement 236 award 237 bank note, bill of exchange, cheque, and promissory note id. bankrupt's estate — instruments relating thereto 245 bill of lading 246 sale . . . . . . id. bond id. charter-party 247 cheque .. 248 cognovit id. company — statement of capital id. contract note id. conveyance .. 249 copy 252 copyhold and customary estates— instruments relating thereto 253 cost-book mines, transfer of shares in 254 counterpart id. covenant id. declaration of use or trust .. id. declaration, statutory id. deed id. delivery order 255 duplicate id. foreign instrument . . . . • • id. lease id. legacy receipt 258 letters of administration id. letter of allotment, scrip certificate, &c. . . ■ ■ id. attorney . . 259 loan capital ■ . . . . . 260 marketable security id. memorial • ■ 262 mortgage . . id. policies of insurance 266 power of attorney 269 probate and letters of administration id. promissory note 270 protest and notarial act id. proxy id. receipt .. . . ti 271 release . > . . 273 scrip certificate, scrip, &c. . . id. settlement id. share warrant and stock certificate to bearer 274 vm Tabic of Contents. Stamp on surrender transfer of shares in cost-book niine warrant of attorney for goods TAGK 275 id. id. 276 Course of Evidence and Peactice at Nisi Peius. Practice at Nisi Prius id. PART II. EVIDENCE IN PARTICULAR ACTIONS. Effect of the Judicature Acts, 1S73, 1875 Rules, 1883, relating to pleading 306 309 Actions pounded on Simple Contract. General observations .. .. .. .. .. .. 311 Action on sale of real property . . . . . . . . ..id. vendor against vendee . . ... . . . . . . id. defence .. .. .. .. .. .. .. 326 vendee against vendor . . . . . . . . . . 329 Action for use and occupation . . . . . . . . . . 333 Action for waste, bad husbandly, &c. . . . . . . . . 344 Action on bills of exchange, cheques, and promissory notes . . . . 349 bills of exchange .. .. .. .. .. .. 351 payee against acceptor . . . . . . . . . . 361 indorsee against acceptor . . . . . . . . . . 369 drawer against acceptor . . . . . . . . . . 375 payee or indorsee against drawer . . . . . . id. payee or indorsee against acceptor supra protest, or for honour 389 indorsee against indorser .. .. .. .. .. 391 damages generally . . . . . . . . . . 393 defences generally to actions on bills of exchange . . . . 394 action on cheques .. .. .. .. .. .. 405 defences generally to actions on cheques .. .. .. 412 action on promissory notes . . . . . . . . id. payee against maker . . . . . . . . . . 413 indorsee against maker . . . . . . . . . . 415 indorser . . . . . . . . . . 416 damages generally . . . . . . . . id. defences generally to actions on promissory notes .. id. Action on policy of insurance . . . . . . . . id. marine insurance . . . . . . . . . . id. defence .. .. .. .. .. .. 449(7 return of premium . . . . . . . . 449Z life insurance .. .. .. .. .. 449m defence . . . . . . . . . . - • 452 insurance against personal accidents . . . . . . - • 454 fire insurance . . . . . . . . . . ■ • 455 insurance against accidents to chattels, burglary, &c. . . . . 458 of debts and solvencv .. .. .. id. Table of Contents. IX Action ou contract of affreightment shipowner against charterer or merchant merchant against shipowner or master Action on guarantee defence Action on warranty warranty on sale of chattels of authority Action on promise of marriage defence on an award defence on a solicitor's bill defence against solicitor for negligence defence by surgeons or other medical practitioners defence physicians' fees for wages and wrongful dismissal defence Action on contract of sale of goods .. for not accepting goods sold defence for goods bargained and sold not delivering goods sold defence goods sold and delivered . . defence Action on sales of stock, shares, and securities Action for work and materials defence Action for money paid Action for money lent Action for money had and received Action for interest Action on an account stated Action against carrier- common carriers defence letter carriers passenger carriers Action against common innkeepers Defences in actions on simple contracts accord and satisfaction alteration counterclaim coverture fraud Frauds, statute of, and Sale of Goods Act, 1893 illegality infancy insanity intoxication PAGE •159 463 472 479 483 486 id. 493 495 496 498 499 500 506 509 512 id. 514 515 id. 520 521 537 539 543 544 549 id. 569 581 588 590 598 601 622 626 629 id. 650 651 id. 656 658 659 661 662 id. 663 665 id. 672 677 677 x T'tbh of Contents. PAGE Defences in actions on simple contracts — continued. Limitation, Statutes of . . . . . . . . . . 677 merger .. .. .. .. .. .. .. 692 payment .. .. .. .. .. .. .. 693 release . . . . . . . . . . . . . . 702 rescission . . . . . . . . . . . . . . 703 Sale of Goods Act, 1893 . . . . . . . . id. set-off and counter-claim . . . . . . . . . . 704 tender .. .. .. .. .. .. .. 70S Actions on Specialties. Action on covenants relating to land . . . . . . . . 715 for double value of land demised . . . . . . . . 750 defence .. .. .. .. .. .. .. 751 for double rent . . . . . . . . . . . . 752 on bond . . . . . . . . . . . . ..id. defence . . . . . . . . . . . . . . 753 replevin bond . . . . . . . . . . . . 754 for penalty . . . . . . . . . . . . . . 756 defence .. .. .. .. .. .. .. 757 Actions for Wrongs, independent op Contract. Action for nuisance . . . . . . . . . . . . 759 defence .. .. .. .. .. .. .. 772 Action for negligence .. .. .. .. .. .. 774 negligent driving of carriages and railway trains . . . . id. negligent navigation of sbips . . . . . . . . . . 782 negligent keeping of animals . . . . . . . . . . 789 user of land . . . . . . . . . . . . 791 keeping of fire, or inflammable matter . . . . . . 792 negligence of railway companies . . . . . . . . 794 miscellaneous cases of negligence . . . . . . . . 798 negligence of fellow servants . . . . . . . . . . 801 wrongful act, default, or neglect causing death . . . . . . 810 defence to actions for negligence . . . . . . . . 812 Action for disturbance of support of land . . . . . . ..id. obstruction of light and air . . . . . . . . . . 816 disturbance of common .. .. .. .. .. 822 defence .. .. .. .. .. .. .. 825 disturbance of way .. .. .. .. .. ..id. defence . . . . . . . . . . . . . . 835 disturbance of watercourse . . . . . . . . . . 837 defence . . . . . . . . . . . . . . 841 disturbance of pew . . . . . . . . . . . . 842 deceit and misrepresentation . . . . . . . . . . 843 defamation .. .. .. .. .. .. .. 851 defence . . . . . . . . . . . . . . 864 slander of title . . . . . . . . . . . . 878 malicious prosecution .. .. .. .. .. .. 880 defence . . . . . . . . . . . . . . 886 malicious arrest and abuse of civil process . . . . ..id. Action for conspiracy . . . . . . . . . . . . 891 Action for wrongful distress .. .. .. .. .. 892 for excessive distress . . . . . . . . ..id. defence . . . . . . . . . . 895 irregular distress . . . . . . . . id. defence .. ..899 illegal distress . . . . . . . . . . id. defence .. .. .. .. .. ..90S Table of Contents. XI PAGE Action for seduction . . . . . . . . 909 defence . 912 assault and battery . 913 defence . 914 false imprisonment . 917 defence . 922 trespass to personal property . 924 defence . 927 trespass to land . 928 defence . 940 mesne profits . 945 conversion of goods . 948 defence . 981 detention of goods . 995 defence .. . 997 Action for the recovery of land . 998 general evidence for the plaintiff id. action for recovery of land by landlord . . 1006 heir-at-law . 1036 devisee of a freehold interest . 1049 of a leasehold interest . 1055 of heir of copyhold . 1056 by mortgagee . 1057 execution creditor . 1059 executor or administrator . 1060 parson . 1062 defence in action for recovery of land id. Action of replevin . . . 1079 PART III EVIDENCE IN ACTIONS BY AND AGAINST PARTICULAR PERSONS. Actions by and against carriers . . . . . . . . . . 1090 Actions by and against companies, &c. .. .. .. id. 1. Corporations in general .. .. .. .. .. 1091 2. Companies registered under the Companies Acts, 1862 to 1900 .. 1096 3. Companies registered under the Joint Stock Companies Act, 1844 (7& 8 V. c. 110) .. .. .. .. .. 1114 4. Companies within the Companies Clauses Consolidation Act, 1845, incorporated by special Acts .. .. .. .. 1116 5. Banking companies under 7 G. 4, c. 46 ; and companies suing and sued by public officers .. .. .. .. .. 1127 6. Companies constituted bv charter or Letters Patent under stat. 7 W. 4& 1 V. c. 73 .. .. , . .. .. 1129 Actions against constables, justices and persons acting under Statutes or public duty 1. Actions against constables 2. Aotions against justices defence 3. Actions against persons acting in execution of Statutes.. Actions by executors and administrators against executors and administrators heirs and devisees .. by and against husband and wife against innkeepers by and against married women alone 1131 1133 1136 II 10 1141 1147 1154 1167 1169 1171 id, xn Table of Contents. PAGE Actions against police authorities for damage done by rioters .. .. 1179 against postmasters and letter-carriers . . . . . . 1184 Actions against sheriffs .. .. .. .. .. ..id. 1. Action for wrongfully taking the plaintiff's goods in execution .. 1188 defence . . . . . . . . . . . . 1190 2. Action for taking goods in execution without paying rent due .. 1218 3. Action for not paying over money levied . . . . . . 1220 4. Action for not levying, and for false return on final process . . id. defence .. .. .. .. .. .. 1221 5. Action for extortion . . . . . . . . . . 1223 Actions by and against solicitors . . . . . . . . . . 1225 Actions by surgeons or other medical practitioners . . . . id. Issues upon interpleader orders . . . . . . . . id. APPENDIX. 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OS ~ t- ^° co" i—l i— i-H rH r* T— 00 © rH — CI i—l CM I 1 i-H 1 1 r-1 ■o CO © © © © O c c CO t- © ~ s- 3- i-l 1 — t- 00 !— T« I — i 1 1 ^^ _ v _. ^^_, 1 13 a o3 a o CO S> Q !>> -*3 cS a CO '-* (4 I ft CO 3 CO C o ft « c a o en > 00 « o ft pi P3 H 1 O ft 2^ 5 o fi < g « H a r O r- J 'v5 > -a o r- Li a o e ■r - DQ H J: <; 5 s 'J pq Sj - a a c -*-» . — E3 - _o - > CO M "2- 3 CO o d a -f < h-1 s £ ^ a) 0|X c M - c -d 3 -i h&- •J C3? £ < C3 8n © 5 © CO o A, CD rt o o i— i H m o I(. —VOL. I. ( xix ") TABLE OF CASES CITED. PAGE A. v. B 1048,1172 Aaron's Reefs v. Twiss .. 84G Abbey v. Lill 123, 21G Abbot v. Wolsey .. .. 527,528 Abbott v. Abbott . . 98, 129, 215 — v. Hendricks . . . . 398 v. Macfie 781 v. Massie 32 - v. Parfitt 1150 — v. Parsons 279 Abbotts v. Barry . . . . 550, 613 Abel v. Potts 212, 439 Aberaman Iron Works v. Wickens 328 Abercom's (Marquis of) case 1102 Abergavenny (Earl of) v. Brace 1071 Abinger (Lord) v. Ashton .. 176 Abington v. Lipscomb . . 966 Abouloff v. Oppenheimcr .. 208 Abraham v. Reynolds .. 802, 803 Abrahams v. Deakin .. .. 920 Abrath v. N. E. Ry. Co. ..94, 95, 882, 883, 884 Abrey v. Crux .. .. 401, 702 Absolon v. Marks 414 Acanthus, The 595 Acatos v. Burns . . . . 470, 472 Accomac, The 474 Acebal v. Levy 528 Aokerman v. Ehrensperger . . 483 Ackroyd v. Smithies .. .. 694 Acocks v. Phillips 1027 A'Court c. Cross 690 Acraman v. Morrice . . 527, 953 Acton v. Blundell 839 Adam v. British & For. S. S. Co 810 y. Kerr .. .. 134,137 v. Richards .. .. 488 Adams's case 1101 Adams & Perry's Contract, In re 1002 Adams v. Adams 129 r. Bankart .. .. 184 v. Batley .. 156, 167. 184 v. Uingley 403 PAGE Adams v. Broughton .. .. 965 v. Clutterbuck . . 340, 345, 730 v. Dansey 696 - v. Gibney 748 - v. Graham . . . . 1026 - v. Grane 903 - v. Gregg 404 — v. Hagger 340 v. Jones 374 — u.Kelly 856 — v. Lancashire, &c. Ry. Co 780, 797 - v. Lindsell . . . . 311 - v. Mackenzie . . . . 446 - v. Palk 693 v. Royal Mail Co. . . 465 - v. Sanders .. .. 449Z V. Savage . . . . 82, 83 — v. Wordley . . . . 16 Adamson's case 1154 Adamson, Ex parte . . 845, 1154 ■ v. Newcastle, &c. Ins. Assoc 440, 463 Adamthwaite v. Synge . . 98 Addic v. W. Bank of Scot- land 613,848 Addington v. Clode .. .. 943 Addison u. Gandassequi . . 554 V. Round . . . . 975 Addlestone Linoleum Co., In re 1113 Adeson v. Otway 34. Adnam V. Sandwich (Earl of) 1073 Adsetts v. Hives 661 Aflalo v. Fourdrinicr .. .. n Agar v. Athenaeum Insurance Co me Aggs v. Nicholson .. 114,1116 Agius v. Gt. W. Colliery Co. 492, 548, 650 Agra and Masterman's Bank v. Leighton 706 Agricultural Cattle Insurance Co. v. Fitzgerald .. .. 1115 Ahearn u. Bellman .. .. 1020 Ahrbecher v. Frost .. .. 302 b '1 XX Table of (''uses Cited. Wilding Aiken v. Short Ainsworth v Airey, In re Aitchison v. Lohre Aitkenhead v. Blades Ajello v. Worsley . Akrokcrri Mines v. Bank PACK 612 283 137 449a 938 846 Economic 410, 411, 412 v. Haines v. Howard v. Johnson Alexander, Ex parte 743, 744 Co. 634, 793 .. 207 .. 736 .. 950 .. 1200 ■ v. Automatic Tele- phone Co. Burchfield Gardner . . Gibson . . Jenkins . . v. N. E. Ry. v. Sizer v. Southey v. Vanderzee v. Vane - v. -v. -v. -V. Co. 1101 407 543 490 853 876 .. 414 976, 977 .. 23 591 Alhambra, The .. .. 24,468 Alison's case 191,607 Alison, In re 1077 Alivon v. Furnival . . . . 122 Allam, Ex parte 1203 Allan v. Gomme 836 — — ■ v. Liverpool . . 313, 928 v. Mawson 360 ■ v. Morrison 1054 Aktieselkab v. Ekman . . . . 23 Alabaster v. Harness . . . . 666 Alban v. Pritchett .. .. 71 Albano, The 785 Albert v. Grosvenor Invest- ment Co 17 Alcock v. Delay .. .. 222,224 v. R. Exch. Assur. Co. .. 176,188,438 v. Smith 356 Aldenburgh v. Peaple . . . . 901 Aldersey, In re 41 Alderson v. Clay 2, 36 v. Davenport . . 1185 v. Langdale 396, 571, 701 v. Pope 557 Aldin v. Latimer Clark & Co. 747, 820, 944 Aldous v. Comwell . . 396, 661 Aldred's case 763 Aldridge v. Feme v. Gt. W. Ry. Allard, Ex parte 955 Allason v. Stark .. .. 335,999 Allay v. Hutchings .. .. 174 Allbutt v. General Council of Medical Education . . . . 872 Allcock v. Moorhouse 335, 341, 349 PAGE Allday v. Gt. W. Ry. Co. . . 643 Alldred v. W. Metropolitan Trams. Co 768 Allen v. Allen .. .. 178, 201 v. Bavley .. ..941,1089 v. Bennet .. 315,531,533 v. Bonnet 1191 v. Coltart 468 v. Cook 628 v. Dundas . . 203, 204, 1152 v. Edmundson .. 381,387 v. Flicker 898 v. Flood 910 v. Gold Reefs of W. Africa 1114 v. Graves 575 v. Hartley 78 v. Havward 766 v. L. & S. W. Ry. Co. 920, 1096 v. M'Pherson .. .. 1051 v. Morrison 226 v. New Gas Co. .. 801, 803 ■ v. Pink 3 v. Preece 1143 ■ v. Rivington . . . . 998 v. Seckham 820 v. Smith . . . . 984, 985 v. Taylor 818 ■ — - v. Thompson . . . . 1206 v. Waldegrave . . . . 584 and Driscoll's Contract, In re 745 Allgood v. Blake 31 Allhusen v. Labouchere . . 857 Alliance Bank v. Kearsley . . 599 Alliance Bank of Simla v. Carey 678, 679 Allies v. Probyn 660 Allison's case .. .. 125,607 Allison v. Bristol Marine Insur. Co. 445, 468 v. Haydon . . . . 513 Allkins v. Jupe 449m Allsop v. Allsop .. .. 862,863 v. Day 1199 Allum v. Dickinson . . . . 744 Allwood v. Heywood . . . . 995 Almada, &c. Co., In re .. 1101 Alms Corn Charity, In re .. 215 Alne Holme, The 466 Alner v. George 66 Alps, The 438 Alsager v. Close .. .. 973,979 Alsop v. Yates 802 Alton v. Harrison .. .. 1191 Alton v. Midland Ry. Co. 92, 652, 775 Altree v. Altree 1211 Alves v. Hodgson 227 Amann v. Damm . . . . 858, 869 Table of Cases Cited. XXI PAGE Ambergate, &c. Ry. Co. v. Coulthard .. 1124 v. Midland Rv. Co. 1088 v. Norcliffe .. .. 1121 Ambler, In re .. 1162,1163 • ■ v. Gordon . . 817, 821 Ambrose v. Kerrison . . . . 597 American Braided Wire Co. v. Thomson 300 American Concentrated Must Co. v. Hendry 902 Amery v. Rogers 424 Ames v. Hill 24S v. Waterlow .. .. 918 Amey v. Long 156 Amfield v. White 742 Amicable Assur. Soc. v. Bol- land 454 Arnner v. Clark 241 Amon v. Bobbett 302 Amor v. Fearon 518 Amos v. Hughes 284 v. Smith 686 Amott v. Holden 723 Amstell v. Alexander .. .. 175 Amy v. Andrews 68 Ancaster v. Milling . . . . 945 Ancketill v. Baylis .. .. 905 Ancona v. Marks 371 — V.Rogers 1202 Andalusian, The 787 Andersen v. Marten ..Add., 205, 439 Anderson's case 1101! Anderson, Ex parte .. .. 108 In re 1005 V. Anderson .. .. 150 v. Bank of British Columbia . . .. 155 v. Beard 578, 581 v. Boynton .. 501, 505 v. Collinson .. 193, 206, 912 v. Edie .. 451 v. Fitzgerald .. 452 v. Gorrie .. 918 v. Hamilton . . .. 173 v. Martindale .. 718 v. May 505, 506 v. Midland Rv. Co. 1012 r. Morice 423, 432, 437, tc.i , 540,951 o. 1 >ppenheimei . . 7 17 r. 1 'acinc, &c. [nsur. Co .. 449ft r. Pignet .. 1 ui n v. Pitcher 26 v. Radcliffe . . .. 931 v. Sander: son 71 V. Thornton .. .. 419/c PAGE Anderson v. Wallis . . . . 147 v. Weston 35, 373, 392 Anderton v. Magawley . . Ill Andree v. Fletcher . . . . 619 Andress' case 1104 Andrew v. Hancock . . . . 343 v.Motley.. .. 103,149 Andrews v. Askey 911 v.Barnes .. .. 297 v. Dixon . . . . 1219 v. Hailes .. .. 1007 v. Lawrence .. .. 662 v. Marris . . . . 207 v. Mockford . . . . 848 v. Nott-Bower .. 872 v. Ramsay . . . . 590 v. Rvde (Mayor of) 132 v. Waite ..Add., 821 Angel v. Merchants Marine Insur. Co 445 Angell v. Duke . . 16, 18, 314 v. Randell 336 Angerstein v. Handson . . 349 Anglesey (Marquis of), In re 624 v. Hatherton (Lord) 38, 48, 85, 210 Anglo- African Co. v. Lamzed 472 Anglo-Egyptian Navigation Co. v. Rennie 953 Anglo-Italian Bank v. Davies 1060 Anglo-Oriental Carpet Co., hire 1216 Angrove v. Tippett . . . . 681 Angus v. Clifford 844 -v. Dalton 38,39,760,767, 813, 828 — v. McLachlan . . 656, 986 — v.Smith 181 Ankerson v. Connolly . . . . 821 Annot Lyle, The 786 Anon. v. Anon. 23 Beav. 273 1048 Arch. PI. & E. 378, lsted 135 4 Bl. Com. 126, n. .. 171 — B. N. P. 108 ; 1 Ld. Raym. 735 . . . . 1056 Bunb. 46 54 - Cro. Eliz. 13 900 — Cro. Eliz. 46 930 - Cro. Eliz. 68 697 1 Dowl. 173 694 i sited 15 East, 407 .. 490 1 Esp. 116 325 l E p. :U9 709 Freeman, 253 .. .. 21 J Jolt, N. P. 381 .. .. 690 1 Lev. 82 864 2 Mod. 7 931 1 2 Mod. 345 . . 80, 215, 387 12 Mod. 423 131 XX11 Table of Cases Cited. Anon. 12 Mod. 607 .. .. Noy, 69 1 Ld. Raym. 480 1 Ld. Raym. 731 ■ 1 Ld. Raym. 735 ; B. N. P. 108 1 Show. 95 553 2 Show. 283 Skin. 404 . . 1 Stra. 95 . . 1 Stra. 527 . . 8 Taunton, 499 1 Vent. 257 . . . . v. Moor, 1 M. & S. (Assignees) v. S. Ry. Co., cited C. B. 609 Ansell v. Baker Ansley v. Birch Anstee v. Nelms . . Anstee v. Manners Antoniadi v. Smith Apollinaria Co. 500 284 E. 18 .. 978 402, 693 .. 156 31 566, 1171 .. 1208 Nord Deutsche Insur. Co. .. 434 Apollo, The 800 Apothecaries Co. v. Bentley 95 - v. Greenhough 513 — v. Jones . . 758 Applebee v. Percy . . . . 790 Appleby r. Franklin .. 914, 961 ■ v. Johnson . . . . 524 - v. Myers 589 Appleton v. Brayhrook (Lord) 97 Arbib and Class's Contract, In re 329 Arbon v. Fussell .. .. 141,222 Arcangelo v. Thompson 123, 216, 430, 439 Arcedeckne, hire 594 Archbold v. Howth (Lord) . . 845 Archer's case 603 Archer v. Slater 1056 Ardau SS. Co. v. Weir & Co. 465 Arden v. Sharp 365 - v. Sullivan 347, 349, 1010 - v. Tucker . . . . 288, 502 Arding v. Flower 155 Argent v. St. Paul's (Deau of) 1094 Argentina, The 460 Argentino, The 788 Argoll v. Cheney 662 Argos, Cargo ex 468 Argyle v. Hunt Arklow, The . . . . Arkwright v. Cell .. Arlett v. Ellis Armistead r. Wilde Armitage v. The A.-G. v. Armitage - v. Insole Armory v. Delamirie 825 1038, PAGE PAGE 133 ! Armour v. Bate 291 1157 Armstrong v. Hewitt .. 54,102 672 v. Lancashire and 356 Yorkshire Ry. Co 780 1056 v. Milburn.. 512,681 v. Normandy .. 68 468 - v. Stokes . . 554, 555 170 Armsworth v. S. E. Ry. Co. 811 54 Arne, The 466 71 Arnison, Ex parte ..898,1028 983 v. Smith . . . . 846 13 Arnitt v. Gamett 1219 877 Arnold v. Bainbrigge .. .. 706 - v. Bath and Wells (Bishop of) .. 215 v. Blaker .. .. 764,834 v. Cheque Bank 77, 406, 1138 — v. Holbrook . . 759, 942 v. Poole (Mayor of) 500, 1091 Arnot's case 1105 Arnsby v. Woodward . . . . 1031 Arthur Average Assoc, In re 267, 449(7 Artizans' Land Cor., In re 680, 722 Arundell v. Tregono .. .. 881 v. White .. .. 889 Asfar v. Blundell 424, 445, 467 Ash v. Dawnay 1189 v. Pouppeville .. .. 402 Ashby v. Bates . . . . 284, 287 v. James 685 v. Minnitt 1190 Ashcombe v. Ellam . . . . 224 Ashcroft v. Morrin .. .. 532 Ashendon v. L. Brighton & S. C. Ry. Co 642 Asher v. Whitlock 999, 1070, 1071 Ashford v. Price 507 v. Redford . . . . 23 Ashley's case 1113 Ashley v. Ashley 452 - v. Harrison . . . . 862 - v. Taylor 1154 Ashling v. Boon . . . . 225, 599 Ashmead v. Ranger .. .. 931 Ashmole v. Wainwright 614, 632 Ashmore, In re 148 Ashpitel v. Sercombe . . . . 608 83 Ashton, In re 30 783 v. Blackshaw . . . . 1200 838 — -v. Stock 1072 ,943 Ashwell r. Lomi 1051 656 Ashworth's claim 1111 1048 Ashworth v. Outram .. .. 1173 1043 v. Stanwix . . . . 801 540 Asia, The 789 967 Askew's case 614 Table of Cases Cited. xxm PAGK Askew v. Lewis 1209 Aslin v. Parkin . . . . 945, 947 Aspden v. Seddon .. .. 814 Aspinall v. Kempson .. .. 1003 o.Wake 1150 Assicurazioni Generali v. S.S. Bessie Morris Co. . . 445, 474 Astbury v. Astbury . . 724, 1165 Astey v. Emery 528 Astlev v. Essex (Earl of) . . 1073 -v. Fisher 120 v. Johnson 397 v. Eeynolds . . 614, 709 ■ v. Younge 865 Aston, Ex parte 169 ■ v. Heaven 778 Asylum for Idiots v. Handy- sides .. .. _ 124 Atcheson v. Everitt .. .. 159 Atehinson v. Baker .. .. 496 Atkins v. Curwood . . . . 564 v. Drake 102 v. Hatton 102 - v. Humphrey . . . . 336 v. Kilby 1134 Atkinson v. Baker . . . . 995 v. Bell 527, 550, 585, 952 V. Bradford, &c. Building So- ciety 600,682,1152 . v. Denby . . 614, 618 v. Hawdon .. .. 396 v . Morris . . 145, 1054 v. Newcastle Water- works Co. . . 771 v. Stephens . . . . 478 v. Teasdale . . . . 824 v. Warne . . . . 941 Atlantic Mutual Insurance Co. r. lluth 478 Atlas Metal Co. v. Miller .. 299 Atlee v. Backhouse . . . . 615 Attack v. Bramwell . . 902, 908 \t i enborough's case 1195, 1204 Attenborough, Re .. .. 265 v. Inl. Rev. Com 265 V.Mackenzie 403 v. St. Kathe- rine's Dock Co 956 - v. Thompson 1206 Atterbury v. Faii-manner .. 491 Attersol v. Briant .. .. 972 Att.-Gen. V. Antrobus .. 49, 832 ■ v. Briant .. .. 173 v. Brighton, &c. Supply Assoc. 701 v. Brown . . . . 258 v. Bulpit .. .. 159 v. Carlton Bank .. 272 Att PAOB -Gen. v. Cleeve .. .. 54 v. Cole .. .. 761,762 v. Conduit Coll ierv Co 812 v.Davison .. 201,205 v. Dorking (Guar- dians of) .. .. 840 v. Eastbourne- Cor. 250 v. Emerson .. 53, 55, 929, 935 v. Esher Linoleum Co v. Ewelme Hospital Gaskill Gilpin v. Gt. E. Ry. Co v. Hitchcock 833 40 1093 .. 239 104, 1127 .. 162, 183, 184 40, 834 .. 210 v. Horner v. Hotham v.Hull 156 ■ v. Jones 120 ■v. Leonard .. .. 1222 ■ v. Liverpool Cor. . . 260 ■ v. Logan . . . . 759 ■ v. Lonsdale (El. of) 841 • v. Manchester Cor. 772 • v. Margate Pier & Harbour Co. 1117, 1132 - r. Metropolitan Ry. Co 772 ■ v. Newcastle-upon- Tyne Cor. . . 157 - v. Nottingham Cor. 85, 772 494, 1120 .. 125 28 .. 1052 .. 1079 .. 270 115,452,844 Canal . . 248, 260 of v. Odell . . v. Oldham • v. Parker ■ v. Parnther v. Parsons - v. Pratt . . - v. Ray . . - v. Regents Co - v. R. College 1'hvsicians .. 515 - v. Scott .. 759, 763, 794 - v. Shrewsbury Bridge Co. 759,771 - v. Terry 841 - v. Thames Conser- vators . . . . 835 - v. Theakstone .. 190 - v. Tomline .. 939, 1074 v. Warwick .. 54,217 - r. Windsor ( I 'can of) 35 Settle 837 • of Strail a menta v. Wemyss Attree v. Hawe 314 XXIV Table of < 'ases ( 'ited. PAGE \t bwater, Ex parte .. . . I2u5 Attwood v. Griffin .. .. 359 v. Rattonbury . . 374 v. Taylor . . 112, 624 Atwood v. Ernest 995 Aubert v. Gray 440 ■ v. Maze . . . . 595, 618 v. Walsb 618 Audain, Ex parte 1101 August, The 459 Augustein v. Challis . . 2, 1222 Auriferous Properties Co., In re 1199 Austerberrv v. Oldham (Cor. of) S32 Austin v. Beddoe 1055 v. Bethnal Green (Guardians of) 1092 v. Lebnam .. .. 890 -v. Dowling .. 880,920 - v. Evans 157 v. Gt. W. Ry. Co. 652, 775 - v. Llewellyn . . . . 1077 — — v. Manchester, &c. Ry. Co 636 Austin Friars SS. Co. v. Strack 589 Australasia (Bank of) v. Harding 208, 209 — v. Nias 208 Australasian, &c. Steam Na- vigation Co. v. Morse 478, 978 Australia, The 786 Australian Agricultural Co. v. Saunders . . 427, 439, 458 Australian Newspaper Co. v. Bennett 854 Australian, &c. S. Navigation Co. v. Marzetti 1092 Auty v. Hutchinson . . . . 584 Auworth v. Johnson . . . . 347 Aveline v. Whisson . . . . 138 Avery v. Bowden . . . . 290, 467 Avcson v. Kinnaird (Lord) . . 52 A vies v. Cox 328 v. S. E. Ry. Co 778 Avlesbury Ry. Co. v. Mount 1125 Aylesford Peerage . . 47, 52, 1047 (El. of) v. Morris . . 626 AyliS v. Arehdale 673 Aynsley v. Glover . . 817, 820, 822 Ayre v. Craven 852 Ayscough v. Buller . . 91, 92 Azemar v. Casella 542 BABBAGE v. Babbage .. 165 - v. Coulbourn 347, 661 Baber v. Harris 599 Bach v. Owen 527 Back v. Stacey 821 PAGE Backhouse v. Hall . . . . 482 Bacon v. Chesney 69 v. Simpson .. .. 233 Badcock v. Hunt 743 Baddeley v. Earl Granville 805 v. Mortlock . . .. 497 Badelevt - . Consolidated Bank 558, 559 Badische Anilin, &c. Fabrik v. Levinstein 281 Badkinv. Powell 909 Badman, Ex parte .. 312, 1101 Baerselrnan v. Bailey .. .. 474 Bagel v. Miller .. .. 561, 1154 Bagge v. Mawby 900 v. Whitehead . . . . 1225 Baglan Hall Colliery Co., In re 1102 Baglehole v. Walters .. 542,850 Bagnall v. Charlton . . . . 603 Bagot i\ Arnott 667 v. Chapman (Lord) v. Williams . . Tyre, &c. Co. v. Clipper, Tyre Co Sevmour 716 194 &c. Tyre Co 1111 Bagshaw v. Seymour . . . . 848 Bagshawes v. Deacon . . . . 965 Bagueley v. Hawley . . . . 487 Bahia and San Francisco Rv. Co., Be .. .. 1100,1119 Baildon v. Walton . . 78, 687 Bailee v. Vivash 941 Bailey v. Applevard . . 824, 1087 v. Bidwell . . . . 65, 134 v. Bodenham . . . . 408 v. De Crespigny . . 322 — v. Edwards . . . . 405 v. Finch 706 v. Harris 668 v. Jamieson . . . . 832 v. Macaulay . . 61, 562 ■ v. Sweeting . . . . 532 Baillie v. Kell 915 Baily's case 1100 Baily v. Clark .. 176, 838, 839 Bain v. Fothergill . . . . 332 v. Sadler 1164 v. Whitehaven, &c. Ry. Co 1123 Bainbridge v. Pickering . . 674 v. Postmaster- Gen. 651, 770, 937 Baines v. v. — v. ■ V. V. - v. Wade Bromley Ewing . . Holland Lumley Swainson Bainford v. Turnley Baird v. Fortune . . v. Robertson 19 299, 704 25, 422 .. 429 .. 1074 .. 258 .. 773 20 .. 609 Table of Cases Cited. xxv PAGE Baird v. Williamson .. 791, 840 Baker's case 954,1109 Baker, In re 733 v. Ambrose 1207 v. Baker .. .. 195,209 v. Bolton 7S2 v. Carrick 870 v. Cartwright .. .. 497 v. Cave 1115 v. Davis 343 v. Dening .. .. 146,317 v. Dewey 65 v. Farminger . . . . 537 v. Gostling 335 ■ v. Gray 953 v. Gt. N. Rv. Co. . . 768 v. Greenhili . . 596, 742 v. Holtpzaffell .. 338,342 v. Jardine 226 V. Keen 567 v. Lawrence . . . . 294 v. Reynold . . . . 344 v. Towry 442 — v. Walker 397 v. White 1002 v. Wicks 909 Balcetti v. Serani 84 Baldej v. Parker 527 Baldney v. Ritchie ... 9 Baldwin v. Alsager .. .. 235 v. Casella . . . . 790 i r. Cole 972 v. Klphinstoue .. 855 v. L. Chatham & Dover By. Co. 650, 651 v. Richardson .. 389 Bal four v. Ernest . . . . 36, 1116 Ball, Ex parte .. .. 617, 961 v. Cullimore 1009 V. Dunstervillc .. 71, 136 v. Ray 761 BallaeorkLh Silver, Ac. Co. v Harrison 839 •i lit \ lie v. Mackinnon .. 205 1 Salla rd v. Tomlinson . . 839, 840 /'. Way . . . . 189, 327 Balls v. West wood .. .. 341 Bally v. Wells 737 Balme v. Button 925, 927, 980 Balson v. Meggatt . . . . 1185 Bamfield v. Massey .. *7, 912 Bamford v. TurulJy .. 7C2, 772 Banbury Peerage . . 34, 15, 17,51, 95, L99, 1047 Banbury v. White .. .. L204 Banco de Lima v. An; I I Vim i,iii Bank 461 Bandy v. Cartwright .. .. 748 Banister, In re .. .. 328,843 Lank of Africa v. Salisbury Gold Mining Co. .. .. 1099 PAGt Bank of Brazil, Kx jxirte .. 394 Bank of British X. America v. Strong 871 Bank of England, Ex "parte 191 v. Anderson 102 v. Cutler .. 494 v. Vagliano 77, 350, 361, 417, 610 Bank of Hindostan v. Smith 662 Bank of Ireland v. Evan's Trustees 1119 v. Perry .. 1226 Bank of London, &c. Insur- ance Association, In re .. 1114 Bank of New South Wales v. O'Connor 996 ■ r. Owston 882, 1096 Bank of New Zealand v. Simpson 30 Bank of Scotland v. Dominion Bank of Toronto 403 v. Watson . . . . 490 Bankes v. Jarvis .. .. 704,706 Banks v. Goodfellow . . . . 1052 Bannatyne v. Maclver .. 599 Banner, Ex parte 397, 461, 1077 v. Berridge . . 679, 689 Bannerman v. White .. 541, 545 Bannister v. Hyde . . . . 902 Banwen Iron Co. v. Barnett 1115 Barbat v. Allen 163 Barber's case 1102 Barber v. Brown 612 v. Fletcher . . . . 449k v. Holmes . . . . 212 v. Lamb 209 — v. Nottingham and Grantham Ry. Co. 198 - v. Penley 761 - v. Pott 611 v. Richards .. 371, 37 I v. Rollinson . . . . 921 > v. Whitelcv .. .. 1088 V. Wood 154 Barclay, Ex parte .. .. 1200 v. Bailey 379 -v. Goooh 591 — — v. Pearson .. 618, 667 Barden v. Keverberg .. .. 1172 Bardwell v. Lydall .. .. 483 Barfoot v. Sadler 1056 Baring v. Abingdon .. .. 825 v. Corrie 708 r. Inl. Rev. Coins. .. 262 Baring Brothers v. Marine [nsur. Co 446 Barker v. Allan 524 -v. Angell 885 v. Birt 627 f. Bra ham .. .. 936 XXVI Table of Cases Cited. PAGE Barker v. Furlong 165, 968, ( J78, 981 — v. Greenwood . . . . 695 - v. Hempstead . . . . 303 - v. Hollier 305 r. Janson 4496 - v. Keat 930 - v. M' Andrew . . . . 426 - v. Ray 55 (-.Richardson .. .. 39 - v. Stead 562 - v. Windle 464 Barkshire v. Grubb . . . . 837 Barkworth v. Young . . 314, 317 Barling v. Bishopp . . . . 1190 Barlow v. Bishop 372 v. MTntosh . . . . 434 v. Teal 1015 Barnard, In re 359 — v. Faber 457 Barnardiston v. Chapman .. 979 Barnes v. Foley 651 V. Glenton .. .. 722 — v. Loach .. .. 821, 838 v. London, Edinburgh, &c. Insurance Co. 451 v. Lucas 143 — v. Lucile 789 v. Toye 674 v. Ward . . . . 763, 790 Barnett's case 1109 Barnett v. Allen 858 v. Guildford (Earl of) 931, 945, 946 v. Howard .. .. 1178 — v. Poplar Cor. . . 768 v. S. London Tram- ways Co 1094 Barnev v. United Telephone Co." 878 Barnsley v. Taylor . . . . 521 Baron Aberdare, The . . . . 788 Baron v. Husband .. .. 604 - v. Portslade Council 771 Barque Quilpue v. Brown 23, 466 Barraclough v. Greenhough 8, 73, 138, 151, 678 v. Johnson 49, 832 Barratt v. Kearns . . 43, 865 Barrell, Ex parte 331 Barrett's case 1109 Barrett, In re 1162 - r. Daj 879 - v. Deere . . . . 695, 709 - v. Long 860 Barrington, In re .. .. 969 Barrow's case .. .. 626,1105 Barrow, Ex partt .. . . 991 v. Bell 443 v. City Bank .. 958 v. Dyster .. .. 25 Barrow v. Isaacs .. Barry v. Bebbington . . — — v. Butlin v. Croskey . . v. Glover v. Goodman v. Midland Ry. Co. v. Nesham . . v. Nugent ■ ■ v. Rush Barrymore (Lord) v. Taylor Barsham v. Bullock Bartholomew v. Carter - v. Markwick Stephens PAGE 733, 1036 55 1050 847, 848 1027 Bartlett v. Baker v. Emery v. Gawler — v. Purnell v. Smith ., Barton r. Bricknell — ■ v. Dawes .. — ■ v. Gainer . . v. L. & N. W. Ry. Co. v. N. Staffordshire Ry. Co — v. Piggott v. Williams Barton's Hill Coal Co. v. Reid Barwell v. Adkins Barwick v. English Joint Stock Bank .. 663,845 1 Ja rzillay v. Lewis Basebe' v. Matthews Baseley v. Clarkson Baskerville v. Brown Bass v. Gregory . . 39, 820 Bassett v. Collis — v. Dodgin Bastard v. Smith . . 179, 286, 257 1095 558 1012 1159 61 1180 1142 571 2 766 628 10 535 141, 230 1138 33 953, 995 1119 1119 665 979 803 861 ,848 204 881 941 707 ,822 491 400 288, 840 Basten v. Carew 206 Bastifell v. Lloyd .. 465, 466 Bastin v. Carew 167 Batard v. Hawes 595 Batavier, The 789 Batchelor v. Fortescue . . 798 v. Honeywood .. 140 v , Middleton .. 1078 Bate v. Cartwright . . . . 618 v. Hill 912 V. Kinsey 12 - v. Payne 594 Bateman v. Bailey v. Bluck < 1 reen Hunt Joseph Mid-Wales Co Binder 51 .. .. 832 952 66, 620, 621 . . . . 389 Ry. 366, 1126 . . 691 TabU of Vases Cited. xxvn PAGE Bater ». Bater .. .. 195,1048 Bates v. Burchell 205, 300, 302 v. Donaldson . . . . 733 v, Hewitt 449i v. Pilling . . . . 016, 937 V. Townlcv . . . . 597, 629 Bateson v. Gosling 405, 484, 702 Bath's case 1106 Bath v. Sutton 1206, 1207, 1209 Bather v. Day 656 Bathurst (Borough of) v. Macpherson 770 Batson v. Donovan . . . . 651 v. King 480 Batten v. Gedye 825 Batterhury v. Vyse . . . . 583 Battershy v. Lawrence . . 515 Battersea Vestry v. County of London, &c. Co 933 Batthyany v. Walford . . 1155 Battie's case 1103 Battishall v. Reed 760, 771, 822 Batt lev v. Faulkner .. .. 681 Bauerv. Clifford 45 ! Bauerman v. Radenius .. 67 Baugh v. Cradocke . . . . 172 Baumann r. James .. .. 315 Baumevoll Manufacturing, &c. Co. v. Furness .. 459, 586 Bavins r. L. & S. W. Bank 616, 979 Bawden v. Lon., Edinburgh, &c. A.ssur. Co 453, 455 Bax v. Jones 1145 Baxendale v. Bennett 76, 368, 399 v. E. Counties By. Co . 6:',:; — r. Gt. B. By. Co. 638, 640, 644 v. Gt. W. Ry. Co. 602, 614, 634 v. Hart .. .. 639 v. L. Chatham & Dover Ry. Co. 650 v. L. & S. W. By. Co. .. 614,633, 6:', I v. M'Murray .. 840 ; — V. N. Lambeth, &o. Club .. 826 Baxter r. Browne 1012 - u. London and ('mint y Printing Works .". 518 - v. Nurse 516 W.Portsmouth (El. of) 677 r. Taylor 760 Bayley v. Bradley 75, 336, 339 v. Chadwick .. .. 587 v. Fitzmavu . . 315 v. Gt. W. Ky. ( u. s:;t, s:iS - V. 1 Ionian .. .. 660 PAUli Bayley v. Manchester, &c. Ry. Co 1095 v. Rinunell . . . . 520 v. Wilkins 592 v. Wylie .. 114,186,187 Bayliffe v. Butterworth 26, 592 Bavlis, Ex parte 503 v. Att.-Gen 32 v. Jiggeus 744 v. Lawrence . . 853, 854 v. LeGros .. .. 1033 v. Tyssen-Amhurst . . 823 ■ v. Usher 893 Bayliss v. Fisher 908 Baynes v. Lloyd 748 Baynton v. Morgan . . . . 727 Bayntum v. Cattle . . . . 667 Bazeley v. Forder . . . . 565, 567 Bazett r. Morgan 303 Beacon Life Assur. Co. v. Gibb 457 Beal v. S. Devon Ry. Co. . . 643 Beale v. Mouls . . . . . . 540 V. Nind 690 v. Sanders 347 Beales v. Tennant . . . . 1207 Bealey v. Shaw 39 Bealv v. Greenslade . . . . 686 Beamish v. Beamish 1039, 1041 Braid v. Knight 1218 v. Lon. Gen. Omnibus Co 775 Beardman v. Wilson . . 335, 726 Beardsley v. Beardsley .. 151 Beam, The .. 486, 769, 792, 800 Beaslev v. Clarke . . . . 829, 835 v . Roney .. 1170, 1177 Beasney's Trust, In re, . . 42 Beatson v. Skene .. .. 173, 867 Beattie v. Ebury (Ld.) . . 494 Beauchamp, In re .. .. 1170 v. Parry . . 67, 398 r. Powley . . . . 636 Beaufort (Duke of) v. Craw- shay 187 v. Smith .".7, 189, 197 v. Swansea (Mayor of) 28 Beaumont v. Brengeri . . 530, 670 v. Field . . . . 29 ■ ■ v. Greathead .. 402 Beavan v. M'Donnell .. .. 677 Beeher v. fit. E. Ry. Co. 652, 655 Bechuanaland Exploration Co. r. L. Trading Bank 571, '.n;:>, I leci r. ( 'leaver 507 v. Denbigh 903 -v. Pierce .. 192, 509, 1170 v. Robley 244 Beckett v. Addyman .. .. 182 v. Leeds (Corpora- tion of) .. .. 932 XXV111 Table of Cases Cited. I' AGE Beckett v. Midland Ry. Co. 220, 834 v. Tasker 1178 v. Tower Assets Co. 1200 Beckford v. Montague . . 1221 Beckk v. Page 539 Beckham v. Drake .. 365, 1154 v. Knight . . . . 93 Beckhusou v. Hamhlet .. 578 Beckwith v. Philby .. 922, 1135 v. Shordike . . . . 937 v. Sydebotham 176, 432 Becquet v. MacCarthy . . 208 Beddallr. Maitland .. 705,937 Beddington v. Atlee . . . . 817 Bede S.S. Co. v. River Wear Commrs 486,792 Bedford v. Bagshawe . . . . 84S v. Deakin . . . . 403 v. McKowl . . . . 912 Bedingneld v. Onslow . . . . 759 Bedouin, The . . 435, 43S, 449i Bedwell v. Wood 303 Beech v. Eyre 1129 — v. Jones . . . . 176, 177 Beechey v. Brown . . . . 497 Beeching v. Gower . . . . 415 Beeman v. Duck 371 Beer v. Bell 1178 Beeston v. Beeston . . 401, 618 v. Collyer 515, 516, 517 v. Weate 839 Begbie v. Crook 1050 - v. Levi 670 - v. Phosphate Sewage Co. .. 608,619,067 Behn v. Burness . . . . 463, 664 Behrens v. Gt. N. Ry. Co. . . 639 ■ v. Richards . . 832, 939 Belasyse v. Burbridge . . . . 1014 Belbin v. Skeates 148 Belcher v. M'Intosh .. 94, 738 — - v. Patten 1226 Belding v. Read . . . . 955, 968 Belfast & Ballymena Ry. Co. v. Keys 655 Belfast, &c. Ry. Co. v. Strange 1123 Belfort, The 247 Belharu, In re 1163 Bell, In re 679 - v. Ansley 67 -v. Balls" 318 v. Banks 693 v. Bell 449i v. Buckley 403 v. Carstairs 449k - v. Fothergill 1054 v. Hayden 739 . Ingestre (Ld.) .. .. 374 v. Love 814 Bell v. Midland Ry. Co. 760, 771, 939 v. Oakley 1134 v. Parke 877 Bellairs v. Tucker .. 843,846 Bellamy v. Davey . . . . 952 v. Debenham . . 316, 323 — v. Saull . . . . 222, 246 v. Wells 761 Bellcairn, The 193 Belldon v. Tankard . . . . 593 Bellerbv v. Rowland SS. Co. 1106 Belmore (Cts. of) v. Kent C.C. 833 Belshaw v. Bush . . . . 697, 700 — v. Marshall . . . . 1189 Benares, The 783 Bence ;;. Shearman . . . . 621 Benett v. P. & O. Steamship Co 630,653 v. Wyndham . . . . 596 Benfieldside Local Board v. Consett Iron Co Bengal (Bank of) v. Macleod Benham v. Gray Benington v. Benington Benjamin, In re v. Porteus . . v. Storr Bennett v. Allcott Bayes .. Bennett v. v. v. V. V. V. V. V. 814 400 929 940 42 558 834 .. 910 909, 1089 .. 876 759, Blain 314 Deacon .. .. 869 Francis .. .. 550 Henderson . . . . 549 Parker .. .. 713 Stone 325 v. Watson . . . . 498 Bennetts v. Mcllwrath . . 90 Benning v. Ilford Gas Co. 299, Add., 299 Bennison v. Cartwright 51, 830 Bensaude v. Thames, &c. Insur. Co 449# Bensley v. Bignold . . . . 666 Benson v. Benson . . . . 1054 v. Chapman .. .. 445 - v. Duncan .. .. 478 v. Lamb 324 - v. Marshall . . . . 398 Bentall v. Burn . . . . 528, 531 Bentinck, In re 1161 ■ v. London Joint Stock Bank . . . . 576, 964 Bentley v. GrifEn 564 v. Vilmont .. 961, 962 Bros. v. Metcalfe . . 488 Bentsen v. Taylor . . 463, 464 Bergheim u. Blaenavonlron, &c. Co 547 — v. Gt. E. Ry. Co. 654 Table of Oases died. xxix PAGE Berkeley v. Elderkin . . . . 205 v. Hardy . . . . 137 Berkeley Peerage case 44, 47, 48, 54, 182 Berniondsey (Vestry of) v. Brown 828, 832 Bernard, hire 215 Bernardi v. Motteux . . . . 204 Bernasconi v. Anderson . . 602 v. Argyle(Duke of) 374 Berne (City of) v. Bank of England 79 Berney v. Bickmore . . . . 1007 v. Read 498 Bernina, The 475,780 (No. 2) 788 Bernstein v. Baxendale . . 638 Berolles v. Ramsay . . . . 675 Berresford v. Montgomerie . . 471 Berrey v. Lindley 345, 1015, 1017 Berridge v. Berridge . . . . 594 v. Fitzgerald . . . . 384 u.Ward 932 Berriman v. Peacock .. .. 935 Berringer v. Gt. E. Ry. Co. 652. 775 Berry v. Adamson . . . . 921 v. Alderman . . . . 399 v. Berry 1002 v. Da Costa . . . . 496 - — ■ v. Goodman . . . . 930 v. Greene 1057 v. Halifax, &c. Bank- ing Co 409 v. Heard 969 v. Storey 627 v. Young 323 Berryman v. Wise . . 43, 66 Berthon v. Loughman . . 176 Bertie v. Beaumont . . 102, 928 Berwick v. Horsfall . . . . 5 Besant v. Cross 16 Besfoid v. Saunders .. .. 691 Besley v. Besley .. .. 91,330 Bi ela v. Slern .. 64, 165, 495 Bessell v. Landsberg .. .. 337 v. Wilson 1138 Best V. Hamand 322 v. Hayes 1227 v. Osborne 491 Botham v. Benson . . . . 69 Bethell, In re 1038 v. Blencowe .. .. 232 v. Clark . . . . 990, 991 Betjemann v. Betjemann .. 681 Betteley v. M'Leod . . . . 154 v. Reed 981 Betterbee v. Davies .. .. 710 Bettesworth & Richer, In re 745 Bett's Patent, In re .. .. 100 JBetts u. Qrjbbins 595 PAGE Beyan v. Waters . . . . 171, 985 Bevans v. Rees 710 Beveridge v. Beveridge .. 367 v. Burgis .. .. 389 Beverley, In re 250 (Mayor) v. Craven 96 V. Lincoln Gas Co 550 Beverley's case 954 Bevins v. Hulme 694 Bew v. Bew 298 Bewley v. Atkinson 56, 57, 819 Bexwell v. Christie . . . . 664 Beynon v. Godden .. .. 300 Bhugwandass v. Netherlands & Insur. Co. of Batavia .. 418 Bianchi v. Nash 550 v. Offord 1210 Bibb v. Thomas 1052 Bibby v. Carter 815 Biccard v. Shepherd . . . . 431 Bickerdyke v. Bollman . . 388 Bickerton v. Walker .. .. 66 Bickett v. Morris . . . . 841, 933 Bickford v. Parson . . . . 349 Bickmore v. Dimmer . . . . 742 Bicknell v. Hood 1013 v. Keppel .. .. 689 Bidder v. Bridges 660 Biddle v. Bond 981 v. Dowse 280 v. Hart 807 v. Levy 550 Biddulph v. Ather . . . . 193 Bideford, hire 203 Biden v. Loveday . . . . 42 Biederman v. Stone . . 572, 574 Bieten v. Burridge . . 890, 921 Biffin v. Bignell 565 Bigg v. Whisking 531 Biggar v. Rock Life Assur. Co 453,455 Biggerstaff v. Ro watt's Wharf 1111, 1113 Biggins v. Goodo 899 Biggs v. Evans 956 Bignell v. Clarke 898 v. Harpur .. .. 1150 Bigsby v. Dickinson . . . . 185 Bikker v. Beeston .. .. 2'J. r ) Bilbee v. L. & Brighton Rv. Co ".. 795 Bilbcc v. Lumley 611 Bilborough v. Holmes .. 560 Bill v. Bament 533 — v. Darenth Vallev By. Co 1126 Hilling v. Coppock .. .. 502 r.in"li;iiii r. Allp'Ji'l, .. 70!) v. Garnault .. .. 924 — . v. Stanley .. 77, 78 XNX Table of Cases Cited. PAGE Binks v. S. Yorkshire Rv., &c. Co .. 763 Birch, Lire 11G2 -v. Clifford 740 — v. Depeyster . . . . 22 - v. Ridgway . . . . 141 — v. Wright 342, 1010, 105S Birchall, In re 1050 — v. Bullough . . . . 223 Bird v. Astock 974 v. Baker 1017 - v. Boulter . . . . 318, 534 v. Brown 992 ■ v. Crabb 1227 v. Davey 1211 v. Elwes 744 v. Gammon 689 v. Gt. N. Ry. Co. . . 777 v. Gmiston 1140 r. Higginson 287, 345, 730 . v. Holbrook 790 v. Jones . . . . 915, 921 Birk v. Guy 690 Birkenhead, &c. Ry. Co. v. Brownrigg .. 1123 v. Cotesworth .. 1122, 1123 v. Pilcher .. .. 1125 Birkmvr v. Darnell . . . . 479 Birks v. Tippett 682 Birmingham, &c. Banking Co. v. Ross 818 Birmingham (Cor. of) v. Allen 812 Birmingham Estates Co. v. Smith 704 BirminghamExcelsior Mining Soc. v. Lane 1178 Birmingham, &c. Land Co. v. L. & N. W. Ry. Co. . . 1034 Birrell v. Dryer 82 Birt v. Barlow .. .. 125, 136 Bishop, Ex parte 593 - v. Balkis Consolidated Co. 574, n., 1100, 1120 - v. Chambre .. .. 245 - v. Elliott 970 v. Howard .. 339, 1011 -v. Pentland .. 442,413 v. Rowe 382 — v. Shillito 952 Bishop Auckland, &c. Soc. v. Butterknowle Colly. Co. 814 Bissell v. Fox .. .. 406, 411 Jlissicks v. Bath Colliery Co. 1224 Bittleston v. Cooper . . . . 74 Bize v. Dickason 611 Blachford v. Kirkpatrick .. 319 Black & Co.'s case 1100, 1109 Black v. Christchurch Finance Co 767 v. Homersham . . . . 572 PAGE Black v. Johling 1055 v. Smith 710 Blackborne v. Blackborne 163, 164 Blackburn v. Haslam . . . . 449i — v. Liverpool Brazil, &c. S. N. Co. 435, 474 ■ — -v. Smith .. 323,331 — v. Vigors . . . . 449i - Building Society v. Cunliffe .. 1127 - Union v. Brooks 186 Blackett v. R. Exchange Ass. Co 25,449/ Blackham's case .. .. 194,203 Blackham v. Doren . . . . 388 v. Pugh . . . . 869 Blackie v. Pidding . . 356, 395 Blackledge v. Harman . . 620 Blacklock v. Dobie . . . . 671 Blackmail v. Simmons . . 790 Blackmore v. N. Australian Co 608 v. Vestry of Mile End Old Town 770 v. White . . 346. 1155 v. Yates . . . . 1226 Blackquiere v. Hawkins . . 83 Blackstone v. Wilson .. .. 72 Blaekwell v. England .. 1206 v. M'Naughton . . 234 Blades v. Free 1165 - v. Higgs . . . . 916, 925 — v. Lawrence . . . . 81 Blagden v. Bradbear . . 314, 318 Blagg v. Sturt . . . . 858, 859 Blagrave v. Bristol Water- works Co 834 Blaiberg, Ex parte 1204, 1227 v. Beckett .. .. 1212 - v. Parke .. .. 1206 v. Parsons .. .. 1212 Blaikie v. Stembridge .. .. 472 Blair v. Cordner 506 v. Ormond . . . . 222, 724 " Blairmore " (Sailing ship) v. Macredie 447 Blake's case 660 Blake v. Albion Life Assur. Co 848 v. Appleyard .. .. 302 - v. Beaumont . . . . 359 - v. Blake 148 — v. Done . . . . 292, 1000 v. Midland Rv. Co. 811 - v. Nicholson . . 982, 984 — v. Pilfold . . . . 173, 867 - v. Stevens . . . . 873 - v. Woolf 792 Blakemore v. Bristol & Exeter Ry. Co 799 Table of Cases Ciied. xxxi PAGE Blakemore v. Glamorgan Canal Co 192, 207 Blamires v. Lancashire & Yorkshire Ry. Co. . . 778, 798 Blancharcl v. Bridges . . . . 821 Blanchet v. Powell's Llantivit Colliery Co 469 Bland v/Bland 164 v. Lipscombe . . . . 824 Blandy v. De Burgh . . . . 504 Blandy-Jenkins v. Earl of Dunraven 54, 59 Blane, Ex parte 606 Blaney v. Hendricks .. .. 623 Blankenstein v. Robertson 1212 Blatch v. Archer 1185 Blatchford v. Cole . . . . 750 Blaymire v. Halev . . . . 911 Bleaden v. Hancock . . 984, 985 Bleakley v. Smith . . 315, 317 Bleasby v. Crossley .. .. 37 Bleckley, In re 1055 Blenkarn v. Hodges' Dis- tillery Co 518 Blenkinsop v. Clayton 530, 531 Blesard v. Hirst 377 Blessing, The 521 Blessley v. Sloman . . . . 920 Blewett v. Tregonning 40, 78, 185 Blewitt, In re .. . . 146, 317 — v. Gordon 1129 - v. Tritton 231 Bloomenthall v. Ford 1105, 1120 Bloomer v. Bernstein . . . . 545 Blore v. Ashby . . . . 290, 300 v. Guilini 741 Blount v. Harris 1206 - v. Layard . . . . 214, 832 - v. Pearman . . . . 257 Blower v. Gt. W. Ry. Co. 631, 632 v. Hnllis .. .. 112,200 Bloxam v. Hubbard . . . . 92 — - — v. Sanders . . . . 967 Bloxsome u. Williams .. 670 Blundell v. Gladstone .. 30 v. Howard .. .. 84 Blunt v. Heslop 505 Blyth v. Birmingham Water- works Co. 774, 777, 800 - v. Dennett .. .. 1023 -v. Pladgate .. 510,561 Blythe v. Smythc .. .. 741 Boaler v. Mayor 693 Board v. Board 1005 Boardman v. Sill 987 Boast v. Firtb 519 Bobbett v. Pinkett . . 406, 411 v. S. E. Ry. Co. . . 1070 Bock v. Gorrissen . . . . 982 Bodega Co., In re .. .. 1103 Boden v. Roscoe . . . . 937, 1088 pa or. Boden v. Smith .. 1132.1142 Bodenham v. Bennett . . 647 — v. Purchas 698, 701 Bodger v. Arch 1151 Bodley v. Reynolds . . . . 980 Bodmin United Mines, Inre 83, 1090 Boehm, In re 1050 v. Campbell . . . . 241 Boggett v. Frier 1171 Boileau v. Rutlin 45, 65, 78, 199, 202 Bolch v. Smith 761 Bold v. Rayner .. .. 22,535 Roldero v. L. & Westminster Discount Co. .. 1191,1200 Bolingbroke v. Kerr .. .. 1150 v. O'Rorke . . 626 (Ld.) v. Swindon Local Board 1096 Bolitho & Co. v. Gidley . . 1178 Bolland, Ex parte 1203, 1207 - v. Bygrave . . . . 982 Bolton v. Arlsden 553 - v. Buckenham . . 484 - v. Carlisle (Bishop of) 662 - v. Gladstone . . . . 204 — v. Hillersden . . . . 553 - v. Lancashire, &c.Ry. Co 992 v. London School Board .. .. 321 — v. Sherman .. .. 72 - (Lord) v. Tomlin 177, 344 - Partners v. Lambert 312, 316 Bonar v. Mitchell . . 386, 1129 Bond v. Nutt 429 v. Rosling .. .. 257,1013 v. Seawell 147 Bondrett v. Hentigg . . . . 436 Bone v. Eklcss 618 Bonelli, In re 121 Bonrield v. Smith 286 Bongiovanni v. Societe Gene- ral 576 Bonnard v. Dolt 514,600,601,669 v. Ferryman . . .. 863 Bonner v. Gt. W. Ry. Co. .. 822 V. Tottenham, &c. Bldg. Socy 598 Bonncwell r. Jenkins .. .. 316 Bonomi v. Backhouse . . 774, 812 Boodle v. Cambcll .. .. L085 Boor, In re 745 Boorman v. Nash 580 Boosey v. Davidson . . . . 2 - v. Wood 876 I '..-i h v. Alcock 817 v. Arnold 853 <\ Briscoe.. .. 851, 863 XXX11 Table of Cases Cited. PAGE Booth v. Charlton . . . . 910 - v. Olive 1143 - v. Cooke 21 - v. Gair 449/ - v. Howard . . . . 89 - v. Millns 285 - v. Ratte 840 Bootle, In re 145 - v. Bhmdell . . . . 148 Bordenave v. Gregory . . . . 578 Boreham v. Hall . . . . . . 763 Borough Bldg. Soc, In re 1111 Boroughes' case 1027 Borradaile v. Lowe . . . . 392 Borries v. Hutchinson 547, 548 — v. Imperial Ottoman Bank .. .. 707 Borrowman v. Drayton . . 540 v. Free .. .. 537 v. Rossel .. .. 21 Borrows v. Ellison . . . . 1076 Borthwick v. Elderslie . . 622 Bos v. Helsharn 330 Bosanquet, Ex parte .. . . 1101 v. Anderson . . 372, 373, 413 v. Shortridge .. 1129 v. Woodford .. 1129, 1226 v. Wray .. .. 697 Boschoek Proprietary Co. v. Fuke 1103 Bostock v. Hume 37 v. Jardine . . . . 607 v. Ramsay Urhan Authority 297, 298, 1133 -- & Co. v. Nicholson & Sons 488,492 Boston v. Boston 314 Boston Deep Sea, &c. Co. v. Ansell . . . . 518, 603 Boston Fruit Co. v. British, &c. Insur. Co. 267, 420 Bosyile v. Att.-Gen. 42, 52, 1047 Boswell, In re 685 u.Smith .. .. 37,700 Bott v. Ackroyd 1138 Bottings v. Firby 206 Bottoniley's case 1105 Bottomley v. Fisher . . . . 413 v. Nuttall . . 556, 700 Bottrell v. Summers . . . . 65 Boughton v. Knight . . . . 1051 Bouillon v. Lupton 429, 431, 432 Boulding v. Tyler 302 Boulston's case 937 Boulter v. Arnott 551 v. Peplow .. .. 63 Boulton v. Arlsden .. .. 553 c. Crowther .. .. 769 Boulton v. Jones . . v. Prentice ■ v. Pritchard v. Reynolds Bound v. Lawrence Bourdin v. Greenwood Bourke v. Davis .. Bourne v. Fosbrooke v. Gatliffe v. Salmon . . Bovill v. Hammond Bow v. Hart .. Bowcher v. Noidstrom Bowden v. Henderson — v. Vaughan v. Waithman Bowditcb v. Balchin v. Fosberry Bowen v. Anderson Ashley . . Hall . . Jenkin . . Owen Hett . . Hill Bower v. v, v v, v, - V. — ■ v. Peate .. Bowerbank v. Monteir Bowers v. Nixon . . Bowes, In re .. v. Foster . . & Partners v. Pr .. 550 .. 565 88, 89 .. 1089 .. 804 .. 689 . . 832 .. 967 24, 478, 647 . . 743 .. 621 . . 302 .. 786 42 .. 4497v .. 1185 .. 1135 .. 1136 768, 1016 .. 226 909, 911 .. 943 712, 713 .. 1220 835, 836 .. 767 Bowey v. Bell Bowker v. Burdekin Bowlby v. Bell Bowman v. Hodgson v. Manzelman v. Nichol Bowring v. Shepherd Bowry v. Bennet .. Bowsher v. Galley Bowyear v. Pawson Bowyer v. Cook . . v. Woodman Box v. Jubb .. Boxer v. Rabeth . . Boxsius v. Goblet . . Boyce v. Green -v. Warburton Boyd, Ex parte v. Brooks v. Croydon Ry. C V. Dubois v. Emmerson — v. Hind . . v. Lett . . v. Profaze v. Siffkin Boydell v. Drummond Boyle v. Tamlyn . . ?;. Wiseman Boys v. Pink 986, ess 134, 401 736 1159 66 518 298 139 527 149 8 244 574 672 1186 706 939 722 791 134 870 .. 314 .. 539 .. 1178 .. 1163 .. 1117 .. 439 237, 409 .. 660 .. 537 .. 902 .. 540 315, 525 1087, 1088 142, 174, 216 , . . . 638 867, Table of Cases Cited. xxxm PAGE Boyse, In re .. .. 240,351,408 v. Colclough . . . . 209 Boyter v. Dodsworth . . . . 616 Bozelli's Settlement, In re 1038 Brace v. Calder 519 Bracegirdle v. Heald .. 525, 526 v. Orford . . 914, 938 Bracey v. Carter 507 Bracken, In re 1160 Bradburn v. Foley . . . . 348 v. Gt. W. Ry. Co. 782, 811 Bradburne v. Botfield . . . . 718 Bradbury v. Morgan . . . . 482 v. Wright . . . . 742 Braddick v. Thompson . . 499 Bradford Banking Co. v. Briggs & Co. . . 1099 v. Symondson .. 449m v. Young . . 306, 1049 (Cor. of) v. Ferrand 839 Bradford (Mayor of) v. Pickles 839 Bradlaugh v. De Rin 223, 229, 371 v. Gossett . . 79, 865 v. Newdegate . . 666 Bradlev v. Arthur . . 83, 190 v. Baylis . . . . 905, 928 v. Carr 919 v. Copley . . 968, 1189 v. James . . 58, 687, 1151 v. Newcastle (Pilots of) 28 v. Ricardo . . . . 175 v. Waterhouse . . 651 Bradshaw v. Beard .. .. 597 V. Bennet . . . . 143 v. Lancashire & Yorkshire Ry. Co 1149 v. Widdrington 720, 1076 Bradworth v. Foshaw . . . . 292 Brady v. Giles 770 v. Jones .. .. 710,713 v. Oastler 547 v. Todd 490 Bragg v. Cole 550 Braham v. Watkins .. .. 1143 Brain, In re 1025 v. Preece .. .. 60,387 Braithwaite v. Cooksey .. 1081 v. Foreign Hard- wood Co. 537, 541 v. Marriott .. 1224 r. Skofield .. 583 Bramah v. Roberts .. .. 366 Bramble v. Moss 211 v. Spiller .. .. 92 Bramley v. Chestercb n .. 749 Bramston v. Robins .. 66,701 Bramwell u. Eglinton . . . . 7UO it. — vor,. r. PAGE Bramwell v. Lacy 735 v. Lucas . . . . 171 Brancker v. Molyneux . . 967 Brandao v. Barnet 24, 83, 707, 982, 984 Brandford v. Freeman .. 287 Brandon's case 371 Brandon v. Hibbert .. .. 1185 v. Old 670 Brandt v. Bowlby . . . . 952 ■ v. Lawrence . . . . 538 ■ v. Peacock . . . . 889 Brandt (W., & Sons) v. Dunlop Rubber Co 621 Branford v. Branford . . . . 170 Brankelow SS. Co. v. Canton Insur. Office 439 v. Lamport . . 464 Branley v. S. E. Ry. Co. .. 645 Brannigan v. Robinson . . 806 Branscombe (Lady) v. Bridges 894 — v. Scarborough 745, 756 Branw hite, Ex parte .. .. 1109 Brashier v. Jackson . . . . 749 Brass v. Maitland 472 Brassington v. Llewellyn . . 1070 Brasyer v. Maclean . . . . 1225 Braunstein v. Accidental Death Insur. Co. . . 453, 454 Brayshaw v. Eaton . . . . 674 Braythwayte v. Hitchcock 253, 255, 1010 Brazier's case 162 Brazier v. Bryant 499 v. Hudson . . . . 1055 v. Jones 498 Breckon v. Smith 628 Breese v. Jerdein 1146 Breeze v. Hawker . . . . 119 Brembridge v. Latimer . . 853 Bremer v. Freeman . . . . 120 Bremner v. Hull 54 Brenan's case 120 Brenda SS. Co. v. Green 21, 466 Hreruton v. Chapman . . . . 465 v. Evans 334, 1083, 1085 Breton v. Cope . . . . 76, 212 V. Knight 220 Brett, Ex parte .. .. 620, 621 v. Beales . . 48, 50, 53, 54, 189, 217 v. Beckwith .. .. 267 — v. Clowser . . 18, 328, 330, 826 - v. Rogers .. .. 743, 744 Brettell v. Williams .. .. 628 Breull, Ex parte 1206 Brewer v. Broadwood . . . . 323 V. Eaton 1033 v. Palmer 335 c XX XIV Table of Cases Cited. TA(;e Brewerton v. Parker . . . . 624 Brewster v. Kitchcll . . . . 742 ■ v. Sewell .. .. 6 Brice v. Bannister . . . . 242 ■ v. Wilson 1156 Bricknell v. Hulse . . 65, 201 Briddon v. Gt. N. By. Co. . . 631 Bridge v. Gd. Junction Ry. Co. 780 v. Wain 548 Bridger's case .. 1100,1106 Bridger v. Huett . . 44, 46, 119, 1037 v. Savage . . . . 618 Bridges, In re 1163 v. Garrett . . . . 696 v. Hawkesworth . . 967 v. N.L.Ry. Co. .. 796 v. Smyth . . . . 342 Bridgett v. Coyney .. 921, 1139 Bridgman v. Jennings . . . . 54 Bridgwater Trustees v. Bootle-cum-Linacre . . 35, 934 Bridport Old Brewery Co., Lire 1111 Brierly v. Cripps 628 • V.Kendall .. 927,980 Briggs and Spicer, In re . . 321 Briggs v. Boss . . 1206, 1207 v. Briggs 1048 V.Evelyn 1141 V.Oliver 79S v. Sowry 906 v. Wilkinson . . . . 586 Bright v. Hutton 562 v. Legerton . . . . 59 — v. Walker .. .. 829, 831 Brighton Arcade Co. v. Dow- ling 1105,1109 Brighton (Mayor of) v. Guar- dians of Brighton .. .. 1070 Brighty v. Norton . . 955, 968 Brigstocke v. Smith . . . . 685 Brind v. Dale 630 v. Hampshire . . . . 604 Brine v. Bazalgette . . . . 860 Brinkley p. Att.-Gen. .. 129, 1038, 1043 Brinsmead p. Harrison .. 965 Brintous p. Turvey . . . . 454 Brisbane r. Dacres .. .. 611 Brisco v. Baillie Hamilton . . 1050 v. Lomax . . . . 50, 86 Briscoe v. Stephens . . . . 206 Bristol City, the 789 Bristol (Corp. of) p. Westcott 738 Bristol (Mayor, &c. of) p. Cox 157 Bristol (Mqs. of) v. Inl. Rev. Corns 251 Bristol (Ld.) v. Wilsmore . . 955 Bristol, &c. Bank p. Midland Ry. Co 461,949,981 l'AUE Bristol, &c. Bread Co. v. Maggs 316 Bristol and Exeter Ry. Co. v. Collins 635 Bristow r. Cormican . . 53, 85 /-. Eastman . . . . 673 • — v. Haywood . . 889, 890 r. Sequeville . . 121, 227 r. Wright . . . . 1219 Bristowe v. Needham . . . . 598 Britain v. Rossiter . . 525, 526 British Asbestos Co. p. Boyd 1102 British and American Tele- graph Co. r. Albion Bank 604 p. Colson 43 British Columbia, &c. Co. v. Nettleship . . . . 478, 646, 649 British Electric Traction Co. v. Inl. Rev. Corns 257 British Empire Co. p. Sornes 985 British Equitable Ass. Co. v. Gt. W. Ry. Co 452 British Homes Assur. Co. v. Paterson 511, 561 British India Steam Nav. Co. v. Inl. Rev. Corns. 243, 265 British Museum (Trustees of) v. Finnis 831 British Mutoscope, &c. Co. v. Horner 908 British Mutual Banking Co. v. Charnwood Forest Ry. Co 846, 849, 1094 British Oil Co. v. Inl. Rev. Corns 265 British S. Africa Co. v. Gom- panhia di Mozambique 94, 928 British Waggon Co. v. Lea . . 582 British Workman's Assur. v. Cunlifie 619 Brittain v. Kinnaird .. .. 207 v.Lloyd 596 Britten v. Gt. N. Ry. Co. . . 655 Britton v. Jones 1158 v. R. Insurance Co. 457 Broad v.Ham 883 Broadbent v. Ramsbotham 839 Broadwoood v. Granara . . 983 Brocas v. London (Mayor of) 124 Brock v. Copeland . . . . 790 Brocklebank v. Sugrue 268, 421, 443 — v.Thompson 35, 827 Brode's case 865 Broder v. Saillard 761 Brodrick v. Scale . . 1205, 1206, 1207 Brogden v. Brown . . . . 1052 Bromage v. Lloyd . . . . 375 v. Prosser . . 859, 866 Table of Cases Cited. XXXV PAGE Bromley v. Frazier . . . . 392 W.Holland .. .. 138 v. Tarns 805 Brook, Ex parte 969 v. Brook 1038 v. Carpenter . . 207, 889 v. Hook . . . . 368, 400 t\Rawl 878 Brooke, In re 1200 v. Enderby . . . . 698 Brooker v. Scott 675 v. Wood 669 Brookes v. Drysdale . . . . 715 v. Tichborne .. .. 141 Brooks v. Blanshard . . . . 869 v. Bockett . . . . 503 v. Elkins 243 v. Hodgkinson . . 916, 920 v. Israel 298 v. Jennings . . . . 716 v. Mason 504 — v. Warwick . . . . 885 - Jenkins & Co. v. Tor- quay Cor 1093 Brooksbank v. Smitb . . . . 681 Broome v. Speak 847 Broomfield v. S. Insurance Co 446 v. Williams 818, 826 Brough v. Perkins .. .. 82 Broughton v. Langley . . 1002 Broun v. Kennedy . . . . 584 Brounker v. Atkyns . . 131, 216 Brown's case . . .. 1057,1102 Brown, Ex parte 1200, 1201, 1204 v. Accrington Cotton Spinning Co. . . 802 v. Alabaster . . . . 837 — v. Arundell . . . . 903 v. Blunden . . . . 737 v. Brown . . 145, 165, 682, 722, 1054 - v. Byers 599 — v. Byrne 22 - v. Capel 213 v. Croft 518 v. Croomc . . . . 860, 870 v. Dean 196 — • v. De Winton .. .. 414 -v. Dimbleby .. .. 1178 v. Duncan 668 v. Dunstable Cor. . . 840 v. Eastern and Mid- land Ry. Co. . . 765 v. Elkington .. .. 491 v. Foster 172 v.Glenn 902 - v. Gt. W. Ry. Co. . . 984 v. Hare 552 v. Hawkes . . 882, 883, 884 v. Hodgson . . . . 598 PAGE Brown v. Inl. Rev. Corns. .. 262 v. Jarvis 1221 v. Jobnson . . . . 464 v. Kidger 599 ■ v. London (Corpora- tion of) . . . . 217 v. M'Kinally . . . . 615 v. Maffey 388 ■ v. Mancbester, &c. Ry. Co. . . 632, 643 v. Metropolitan Coun- ties Insur, Society 1083 v. Muller .. .. 547,548 v. Notley 929 v. Peto 1058 v. Pigeon 890 v. Powell, &c. Coal Co. 477 — v. Robins .. .. 812, 814 v. Shuker 1168 v. Skirrow 148 — v. Storey 1058 v. Symons . . . . 517, 1014 v. Tanner 467 v. Tapscott . . . . 595 - v. Tbornton .. 5, 216 - v. Tibbitts v. Watts v. Windsor — - — - v. Wootton v. Wren Brown, Shipley & Co. v. Inl. Rev. Corns Browne v. Brandt v. Dawson v. Joddrell — ■ v. La Trinidad v. Murray v. Powell . . Browne's Policy, In re Brownell v. Bonney Browning v. Kinnear . 705 88 813 193 62 262 , . . 657 . 234, 928 . . . 677 .. 1111 . .. 278 1088, 1089 .. 450 . . . 384 .. 389 ■ v. Provincial Insur. Co. of Canada . . . . 267, 446 Brownlie v. Campbell . . . . 844 Brownlow v. Metropolitan B. of Works v. Tomlinson Brownsword v. Edwards . . Bruce v. Helliwell v. Hunter .. v. Hurly v. Jones v. Nicolopulo Brucker v. Fromont Brufi v. Gt. N. Ry. Co Brumfitt v. Roberts Brunc v. Thompson Bruner v. Moore . . Brunner, In re Brunsden v. Humphrey 769 . . 942 .. 168 .. 824 .. 624 .. 51 .. 449c 426, 440 .. 774 .. 70 .. 843 41, 57, 83 18, 311 .. 202 194, 773, 782 c A A A \ I Table of Cases ( 'Ued. PAGE Brunswick (Dk. of) v. Harmer 855, 857, 859, 876 v. Slowrnan 1189, 1190 Brunt v. Midland Ry. Co. . . 638 Brunton v. Hall 942 Brutt v. Pickard 244 Bryan v. Clay 1161 - v. Wagstaff .. .. 11 - v. White 148 Bryant and Barningharu's Contract, hi re 321 Bryant v. Foot .. .. 41,82 - v. Hancock . . 728, 735 - v. Herbert . . 303, 997 - v. Lefever . . . . 820 - v. Quebec Bank . . 367 v. Richardson . . . . 675 - v. Wardell . . . . 968 - &c. Ld. v. Quebec Bank 367 Brydges v. Walford . . . . 1220 Brydon v. Stewart .. .. 802 Bubb v. Yelverton . . . . 667 Buccleugh (Duke of) v. Metropolitan B. of Works 165, 500, 834 Buchan's case 1099 Buchanan v. Andrew .. .. 814 v. Poppleton .. 214 v. Rucker .. .. 208 Buck v. Hurst . . . . 598, 627 v. Robson . . 242, 679, 1104 Buckhurst's (Lord), case .. 995 Buckland v. Gibbins . . . . 1005 - v. Johnson . . 617, 965 Buckle v. Bewes 1224 - v. Frederiks .. .. 734 - v. Knoop 469 Buckley v. Buckley . . . . 792 v. Gross 967 v. Hull Docks Co. 94 v. Jackson .. .. 392 v. Nightingale .. 1167 Buckman v. Levi 646 Buckmaster v. Harrop . . 319 v. Meiklejohn 88 • v. Russell . . 688 Buckworth v. Simpson 339, 349 Budd's case 1103 Budd v. Fairmaner .. .. 489 v. Lucas 488 - v. Marshall . . . . 743, 744 Budden v. Wilkinson . . . . 157 Budding v. Murdoch . . . . 292 Buddie v. Green 546 Budd-Scott v. Daniell 748, 749 Budgett v. Binnington . . 465 Bugg, Ex parte .. .. 726, 1103 Bulkeley v. Butler .. .. 136 Bull, Ex parte 893 PA«E Bull v. Sibbs 337, 552 Bullon v. Michel 14, 57, 103, 197 - v. Sharp 558 Bullor v. Burt .. .. 135, 149 - v. Fisher . . . . 435, 499 - v. Harrison . . . . 602 Bulley v. Bulley .. .. 61,1037 Bulli Coal Mining Co. v. Osborne 681,945 Bullivant v. A.-G. for Vic- toria 170 Bullock v. Bennett . . . . 1053 ■ — v. L. Gen. Omnibus Co 299 Bulman v. Fenwick . . . . 465 Bulrner v. Bulrner . . . . 810 v. Gilman .. .. 508 — v. Norris 314 Bulwer v. Bulwer . . . . 931 Bunbury v. Hewson . . . . 1155 Bunch v. Gt. W. Ry 654 Bunn, Ex parte 726 Bunney v. Poyntz . . . . 992 Running v. Lyric Theatre . . 517 Bunting v. Lepingwell . . 203 v. Sargent .. .. 1075 Burbidge v. Morris . . . . 562 Burchard v. Macfarlane . . 156 Burchell v. Clark . . . . 717 Burden v. Halton . . . . 571 Burdett v. Spilsbury . . . . 152 v. Withers . . . . 737 Burdick v. Garrick . . 679, 1152 v. Lordan .. .. 586 Burge v. Ashley and Smith 618 Burger v. Indemnity Assur. Co 437 Burges v. Wickham . . 24, 432 Burgess's case 1113 Burgess v. Clements . . . . 656 v. De Lane .. .. 703 v. Eve 482 u.Gray 767 Burgh v. Legge 381, 387, 388, 393 Burghart v. Angerstein . . 218 v. Hall 674 Burgoine v. Taylor . . . . 291 Burke v. Lechmere .. .. 1121 v. S. E. Ry. Co. .. 652 Burkinshaw v. Nicolls 1105, 1120 Burkitt v. Blanshard . . . . 88 Burleigh v. Stibbs . . . . 3, 8 Burley v. Bethune .. 882, 1139 Burling v. Harley . . . . 1144 v. Read 940 Burls v. Smith 584 Burmester v. Barron . . . . 384 v. Hogarth .. 393 v . Norris .. .. 599 Burn v. Boulton 685 v. Miller 581 Table of Cases Cited. xxxvn PAGE Burn v. Morris 949 — v. Phelps 341 Burnaby v. Baillie 47, 98, 164, 1047 Burnand v. Haggis . . . . 673 v. Nerot 97, 113, 179 v. Rodocanachi . . 449cZ Bunio v. Richardson . . . . 946 Burnett v. Lynch . . . . 142 Burnley, &c. Socy. v. Casson 520 Bums, The 1132 Burns v. Cork and Bandon Rv. Co 778 v. Nowell 1133 v. Poulson . . . . 774 Burnside v. Dayrell . . 70, 608 Burnyeat v. Hutchinson . . 670 Burr v. Theatre Royal, &c. 803 Burrell v. Nicholson . . 285, 287 Burridge V. Nicholletts . . 1142 v. Sussex (Earl) . . 196 Burrough v. Martin .. 177,212 V. Moss . . . . 395 v. Skinner .. .. 331 Burroughes v. Payne 948, 971, 976 Burrows v. Jemino . . . . 208 v. Lang .. 818, 829, 838 v. March Gas Co. 651, 771, 794 V.Rhodes .. 595,845 Bursill v. Tanner . . . . 157, 171 Burt v. Bull 555 v. Gray 1035 v. Haslett 740 v. Walker 133 Burton v. English .. .. 474 v. Gray 481 v. Hughes . . . . 967 v. Plummer . . . . 177 v. Reevel 235 Bury v. Thompson .. .. 1020 Busficld, In re 755 Bush v. Martin . . . . 503, 691 v. Parker 915 v. Steinman .. .. 766 Bushby r. Dixon 1037 I Inshel v. Wheeler .. .. 529 Husk v. R. Exchange Ass. Co. 432, 439 v. Walsh 018 Buskin v. Edmunds .. .. L027 Bussey v. Barnett . . . . 693 Busst'r. Gibbons 885 Bustross v. White .. 156, 308 Butcher v. Butcher .. .. 'J31 v. L. & S. W. Ry. Co 654 v. Porter . . . . 1080 Butler's case 954 Butler v. Allnutt 43 — v. Butler .. .. 204. 1179 v. Ford 43 pagi: Butler v. Knight . . . . 510, 512 — v. Manchester, &c. Ry. Co 653 — v. Mountgarret (Vt.) 47 • v. Swinerton . . . . 746 v. Wolcott . . . . 982 • The C. S 784 Butt v. Gt. W. Ry. Co. .. 640 v. Newman 1134 Button v. O'Neil 1206 v. Thompson . . . . 518 Buxton v. Bedall 235 v. Cornish 4, 224, 582 — v. Jones 379 v. N. E. Ry. Co. 652, 796 ■ v. Rust . . 30, 532, 533 Bwlch-y-Plwn Lead Mining Co. v. Baynes 1107 Byam v. Booth 114 Byerlev v. Prevost . . . . 1199 v. Windus . . . . 843 Byne v. Moore . . . . 881, 884 Bynoc v. Bank of England 801 881 Byrd v. Nunn . . . . 294, 659 Byrne, Ex parte . . 1201, 1211 v. Boadlc 798 v. Brown 91 — v. Harvey 12 - v. M'Evoy . . . . 302 -— v. Mercantile Insur. Co 449a v. Schiller . . . . 468 v. Van Tienhoven . . 312 Byrom v. Thompson . . . . 244 Bywater v, Richardson .. 490 Bywell Castle, The .. .. 786 CADBY v. Martinez .. .. 1021 Caddy v. Barlow .. .. 881,882 Cadge, In re 145 Cadi.! v. Moody 1058 Cadogan v. Kennett .. .. 1191 Cahill v. Dawson 295 v. L. & N. W. Ry. Co. 655 Calm v. Pockett's, &c. Co. 461, 959 Cain v. Moore 953 Caine v. Ooulton .. .. 694,710 v. Palace S.S. Co. 589, Add., 589 Caird v. Sime 874 C.i Ir raft v. Guest .. .. 5, 157 Calder v. Dobell .. .. 17,554 — v. Halket 918 v. Rutherford .. .. 94 Caldwell v. Becke .. .. 718 — v. Hunter . . . . 82 ( laledonian [nsurance Co. v. Gilmour 455 xxxvm Table of Cases Cited. TAGl. Caledonian Rv. Co. v. Guild 984 - v. Mulhol- laud 774, 799 v. Sprot 812, 815 — u.Walker's Trustees 834 Calisher's case 1109 Call v. Dunning . . . . G4, 132 Oalland v. Loyd .. .. 93,604 Callandar v. Dittrich .. .. 209 Callander v. Howard . . . . 693 Calley v. Richards . . . . 171 Calliford v. Blawford . . . . 757 Calliope, The . . . . 792, 800 Callisher v. Bischoffsheim 397 Callow v. Lawrence . . . . 244 Calmady v. Rowe . . . . 28, 211 Calton v. Bragg .. .. 623,624 Calvert v. Flower 13 - v. Joliffc 1219 . v. Thomas . . . . 1213 Calye's case 656 Camberwcll, &c. Building Soc. v. Holloway . . . . 321 Cambrian S. Packet Co., Ex parte 547 Camden (Marquis of) v. Batter- bury 340 v. Cowley 428 Cameron v. Nystrom . . . . 803 v. Smith . . . . 624 Camfield v. Bird 860 v. Gilbert . . 329, 330 Camidge v. Allenby 415, 699, 701 Cammell, Ex parte 1101,1102 v. Sewell . . . . 195 Campanari v. Woodburn . . 587, 1165 Campbell v. Campbell 2, 34, 46, 1038, 1043 v. Chambers . . . . 905 . v. Hewlett .. .. 616 v. Liverpool (Mayor of) . . 40, 203 v. Loader 205, 231, 279, 946 v. Mersey Docks and Harbour Board 951 ■ v. Rickards .. .. 176 — v. Spottiswoode 823, 873 - v. Thompson . . 478 ■ - v. Twenlow .. .. 219 v. Webster . . 384, 387 v. Wenlock (Lord) 342 v. Wilson . . . . 39 Campbell-Davys v. Lloyd . . 759 Campion v. Bentley .. .. 1163 Canada Shipping Co.t'. British Shipowners', &c. Assoc. .. 442 Canada Southern Ry. Co. v. International Bridge Co. 644 PAG E Canadian Pacific Ry. Co. v. Parke 773 Canham v. Barry 664 Cann v. Facey 286 Gannam v. Farmer .. .. 285 Cannan v. Bryce . . . . 618, 667 v. Hartley . . . . 341 v. Wood 701 Cannell v. Curtis . . . . 43, 852 Canning v. Farquhar .. 450, 453 Cannon v. Villars 826 Canot v. Hughes 976 Canterbury(Abp. of)v.Robert- son 753 (Vt.) v. Att.-Gen. 792 Cape Breton Co., In re .. 603 Capel v. Buzzard 901 v. Powell 1170 Capital & Counties Bank v. Hentv 853, 858, 859 - v. Rhodes . . 1008 Capp v. Topham 598 Capper v. Forster 468 Capron v. Balmond .. .. 912 Car v. King 567 Cardwell v. Martin .. .. 245 Careless v. Careless . . . . 29 Carew v. Duckworth . . 388, 408 Cargill v. Rower 845 Cargo ex Argos 468 ■ Laertes 473 Cariss v. Tattersall .. .. 396 Carleton v. Herbert . . . . 1021 Carling's case 1102 Carlisle (Mayor of) v. Blamire 729 Carlill V. Carbolic Smoke Ball Co 524,617 Carlish v. Salt 327 Carlon v. Kenealy .. .. 415 Carlton SS. Co. v. Castle Mail Co 465 Carlyon v. Lovering . . . . 839 Carmarthen, &c. Ry. Co. v. Manchester, &c. Ry. Co. 590, 700 Carmichael's case 1101 Carmichael v. Liverpool & Mutual Indemnity Asso- ciation 442 Carnarvon (Earl of) v. Ville- bois . . 48, 50, 189, 193, 930 Came v. Brice 1226 v. Nicoll . . . . 56, 1037 v. Steer 64 Carnegie v. Conner . . . . 473 Carney v. Plimmer . . 600, 618 Carnforth Hsematite Iron Co., Ex parte 545 Carpenter v. Buller . . 75, 526 — v. Deen 1208, 1209, 1213 u.Parker .. 341,746 Table of Cases Cited. xxxix PAGE Carpenter «. Wall .. 192,913 Carpmael v. Powis .. .. 170 Carpue v. L. & Brighton Ry. Co 777,1117,1144 Carr u. Allatt 954 v. Burdiss .. .. 143, 1191 V.Clarke 910 v. Edwards 623 U.Foster .. .. 824,830 v. Fracis Times & Co. 919 v. Hinchcliff 707 v. Hood 854, 873 u.Jackson .. 92,493,555 1". Lambert .. .. 823,824 v. Lancashire, &c. Ry. Co 621, 632, 636 v. L. & N. W. Ry. Co. 76 v. Lynch 315 v. Martinson . . . . 603 v. Montefiore . . 428, 449m v. Mostvn .. .. 48,197 v. R. Exch. Assur. Co. 449/, 449;/ v. Roberts 270 v. Smith 628 Carratt's case 1100 Carratt v. Morley 206 Carringtons v. Smith .. .. 601 Carroll v. Bleneaw .. .. 1172 Carron Park, The 474 Carruthers v. Gray .. .. 434 v. Sheddon .. 31 v. Sydebotbam . . 442 Carstairs v. Tavlor .. .. 792 Carter, Ex parte 19, 1198, 1199 v . Boehm 176 v. Carter 1086 v. Crick 489 v. Drysdale . . . . 808 v. Ely (Dean of) . . 323 v. James 78 v. Johnson . . . . 924 v. White . . . . 368, 485 Cartmell's case 1103 Cartwright, In re 346 v. Cartwright .. 1052 v. Regan 1213, 1214 v.Smith .. .. 1081 v.Wright.. .. 853 Carvick v. Blagrave .. .. 727 Carvill, The Fanny M. .. 783 v. Gerrish 598 v. Pitt 140 v. Stephenson .. .. 1152 and Lott's Contract, In re 1160 Casamajor v. Strode .. .. 822 Casburn v. Reid 883 Case r. Barber .. .. 28,661 Casement v. Fulton .. .. 117 I a hill r. Wright 650 PAGE Cass v. Fitzgerald . . . . 13 Cassaboglou v. Gibbs .. .. 549 Cassidy v. Firman .. .. 688 Casson v. Churchley 1205, 1209 — v. Dale 147 Casswell v. Cheshire Lines Committee .. Add., 638, 655 Castellain v. Preston 455, 457, 458 ■ v. Thompson 984, 987 Castellan v. Hobson . . . . 574 Castle v. Burditt 1146 • v. Downton . . . . 1206 —u.Parker 764 -v. Playford .. 540,543 v. Sworder 530 Castleman v. Hicks .. 751,758 Castrique v. Behrens . . 195, 881 v. Imrie 195, 207, 209 Caswell v. Coare 491 Cates v. Hardacre . . . . 168 v. Winter 11 Catherina Maria, The .. .. 212 Catherwood v. Caslon 1039, 1044 Catley v. Wintringham . . 478 Catling v. King 315 v. Skoulding . . . . 692 Cato »•. Thompson .. .. 321 Caton v. Caton . . 317, 320, 533 Cator v. Gt. W. Insur. Co. of New York 435 Catt v. Howard .. 71,177,180 v. Toule 734 Catterall v. Hindle . . . . 696 v. Kenyon . . . . 976 Cattle v. Thorpe" 672 Cattley v. Arnold 1012 Cattlin v. Barker 184 v. Hills 780 Caulfield v. Whitworth . . 867 Caunce v. Spanton . . . . 970 Caunt v. Thompson . . . . 381 Cavalier v. Pope 769 Cavan v. Stewart . . . . 101, 208 Cave v. Mills 604 r. Mountain 918 Cavell v. Prince 1172 Cavendish Bentinck v. Fenn 603 Cavev v. Lidbitter .. .. 762 Cawkwell v. Russell .. .. 293 Cawley, In re 1103, 1105, 1106 Cawthorn v. Cordrey .. .. 526 — r. Trickett .. .. 460 Cayzer v. Carron Co 784 Cazenove v. British Equit- able Co. .. 452 v. Vaughan .. .. 114 Central Bank of London, Ex parte 560 Central Rail. Co. of Venezuela v. Kisch 063 Chad v. Tilsed 27 xl Table of Cases Cited. v. Young Chadburn v. Moore .. 312, 319 Chadwick v. Burnley .. .. 30 v. Clarke .. 233,340 v. Dublin Packet Co 786 v. Herapath . . 878 v. Sills 235 v. Trower .. .. 813 Challender v. Royle .. .. 879 Challenge, The, and the Due d'Aumale 209 Challinor, Ex parte .. . . 1203 Chalmers, Ex parte .. 545,968 v. Payne . . . . 872 Chaloner v. Bolckow . . 343, 744 Chamberlain v. Boyd . . 862, 863 -u.King .. .. 1143 v. Williamson 495, 1149 352, 360, 391 Chamberlain's Wharf v. Smith 672 Ghamberlaine v. Pickering 1164 Chamber Colliery Co. v. Hop- wood 829 ■ v. Rochdale Canal Co 815 Chambers v. Bernasconi 61, 65 v. Davidson 984, 986 v. Goldthorpe . . 583 V.Griffiths.. 322,323 • v. Irwin .. .. 912 v. Manchester & MilfordRy.Co. 1127 v. Mason . . . . 283 — v. Miller .. .. 612 ■ — v. Reid . . . . 1144 v. Robinson .. 882 Chamier v. Clingo . . . . 946 Champ v. Stokes 505 Champian v. Atkinson . . 85 Champion v. Plummer . . 532 v. Short . . . . 539 Champneys v. Peck . . 59, 505 Chan Kit San v. Ho Fung Hang 1152 Chandler v. Broughton . . 936 - v. Doulton . . 893, 895 v. Grieves .. .. 520 v. Home . . . . 159 v. Thompson .. 821 v. Webster 340, 462, 589 Chaney v. Payne 1139 Channon v. Patch . . . . 969 Chant, In re 686 Chanter v. Johnson . . . . 254 v. Leese . . . . 322, 570 Chantler v. Robinson . . .. 813 Cbapcott v. Curlewis .. .. 389 Chapel v. Hickes 588 TAGE Chapleo v. Brunswick Build- ing Society . . . . 494, 1094 Chaplin v. Clarke 233, 524, 608 v. Levy . . . . 74, 357 v. Reid 35 v. Rogers 529, 530, 532 — v. Westminster Cor. 835 Chapman's case 1112 Chapman v. Auckland Union 326, 771, 1143 - v. Beard . . 66, 1062 v. Bluck . . . . 1013 v. Cowlan .. .. 210 - v. De Tastet . . 588 v. Gt. W. Ry. Co. 648 - v. Gwyther .. .. 490 — — v. Jones .. 843,929 v. Knight .. .. 1204 v. Milvain .. .. 1128 v. Monmouthshire Ry. and Canal Co. 198 v. Paynton . . . . 154 - v. Pole 457 - v. Rawson . . 285, 286 — v. Rothwell . . . . 765 v. Shepherd . . 572, 592 v. Smith .. Add., 736 v. Speller . . . . 487 — v. Walton . . . . 176 v. Withers . . . . 490 Chappel v. Comfort . . . . 476 Chappell v. Poles 608 v. Purday .. .. 114 Chappie v. Cooper . . . . 674 Charing Cross Advance and Deposit Bank, Ex parte . . 1203 Charity Corns, v. Green . . 333 Charles v. Blackwell 400, 696, 701 — v. Taylor . . . . 803 Charlter v. Barret . . . . 860 Charlton v. Watton . . 872, 877 Charlwood v. Greig . . . . 789 Charman v. South Eastern Ry. Co 794 Charnley v. Grundy . . 356, 357 Charnock v. Dewings .. .. 159 Charter v. Charter . . 29, 30, 31 Chartered Mercantile Bank, &c. v. Dickson .. .. 378, 416 Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co 459,472,788 Chasca, The 473 Chase v. Goble 1226 v. Westmore . . 984. 986 Chasemore v. Richards . . 839 v. Turner . . 688, 691 Chatfield v. Cornford .. .. 884 v. Cox 235 v. Sedgwick .. 299, 302 Tahlr of Cases Cited. xli Chatfield v. India (Secretary of State for) . . . . 173, S66 Chaurand v. Angerstein 22, 176 Cheek v. Roper 378 Cheese v. Lovejoy 1054 Cheesrnan v. Exall 976 Cheetham v. Hampsou 768 Chelsea Waterworks Co. v. Cowper 142 Cheltenham, &c. Ry. Co. V. Daniel 1123 Chenoweth, In re .. 83 Cherry v. Colonial Bank of Australasia 494 v. Heming 131 ,138 Cheshire v. Bailey 775 Cheslyn v. Dalby 689 Chesmer v. Noyes 216 ,387 Chesterfield Brewery Co. v. Inl. Rey. Conis. 252 Chesterfield, &c. Colliery 1 2o. v. Hawkins 719 Chesterrnan v. Lamb . 491 Chestworth v. Hunt 1204 Chetham v. Hoare 1078 Chetwynd v. Lindon . . 168 Cheveley v. Fuller 524 Chichester (Cor. of) v. Foster 763 (El.of)v.Donegall (Mqs. of) 158 v. Hall . . 1071 v.Hill .. 964 Chidell v. Galsworthy .. .. 954 Child v. Affleck .. " .. .. 868 v. Chamberlain . . . . 898 v. Hardyman .. .. 566 v. Hearn . . 780, 790, 795 v. Morley 592 v. Stenning 91, 289, 748 Childers v. Boulnois . . . . 272 Chillingworth v. Chambers 595 Chilton v. Carrington .. 296, 997 v. Corporation of London 40 Chinery v. Viall 979 Chinn v. Morris .. .. 921,924 Cliinncry V. Eyans .. .. 721 Chinnock v. Marquis of Ely 316 Chippendale v. Masson .. 288 Cholmoneley's School (War- dens of) v. Sewell . . . . 1035 Cholmonley v. Clinton .. 998 Chorley v. Bolcot .. .. 515 Cor. v. Nightingale 833, Add., 833 . . 283, 234 . . 617, 961 . . . . 448 .. 761,763 . . . . 682 651, 778, 780 ChoWD r. Parrott Chowne v. Baylis Christian v. Coombc Christie v. Davey — v. ETonsic v. Griggs PAGE Christie v. Inl. Rev. Corns. 251 v. Taunton, &c. Co. 706, 1109 Christopherson v. Bare 913, 914 1223 742 749 173 860 216 83 1160 333 842 ■v. Burton Christ's Hospital v. Haiiild Christy v. Tancrcd Chubb v. Salomans v. Westley Church, Ex parte v. Imperial Gas Co Churchill, Ld., In re .. Churchward v. Ford . . Churtou v. Frewen Citizens Bank of Louisiana v. First National Bank of New Orleans 76 Citizens Life Assurance Co. v. Brown . . 855, 860, S82, 1094 Cito, The 472 City Bank v. Sovereign Life Assurance Co 453 City Discount Co. v. McLean 699 City of Cambridge, The 784, 785 City of Lincoln, The . . . . 788 City of London Brewery Co. v. Inl. Rev. Corns. ■ v. Tennant 265 822 789 City of Manchester, The City of Peking, The . . . . 788 Civil Service Co-operative Soc. v. Gen. S. Nav. Co. 297, 340, 589, 606 Clabbon, In re .. .. 673,681 Clack v. Clack 287 Clapham v. Langton . . 24, 432 Clare v. Joseph 503 v. Lamb 607 Claridge v. Dalton . . . . 388 i>. Hore 168 v. Mackenzie . . 1085 v. S. Staffordshire Trams. Co 782 Clark, In re 146 Ex parte 520 ■ v. Bulmer .. .. 550 v. Chamberlain .. 975 v. Chambers .. 771, 781 -v.Clark .. .. 170,715 - v. Gaskarth . . . . 905 v. Hooper 680 - - v. Lon. Gen. Omnibus Co 782,811 — v. Molyneux .. 859, 860 - v. Newsam . . . . 922 - v. Sonnenschein .. 282 -v. Woods .. .. 922, 1135 Clarke v. Arden L063 v. Army and Nayy Co-operative Soc. 800 xlii Table of (Jason Cited. Clarke v. Birley 484 r. Ilia! I laugh .. .. 757 — v. Callow 326, 53!), 658, 665 — v.Clark 821 - v. Clarke 974, 1070, 1077 r. Cuckfield Union 1093 v. Davcy 1141 - V. Dickson 013, 614, 846 ». Fell 9S6 r. Gilbert 974 — v. Hart . . . . 76, 1090 - v. Holford .. .. 895 — v. Imperial Gas Co. 131, 1124 - v. King 323 - V. L. & County Bank- ing Co 411 — v. Main 863 v. Millwall Dock Co. 904 - v. Postan 881 - v. Ramuz 330 - v. Roche 224 v. Roystone . . . . 26 - v. Saffery 167 — v. Sharpe 384 — v. Smith 678 v. Spence 953 v. Tinker 823 — v. Watson . . . . 583 — v. Willott .. .. 321 Clarkson v. Musgrave . . 808 v. Woodhouse . . 53 Clay v. Crofts 233 — - v. Ray 671 v. Shackeray . . . . 829 ■ ■ v. Southern 92 v. Stephenson . . . . 188 • v. Yates 236, 527, 581, 666 Claydon v. Green . . . . 104, 105 Clayton's case 698 Clayton v. Blakey .. 345, 1011 — v. Burtenshaw 236, 254 v. Corby .. 829,831,830 — v. Gosling .. .. 359 — v. Gregson . . . . 22 v. Leech 330 — v. Nugent (Lord) . . 32 Cleare v. Cleare 1051 Cleary v. Booth 916 - v. McAndrew . . . . 470 Cleather v. Tvvisden . . . . 511 Cleave v. Jones .. 170, 171, 687 Cleaver v. Mutual, &c. Life Assoc Cleeve v. Att.-Gen. Clegg v. Dearden v. Hands . . v. Levy ■ v. Rowland 450, 454 .. 116 . . 773 734, 1026 120, 227 .. 1160 Clements v. London &N. W Rv 671 PAGE Clements v. Matthews 308, 954, 969, 980, 1001 Clenncl v. Read 1086 Cleve v. Powell 171 Cleveland Iron Co. v. Stephenson 1107 Cleverley v. Brett .. .. 1159 Clifden (Lord), In re .. 720,721 Cliff v. Midland Ry. Co. . . 795 Clifford v. Burton .. .. 71 — v. Hoare . . . . 746, 826 v. Holt 817 — v. Hunter . . 181, 432 v. Inl. Rev. Corns. 247 — v. Laton .. .. 565, 566 — v. Parker . . 245, 396 v. Turrill . . . . 19 — v. Wicks 842 Clif t v. Schwabe 450 Clifton v. Hooper 1188 — v. Walmsley . . . . 28 l Climie v. Wood 970 I Glinan v. Cooke 815 Clink v. Radford 467 Clippens Oil Co. v. Edin- burgh Water Trustees . . 39 Olode v. Bayley . . . . 383, 409 Close, Ex parte 1198, 1199, 1200 v. Phipps 614 | v. Waterhouse . . . . 982 Closmadeuc v. Carrel . . . . 222 Glough, Ex parte .. 1191,1200 | — v. L. &N. W. Ry. Co. 294, 650, 956 ! Clouston & Co. v. Corry . . 518 Clow v. Brogden 741 Clowes v. Hughes . . . . 1083 I ■ v. Hilliard . . . . 91 i Clubb v. Hutson 400 dun's case 343 Clunnes v. Pezzey . . . . 569 Glutton v. Attenborough . . 361 Clyde Navigation Co. v. Bar- clay 784 Clydebank Engineering Co. v. Don Jose Castanda . . 326 Clydesdale Bank v. Paton . . 851 Coates' case 1104 i Coates v. Bainbridge . . . . 09 — v. Hatton 666 v. Lewes 694 v. Moore . . 1205, 1213 v. Mudge 171 I u.Perry .. .. 251,265 v. Railton 990 v. Stephens .. .. 491 v , Wilson 673 Coats v. Inl. Rev. Corns . . 251 v. Chaplin 646 Cobb v. Carpenter .. .. 333 v. Gt. Western Rv. Co. 797 Table of Cafes Cited. xliii PAGE Cobb w.Stokes 750 Cobban v. Downe 646 Cobbev. Beck 605 Cobbett v. Grey 918 v. Hudson 159, 171, 279, 288 v. Kilrninster . . . . 141 Cobden v. Kendrick . . . . 171 Cobequid Mar. Ins. Co. v. Barteaux 438 Coburn v. Colledge . . 509, 681 — v. Collins 1199 Cocbran v. Retberg . . 21, 464 Cochrane v. Entwistle .. 1211 v. Green .. 619, 706 v. Moore . . 19, 953 v. Rvmill .. .. 978 Cock v. Coxwell 396 v. Gent 1142 v. Wortham . . 938, 945 Cockburn v. Alexander .. 469 — v. Edwards . . . . 512 Cocke v. Jenner 703 Cocker v. Musgrove 1218, 1222 Cockerell v. Aucompte 539, 553 Cocking v. Ward . . 313, 325, 627 Cockle v. S. E. Ry. Co. .. 796 Cockman v. Mather . . . . 217 Cockram v. Welbye . . . . 1220 Cockrane v. Fisher . . . . 430 Cockrill v. Sparkes . . . . 691 Cocks v. Borrodale . . . . 374 v. Masterman .. .. 610 v. Nash 702 Codd v. Brown 348 Coddington v. Paleologo . . 542 Codrington v. Lloyd . . . . 916 Coe v. Clay 749 - v. Wise 769 Coffee v. Brian 621 Coggs )\ Barnard 630 Cohen v. Hale 701 v. Hinckley .. .. 427 v. Kittel 618 v. S. E. Ry. Co. 644, 654, 655 V. Tannar 746 475 19 780 613 - v. Coulton 757 ^.Francis 156 v. Hadley 202 V. Kcrnot 954 - v. Meek 469 v. N. W. Bank . . . . 957 v. Sherard .. .. 80,215 Colebeck v. Girdlers' Co. .. 847 Colegrave v. Dias Santos . . 970 Coleman v Coles v. PAGE .. 797 Bank of England .. 977 S. E. Ry. Co. ( o!m v. Davidson Colbourn v. Dawson Colchester (Mayor Brooke Cole v. Bishop of) 573, 574 550, 598 149, 167, 175 . . 480, 481 . . . . 319 317, 318 ■ v. Bristowe .. v. Bulnian .. v. Coles v. Pack ■ v. Pilkington v. Trecothick v. Wright 602 Collard v. S. E. Ry. Co. . . 649 Colledge v. Horn 72 Collen V. Wright . . . . 92, 493 Collett v. Curling 1084 v. Dickenson . . . . 1173 v. Foster 916 v. Keith (Lord) . . 62 - v. L. & N. W. Ry. Co. 781 Colley v. Hart 879 Collier v. Clarke . . . . 285, 286 -v. Nokes 181 - v. Walters 1002 Collie's Claim .. 1110,1126 Colling v. Treweek . . 3, 8, 505 Collingbourne v. Mantell . . 660 Collingridge v. R. Exchange Assur. Co 456 562 1208 143 21 852 1160 1050 13 671 v. v. V. V. V. V. Collingwood v. Berkeley Collins, Ex parte . . v. Bayntun v. Blantern v. Carnegie v. Crouch . . - v. Elstone Garbon Locke . . . . 661, Middle Level Com- missioners . . 769, 792 Rose .. 1135,1141 Rybot 753 Sillye 1025 - v. Slade 836 V. Welch 298 Collinson v. Margesson .. 685 Collis v. Laugher 818 v. Selden 764 V. Stack 688 v. Home & Colonial 772, 817, 821, 822 954 686 963 Colls Stores Collum, Ex parte 1107 Collyer v. Isaacs v. Willcock Colonial Bank v. Cady V. K\rll;ll]"V Bk. of Yarmouth, N. S. .. not Colonial Insur. Co. of New Zealand v. Adelaide Ma- rine fnsur. Co. .. 423,427,540, 551,951 Colsell v. Budd 37 i !ol fcone v. I tiscolbs .. .. 285 Coltherd v. Puncheon . . .. 491 xliv Table of Case* Cited. PAGK Col tmnn v. C hamborlain .. 950 r. Goltman .. .. 669 Columbus Co. v. Clowes . . 800 Colvin r. Buckle 681 Colwcll r. S.Pancras Council 759, 772 Colyer v. Spcer 1219 Combe v. Cap ron .. .. 889 Combined Weighing, &c. Co. v. Automatic Weighing, &c. Co 879 Comfort r. Betts 620 Commercial Bank of Aus- tralia v. Official Assignee of Wilson 699 Commercial Bank of Tas- mania v. Jones 485 Commercial Bank of S. Aus- tralia, In re 394 Commercial SS. Co. v. Boul- ton 461 Commercial Union Assur. Co. v. Lister UOd Commins v. Scott .. .. 315 Commissioners of Inland Revenue v. An- gus . . . . 250, 251 v. Glasgow &S. W. Ry. Co 251 Commissioners of Stamps v. Hope 692 Compauia Naviera, &c. v. Churchill 461,478 Compton's case 488 Compton, In re 1163 v. Bagley . . . . 324 v. Chandless . . . . 198 ■ v. Richards . . . . 818 Concha v. Concha 192, 195, 205 — - v. Murrieta . . 120, 1155 Condon v. Gt. S. & W. Ry. Co. 811 Conflans Stone Quarry Co. v. Parker 357 Conington v. Gilliat . . . . 277 Connelly v. Steer 1204 Conolly v. Baxter 337 Conquest v. Ebbetts . . 739, 740 Conradi v. Conradi .. .. 203 Conservators of R. Thames v. Inl. Rev. Corns. 247, 251, 258 Consett, The 788 Consolidated Co. v. Curtis 968, 978 v. Musgrave 019 Consolidated Credit, &c. Co. v. Gosney 1213 Constable ;;. Andrew .. .. 700 Contract Corporation, Ex parte 131, 1106, 1111 In re 1092 Conway v. Beazley .. .. 1048 v. Gray 440 PAGE Conybeare v. Farries .. .. 11 Cooch v. Goodman . . . . 717 Cook's case 169 Cook v. Bath (Mayor, &c. of) 821, 836 v. Beal 914 v. Cook 1219 v. Fowler 623 v. Gillard . . . . 505, 506 v. Gregson .. 1159, 1163 v. Guerra 343 v. Leonard 1140 v. Lister 403 v. Moylan 343 v. North Metropolitan Tramways Co. .. 805 - v. Palmer 1184 v. Parson 147 v. Sherwood 519 v. Ward . . . . 854, 856 v. Wright 397 Cooke v. Banks 214 v. Blake 78 v. Eshelby . . . . 707, 708 v. Gill 206 v. Hughes 864 V. Loxley 333 v. Maxwell 173 v. Riddelien . . . . 542 v. Sholl 195 v. Tan swell .. .. 139 v. Tonkin 562 v. Wildes .. .. 867,870 v. Wilson 82 Cookson v. Swire . . 1192, 1208 Coole v. Braham 1226 Coolgardie Goldfields, In re 230 Coombs, In re .. .. 584,614 ■ v. Bristol and Exeter Ry. Co 646 v. Coether .. 122,215 Coope v. Cresswell 1168, 1169 Cooper, Ex parte .. 988,992,1199 v. Bill . . . . 953, 994 ■ v. Blandy 1085 v. Bockett 145, 147, 148 — ■ v. Cooper 120 v. Crabtree . . 760, 931 ■ v. Dawson . . . . 141 v . Elston 531 v. Gibbons . . . . 12 ^.Harding .. .. 920 v. Hubbuck . . 819, 821 v. Lands 1005 — • v.Lloyd .. .. 164,566 v. Macdonald . . . . 1051 — v. Marsden . . . . 60 ■ — v. Marshall . . . . 937 - v. Moon 115 - v. Neil 557 - v. Parker 661 Table of Cases Cited. xlv PAGE Cooper v. Shepherd . . . . 965 v. Simmons .. .. 674 v. Smith 532 v. South 219 v. Stephenson .. .. 510 v. Straker 818 — v. Tatham .. .. 955 v. Taylor 1166 ■ v. Turner 37 v. Walker 838 v. Whittingham .. 297 v. Willowmatt 925, 968, 1189 Cooper-King v. Cooper-King 121 Coore v. Callaway .. 694, 713 Coote v. Ford 75 v. Jecks 1200 Cope v. Cope .. ..46, 218, 1047 V. Rowlands . . . . 667 v. Thames Haven Dock 181 v. Thames Haven Rv. Co .. 588 Copin v. Adamson . . . . 208 Copper Miners' Co. v. Fox 1092, 1903 Coppock V. Bower . . . . 224 Corbet v. Brown 1185 Corbett v. Hill 934 v. Lewin . . . . 296, 997 v. Pearce 804 Corby v. Hill 764 Corcoran v. Gurney . . . . 443 Corder v. Drakeford . . . . 257 Cordery v. Colville . . 381, 387 Cork v. Baker 495 Cork & Bandon Ry. Co. v. Cazenove 1122, 1125, 1127 v. Goode ..679,1125 Cork & Youghal Ry. Co., In re 1127 Cork Distilleries Co. v. Gt. S. &W. Ry. Co 647 Corkling v. Massey .. 401,476 Corn v. Matthews .. .. 674 Cornbrook Brewery Co. v. Law Deb. Cor 1215 Corner v. Shew 1156 v. Sweet 703 Cornfoot v. Fowke . . 663, 844 v. R. Exchange Assur. Co 427 Cornford v. Carlton Bank . . 882 Cornforth v. Danube and Black Sea Rv. Co 235 v. Smithard .. 688 Cornill v. Hudson .. .. 683 Cornish, hi re 680 v. Abington . . 76 v. Accident Insur. Co. 454 r. Cleife 737 PACK Cornish v. Hockin . . . . 678 ■ v. Rowley . . . . 323 ■ — • v. Searell .. .. 333 v. Stubbs . . . . 349 Cornman v. E. Counties Ry. Co 797 Cornwall v. Henson . . . . 323 v. Richardson 86, 886 Minerals Ry. Co., In re 722 Corpus Christi Coll. v. Rogers 1072 Corringan v. Woods .. .. 339 Corry v. Gt. W. Ry. Co. . . 796 Corsellis v. L. County Council 833 Cort v. Ambergate Ry. Co. 537, 538 Cory v. Burr 439,441 v. Patton .. .. 268, 449fc v. Scott 388 v. Thames Iron Works Co 547,648 Cosh's Contract, In re . . 1031 Cossman v. West . . . . 445, 447 Costa Rica Ry. Co. v. For- wood 603 Costar v. Hetherington . . 917 Coster v. Cowling 257 v. Headland . . . . 898 Cotes v. Davis 372 Cotesworth v. Spokes 1027, 1033 Cothay v. Fennell . . . . 92 Cottam v. Partridge . . 678, 692 Cotterell v. Apsey . . 550, 585 v. Dutton . . . . 684 V.Griffiths .. .. 888 ■ v. Jones 888 Cottier. Aldrich 1158 Cotton, Ex parte 1211 v. James 285 — v. Kadwell .. .. 1134 v. Thurland . . . . 618 v. Wood . . . . 779, 798 Cottrell v. Hughes 1003, 1004 Couch v. Steel 771 Couchman v. Sillar .. .. 518 Coughlin v. Gillison . . . . 799 Coulson v. Dickson . . . . 1211 v. Disborough . . 181 Coulthart v. Clementson . . 482 Coulthurst v. Sweet . . . . 469 Counsell v. L. & Westminster Loan, &c. Co 1208 County of Durham, The .. 789 County of Gloucester Bank v. iiudry Merthyr, &o., Colly. Co 1111 County of Lancaster (SS.) v. Sharp 472, 477 County Life Assurance Co., Inre 131, 1110 Coupland r. Arrowsmith 315, 31S v. Hardiii'diam .. 768 \ 1 v i Table of Cases Cited. I'AGE Coupe Co. v. Maddick .. .. 775 Court v. Berlin 560 Courtauld v. Legh . . . . 818 v. Sanders .. 413, 414 Courteen v. Touse.. 71, 166, 421 Courtney v. Taylor .. 599,716 Coutts v. Gorham . . . . 817 Couturier v. Hastie . . 479, 480 Covoll v. Laming 926 Coventry's case 1101 Coventry v. Gladstone . . 991 - v. Gt. E. Ry. Co. . . 77 V. Windal . . . . 520 Coverdale v. Charlton . . 930, 933 Cowan v. Braidwood . . . . 208 - v. Milbourn . . 344, 668 Coward, In re 1051 — v. Baddeley . . . . 913 v. Gregory . . 726, 739, 740, 741, 1034, 1167 Cowasjee V. Thompson . . 991 Cowell v. Edwards . . . . 594 v. Watts 1150 Cowen v. Truefitt 21 Cowie v. Halsall 244 ■ v. Remfrey 535 v. Stirling 414 Cowles v. Gale 323 v. Potts 866 Cowley v. Newmarket Local Board 770 v. Sunderland (Mayor of) 1094 Cowling v. Ely 68 v. Higginson . . . . 942 Cowlishaw v. Cheslyn . . . . 78 Cowper v. Fletcher . . 335, 1084 ■ v. Laidler . . . . 772 v. Smith . . . . 484, 702 Cowper-Essex v. Acton Local Board 834 Cox v. Allingham .. .. 118 ■ v. Bailey 235 v. Bennett . . 1173, 1178 v. Bent .. .. 1011, 1082 v. Bishop 729 v. Bruce 477 v. Burbidge .. .. 789,790 v. Couveless .. .. 4, 278 ■ v. Glue 930 v. Gt. W. Ry. Co. . . 806 v. Hickman 558 v. Leach 508 v. Lee 854 v. Leigh 1219 v. London (Mayor of) . . 206 v. Midland Counties Ry. Co 514 v. Painter .. .. 897,898 v. Prentice . . . . 602, 612 u. Reid 586 PARK Cox v. Thomason 852 v. Troy 377 v. Walker 492 — — v. Watson 325 Coxhead v. Mullis . . 497, 676 v. Richards .. .. 869 Coxon v. G. W. Ry. Co. . . 635 Cozens v. Graham . . . . 505 Crabtree v. Robinson . . . . 902 Grace, In re 482 Cracknell v. Thctford (Mayor of) 772 Craft v. Boite 86 Grafter v. Metropolitan Ry. Co 797 Cragoe v. Jones 484 Craig v. Cox 689 Craignish, In re 1038 Cramer v. Mott 894 Crampton v. Ridley . . . . 584 Cranch v. White 977 Crane v. London Dock Co. . . 960 v. Ormerod .. .. 965 Crank v. Frith 133 Craven v. Ryder 991 Crawcour, Ex parte . . 953, 1199 Crawford Peerage 140 Crawford v. Newton . . . . 738 Crawley's case 1101 Crawley v. Price 1025 Crawshaw v. Harrison . . 1223 Crawshay v. Eades . . . . 992 v. Homfray . . . . 987 Craythorne v. Swinburne . . 594 Crears v. Hunter . . . . 397, 480 Crease v. Barrett .. 49, 50, 51, 56, 59 75 Credit Co. v. Pott 1203 Crediton (Bp. of) v. Exeter (Bp of) 136, 662 Cree v. Vestry of St. Pancras 1132, 1144 Creen v. Wright 516 Creevy v. Carr 877 Crerar v. Sodo 287 Creswell v. Davidson . . . . 1035 v. Jackson . . . . 141 Crew v. Cummings .. .. 1209 Creyke's case 1106 Cribb v. Kynoch .. .. Add., 801 Crimes v. Smith 34 Cripps v. Davis 689 -v. Hartnoll .. .. 480 - — — v. Hills 675 v. Judge . . . . S06, 807 Crisp r. Anderson 223 /-.Churchill.. .. 343,672 v. Martin . . . . 842, 843 Crispin v. Doglioni . . 5, 46, 208 Crockford v. Winter . . 613, 623 Croft o. Alison 774 Table of Cases Cited. xlvii page Croft v. Lumley .. ..732,1031 >: Pawlett 149 Crofts v. Haldaue . . . . 820 v. Waterhouse . . . . 779 Crompton v. Lea 791 Cromwell v. Hynson . . 382, 386 (Lord) v. Andrews 343 Cronin v. Dennehy .. .. 721 Croockewit v. Fletcher 429, 463, 464, 662 Crook v. Do wliug 888 v. Seaforth (Corpora- tion of) . . . . 1093 v. Wright 937 Crooke v. Curry 1146 Crooks v. Allan . . . . 474, 478 Cropper v. Cook .. 17,25,535 v. Smith 292 Croshy v. Percy 53, 133, 321, 344 v. Wadsworth 236, 312, 930 Crosfield, Jos. & Sons v. Man- chester Ship Canal Co. . . 293 Crosse. Eglin .. .. 25,539 v. Jordan 1028 v. Lewis 39 v. Warter 749 Crosse v. Eaw .. .. 743,744 v.Smith 387 Crosstleld v. Such 996 Crosskey v. Mills 603 Crossley, &c. v. Lightowler 820, 840 v. Magniac . . . . 695 v. Maycock . . . . 316 Crosthwaite v. Gardner . . 1151 Crotty v. Hodges 396 Crouch v. Credit Foncier of England . . 571, 963 v. Fastolfe .. .. 731 v . Gt. N. By. Co. 633, 650, 971 972 V. Gt. W. By. Co. . . ' 647 v. L. & N. W. By. Co. 631 v. Tregonning . . 339, 593 Croughton v. Blake . . 103, 200 Crowdcr v. Austin . . 328, 664 v. Long 1184 v. Self 893 v. Shee 504 v. Stewart .. .. 1163 Crowe V. Barnicot . . 658, 704 v.Clay .. .. 357.701 Crowhurst v. Amersham Burial Board 702 Crowley's claim 592 Crowther v. Appleby . . . . 157 v. Bamsbottom . . 895 v. Solomons . . . . 223 Croxon v. Worthen . . 379, 383 Croydon Commercial Gas Co. v. Dickinson 484 i' \i;k Croydon Hospital ». Farley 132 Crozer v. Pilling . . . . 709, 891 Crozier v. Cundley . . . . 1134 Cruden v. Fentham . . . . 779 Cruickshanks v. Bose .. .. 699 Crumbie v. Wallsend Local Board 773, 774 Crump v. Lambert . . 761, 763 — v. Temple 1082 Cruse v. Paine 575 Crusoe v. Bugby .. .. 731,732 Cubitt v. Maxse . . . . 833, 942 v. Porter .. 934,936,941 Cuckson v. Stones . . . . 519 Cuff v. Penn 29 Cullen, Ex £>arte 135 v. Butler 441 v. Knowles . . . . 91 v. Thomson's Trus- tees 846 Cullev v. Doe . . 1006, 1070 Culling v. Culling 1039, 1045 Cumber v. Wane . . . . 66, 060 Cuming v. Brown . . . . 993 v. French . . . . 384 v. Sibly 758 Gumming v. Bedborough . . 343 v. Ince . . . . 280 v. Shand . . . . 408 Cummings v. Heard .. .. 219 Cumpston i:. Haigh . . . . 982 Cunard v. Hyde 449J v. Van Oppen . . . . 587 — SS. Co. v. Marten .. 449c Cundell v. Dawson . . . . 668 v.Pratt .. .. 168,169 Cundy v. Lindsay . . 956, 962 — v. Marriott . . 223, 571 Cuninghame v. City of Glasgow Bank 1103 Cunliffe v. Sefton . . 64, 133, 134 Cunningham v. Dunn . . 466 Cuno, In re 1178 Curfew, The 468 Curlewis v. Corfield . . . . 385 v. Mornington (Earl of) 1105 Curling v. Flight 579 v. Innes 706 v. Mills 1012 Currie v. Anderson . . . . 529 v. Child 133 — v. Misa 407 Curry v. Walter .. .. 169,871 Curtice v. London City and Midland Bank .. .. Add., 406 Curtis v. 1 >rinkwater . . . . 778 — v. Greated 4 - v. Hannay . . . . 488 - v. Kestcven County Council .. .. 933 xlvin Table of Cases Cited. PAGE Curtis v. Marsh 82 v. Peek 21 — v. Spitty 729 v. Vernon 1164 v. Wheeler . . 286, 1079 — v. Williamson . . . . 554 Curwen v. Milburn . . . . 689 Cusack v. Bobinson .. 528,529, 530 Cuthbert v. Cumming .. 23 Outhbertson v. Irving 725, 1006 v. Parsons . . 767 Cuts o. Pickering 171 Cutter v. Powell 581 Cutts v. Thodey 324 Cuxon v. Chad lev .. .. 619 Cynthia, The 784 Czech v. General Steam Navi- gation Co 473, 777 DA COSTA t-.Pym .. Dacre (Lord) v. Tebb . . Daglish, Ex parte Dails v. Lloyd Daines v. Hartley Daintree v. Fasulo Daintry v. Brocklehurst 760 Dallman v. King Dalryrnple v. Dalrymple . . Dalton v. Fitzgerald 1005, -u.Gib v. Midland Counties By. Co. 1125, - v. S. E. Ey. Co. .. - v. Whitthem Tyrer 583 1043 1072 674 1171 811 903 776 66 48 329 Dalyell v Dalzell v. Mair Damerell v. Protheroe Dames and Wood, In re Damper v. Bassett . . 829, 849 Damport v. Sympson . . . . 349 Dance v. Eobson 112 Dancer v. Hastings . . . . 1084 Dand v. Sexton 926 Dane v. Mortgage Insur. Co. 456, 486 Danford v. McAnulty . . . . 1063 Daniel v. Bowles 496 140 930 1200 628 859 148 999, 1007 Dakhyl v. Labouchere . . 873 Dakin v. Oxley 472 Dale's case 1102 Dale v. Birch 1220 - v. Hamilton . . 319, 320 v. Sollet 707 — v. Wood 914 Dalgleish v. Hodgson . . . . 205 Dalison v. Stark 3 Dallas v. Walls 594 Dallington, The 785 PAGE Daniel v. Metropolitan!' Ey. Co. .. 290,777,779 North .. .. 39,817 v. v. v. V. Pitt Stepney Wilkin .. Daniell v. Sinclair Daniels v. Fielding v. Harris v. Potter . . Danks, Ex parte . . Dansey v. Eichardson Danubian Sugar, &c. Inl. Kev. Commrs. Daoiz, The D'Aranda v. Houston Darby v. Boucher Harris . . Ouseley .. .. 68 .. 1084 .. 197 612, 625 887, 888 .. 431 62 .. 712 .. 657 v. V. Co. v. 251, 252 789 663 674 903 9, 217, 277, 288, 861 - v. Waterlow . . . . 222 D'Arc v. L. & N. W. Ey. Co. 635 D'Arcy v. Tamar, &c. Ey. Co 131, 1103, 1126 Darcy v. Ashwith .. .. 737 v. Sharpe 661 Dare v. Heathcote . . 830 942 498 517 815 470 Valley Ey. Co., In re Darke v. Grosvenor Hotel Co. Darley Main Colly. Co. v. Mitchell 194, 773, 774, 782, Darling v. Eaeburn Darlington, &c. Banking Co., Ex parte 365 Darlington Waggon Co. v. Harding 283 Darlow v. Bland 1203 Darnley (Earl of) v. L. C. & Dover Ey. Co 498 Darrell v. Tibbitts . . . . 458 Dartmouth (Lady) v. Eoberts 113, 199 Dartnell v. Howard . . . . 113 Darvill v. Terry 1191 Dashwood v. Magniac Dauncey v. Holloway . . Davenport v. Nelson . . ■ — - — — v. Eeg. Davey v. Chamberlain v. L. & S. W. Ey. - v. Mason v. Shannon — v. Warne . . David v. Ellice v. Sabin Davidson v. Bower v. Burnand — v. Carlton ■ ■ — - v. Cooper 26, 346 .. 852 .. 1172 .. 1031 .. 776 Co. 290, 779, 780, 795 .. 638 .. 525 .. 1147 .. 628 745, 747 .. 1129 431, 441 Bank 1205, 1209, 1310 .. 661, 1129 Table of Oases Cited. xlix PAGE Davidson v. Hill 810 v. Seymour .. .. 1186 - v. Stanley . . 372, 376 - v. Wood .. .. 579 Davies, Ex parte 981 v. Davies, 9 G. & P. 952 179 - v. Davies, 36 Ch. D. 359 300 V. Davies, 3S Ch. D. 499 .. .. 346,738 v. Humphreys . . 56, 594 - v. Jenkins . . 1173, 1203, 1209, 1211 v. L. & Prov. Marine Insur. Co . . . . 483 — v. Lowndes 45, 48, 200 — v. Mann 780 — v. Morgan .. 47, 48 51, 56, 07, 217 v. Price 498 - v. Rees 1211 ■ v. Ridge 67 v. Sear 827 — v. Smith 691 v. Snead . . 866, 867, 869 v. Solomon .. .. 862 v. Stacey 1084 — v. Stephens . . . . 942 v. Swansea (Mayor of) 1144 ■ v. Treharris Brewery Co 1179 v. Underwood . . . . 739 - v. Vernon 976 - u. Williams .. 911,943 to Jones 1002 Davis' Trusts, In re .. .. 215 Davis v. Bomford .. 497, 703 v. Bryan 606 — v. Burrell 744 v. Burton 1211, 1212, 1213 v. Capper 918 v. Clarke 360 v. Curling 1144 v. Dagos 949 v. Danks . . . . 925, 929 v. Dodd 357 v. Duncan 874 v. Garrett 476 v. Goodman . . 955, 1204 v. Gyde . . 693, 700, 1086 V, Harris 906 v. Hedges 569 w.Howard 592 v. James 998 v. Jones 16 v. Lloyd 61 v. Nest .. .. 195,207 v. Noake .. .. .. 881 v. Oswel 1 981 v. Reilly 571 i:.— vol. i. PAGE Davis v. Reynolds .. .. 993 v. Russell 1135 v. Shepstone . . . . 873 v. Smyth . . . . 569, 624 v. Town Properties In- vest. Co. 724, 725, 747, 817 v. Treharne .. .. 814 v. Usher 1214 v. Williams 118, 119, 226 Davison v. Donaldson . . 554 — v. Duncan 865, 867, 874 v. Parmer . . . . 1128 v. Gent . . . . 337, 999 Davy v. Garret 845 — v. Smith 147 Davys v. Richardson . . . . 708 Dawes v. Harness . . . . 664 v. Hawkins . . . . 942 v. Peck 646 v. Pinner 624 v. Thomas 343 Dawkins v. Paulet 865, 867, 1139 v. Rokeby (Ld.) 173, 853, 865, 1139, 1142 Dawson v. African Consoli- dated, &c. Co. 1102 v. Chamney .. .. 656 v. Gropp 900 v. Dyer 748 ^.Fitzgerald.. 347,661 — v. Gt. N. & City Ry. 308 v. Gregory ..117,1166 v. Isle 374 v. Linton .. .. 596 v. Macdonald . . 222 v. McClelland 863, 922 v. Midland Ry. Co. 796 ;;. Morgan . . . . 597 v. Shepherd . . . . 300 — v. Wood 1188 Dax v. Ward 508 Day v. Day 1073 v. McLea 660 v. Porter 939 v. Singleton 332 v. Williams 1003 v. Woolwich l-jquitable Building Society . . . . 695 Deacle v. Hancock .. .. 51 Dean's case 1 Ion Dean v. Branthwaitc .. .. 77(1 u.Hogg 915 — v . Hornby 447 ■ v. James 709 r. Peel '.HO Deane v. Clayton . . . .. 790 1 >eanj /-. Thomas L043 I (ear '•. Knight 175 Dearie v. Petersfield Union 'i'.' ' 1144 d 1 Tnhle of Cases Cited. PAGE De Beauvoir v. Owen . . . . 1071 Debenham v. Mellon . . . . 5G4 v. Sawbridge 330,844 De Begnis v. Armistead . . 666 De Berkom v. Smitb . . . . 557 De Bernardy v. Harding . . 587 De Seville's case 1102 De Bode's ease . . 56, 120, 201 De Braame v. Ford . . . . 1212 Debtor, A, In re .. .. 105,601 De Busscbe v. Alt .. 603, 605 De Cadaval (Duke of) v. Collins 616 De Cosse Brissac v. Rathbone 208 De Crespigny v. Wellesley . . 876 Decroix v. Meyer . . .. 364,375 Deeks v. Strutt 1156 Deep Sea Fishing Co.'s claim 381, 1113 Deering v. Winchelsea (El.) 594 De Falbe, In re 970 Deffell v. Brocklebank . . 748 -v. White .. .. 134, 1207 De Francesco v. Barnum . . 673, 674, 910 Defries, N. & Co., In re .. 1215 Defries v. Davis 861 Degg v. Midland Ry. Co. 790, 801 De Gondouin v. Lewis .. 1145 De Greuchy v. Willis . . . . 1170 De Hart v. Campania, &c. "Aurora" 120, 448 De Havilland v. Bowerbank 623 D'Hormusgee v. Grev . . . . 299 D'Israel v. Jowett . . . . 212 De la Bere v. Pearson . . . . 800 Delacroix v. Tbevenot . . 855 Delaney v. Fox 1006, 1008, 1085 Delany v. Jones 871 De la Roso v. Prieto . . . . 514 De Lassalle v. Guildford 314, 330 De la Warr (Earl) v. Miles 304, 823, 824 Delegal v. Highley . . 871, 884 De Leon v. Hubbard . . . . 995 Delbasse, Ex parte .. .. 559 Delisser v. Towne . . . . 885 Delta, The 209 De Mattos v. Saunders 443, 445 De Mautort v. Saunders . . 93 De Medina v. Grove . . . . 615 v. Norman .. 324 - v. Poison . . . . 340 De Mesnil v. Dakin . . 919, 922 De Moranda v. Dunkin . . 1184 Denaby, &c. Collieries v. Yorksh. Miners Assoc. . . 892 Denby v. Moore 343 Dench v. Dench 145 Dendy v. Nicboll .. .. 342, 1032 v. Simpson . . 85, 932 PAGE Denew v. Daverell . . . . 589 De Nicholls v. Saunders . . 343 Denn v. Cartwright .. .. 1014 ■ v. Fearnside . . . . 1009 v. Fulford 97 v. Rawlins 1009 v. Spray . . . . 48, 210 v. Walker 1021 v. White .. .. 71, 946 Dennett v. Atherton . . . . 747 — v. Grover . . . . 945 Dennis v. Whetham .. .. 1222 Denoon v. Home and Colonial Insur. Co 449c Dent's case 1102 Dent v. Dunn 622 v. Smith . . . . 434, 436 Denton v. Gt. N. Ry. Co. .. 653 v. Macneil .. ..1108 v. Peters . . 371, 375, 391 v. Strong De Pass's case D'Epineuil (Count), In re 498 1103 1162, 1204 235 De Porquet v. Page Deposit Life Assurance Co. v. Ayscough 1107 Derby Canal Co. v. Wilmot 131 Derby (Earl) v. Taylor . . 728 Derecourt v. Corbishley .. 1135 Derisley v. Custance . . . . 745 De Rosaz v. Anglo-Indian Bank 499 Derry v. Handley . . . . 862 De Thoren v. Att.-Gen. 121, 1038, 1043 Devala, &c. Gold Mining Co., hire 70,1107 De Vaux v. Salvador Devaux v. Barclay v. Connolly — v. J'Anson v. Steinkeller . Sandeman Swanson Devine v. Holloway Devon's (El. of) Deverges De Vignier v. 437 972 606 428 851 974 267 1077 Estates, In re Devonald v. Rosser Devonian, The Devonshire (Duke O'Connor v. Pattinson 20 Settled 1070, 1071, 1073, 1077 .. 27, 517 . . 783, 786 of) v. 824 933 Dew v. Parsons 614 De Waal v. Adler 579 De Wahl v. Braune Dewar v. Goodman Dewey v. Bayntun De Wilton, In re .. Dews v. Riley . .. 1172 . . . 749 . .. 1222 1038, 1043 117. 919 Tahle of Gases Cited. li PAGE Deybel's case . . . . 82, 83 D'Horrausgee v. Grey .. .. 299 Diamond, The 474 Dibb i\ Walker .. 621,723,724 Dibbins v. Dibbins . . . . 312 Dibble o. Bowater . . . . 1082 Dibdin v. Swan 874 Dicas v. Brougham . . 82, 918 Dick v. Lumsden 993 Dickenson v. Jardine . . 25, 449^, 788 v. Naul . . . . 551 v. N. E. By. Co. 810 Dickeson v. Hilliard . . . . 869 Dickinson v. Barrow . . . . 319 v. Bowes . . . . 359 v. Dodds .. .. 312 v. Follett .. .. 491 v. Grand Junction Canal Co. . . 840 v. Hatfield . . . . 689 v. Shee .. .. 711 v. Valpy ..366,1090 Dicks v. Brooks 878 v. Yates 297 Dickson v. Gt. N. Ky. Co. 640, 643, 644 ■ v. Lodge 428 — v. Reuter's Telegram Co 493, 630 v. Swansea Vale Ry. Co 706 Diederichsen v. Farquharson 477 Diestal v. Stevenson . . . . 326 Digby v. Atkinson .. 347, 1011 Diggle v. Higgs 618 -v. London and Black- wall Ry. Co 1092 Dike v. Polhill 46 Dimes v. Pctley . . . . 759, 780 v. Wright .. .. 506,759 Dimmock v. N. Staffordshire Ry. Co 793 Dines v. Wolfe 602 Dingle v. Coppen 723 I > irks v. Richards .. .. 987 Discount Banking Co. v. Lombarde 603 Disderi & Co., Lire .. .. 1102 D'Israeli v. Jowett .. 212,430 Ditcham v. Bond 943 v. Worral . . 497, 676 Ditton, Ex parte 507 Dixon, In re .. 623,686,753 - Ex parte 707 v. Baldwen . . . . 991 v. Baty 1007 v. Bell 912 v. Birch 656 - v. Bradford, &c. Supply Assoc. .. 1014, 1016 PAGE Dixon v. Clark 709 — v. Evans 1115 v. Fawcus . . . . 595, 845 — v. Fletcher . . . . 538 - v. Gayfere 1070 — v. Gt. W. Ry. Co. . . 795 v. Hewetson . . . . 955 v. Kennaway .. 76, 1120 v. Lee 154 v. Metropolitan B. of Works 792 — v. Nuttall 369 — v. Sadler . . 429, 431, 432 — v. Smith 863 - v. Stansfield . . . . 983 - - v. Steel 485 v. Treasury Solicitor 1055 v. Whitworth . . . . U9e v . Yates 992 Dobell v. Green 466 — • v. Hutchinson . . 315,327 v. Stevens 850 Dobson v. Bell 81 — v. Blackmore . . 760, 834 v. Collis 525 — v. Sotheby .. .. 456 Dockwray v. Dickenson . . 92 Dodd v. Acklom 337 v. Churton 583 — v. Holme 813 v. Norris .. 87, 912, 913 Dodsley v. Varley .. .. 530 Dodson v. Wentworth .. 991 Dodwell v. Gibbs 947 Doe v. 1021 ■ v. Abbott 1010 v. Alexander 1028 - v. Allen . . 20, 30, 145, 1032 v. Amey 1011 v. Andrews .. 41, 125, 127, 171, 218 - v. Angell 1072, 1074, 1075 - v. Archer . . 1020, 1021 - v. Arkwright .. 52, 214 - v. Ashbumer .. .. 1013 v. Askew 210 - v. Austin 1007 v. Baines 43 v. Bancks 1031 — v. Barnard . . 998, 999, 1070 - v. Barnes . . . . 218, 287 - v. Barthrop 1002 - v. Barton . . . . 46, 1008 - v. Bateman 1025 - v. Batten 1022 - v. Baytup . . 1004, 1008 - v. Beckett . . 1007, 1075 v. Bell 345, 1010, 1011, 1017 v. Benham 1075 - v. Benjamin .. .. 231, 1012 V. Benson 27 d 'I lii Tahle of Cases Cited. PAGE .. 732 " 28, 57, 58 . 30, 142 . 1002 998 . 1032 ' 1008, 1063 73, 710, 1006 .. 1037 .. 1034 'l09, 1005, 1015 .. 1074 . 1010 Doe v. Bevan . v. Beviss v. Beynon v. Biggs . . . . v. Billyard . . v. Birch.. . v. Birckmore v. Bird . . v. Blackburn v. Bliss . . . v. Bluck . . v. Bold . . v. Boulton v. Bowditch l^» v. Bower A$. . v. Brainstem ^u -::?sr. :: :: *.| 1032, 1033 .. 735 . 27 . 1007 .. 1012 Brygdes .. •• \f Burdett 1*J Burton (9 C'.& P. 254) 1004 __ (16 Q. B. 807) 1004 Cadwallader .. •• 1057 144," 1018, 1022 732, 1062, 1073 Doe v. Day . . Deakin ■u. Derby (Earl) • DoM1 10 56 VAGE 216, 1005, 1058 .. 41 192, 201 1017 1022 132 v. V. V. v. Dodd . . v. Donovan v. Dunbar v. Dumford . o.Dyeball gg v.Dyson •• •• •• 10M v. East London W. Works 137 o.Edgar 1009 . v. Edmonds 1070 Edward v. Brayne . v. Brindley . v. Broad - v. Brookes - v. Brown - v. Browne - v. - V. - V. - V. - V. - V, 233 56," 257, 1005, 1025, 1085 Egrernont (Lord) v. Edwards . v. Evans . . v. Eyre . . v. Fairclougb v. Fenn . . v. Filliter . - v. Fleming . v. Flynn v. Ford . . v. Forster . (7. Foster - v. Fowler Francis 146, v. Calloway v. Calvert v. Carter v. v. V. ■ V. 270, 732 .. 1075 .. 1022 .. 1000 . 891, 947 . 34, 1038 .. 1024 21 .. 1018 1013, 1020, 1022 125 ' 'lOlO, 1019 Frankis .. .. ■• ^ Franks Freeman 253 V. Cartwright , v. Catomore 3 57 135, 142, 145, 662 v. Cawdor IjgJ , v. Challis .. ^ ■*• v. Chambers . v. Chaplin , v. Chichester - v. Church Clare 131, 134 .. 1019 29 102'i, 1022 .. 1013 v. Clarke" •• •.• 1°1 3 ^Cleveland (Marquis^ ^ 999, 1037 2 998, 1003 230, 1074 1023 of) v. Clifford v. Cole . . ■ v. Cooke ■ v. Coombs - v. Cooper x ^" - v. Corbett - v. Coulthred.. . — - v. Cox . . -v. Crago . v. Creed • • ™£° 56, 1037 .. 1011 63, 1010 -,-Erowd 10|J v. Fuchau 102« v. Gascoigne ^ — "■<££* - - -.1057 v. Giles n „ . v.Gladwin 103* v. Goodier .. ■• •• 1^< v. Gore .. •• i v. Gower v. Grafton . . I v. Grant v. Grazebrook v. Green . v. Grey . . I . v. Griffin v. Groves v. Grubb ■v. Guy . • . v. Haddon -v. Hales _ AX Vzl - v. Hall .. 1075 1014, 1016 . 1000 2 .. 1014 11 . 41, 1037 .. 1012 .. 1024 .. 1055 43, 207 , Cricl 1020, 1022 v. Culliford 1021 .. -r»„+^ .. .. i j8 '44,45,47,141, 147, 149, 1002 Date Davies 119, 1000, 1057 • X 932 145 947 1059 v. v. Hampson . v. Hardy - v. Hare . . - v. Hares Table of Cases Cited. Liii PAGE Doe v. Harlow .. .. 192, 947 v. Harris 1052 ■ v. Harvey . . . . 2, 46, 946 v. Hazell 1016 v. Heakin 1037 -v. Hellier .. ..210,1057 v. Herning 143 v. Hertford (Marquis of) 158 v. Hicks 86, 1054 v. Hilder 1003 v. Hiscocks . . . . 30, 31 v. Hodgson 13 v.Hogg 732 ■ v. Homfray 1002 v. Hopkinson .. .. 27 v. Horn . . 1006, 1010, 1063 v. Home 1058 ■ v. Horslev 1028 v. Howard 1018 v. Hubbard 33 v. Huddart 946 v. Hugbes 1019 V. Humphreys . . . . 1023 v. Hutbwaite . . . . 30 v. Inglis 1023 v. Jackson 740, 1009, 1020 v. James 158 v. Jesson 41 v. Johnson . . 39, 133, 335, 1016, 1033 V. Jones 346, 740, 1004, 1007, 1034, 1060, 1076 v. Keeling . . . . 103, 142 v.Kemp .. .. 85,932 v. Kendrick 1017 v. Kennard 1005 v. Kigbtley 1021 v. Knight 139 v. Lamb 1018 — v. Lambly 1018 v. Laming .. .. 731,732 - v. Langdon 158 v. Langfield .. 33, 56, 213 v. Langton 1037 v. Lawder 1010 v. Lawes 1057 - v. Lea 27, 1021 - v. Leach 1000 c. Lediard 1059 V. Levi 1022 v. Lewi. 7, 147, 257, 1033 v. Lines .. 1015,1017 - v. Litherland 67, 1025, L063 - v. Lloyd . . 82, 142, 144 v. Lucas 1022 v. Ludlam 1056 v. Maisoy 1057 V. Manifold 147 r. Manhetti .. .. 1025 — v. Martin .. .. LI, 3] v. Mason .. .. 79,131 Doe v, v, ■ V. ■ V, V, V, V. V, V. V. V. V, V V. ■ V, V. V. ■ V. V. V, V, ■ V. V. — — V, V, V, V. V V, V. V, ■ V, V. — V. V. V. V. V V. V. V. V. ■ V. ■ V. ■ V. ■ V. ■ V. V. V. V. V. V. V. V. V. V. V. FAGB Massey 1076 Masters 1027 Matthews 1015 Mee 119 Meux . . 1032, 1033 Mew 118 Michael .. ..41, 56, 58 Miles .. .. 63,1015 Millett 40 Mills . . 150, 1004, 1007 Mizem . . 1019, 1063 Moffatt .. 1011,1015 Moore 1074 Morgan 29 Morphett 1021 Morris .. .. 4,7,8 Moulsdale .. .. 1004 Murless .. .. 196, 1060 Needs . . . . 32, 279 Nepean 41 Newton 141 Nicholls 1002 Olley 1058 Ormerod 46 Owen 1060 Oxenden 31 Oxenham 1072 Page 1074 Palmer . . . . 145, 1023 Parker .. 1006, 1024 Pasquali 1023 Passingkam .. .. 1001 Paul 136, 1027 Payne 733 Peach 152 Pearsey . . . . 932, 935 Pembroke (Earl of) 46 Penfold 1059 Perkes 1052 Perkins 176 Phillips . . . . 103, 1072 Pittman 1024 Plowman 1003 Porter 1012 Powell . . 28, 732, 999, 1004, 1013 Preston 237 Trice.. 110,1004,1009 Prosser 1006 Pullen 1010 Pulman 53 Pye 65 Quigley 1010 Read .. .. 1000, 1019 Reed 40, 1003 1032 Rhodes 1018 Rickarby 733 Ki... ..' 1012 Roberts .. 122, 196, 197 Robinson 1019 liv Table of ( 'ases Cited. PAGE Doe v. Robsou 1025 v. Roe .. 72, 27'J, 947, 1027, 1028 - v. Rollings 1024 v. Ross . . . . 13, 72, 158 v. Rosser . . . . 219, 999 v. Rouse 31 v. Rowe 1034 v. Rowlands . . 94, 737, 739 v. S. Helens Ry. Co. . . 1059 v. Samples 103 v. Samuel .. 1017,1018 v. Saver 1010 v. Scott . . . . 1003, 1021 v. Seaton 54, 57, 170, 191, 214 ■ v. Selwyn 1016 v. Shawcross . . . . 1027 v. Shelton 76 v. Skinner .. ..48, 59, 60 v. Skirrow 1008 — v. Sleeman . . . . 48, 50 v. Smaridge 1014 v. Smart . . . . 287, 1014 v. Smith 74, 196, 233, 732, 1013, 1021, 1057, 1060 v. Smyth 1050 v. Smythe 1063 v. Snowdon . . 1015, 1018 v. Somerton 8 v. Somerville .. .. 1011 v. Spence 1018 v. Spiller 1022 v. Spitty 12 - v. Stacey . . . . 999, 1007 v. Stagg 275 - V. Stanion 1009, 1023, 1024 - v. Stapleton 1016 v. Steel 1023 v. Stennett 1009 v. Stevens . . . . 145, 1050 v. Stratton 1010, 1011, 1014 v. Strickland 1052, 1053 v. Suckermore . . 140, 141 v. Summersett . . . . 1019 v. Sumner 1070 - v. Sybourn 199 v. Taniere 1011 v. Tarver . . . . 47, 140 . v. Thomas . . 41, 157, 1010 v. Thompson 348, 1024, 1057, 105S v. Tidbury . . . . 226, 1007 - v. Timothy 1020 r. Tindal 288 v. Tresidder 999 v. Trye 1185 - v. Tucker 287 - v. Turford . . . . 59, 60 - v. Turner 1073 - v. Tyler 192 v. Ulph 736 PAGK Doe v. Vardill 1048 — -v. Vickers 1058 v. Vince .. .. 27,1021 v. Wainwright 42, 67, 143 v. Walker . . . . 149, 1057 v. Walters 1019 v. Wandlass 1027 v. Watkins 170, 1018, 1022 v. Watson 63 v. Watt 1025 v. Watts 1011 v. Webber 191, 220, 998, 10C1 v. Webster . . . . 28, 33 v. Weller 1017 v. Wells 1024 v. Westlake 32 v. Wheeler 1000 v. Whitaker 1057 v. Whitcomb . . 945, 946 v. White 1025 ■ v. Whitehead 12, 95, 1025 v. Whittick 1023 v. Wiggins . . . . 235, 1006 — v. Wilford 31 v. W'ilkinson . . . . 1021 v. Willan 1002 v. Williams 728, 733, 1003, 1007, 1020, 1032, 1075, 1081 - v. Wilson . . 35, 287, 1028 v. Wittcomb . . 15, 60 v. Wollev 41, 142, 150, 1037 - v. Wood 1012 v. Woodbridge . . . . 1034 v. Woodman . . . . 1020 v. Woombwell . . . . 1018 v. Wright 940 v. Wrighte 1003 - v. Wrightman . . . . 1020 - v. Wroot . . 1001, 1057 ■ v. Young 34 Dohertv v. Allman 346, 347, 740 Dolby v. lies 334 Dolcini v. Dolcini . . . . 1211 Doloret v. Rothschild . . 324, 579 Domett v. Beckford . . . . 470 Don, In re 1048 Donald v. Suckling . . 974, 979 Doncaster (Mayor of) v. Day 116 Donellan v. Read . . . . 526 Donohoe v. L. & N. W. Ry. Co 631 Donovan r. Laiug Syndicate 776 Doobyv. Watson 510 Doody, In re 501 Doolau r. Midland Ry. Co. 639, 642 Dormay v. Borradaile . . . . 453 Dorrett v. Meux 118 Doss v. Doss 908, 926 Dost Aly, In re 121 Table of Cases Cited. lv PAGE Doswell v. Impey . . . . 918 Doubleday v. Sluskett . . 562 Doucet v. Geoghegan . . . . 1038 Dougal v. McCarthy . . 339, 347 Doughty v. Bownian . . . . 737 v. Firhank . . . . 807 Douglas v. Corbett . . . . 883 ■ v. Douglas . . . . 953 v. Forrest 1157, 1165 v. Holme . . . . 598 v. Patrick 709, 710, 711 v. Scougall .. .. 432 v. Smith . . . . 905 Doulton v. Matthews . . . . 928 Dovaston v. Payne . . 833, 929 Dover v. Maestaer . . . . 224 Dowdall v. Allan 267 Dowdell v. Australian Mail Co. 155 Dowden v. Fowle 1222 and Pook v. Pook . . 671 Dowlev v. Winfield . . . . 42 Down v. Hailing 962 Downe v. Fletcher . . . . 1177 Downes v. Mooreman . . . . 122 v. Richardson . . 245 ■ v. Ship 1108 Downing v. Butcher . . . . 886 v. Capel . . 923, 924 Downman v. Williams .. 92 Downs v. Cooper 1085 v. Salmon . . . . 1206 Dowse v. Call 737 v. Earle 737 v. Gorton 596 Doyle v. Dallas . . . . 438, 445 ■ v. Falconer . . . . 917 Drabble v. Donner .. .. 11 Dracachi v. Anglo-Egyptian Navigation Co 462 Drake, Ex parte 965 — v. Beckham . . 93, 557 ■ v. Marryat . . 212, 449c v. Mitchell . . . . 561 v. Shorter 974 v. Smyth 197 ■ v. Sykes . . 69, 1185, 1186 Drakeford v. Piercy . . . . 695 Drant v. Brown 233 Draper v. Crofts 338 I >nivcott v. Harrison 1173, 1178 Drax, In re 622 ■ — — v. Scroope 503 Dresser v. Bosanquet .. .. 986 v. Norwood . . . . 708 I >ivw r. Guy 734 u. Nunn .. .. 555,677 v. Prior 140 Dreyfus v. Peruvian Guano Co 772,980,996,997 Driffield, &c. Cake Co. V. Waterloo Mills Co 879 PAGE Drincqbier v. Wood . . 90, 847 Driver v. Broad 314 v. Burton 593 Drue v. Baylye 1085 Drummond's case . . . . 1102 Drummond v. Sant 1072, 1073 Drury v. Macnamara . . . . 749 v. N. E. By. Co. . . 797 Du Barre v. Livette . . . . 169 Du Belloix v. Waterpark . . 37 Duberly v. Gunning . . . . 156 Dublin United Tramways v. Fitzgerald 771 Dublin and W T icklow Ry. Co. v. Black 1109 Dubois v. Keats 886 Du Bost u. Beresford 854, 859, 927 Due d' Aumale, The . . . . 209 Duck v. Mayeu 703 v. Tower Gold Mining Co 1111 Duckett v. Gover 91 ■ v. Williams .. .. 452 Duckworth v. Johnson . . 811 Dudden v. Clutton Union . . 839 Dudgeon v. Pembroke . . 435, 437, 449J Dudlev, In re 155 v. Folliott . . . . 745 v. Smith 779 Dudley Canal Co. v. Graze- brook 815 Duero, The 462 Duffr. Budd 647 v. Mackenzie . . . . 449f Duffield v. Creed 37 v. Scott 596 Duffit v. James 514 Dufourcet v. Bishop . . 449d, 648 Dufresne v. Hutchinson . . 973 Duke v. Andrews . . .. 233,524 v. Ashby 1007 Duke of Buccleugh, The 92, 783 Dukes v. Gostling . . . . 841 Duldney v. Merry . . . . 1217 Dulien v. White .. .. 782, 850 Dumbleton v. Williams . . 75 I Mimergue v. Rumsey . . 970, 1189 Dumpor's case .. 1031,1034 Dumpor, In re 1154 Duncan v. Cafe 331 v. Cashin 1226, 1227 — v. Dixon 675 v. Hill 593 v. Louch 826 — v. N. & S. Wales Bank .. .. 405,485 v. Scott .. .. 186, 372 V. Surrey Canal Co. 977 v. Thwaites 872 v. Topham .. .. 524 LvJ Tabic of Cases ( 'ited. Dunconibc v. Brighton Club, &c. Co 625 v. Daniel . . 72, 877 Dundonald (El. of) v. Master- man 511 Dunham v. Clare 454 Dunk v. Hunter 1082 Dunlop v. Balfour . . . . 467 — — — v. Higgins .. 524, 539 v. Lambert .. .. 646 Pneumatic Tyre Co. v. Maison Talbot . . 878, 880 Dunman v. Bigg 868 Dunn v. Astlett 174 v. Birmingham Canal Co 815 v. Bucknall Bros. 473, 650 — v. Di Nuovo . . . . 342 — v. Dunn 134 v. Largo 947 v. Macdonald . . 494, 584 o. Murray 220 v. Queen, The . . . . 520 v. Slee 52 Dunne v. Anderson . . . . 874 Dunpy v. Moore 922 Dunraven (Earl of) v. Llewellyn 49 Dunwich (Bailiffs, &c. of) v. Sterry 925 Du Pasquier v. Cadbury, Jones & Co 303 Dupays v. Shepherd . . . . 82 Durham v. Robertson . . . . 620 - (Earl of) v. Legard 327 - (Mayor of) v. Fowler 484 Durrant v. Ecclesiastical Commissioners 611 Durrell v. Bederley .. .. 449i v. Evans . . 317, 533, 534 Duthie v. Hilton 467 Dutton v. Marsh . . . . 93, 414 v. Solomonson .. 552 Duval, C. & Co. v. Gans .. 709 Duxbury v. Barlow . . . . 302 Dwyer v. Collins 5, 7, 8, 12, 171 v. Rich 933 Dye v. Leatherdale .. .. 896 Dyer v. Best 757 v. Bowley 730 - v. Munday .. .. 913, 917 Dyers' Co. v. King . . . . 821 Dyke v. Aldridge 67 — v. Duke 1221 Dykes v. Blake . . . . 323, 328 Dynen v. Leach 802 Dyson r. Collick 929 E. W. A., In re 702 Eaden v. Titchrnarsh . . . . 568 PAGE Eadon v. Jeffcock 814 Eagar v. Dyott 882 Eager v. Grimwood . . 911, 912 Eaglesfield v. Londonderry (Ms. of) 844 Eagleton V. Gutteridgo 899, 902, 908, 1142 Eales v. Dicker 375 Eardley v. Granville . . 930, 936 Eardly v. Price 516 Earl v. Lewis 102 v. Lubbock 775 Earlo v. Kingscote 1170, 1171 Early v. Bowman .. .. 369 East v. Chapman .. .. 174, 877 East & S. African Telegraph Co. v. Capetown Tramways Co 772,792 East Anglican Ry. Co. v. E. Counties Ry. Co 1127 East of England Banking Co., In re 623 East Preemantle Cor. v. Annois 769 East Gloucestershire Ry. Co. v. Bartholomew 1101, 1121, 1122 East India Co. v. Glover . . 79 v. Paul . . 681 v. Pullen .. 646 East Indian Railway Co. v. Mukerjee 651,798 East London Union v. Met. Ry. Co 325,500 East London Ry. Co., In re 198 East Stonehouse, &c. Council v. Willoughbv Bros. 1074, 1077 Easter v. Jolly 398 Eastern Counties Ry. Co. v. Broom . . 1095 V. Marriage 105 Eastern S.S. Co. v. Smith . . 782 Eastern Telegraph Co. v. Dent 773, 1036 Eastern Union Rv. Co. v. Symonds 60,1125 Eastland v. Burchell . . . . 565 Eastmure v. Laws . . . . 194 Easton v. Isted 819 v. London .. .. 996 - v. L. Joint Stock Bank 1099 - v.Pratt .. .. 737,741 Eastwick v. Harman . . . . 694 Eastwood v. Bain 358 - v. Kenyon .. .. 480 Eaton v. Basker " 1093 v. Swansea Water- works Co. 819, 829, 841, Add. 207 v. Western . . 51S, 520 Eaves v. Dixon 490 Ebbett'scase 1109 Table of Cases Cited. lvii E berles Hotels Co. v. Jonas Ebsworth v. Alliance Marine Insur. Co Ecclesiastical Commissioners v. Kino v. PAGE 1112 456 Edwards v. Bates 599 822 345, 1093 1071 Merral 347, 1011 V. Parr v. Eowe 1072, 1078 ■ v. Treemer . . 1072 Eckersley v. Piatt . . . . 1054 Eckstein v. Reynolds . . . . 713 Economic Life Assur. Soc. v. Usborne 622 Edan v. Dudfield 530 Edden v. Read 604 Eddystone Marine Insur. Co., In re 1104 Edelstein v. Schuler . . 83, 963 Eden v. Blake . . 17, 29, 535 v. Ridsdale'sRv.Lamp Co " .. 603,604 Edevain v. Cohen . . . . 292, 293 Edgar v. Blick 233 Edge v. Boileau . . . . 746, 748 v. Pemberton . . 735, 740 v. Strafford . . 313, 336, 344 Edgell v. Curling 154 v. Day 602 Edgingtonr. Fitzmaurice 843, 846 Edie v. Kingsford . . 58, 61, 582 Edinburgh, &c. Ry. Co. v. Hebblewhite 1125 Edinburgh United Breweries v. Molleson 850 Edis v. Bury 360 Edison, &c. Electric Light Co. v. Holland 300 Edleston v. Crossley . . . . 933 Edmonds v. Blaine Furnaces Co 1214 v. Chaffis . . 13, 139 v. Prudential Assur. Co 41,290 v. Rowe . . v. Walter Edmondson v. Birch & Co v. Machell v. Nuttall v. Stephenson Edmonstone v. 1'laistead Edmunds v. Bushell . . v. Edmunds v. < l-roves v. Wallingford Edwardes v. Barrington I dwards, Ex parte 55,605,898 v. AberayroD Mutual Ship Insur. So- ciety 267, 420, 661 160 166 867, 870 911 979 ;sr,s 111 367, 554 1190 77 595, 597 .. 731 v. Brewer v. Bridges V. Cameron's, Ry. Co. . v. Carter v. Edwards 988, 990 .. 1188 &c. .. 1116 . . . . 673 1161, 1202, 1204 v. Farebrother . . 1188 v. Godfrey .. .. 809 v. Gt. W. Ry. Co. 614, 622, 625, 1147 v. Hall 314 v. Harben 1157, 1191 v. Hodding -■ ■• 331 v. Hodges v. Hooper 293, 294 .. 973 19 .. 504 v. Jevons ■ v. Lawless v. L. & N. W.Ry. Co. 1096 f. Marcus .. .. 1208 i\ Marson .. .. 1212 . v. Matthews . . 287, 1225 v. Midland Ry. Co. 882 v. Stone 753 v. Towels . . 64, 566 v. Vestry of St. Mary, Islington .. 1144 v. Walters . . 404, 703 v. Yeates .. .. 713 Edwick v. Hawkes . . . . 734 Edwin v. Lancaster . . . . 405 Efford v. Burgess 344 Egan v. Kensington Union 584 Egerton v. Earl Brownlow . . 668 Egg v. Barnett 37 v. Blayney 745 Eggington v. Cumberledge . . 504 V. Lichfield (Mayor, &c. of) 280 Eggleston v. Speke . . . . 68 Egler v. Marsden 333 Egmont (Earl of) v. Smith . . 325 Ehrensperger v. Anderson 12,601, 609 Eickc v. Nokes 171, 502, 504, 626, 691 Ell linger Act ien-Gcssclschaft v. Armstrong 547, 548, 649 v. Clayc .. 555 u v. Keddell 119 Eldurslie SS. Co. v. Borth- wick 472 Kldridgc v. Staccy .. .. 902 II.. v. Positive, &c. Assur. Co 525,1111 Elford v. Teed 379 Elias ' . Snowdon Slate Quar- ries Co 345 Eliot v. Allen 922 lx Table of Cases Cited. Farrar v. Defliunc . . . . 560 v. Hutchinson . . 696 Farrelly v. Robins 1004,1010 Farrer v. Lacy 696 Farrington u. O'Donohoe . . 525 Farrow u. Bloomfiold . . . . 63 v. Wilson .. .. 519, 1154 Fassett v. Brown 134 Faulder v. Silk 196 Faulcls v. Jackson . . 147, 148 Faulkner v. Brine . . . . 175 v. Chevell .. .. 756 Fauntleroy's case .. .. 454 Faviell v.E. Counties Ry. Co. 280, 1091 — v. Gaskoin .. .. 348 Fawcett and Holmes, In re 327 - v. Cash .. .. 515, 516 - u. Fearne 1204 - v. York, &c. Ry. Co. 794 Fawkes v. Lamb 24 Fay v. Prentice 760 Fayle u. Bird 364 Fazakerly u. McKuight . . 702 Fear v. Morgan 817 Fearn u. Filica .. .. 78,372 u. Lewis 690 Fearnley v. L. Guarantee Co. 455 Fearnside's case 1100 Fearnside u. Flint . . . . 722 Fearon u. Aylesford (Earl of) 1179 Feast u. Robinson . . . . 1207 Featherston u. Hutchinson 665 v. Wilkinson . . 649 Featherstonhaugh u. John- ston 973 Fechter v. Montgomery .. 517 Feilden u. Slater 734 Feise u. Wray 988 Felgatc, Ex parte .. .. 1102 Felix, The 477,478 Fell v. Goslin 483 v. Knight 657 — - v. Whittaker 893, 894, 895 Fellowes v. Stewart .. .. 1040 v. Williamson . . 51 Feltham u. England . . . . 802 u.Terry .. .. 617 Felthouse v. Bindley . . . . 64 Femings u. Jarrat . . . . 1157 Fenn v. Littleston .. 968, 1189 v. Griffiths 2 v. Harrison . . .. 490,699 u. Johnson 287 - v. Smart 1025 Fennell u. Ridler 670 v. Tait 155 Fenner u. Blake 338 u. Duplock . . . . 1085 Fennings v. Grenville (Ld.) 979 Fentiman v. Smith .. .. 826 PAGE Fenton v. Blythc 1209 v. Livingstone 1038, 1043 — u. J. Thorley & Co. 454 Fenwick, In re 1053 u.Bell 176 v. Laycock .. .. 1188 v. Thornton . . . . 68 Feret v. Hill . . . . 664, 731, 1008 Ferguson, Ex parte .. .. 784 v. 347 v. Carrington .. 570 v. Fyffe.. .. 624,625 - v. Mahon 89, 120,208,209 Fermor v. Phillips . . . . 1185 Femandes' Executors' case 270 Fernandez, Ex parte .. .. 167 Fernley v. Worthington . . 6 Ferns v. Carr 519 Ferrand v. Milligan . . . . 942 Ferraos' case 1104 Ferrer v. Oven 498 Ferrers v. Arden 194 Ferro, The 442, 474 Fesenmayer v. Adcock 598, 627 Few U.Perkins 1033 Fewings, Ex parte . . 592, 622 — — u. Tisdal .. .. 516 Ffinch u. Combe 1053 Fidgett u. Penny 628 Field v. Adams 906 v. Fleming 74 v. Lelean . . 16, 23, 25, 579 v. Megaw 620 - v. Mitchell .. .. 894,895 v. Musgrove . . . . 923 u. Newport, &c. Ry. Co. 984 v. Receiver of Metrop. Police .. Add. 1183 ■ v. Woods 230 S.S. Co. v. Burr . . . . 437 Fielden (or Fielding) v. Mor- leyCor. 105,1132,1133 Fielder u. Marshall . . . . 360 u. Ray . . . . 224, 325 u. Starkin .. .. 488 Fielding u. Corry . . . . 383 Figgins v. Cogswell .. .. 852 Figlia Maggiore, The . . 462, 478 Filburn v. People's Aquarium Co 789 Filby u. Hounsell .. .. 315 Filliter u. Phippard .. .. 792 Filrner u. Delber 280 — v. Gott 19 u.Lynn .. .. 533,567 Finance, &c. Issue Co. v. Canadian Produce Co. . . 1101 Finch v. Blount .. .. 979,994 v. Boning 709 v. Brook 712 v. Finch 1054 Table of Cases Cited. lxi PAGE Finch v. Gt. W. Ry. Co. . . 836 v. Miller 712 Pinchett v. How 504 Finchley Electric Light Co. v. Fiuchley U. D. Council 933 Finclen v. Westlake .. .. 871 Findon v. M'Laren . . . . 903 Fine Art Society v. Union Bank of London . . 616, 963 Finlay v. Bristol and Exeter Ry. Co. 1011, 1093 v. Chirney . . 495, 1154 v. Mexican Invest- ment Corporation . . . . 458 Finnerty v. Tipper . . . . 861 Finney v. Tootel 273 Firbank's Executors v. Hum- phreys 494 Firbank v. Bell 241 Firkin v. Edwards . . . . 12 Firth, Ex parte 1203 v. Bowling Iron Co. 762 v. Thrush . . . . 383, 389 Fish v. Kempton . . . . 695, 707 Fisher's case 1100 Fisher v. Algar 893 v. Bridges .. .. 668 v. Calvert 242 v. Drewitt . . . . 588 — v. Fallows . . . . 597 v. Lane 117 -^.Leslie 272 v. Liverpool Marine Insur. Co. . . 268 • v. Owen 857 v. Prowse .. .. 764, 833 v. Samuda . . . . 14 v. Smith .. 983, 984, 987 v. Tayler 599 v. Wainwright . . 87 Fishmongers' Co. v. Dims- dale 134 Fishwick v. Milnes . . . . 232 Fitch v. Jones . . 357, 399, 401 v. Sutton 66 Fitton v. Accidental Death Insur. Co 454 Fitz v. lies 734 Fitzgerald v. Dressier . . 479 v. Elsee . . . . 134 v. Firbank . . . . 837 Fitzherbert v. Mather . . 449i Fitzjohn v. Mackinder .. 886 Fitzpatrick V. I''. vans .. .. 805 Fitzroy v. Cave 621 Fitz waiter Peerage case .. 140 Fladong v. Winter . . . . 37 Fleet v. Murton 25 v. Pen-ins 62, 113, 114, 115, 186 Fleetwood v. Hull .. .. 1026 PAGE Fleming v. Bank of New Zealand 312, 408 v. Gooding . . . . 334 - v. Hislip . . 760, 772 v. Snook . . . . 736 Flemyng v. Hector . . . . 553 Fletcher, Ex parte 1201, 1202 , Lire 157 v. Bealey . . 760, 772 v. Birkenhead Cor. 105 - v. Braddyll . . . . 123 v. Collis . . . . 595 v. Crosbie .. .. 289 ■ v. Gillespie . . . . 463 • v. Greenwell .. 1145 v. Inglis . . . . 436 v. L. & N. W. Rv. Co. .. .. 290 v. Marshall . . 579, 609 — ■ v. Nokes . . . . 1030 - v. Rylands 789, 791, 914 v. Tayleur . . . . 547 v. Wilkins . . . . 1134 Flewster v. Royle . . . . 920 Flight v. Booth 327 ■ v. Reed . . 400, 568, 626 — v. Thomas . . . . 819 Flinn v. Calow 17 v. Tobin 447 Flint v. Flemyng . . . . 428 Flitters v. Allfrey . . 205, 303 Flood v. Paterson . . . . 682 Florence v. Jenings . . . . 622 Flory v. Denny 954 Flower v. Adam 780 v. L. & N. W. Ry. 652 674, 1143 v. Low Leyton (Local Board of . . . . 1143 v. Sadler . . . . 399, 668 Flowers v. S. E. Ry. Co. 638, 642 Fludyer, In re 1163 Flureau v. Thornhill . . . . 332 Foakes v. Beer 660 v. Webb 172 Foat v. Mayor, &c. of Margate 1145 Foley v. Addenbrooke . . 718 v. Hill 682 (Lord) v. Inl. Rev. Corns 250, 266 Folkard v. Metropolitan Ry. Co 305 Folkes v. Chadd . . . . 84, 175 I "ii sick v. Agar 187 Foote v. Hayne . . . . 169, 497 Forbes' case 1102 - claim 456 Forbes v. Lee Conservancy Board 769 Forbes v. Watt 28 Ford v. Ager 1075 1X11 Table of Cases Cited. PAGE Ford v. Beech 702 v. Cotesworth . . . . 466 v. Elliott 53 v. Fothergill . . . . 673 v. Grey 75 v. Kettle 1207 v. Leche 1185 ■ v. Metropolitan, &c: Ry. Co 834 v. Yates 16 Forde v. Skinner 913 Forder v. G. W. Ry. Co. .. 633 Fordham v. L. Brighton & S. C. Ry. Co 797 Fores v. Johnes 672 ^.Wilson .. 910,911,927 Foreman v. Canterbury (Mayor of) 770 .. 577 . . 359 . . 377 Lid- 587, 589 1149 Forget v. Ostigny Forman v. Jacob .. v. Wright — -— & Co. i\ Ship desdale " Formby v. Barker Forrer v. Nash Forrester v. Pigou Forsdick v. Collins Forsdike v. Stone Forshaw v. Lewis . . Forster v. Clowser v. Farquhar v. Mackreth v. Patterson Forsyth v. Bristowe v. Jervis .. Forte v. Vine Forth v. Simpson . . v. Stanton . . Forty v. Imbor Forward v. Pittard Fess v. Wagner Foster, Re — v. Allanson - v. Bates v. Blakelock v. Compton ■ v. Crabb . . — v. Frampton ■ v. Globe Venture Syndicate — v. Gt. W. Ry. v. Green . . ■ v. Hilton . . — v. Jolly — v. Ley v. Mackinnon 79, 190 633 604 1219 16 594 392, 398 716 r. Mentor Insur. Co. 76 - v. Oxford, Worcester, &c. Ry. Co. .. 1126 - v. Parker 389 996 991 333 449*; 971 305 169 1215 297, 298 366, 407 .. 1076 688, 723 551 746 985 479 1080 631 230 297 628 552, 1151 1158 196 PAGE Foster v. Pearson 963 v. Redgrave . . . . 674 v. Stewart 584 v. War blington Urban, &c. Council 761, 928 - v. Weston 623 Foster (John) & Sons v. Inl. Rev. Corns 251 Fothergill's case 1104 Fouldes v. Willoughbv 924, 948, 971 743, 744 .. 853 1205, 1218 .. 919 Foulger v. Harding v. Newcomb v. Taylor.. Foulkes, Ex parte - v. Metrop. District Ry. Co 775 v. Sellway 52, 87, 497 Fountain v. Boodle . . 859, 876 — v. Young . . . . 171 Fourth City, &c. Soc. v. Williams 1059 Fowkes v. Manchester, &c. Assur. Ass 452 Fowler v. Down 966 v. English, &c. Insur. Co 439 v. Foster 1200 - v. Hollins .. 948,956,973, 978 — v. Knoop 462 v. Lock .. .. 777,804 Fowles v. Great Western Ry. Co 634 Fox v. Bearblock 124 v. Broderick 855 v. Clarke 934 — v. Clifton . . 557, 562, 563 v. Cutworth 601 — v. Gaunt 1135 v. Star Newspaper Co. 291 v. Swann 732 -v. Waters .. 63,68,1165 Foxall v. Barnett . . . . 922, 927 - v. International Land Credit Co 24, 516, 517 Foy v. Bell 66 v. L. Brighton & S. C. Ry. Co 796 Fragano v. Long 646 France v. Clark 1099 — v. Gaudet . . . . 979, 981 Francesco v. Massey . . . . 467 Francis v. Cockrell 486, 651, 778, 800 v. Dodsworth . . . . 707 v. Hawkesley . , v. Hayward v. Neave Franconia, The Frank v. Frank 689 925 1186 475 196, 284 Table of Cases Cited. lxiii PAGE Frankenburg v. Gt. Horseless Carriage Co 91,1154 Frankland v. Nicbolson . . 1040 , The 788 Franklin v. Hosier . . . . 984 v. S. E. Ry. Co. .. 811 Frank Mills Mining Co., In re 1090 Pranks, Ex parte 1172 Fraser v. Berkeley . . . . 873 v. Hopkins .. 213,219 v. Jordan . . . . 405, 484 v. Pendlebury . . . . 615 v. Witt 990 Fraunces' case 1026 Fray v. Blackburn . . . . 1139 v. Fray 854 v. Voules . . 283, 284, 510, 511 Frayes v. Worms 209 Frazer v. Cuthbertson . . . . 586 Frean v. Watley 280 Frederick v. Att. -Gen. .. 48 v. Lookup . . . . 758 Free v. Hawkins 416 Free Fishers of Whitstable v. Foreman 41 Freedom, The . . . . 437, 462 Freeman v. Appleyard . . 957 v. Afke'll 6, 881, 882 v. Birch 646 v. Cooke . . . . 76, 191 v. Gainsford . . . . 314 v. Inl. Rev. Corns. 226 v. Jeffries . . 349, 611 — v. Jury 339 - v. Line 1115 v. Phillipps . . 47, 51 - v. Pope .. .. 1190 v. Read 197, 362, 505, 678, 1141, 1145 r. Kosher .. .. 908 v. Steggall .. .. 74 Freeth v. Burr 542 Freind's case 169 Fremantle v. L. &N. W. By. Co 793 French Hoek (Commissioners of) v. Augo 837 French v. French . . . . 627 v. Gerber 467 - v. Howie 564 v. Phillips . . . . 893 v. Styring .. .. 595 Frendv. Buckley 321 Freshney v. Wells .. .. 981 Freston, In re 155 Frewen v. Phillips .. .. 817 !•' ticker v. Van Grutten .. 91 Friedlander v. London Assur. Co 174,456 PAGF. Friend v. Young 561, 679, 685, 697 v. L. C. & D. Ry. Co. 156 Frisby, In re 720 Frith v. Frith . . . . 125, 138 v. M'Intyre .. .. 286 ■ & Sons v. Inl. Rev. Corns 265, 273 Fritz v. Hobson 834 Fromant v. Ashley . . 87, 88 Fromont v. Coupland . . 628, 776 Frost v. Aylesbury Dairy Co. 488 — v. Knight .. 496,517,546 v. Oliver 586 , S. & Co., In re .. .. 1104 Froude v. Hobbs 10 Frowd, Ex parte 1107 Friihling v. ['chroeder .. 624 Fry v. Chartered Mercantile B. of India .. .. 476 v. Wood 142 Fryer v. Brown 357 v. Ewart 1030 — v. Gathercole .. .. 34 — v. Kinnersley .. .. 870 Fuentes v. Montis . . . . 957 Fuick v. Tranter 613 Fuller v. Fotch .. .. 122,195 ■ v. Lane 843 v. Smith 609 Fullerton v. Prov. Bank of Ireland 480 Fulton v. Andrew .. .. 1050 Furber, Ex parte 1209 - v. Cobb .. 1211, 1213 Furley v. Wood 27 Furneaux v. Fotherby . . 908 Purness v. Cope 59 v. Meek 139 Furniss, Whitby & Co. v. W.N. White* Co 471 Furnivall v. Grove .. .. 727 v. Hudson .. .. 1214 Fursdon v. Clogg .. 56, 59, 1076 Furtado v. Rodgcrs .. .. 439 Fyfe's case 1103 G. E. B., In re 705 Gabarron v. Krccft .. 461,552 Gabay v. Lloyd . . . . 84, 436 GaddV. Bennett 889 v. Houghton . . . . 93 Gadcn v. Newfoundland Savings Bank .. .. 407,700 1227 459 693 72 670 205 Gadsden v. Barrow (laetano and Maria, The ( rage o. Acton (iaiusford v. Grammar Gaitskill v. Greathead < lalbraith v. Neville .. XIV Tabh of Cases Cited. PAGE Galbraith v. Poynton . . .. 346 Gale, In re 1166 v. Bates 735 - v. Williamson .. .. 1190 Gallagher v. Humphrey .. 765 v. Piper .'. .. 802 Gallard, In re 983 Gallin v. L. & N. W. Ry. Co. 652 Galloway v. London (Corpo- ration of) 503 Gallway (Lord) v. Mathew 365 Gallwey v. Marshall .. .. 852 Gambles v. Ocean Mar. Insur. Co 427 Gambrell v. Falmouth (Lord) 895, 901 Gandell v. Pontigny .. .. 520 ( randy v. Adelaide Mar. Assur. Co 449i - v. Gandy .. .. 91,719 - v. Jubber 768 Ganer v. Lanesborough (Lady) .. .. 83,121,1172 Gann v. Free Fishers of Whit- stable 41 Gapp v. Bond 1200 Garbutt v. Simpson . . . . 913 Garcias v. Ricardo . . . . 208 Garden v. Bruce 681 — Gully Mining Co. v. McLister 1105 Gardiner v. Courthope . . 1055 v. Williamson . . 730 Peerage case 42, 52 Gardner v. Hodgson's, &c. Brewery Co. 39, 817, 819, 829 v. L. C. & D. By. Co 1059 v. Moult . . 65, 201 v. Salvador . . 438, 445 v. Slade . . . . 858 v. Trechmann . . 477 - v. Walsh . . . . 396 v. Wright . . . . 11 Garfit's case 1103 Gargrave v. Smith . . . . 896 Garland v. Jacomb .. 371, 373 v. Mead 1056 v. Scoones . . . . 196 Garment v. Barrs .. .. 491 Garner v. Wingrove .. .. 1076 Garnet's case 172 Garnet v. Ball 68 and Moseley Gold Mining Co. v. Sutton .. 1109 Garnett, In re 1155 - v. Bradley 296, 303, U9g - v. Ferrand . . . . 196 v. MeKewan .. .. 409 v. Woodcock . . . . 379 PAGE Garnett-Botfield v. Garnett- Botfield 1050 Garr v. Fletcher 940 Garrard v. Cottrell .. .. 597 — v. Giubilei .. .. 294 v. Lewis . . . . 368, 399 v. Tuck 1003, 1009, 1072 Garrett v. Messenger .. .. 758 " Garston " (Sailing Ship) Co. v. Hickie 426,468 Garth v. Howard .. .. 69 Garton v. Bristol & Exeter Ry. Co. 631, 632, 642 v. Gt. W. Ry. Co. 1117, 1127 Gartside v. Silkstone & Dod- worth Coal & Iron Co. . . 132 Garvin v. Carroll . . 113, 114, 179 Gaskell v. Marshall .. .. 1188 Gaskill v. Skene 64 Gaslight & Coke Co. v. Hardy 904 -v. St. Mary Abbotts, Kensington . . 773 v. Turner . . . . 668 Gates v. R. Bill 777 Gath v. Howarth 299 Gathercole v. Miall . . . . 874 — v. Smith . . 704, 706 Gaunt v. Fynney .. .. 761, 763 Gaussen v. Morton . . 138, 944 Gautret v. Egerton . . . . 764 Gaved v. Martyn . . 83, 829, 839 Gay v. Lander 414 Gayford v. Moffatt . . 827, 829 v. Nicholls . . 766, 812 Gaylard v. Morris . . . . 915 Gaze v. Gaze 148 Geake v. Jackson 698 Geary v. Bearcroft . . . . 931 Geddisu. Bann Reservoir Co. 773, 792 Gedge v. R. Exch. Assur. . . 422 665 Gedye, In re 502 Gee v. Lancashire, &c. Ry. Co. 64'J — v. Metr. Ry. Co. 777, 780, 797 — v. Pack 483 — v. Ward 47 Geech v. Ingall 284 Geen v. Herring 1031 Geere v. Mare 671 Geipel v. Smith 440 Gelen v. Hall 1139 Gellar, Ex parte 558 General Accident Insur. Cor. v. Noel 295 General Council of the Bar v. Inl. Rev. Corns 272 General Finance, &c. Co. v. Liberator, &c. Building Soc. 75, 10(11 Table of Cases Cited. lxv PAGK General Furnishing, &c. Co. v. Venn 1200 General S. Navigation Co. v. British, &c. S. Navi- gation Co 784 v. L. & Edinburgh Ship- ping Co 789 General Share & Trust Co. v. Wctley Brick & Pottery Co. 1030 Genner v. Sparkes . . . . 913 Gent v. Cutts 756 Gentle v. Faulkner 732, 1029, 1031 George, In re 404 v. Clagett . . . . 707, 708 v. Perring 1224 v.Radford 921 v. Skivington . . . . 800 v. Surrey 137 and Goldsmith's, &c. Insur. Assoc., In re 458 and Richard, The 786, 810 George Whitechurch v. Cavanagh 76, 574, 849, 1094, 1116, 1120 Geralopulo v. Wieler 215, 387, 594 Gerard (Lord) & L. & N. W. By., In re 815 Gerhard v. Bates . . . . 846, 848 Gerish v. Chartier . . . . 659 German v. Chapman . . . . 734 Gerson v. Simpson . . . . 846 Gertrude, The 788 Gervis v. Gd. Western Canal Co 76, 196 Gery v. Redman 56 Gether v. Capper 468 Ghose v. Manickchund . . 24 Gibbes, Ex parte 990 Gibbins v. Buckland . . . . 1005 v. Phillipps .. .. 1185 Gibbon v. Budd 315 — v. Coggon . . 384, 1221 v. Featherstonhaugh 36 v. Gibbon .. .. 615 v. Paynton . . . . 651 v. Pease .. .. 509, 585 Gibbons v. Alison . . . . 890 v. M'Casland . . 684 v. Pepper .. .. 914 v. Powell . . . . 12 v , Vouillon . . . . 703 Gibbs' case 1109 Gibbs v. Cruikshank 205,927,929, 940, 1089 v. Fremont .. .. 624 — v. Gt. W. Ry. Co. .. 806 v. Guild .. .. 679,681 Giblan v. National, &c. Union of Gt. Britain, &c 892 Giblin v. M'Mullcn .. .. 290 R. — VOL. I. Gibraltar (Commrs. of) v. Orfila 769 Gibson, Ex parte 560 ■ ■ v. Chaters . . . . 890 v. Doeg .. ..735,1034 v. Holland . . 316, 532 v. Hunter 84 v. Ireson 903 ■ v. Kirk 333 v. M'Carty .. .. 207 v . Preston (Mayor of) 770 v. Sturge 469 v. Veasey 890 v. Winter 67 Gidlow v. Lancashire & York- shire Ry. Co 614 Gieve, In re 618 Gilbert's case 1103 Gilbert, Ex parte .. .. 1163 v. Dee . . 1163, 1164 — ■ v. Trinity House . . 769 Gilding v. Eyre 889 Giles, In re 1163 — v.Dyson 1158 v. Grover 964 v. Hutt 1125 v. Siney 108 v. Smith . . . . 15, 144 v. Spencer 90S - v. Taff Vale Ry. Co. ..1095 v. Walker 762 Gilford v. Davis 277 Gilham's case Gill v. Manchester Co Gillard v. Bates . . v. Brittan &c. Ry. 631, 635, 172 636 172 927 Gillespie, Ex parte . . 351, 394 v. Cheney . . 17, 487 Gillett v. Abbott . . . . 76, 143 Gilliat v. Gilliat 329 Gillies v. Smither 1160, 1161 Gillingham v. Gwyer . . . . 902 Gillon v. Boddington .. .. 773 Gilman v. Elton 903 v. Robinson . . . . 553 Gilpin v. Fowler 867 (lilioy v. Price 473 C.imbert i\ Coyney 1139,1146 Gingell v. Purkins .. 602,615 , &c, v. Stepney Bor. Council .. 834, Add., 41, 834 Girardot v. Fitzpatrick 543, 952 Giraud v. Richmond .. .. 525 ( i i nllcstone v. Brighton Aqua. Co. V. Porter Gisbourne v. Hurst Gladman v. Johnson Gladstone v. King Gladwell v. Blake 758 947 903 790 449i 1135 lxvi Table of Gases Cited. PAGE Gladwell i\ Turner .. .. 389 Glaholm v. Barker . . 787, 810 v. Hays 463 Glamorgan Coal Co. v. 3. Wales Miners' Fedn. .. 895 Glamorganshire, The .. .. 785 Glamorganshire Iron & Coal Co. v. Irvine 1107 Glasbrook v. David . . 585, 1225 Glasdir Copper Works, In re 969 Glasgow (Provost of) v. Farie 815 Glasier v. Rolls 843 Glasscock v. Balls . . . . 415 Glasscott v. Day 712 Glassington, In re .. .. 31 Glasspoole v. Young . . . . 1188 Glave v. Harding . . .. 33,818 Gleadow v. Atkin . . 37, 43, 55 Gledstane V. Hewitt . . . . 995 Gledstanes v. R. Exch. Insur. Co 419,427 Gleenr. Gleen 212 Glen v. Dungey 338 v. Lewis 456 Glendarrock, The .. .. 473 Glendevon, The 465 Glenlivet, The .. .. 439,442 Glenochil, The 474 Gloag and Millar's Contract. In re 321,323,331 Glossop v. Heston, &c. Local Bd 187, 771 v. Pole .. .. 198,1224 Gloucestershire Banking Co. v. Edwards . . 1187, 1220 Glover v. Coleman 819, 824, 830, 835 v. Cope 1026 v. E. London Water- works Co 767 v. Halkett .. 233, 481 v. Lane 943 v. L. & N. W. By. Co 977, 1095 v . L. & S. W. Rv. Co. 914 Glubb, Inre 954 v. Edwards 133 Gluckstein v. Barnes .. .. 503 Glvn v. Bank of England .. 54 — — v. E. & W. India Dock Co 461.471 Glvnn v. Thomas 893 v. Thorpe 107 Goate v. Goate 689 Godard v. Gray . . . . 208, 209 Goddard v. Cox .. .. 697,699 v. Hodges . . 628, 697 v. O'Brien . . . . 660 Godefroy v. Dalton . . 510 v. -lav .. 94,511.512 Godfrey v. Poole 1190 Godlonton v. Fulham, &c. Property Co 905 Godson v. Smith 194 Godts v. Rose 25 Godwin v. Cullev .. .. 688 v. Francis 318. 332, 493, 534, 748 Goff v. Gt. N. Ry. Co. 1094, 1095 V. Mills 154, 155 Gofiin v. Donnelly . . . . 865 Golden r. Manning . . . . 647 Goldhill v. Clarke . . . . 302 Golding. Davis & Co.. Ex parte 990, 993 Goldschmidt i\ -Jones . . . . 575 Goldshede r. Swan . . . . 19 Goldsmid v. Bromer .. .. 1043 v. Hampton . . 360 Goldstone v. Tovey. . . . . 367 v. Williams .. 157 Goldstrom v. Tallermann 1210, 1212 Golightly v. Reynolds.. .. 962 Goman v. Salisbury .. .. 29 Gomersall v. Serle . . . . 144 Gompertz v. Bartlett . . 607 .609 v. Denton . . . . 488 Gooch's case 1103 Gooch v. Clutterbuck . . . . 742 Good v. Isaacs . . . . 465, 466 v. London Steamship, &c. Protecting Association 442 Goodall v. Dollev 377 v. Little" 169 ■ v. Lowndes . . . . 619 v. Skelton .. .. 551 v. Skerratt 1076, 1077 Goodchild v. Pledge . . . . 693 Goode v. Burton 987 v. Harrison . . . . 675 r. Howells 1020 v. Job 1076 Goodered v. Armour . 8, 404 Goodhart v. Hvett . .. 841 Goodland v. Blewith . . 694, 709 Goodlock v. Cousins . . .. 965 Goodman v. Chase . . . 479 j- ftr\ffith<- 532 533 . 387, 400 v. Pocock . . . 520 Goodrich, Inre 127 Goodright v. Cordwent . . 1022 v. Davids 1031 v. Moss 44, 46, 47, 1039 v. Saul 1047 Goodson v. Forbes . . . . 226 v. Richardson . . 939 Goodtitle v. Alker .. .. 929 — v. Baldwin . . . . 1079 v. Braham .. .. 286 Table of Cases Cited. Ixvii PAGE Goodtitle v. Herbert 1000, 1009 v. Jones 1003 v. Lamniiman . . 1005 • v. Milburn . . . . 1059 v. Newman . . . . 1037 v. Otway . . . . 33 v. Southern . . . . 33 v. Toombs .. .. 947 ■ v. Way 257 v. Woodward . . 1019 Goodwin v. Coates . . . . 571 v. Gremer . . . . 402 v. Robarts 24, 76, 584, 963 Goodwyn v. Cbeveley . . 937, 1087 Goodyear v. Simpson . . . . 237 v. Weymouth (Mayor, &c. of) 583 Goom v. Aflalo 535 Gordon v. Gordon . . . . 1047 v. Gt. W. Ry. Co. . . 643 v. Harper 948 v. Inl. Rev. Corns. . . 262 v. James 695 v. London Citv & Midland Bank 406, 407, 411 v. Rimmington . . 439 ■ — v. Secretan . . . . 143 v. Silber 983 v. Street 664 v. Swan 623 v. Williamson . . . . 94 Gore v. Gibson 677 v. Lloyd 1013 Gorely, Ex parte 737 G-omal] v. Mason 186 Gorringe y.Irwell India Rub- ber, &c. Works . . . . 620, 1162 Gorrissen's case 1101 Gorrissen v. Perrin .. 22, 540 Gorton v. Dyson 118 Gosbell v. Archer . . .. 317,318 Gosden v. Elphick .. .. 920 Goslin v. Agricultural Hall Co. 799 Gosling v. Gaskell .. .. 558 v. Woolf 322 Goss v. Nugent (Lord) . . 29 v. Quintou . . . . 180, 953 v. Watlington .. .. 57 Gott v. Gandy 347 Gough v. Cecil 134 ■ v. Davies 628 v. Everard . . . . 1201 v. Farr 496 v. Findon 628 v. Wood 970 Gould, Ex parte 969, 1029, 1031 -,Inre 1162 v. Barrett 891 v. Coombs . . . . 243, 397 PAGE Gould v. Johnson . . . . 682 ■ v. Lakes 145 Gouldsworth v. Knights .. 1006 Goutard v. Carr 298 Gover's case 1108 Government Stock Invest- ment Co. v. Manila Ry. Co. 1216 Govett v. Hopgood . . 567, 613 Govier v. Hancock . . . . 567 Grace v. Clinch 304 v. Morgan . . 891, 894, 895 v. Smith 558 Grafton v. Armitage . . . . 527 v. Eastern Counties Ry. Co 583 Graham v. Barras . . . . 429 v. Dyster . . . . 13 v. Edge .. 333, 1114 v. Musson .. 532,534 v. Peat 928 v. Public Works Comrs 584 v. Robertson .. 92 Grainger i?. Aynsley . . . . 805 v. Hill 887, 889, 921, 971 v. Martin . . . . 445 Grand Junction Canal Co. v. Petty 832 Grand Surrev Canal Co. v. Hall .. " 832,833 Grand Trunk Ry. of Canada u.Jennings 812 Grant, Ex parte . . 573, 577, 578 v. Coverdale . . . . 466 v. Da Costa .. .. 359 v. Ellis . . . . 722, 1070 v. Fletcher . . . . 535 v. Gold Extraction Syndicate . . . . 849 v. Grant 30 — v. Holland . . . . 308 v. Jackson 62, 67, 70, 200 — o. Maddox . . . . 22 v. Norway 477 v. Shaw 1207 — ■ — v. United Kingdom Switchback Rys. Co. . . 1111 Granville v. Firth . . . . 298 Grattan v. Wall 729 Gravenor v. Woodhouse 334, 340 Graves v. Key 66 Gray v. Bond 39 v. Bonsall 1035 v. Briscoe 745 v. Carr 471,476 v. Cookson 1139 . v. Fowler . . . . 323, 329 v. Gutteridge . . . . 331 - v. Hill 526, 581 v. Jones 1206 v. Palmers .. .. 364,413 e 2 lxviii Table of Cases Cited. Gray v. Pearson 1127 v. Pullen 768 v. Baper 413 v. Seekkani 483 V. Smith .. .. 313,316 v. Stait .. .. 1081, 1082 ( Wazebrook v. Davis .. .. 499 Great Eastern, The . . . . 586 Great B. By. Co. v. Jacob . . 987 Great Indian Peninsular By. Co. v. Saunders 449/ Great N. of England By. Co. v. Biddulph 1124 Great N. By. Co v. Coal Go- operative Co. 1214 v. Hawcroft 653 v. Inl. Bev. 250, Corns. . . 273 ■ — v. Kennedy 1125 v. Morville . . 632 — — v. Shepherd 655 v. Swaffield 647 Great N. W. Central By. r. Charlebois 1094 Great Pacific, The . . . . 446 Great Torrington Common Conservators v. Moore Stevens 934 Great W. By. Co. v. Bagge.. 470, 646 v. Bennett 815 ■ v. Blades .. 815 ■ — v. Blake . . 652 v. Inl. Bev. Corns . . 251 v. L. & County Bank 406, 411 - v. McCarthy 642, 643 v. Bedmayne 649 v. Bimmell 640 v. Smith . . 815 - v. Talbot . . 836 V. Willis 70, 648 Green Great W. By. Co. of Canada v. Braid 777 Grcatrex v. Hayward .. .. 839 Greaves, In re 679 v. Ashlin 16 - v. Greaves 1041 v. Greenwood .. 41, 1037 v. Whitmarsh . . 743, 744 < I rebert-Borgnis v. Nugent . . 548 u'scase 1032, 1102 Settlement, Be .. 42 Green v. Bartlett .. .. 587 - v. Baverstock . . 328, 664 - v. Button 862 v. Creswell .. .. 480 ■ — v. Crockett . . . . 283 PAGE v. Dalton 1010 v. Davies 225, 229, 243, 627, 628 v. Deakin 365 v. Duckett . . 614, 1088 u.Dunn 975 v. Eales . . . . 738, 741 v. Elgie 916 v. Elmslie .. .. 439 v. Parmer . . 705, 982, 983 v. Gatewick . . . . 201 v. Gosden 663 v. Green 1048 v. Hearne 78 v. Hewett 616 v. Humphreys . . 685, 690 v. London Gen. Omni- bus Co 1094 v. Lucas 588 v. Marsh . . 87, 1202, 1214 v. New Biver Co. . . 193 v. Proude v. Saddington v. Sevin . . v. Thompson v. Waller . . v. Wynn 109, 119 .. 313 324, 706 .. 674 .. 79 .. 702 v. Young 433 Greenaway v. Hart . . 727, 1007, 1025 Greenham v. Child .. .. 1206 Greenland v. Chaplin . . . . 786 Greenock SS. Co. v. Maritime Insur. Co 431 Greenough v Eccles . . . . 175 . v. Gaskell . . . . 170 . v. M'Cleland .. 405 Greenshields v. Crawford . . 136 Greenslade v. Darby . . . . 929 v. Tapscott 731, 732 Greenway v. Eisner . . . . 978 v. Hindley .. .. 384 — ■ v. Hockin . . . . 843 Greenwell v. Howell . . . . 1132 v. Low Beechburn Coal Co... 773,815 Greenwich Board of Works v. Maudslay . . . . 832, 833 Greenwood's case 1116 . 559 . 594 Greenwood, Ex parte .. v. Francis . v. Leathershod Wheel Co. v. Seymour v. Sutcliffe Greer v. Poole Greeves v. W. India, &c. S. Shipping Co 607, 635 Gregg v. Wells 76 Gregory v. Brunswick (Duke of) 847 913 712 438 874 Table of Cases Cited. ixix TAG r. Gregory v. Cotterell .. .. 1184 — v. Doidge . . . . 1085 v. Fraser . . . . 224 v. Howard . . . . 62 v. Piper 936 - v. Tavernor . . 177, 180 d. Tuffs 43 — v. W. Midland Ry. Co 642 Gregson v. Ruck .. 535,659,944, 997 Greig v. Nat. Union of Shop Assistants 666 Grellier v. Neale 135 Grenfell v. Inl. Rev. Corns. 262 v. Pierson . . . . 876 Gresham House Estate Co. v. Rossa Grande Gold Mining Co 1018,1022 Greta Holme, The . . . . 788 Greville v. Stulz 188 Grey v. Smith 273 Grice v. Kenrick 551 v. Richardson . . . . 968 Gridley v. Austen 505 Griffin v. Coleman .. .. 1135 v. Dighton . . . . 929 v. Langfield . . . . 675 v. Scott 898 v. Weatherby . . 241, 619, 620, 628 Griffin's Divorce Bill . . .. 116 Griffinhoofe v. Daubuz . . 597 Griffith v. Davies 172 v. Matthews . . . . 842 v. Taylor .. .. 923, 1144 v. Williams .. .. 141 ( i riffith's Policy, In re.. .. 450 Griffiths v. Bramley-Moorc 420 v. Dudley (Earl of) 805, 810 v. Gidlow . . . . 803 v. Lee 647 u.Lewis .. .. 869 v. L. & S. Katha- rine's Dock Co. 802 u.Owen 700 v. Perry 547 v. Puleston .. .. 928 v. Teetgen . . . . 911 Griffits v. Ivery 141 v. Payne . . . . 84, 398 Grigg v. Nat. Guardian Assur. Co 1199 Grille. General Iron Screw Colliery Co. 188, 437, 441, 473 Grimman v. Legge . . 338, 341 G rimwood v. Moss . . 342, 1032, 1081 Grindell v. Brendon 43, 144, 211, 565, 1207, 1209 PAGE Grindell v. Godmond . . . . 565 Grinham v. Willey . . . . 920 Grinnell v. Wells . . . . 910, 911 Grissell's case 1109 Grissell v. Bristowe 26, 572, 573, 574, 592 v. Robinson .. .. 591 Grizewood v. Blane . . . . 577 Groning v. Mendham . . . . 552 Grose v. West 932 Grosvenor Hotel Co. v. Hamilton 748, 749 Grote v. Chester & Holyhead Ry. Co 778 Grounsell v. Lamb . . . . 569 Grout v. Enthoven . . . . 365 Grove, Lire 1038 ■ v. Cox 597 — v. Portal 731 Groves v. Lord Wimbome . . 802 Grunuell v. Welch . . 900, 902 Gudgen v. Bessett . . . . 139 Guest v. Homf ray . . . . 323 ■ v. Worcester, &c. Rv. Co 1122 Gugen v. Sampson .. 43,1207, 1225 Guidon v. Robson . . . . 357 Guild v. Conrad 480 Gullischen v. Stewart . . . . 477 Gulliver v. Cosens 615, 900, 1088 Gully v. Exeter (Bishop of) 6, 59, 200 v. Smith 766 Gunn v. Bolckow, Vaughan &Co 968 v. Roberts 586 Gunson v. Metz 384 Gunter v. Receiver of Met. Police District . . 1183,1184 Gunton v. Nurse 975 Gurney v. Langlands . . . . 141 v. Womersley .. .. 607 Gustard's case .. 1100,1103 (uitsule v. Mathers .. .. 878 Gutteridge v. Munyard .. 737 Guy Mannering, The . . . . 785 Guy v. West 934 Gwilliam v. Twist .. .. 775 Gwillim i.'. Daniel] .. .. 540 GwinneU v. Earner .. .. 768 U.Herbert .. 244,245 Gwinnett v. Phillips .. .. 895 Gwynn v. S. E. Ry. Co. 855, 863, 876, 1094 (Mfordu. Woodgato .. .. 889 (ivll.ertv. Fletcher .. .. 673 Gyles u.Hill 98 Ixx Table of Cases Cited. l'AC.K HACKER v. Newborn .. 1052 Hackney Board of Works v. Gt. E. Ry. Co 933 Haddan v. Lott Haddon v. Ayres . . o. Haddon Haddow v. Morton v. Parry .. Haddrick v. Heslop Had°ett v. Inl. Rev .. 862 . . 718 566, 1172 .. 1189 56, 425, 428 . . . . 882 Corns. 226, 250 .. .. 1157 547, 648 Hadjiar v. Pitchey Hadley v. Baxendale v. Beedon . . . . 1200 v. Green 220 v. Taylor.. .. 763,766 - &Co. v. Hadlev .. 700 Hadwell v. Righton .. .. 791 Hagedorn v. Reid . . . . 14, 60 Haggard v. Pelicer Freres . . 865, 919 Halm r.'Corbett .. .. 436,439 Haigb v. Brooks 224 v. De la Cour .. .. 449fc v. Ousey v. Suart v. West Hailes v. Marks . . Haine v. Davey Haines v. Guthrie - v. Welch . . Halbot v. Lens Haldane v. Jobnson Hale, In re v. Oldroyd . . . 506 93, 493 . . . 39, 40 . 293, 883 . . . 908 45, 46, 676 . 336, 1084 . . . 494 . .. 731 . . . 685 . 830, 842 v. Rawson 540 548, 631 691 1116 451 Hales v. L. & N. W. Ry. Co. v. Stevenson Halford v. Camerons, &c. Ry. Co v. Kymer Halifax Banking Co. v. Gled- bill 1191 Halifax Union v. Wheel- wright 406 Halket v. Merchant Traders' Insurance Co 422 Hall's case 843, 1101 -Estate, Re 127 Hall, Ex parte 965 - v. Bainbridge . . . . 137 - v. Ball 103, 996 v. Betty 321 - v. Burgess . . . . 338, 341 v. Butler 1085 v. Byron 825 v. Chandless . . . . 136 v. City of London Brewery Co. .. 749 v. Cole 404 PAGE 322 067 671 1158 Hall v. Condor v. Cox v. Dyson V.Elliot .. .. - v. Fearnley 914 - v. Flockton 659 -v. Fuller 610 - v. Hall 1050 v. Hill 71 v. Hollander . . . . 911 v. Norfolk (Duke of) 770, 815 - v. Lees 799 v. N. E. Ry. Co ■ v. Smith v. Swansea (Mayor of) -v. Swift 830 v. Wood v. Wright 652 852 616 841 .. .. 949 . . . . 497 & Barker, In re .. .. 509 -& Co., In re 1105 and Lady Meux's Arbi- tration Hallas v. Robinson Hallen v. Runder Haller v. Worman Hallett's Estate, In re 605 Hallett v. Cousens • v. Dowdall Wigram 348 955 313 72 698 167 422 478 Halley, The : 784 Halliday v. Holgate .. 974,979 v. Phillips . . 39, 842 Halliley v. Nicholson . . . . 16 Hallmark's case 1100 Halsey v. Brotherhood 879, 880 Halstead v. Skelton . . . . 364 Ham v. Toovey 567 Hamber v. Hambro v. Hamelin v. v. Roberts Burnand Bannerman Bruck Hamilton v. Chaine Pandorf v. Reddell Sbeddon Spottiswoode . 136 312, 367, 421 .. 838 245, 396 .. 1203 435, 473 .. 890 428 242, 243 v. Thames & Mer- sey Marine In- sur. Co. 435, v. Vaughan Sber- rin, &c. Co. v. Watson (Duke of) v. Gra- Hamilton ham Hamlet v. Richardson Hamlin v. Gt. N. Ry. Co. . Hamlyn v. Betteloy v. Crown, &c. In surance Co . 441 607 484 930 615 653 1203 454 Tahle of Cases Cited. Isxi Hamlyn v. John Houston & Co 556, 909 v. Wood . . . . 486 Hammack v. White . . 779, 798 Hammersmith and City Ry. Co. v. Brand Hammond ■v. Anderson v. Bradstreet v. Bussey .. v. Dufrene v. Farrow .. v. Hall v. Hill v. Hocking v. Mather .. v. Schofield v. Smith . . v. Stewart 772, 492, 193, 682, Hamond v. Howell Hamor v. Groves . . Hampden r. Walsh Hamper, Ex parte Hanberries' case . . Hanbury v. Jenkins v. Lovett Hancock v. Austin v. Gillard v. Somes v. Welsh Hancocks v. Lablache Hand v. Hall Bandley v. Ward Hands v. Burton v.James 149 - v. Slaney 673 . . 372 .. 357 .. 467 . . 332 .. 528 .. 67 . . 331 . . 586 82 .. 920 .. 820 793 992 49 650 388 343 839 746 1210 1028 561 692 .. 154 .. 917 16 .. 617 .. 558 949, 962 .. 935 368, 396 .. 902 .. 345 .. 917 .. 191 .. 1172 344, 1012 .. 178 .. 551 Hankey v. Wilson Hansard v. Robinson Hansen v. Harrold Hanslip v. Padwick Hanson v. Armitage v. Parker v. Robcrdeau ■ v. Royden v. Shackleton v. Walker Harbidge v. Warwick Harburg India Rubber Co. v. Martin 479, 480 Harcourt v. Wyman . . 750 Hardaker v. Idle District Council 768 Eardcastle v. S. Yorkshire, &o. Ry. Co I [argrove v. I [artopp .. Harding r. Bulman Cre thorn 60 742, v. v. Davies v. Edgecumbo v. Greening .. V. Hall 317, 703 792 865 337, 749 .. 711 . . 686 .. *r>r, 909, 1087 PAGE Harding v. Harding . . . . 621 v. Watts .. .. 499 • v. Williams . . . . 123 Hardingham v. Allen .. .. 710 Hardman v. Bellhouse . . 660 v. Booth . . . . 956 Hardon v. Hesketh . . 38, 335 Hardoon v. Belilios .. 574, 593 Hardwick v. Moss .. .. 1143 Hardy's case 178 Hardy v. Ryle .. .. 678, 1141 v. Woodroofe .. 359,415 Hare v. Bickley 931 v. Elms 1035 v. Henty 407 v. Horton 139 ■ • v. Waring .. .. 144,214 Harford v. Morris .. .. 1043 Hargreave v. Spink . . . . 960 Hargreaves, Joseph, In re . . 173 Hargroves & Co. v. Hartopp 742 792 Harington v. Hoggart . . 623 v. Macmorris . . 88 Haris' case 949, 962 Harland v. Bromley . . 336, 341 Harlev v. King 726 Harlock v. Ashberry . . 720, 1076 Harman v. Ainslie . . . . 1025 v. Anderson . . . . 993 u.Johnson .. .. 511 v. Reeve . . 526, 527 v. Vaux 442 Harmer v. Bean 117 v. Cornelius .. .. 520 Harnett v. Baker 322 v. Maitland .. .. 340 v. Vise 297 Hamor v. Groves 488, 533, 530, GOG Harper v. Carr 1134 v. Charlesworth 833, 928, 931, 998 v. Godsell . . . . 979 v. Luffkin .. .. 911 v. Phillipps .. .. 678 v. Williams .. G23, 625 Harrington v. Fry .. .. 586 v. Victoria Crav- ing Dork Co. 590, cci v. Wise . . . . 1012 - (Earl of) v. Derby Cor. 840, L188, 1141 Harris' case 524, 1100 — Settled Estates, hi re 1178 Harris, Ez parte .. 62,905, 1204 V. Ashley 1185 o. Birch 264 v. Boots, &c . . . . 729 Ixxn Table of Cases Cited. PAGF. Harris v. Brisco 6fiG v. Butler .. .. 910, '.HI — v. De Pinna .. si 7. 820, 831 v. Dreesman . . . . 466 v. Drewe 842 v. Flower 836 v. Fowle 551 v. Gamble . . . . 658 v. Gt. W. Ry. Co. . . 655 v. Harris 1044 v. Hickman .. 347, 743, 744 v. Hill 157 -U.Jacobs .. 464,465,467 - v. James 768 v.Jones 738 - v. Knigbt 149 v.Lloyd 964 . v. Mantle . . . . 735, 748 v. Mobbs 771 v. Morris . . . . 565, 567 - v. Nickerson .. .. 330 - v. Osbourn . . . . 509 - v. Packer 379 v. Perry 778 v. Petberick .. .. 298 v. Quine . . 209, 509, 678 - v. Saunders . . . . 209 v. Tippett 178 v. Warne 853 Harrison, In re 144 - v. Barnby . . . . 1087 - v. Barrow - in-Fur- ness (Cor. of) . . 733 ■ • v. Barry . . . . 1219 - v. Blackburn . . 931 - v. Blades . . . . 133 -v. Borwell .. .. 272 . u. Bush . . 859, 866, 868 ■ v. Cage 495 - v. Elvin . . . . 147 — - v. Fane 673 v. Good 735 - v. Grady . . . . 565 ■ v.Gt.N.Rv. Co. .. 781, 800 - v. Harrison . . 147, 1177 - v. Heathorn . . . . 562 - v. L. B. & S. C. Ry. Co 632, 644 - v. Ld. Muncaster 746, 747 - v. Luke 551 - v. Parker . . . . 934 - v. Ruscoe . . . . 381 - v. Rutland (Duke of) 916, 932, 939, 942 - v. Seymour . . . . 484 - v. Southampton Cor 203, 772 Harrison v. Southwark, &c. Water Co. - v. Turner v. Vallance . . v. Wardle Earriss v. Fawcett Harrod v. Benton — v. Harrod 772 .. 705 .. 67 .. 756 .. 482 .. 1223 .. 162 .. 1215 765, 781 Harrogate Estates, In re Harrold v. Watney Harrop v. Fisher 372 v. Hirst 840 v. Ossett (Mayor of) 1132 Harrow Schools (Governors of) v. Alderton 347 Harrower v. Hutchinson 426, 434, 449i Harse v. Pearl Life Ass. Co. 619 Hart v. Alexander . . . . 560 v. Baxendale 639, 649, 651 v. Bush 529 v. Frame 510 v. Frontino, &c. Gold Mining Co. 1100, 1119 - v. M'Namara . . . . 195 v.Mills 538 — v. Minors 1156 v. Nash 685 - v. Porthgain Harbour Co 955 v. Prendergast 688, 690, 692 v. Standard Marine In- sur. Co 429 v. Wall 853 - V.Windsor 342 Hartas v. Ribbons . . . . 593 Hartland v. General Ex- change Bank 520 v. Jukes . . . . 682 Hartley, In re 720 v. Cook 213 v. Harman .. v. Herring v. Hindmarsh v. Hitchcock v. Hudson v. Moxham .. v. Wharton . . .. 516 .. 861 108, 917 .. 988 743, 744 .. 924 .. 684 Hartnell v. Ryde Commis- sioners 770 Harton, The 784 Hartshorne v. Watson . . 730 Harvey v. Archbold . . . . 602 v. Bridges .. .. 916 v. Copeland 1016, 1021 v. Croydon Sanitary Authority .. .. 283 v. Facey 311 v. Farnie 1048 v. Grabham .. .. 29 v. Harvey .. .. 941 Table of Cases Cited. lxxiii PAGE Harvey v. Kay 71 v. Mitchell 10, 278, 287 v. Morgan .. .. 11 v. Municipal Build- ing Society . . 1059 v. Pocock . . 903, 907, 908 v. Rex . . . . 196, 199 v. Towers . . . . 399 v Truro R. D. Coun- cil 833 v. Walters . . . . 836 Harwood v. Sims 51 Haselor v. Lemovne . . . . 908 Hasker v. Wood 296 Haslewood v. Consolidated Credit Co 1212 Haslor v. Carpenter . . . . 279 Hasluck, Ex parte 1191. 1212 v. Clark .. .. 1162 Hasser v. Wallis 613 Hastelow v. Jackson . . . . 618 Hastilow v. Stobie . . . . 1050 Hastings (Cor. of) v. Ivall 28, 928 , In re 1161 ■ v. Pearson . . 957, 958 , Lady, In re .. 680, 1173 Union v. St. James', Clerkenwell 1014 Hatch v. Hale 1089 v. Searles 368 Hatchard v. Mege . . . . 1149 Hatchet v. Marshall . . . . 89 Hatfield v. Thorp 150 Hatten v. Russell . . . . 324 Hatton v. English . . . . 1205 Haughton v. Empire, &c. In- surance Co. 426 v. Ewbank . . 421 Hauxwell, Ex parte 1199,1205 Havelock v. Rockwood . . 204 Havens v. Middleton . . . . 737 1 1 aversham Grange, The . . 449«, 789 Hawes v. Draeger . . . . 1047 v. Forster 536 v. Humble . . . . 540 Hawk v. Preund 74 Hawke v. Bacon 825 Hawkcn v. Bourne .. 562, 1090 Hawkes v. Orton 748 v. Salter 885 v. Smith 647 Hawkins ;;. Baldwin .. .. 188 v. Harwood . . . . 510 v. Kemp .. .. 152 v. Maltby .. .. 574 v. Walrond .. .. 898 v. Warre 3, 233, 272 Hawse V. Crowe 986 Hawtaync v. Bourne . . . . 1090 Hawthorn Cor. v. Kannulnik 773 PAGE Hawtry v. Butlin 1200 Hay, In re 146, 1054 v. Northcote . . . . 1047 Hayatt v. Griffiths . . . . 1011 Haycraft Gold, &c. Co., In re 1103 Hayden v. Hayward . . . . 588 Haydon v. Williams . . . . 684 Hayes v. Caulfield . . . . 374 Hayling v. Mulhall . . . . 402 v. Okey 916 Haylock v. Sparke . . 207, 1138 Hayman v. Plewker .. .. 958 Hayn v. Culliford 473, 474, 478 Haynes v. Poster 963 v. Hayton . . . . 1220 v. Hollidav . . . . 22 v. King .. .. 817,932 v. Roberts .. .. 814 Hayslep v. Gyrner .. .. 52 Hayton v. Irwin 24 Hayward, Ex parte .. .. 108 — v. Hague .. .. 713 v. Haswell . . . . 1013 v. Hayward .. .. 863 Hazard v. Treadwell . . . . 553 Head's case 1103 Head, hire 560 v. Diggon 311 v. Head 1047 v. Tattersall . . . . 490 Headlam v. Hedley . . . . 932 Heald v. Carey .. .. 971,975 Healey v. Batlev (Cor. of) . . 831, 833 v. Story 413 Heap v. Barton 969 Heard v. Pilley 320 Hearn v. L. & S. W. Ry. Co. 639 v. Tomlin 339 Hearno v. Edmunds . . . . 443 v. Rogers 61 v. Stowell . . . . 868 Heath's case 198 Heath v. Deane 210 v. Freeland .. .. 585 v. Hcape 882 v.Hubbard .. .. 979 v, Pryn 1062 v . Pugh 1076 Heathcote, In re 116 Heather v. Webb 671 Heaven, Ex part V .. .. 907 v. Pender .. 765, 7'. 19 Heawood v. Bone . . . . 905 Eebb'soase 1100 Hebblethwaite v. Hebble- thwaite 165 v. Peever .. 722 Hebden v. Hartsink . . . . 700 v. West 452 lxxiv Table of Cases Cited Hebditch v. Macllwaine . . 866 Hector, The 784, 788 Heden v. Atlantic R. M. Steam Navigation Co. . . 305 Hedgelv, In re 1169 v. Holt .. .. 664, 675 Hedges v. Tagg 911 Hedley v. Bainbridge . . . . 366 v. Barlow . . . . 873 v. Pinkney & Sons SS. Co 431,785,803 Heenan v. Evans 1220 Heffield v. Meadows 19, 481, 482 Hegan v. Johnson . . . . 1082 Heilbut v. Nevill 365 Heilbutt v. Hickson . . . . 541 Heinekey v. Earle . . . . 991 Heinrich, The 440 Heiser v. Grout 240 Helby's case 679 Helby v. Matthews . . . . 960 Helene, The 460, 473 Hellawell v. Eastwood . . 903 Hellier v. Sillcox 336 Hellings v. Shaw . . . . 689, 690 Helrne v. Smith 586 Helmore v. Smith . . . . 880 Helps v. Clayton .. .. 501,674 v. Glenister . . . . 955 ■ v. Winterbottom . . 570 Helsby v. Mears 540 Helsham v. Blackwood . . 875 Helyear v. Hawke . . 69, 490 Hemings v. Robinson . . . . 372 Hemming v. Trenery . . . . 661 Hemmings v. Gasson . . . . 860 v. Sceptre Life Assoc 452 Henderson's Trusts, In re . . 42 Henderson, In re 209 - v. Arthur . . . . 16 v. Australian Steam Navi- gation Co. 1092 v. Bank of Aus- tralasia 1112, 1126 v. Broomhead .. 865 v. Comptoir d'Escompte de Paris 460, 461 v. Eason .. .. 340 v. Henderson .. 194 - v. L. & S. W. Rv. Co 638 v. Mears . . . . 342 - v. Preston 919, 1134 - v. Squire 337, 749, 947 ■ v. Stevenson .. 652 v. Thorn 739, 740, 951 v. Williams 951, 956, 981 Henfree v. Bromley Henkel v. Pape . . 318. Hcnman v. Dickinson . . v. Lester Henn v. Neck Hennell v. Davies v. Lyon Hennessy v. Wright . . Henniker v. Henniker v. Wigg Henning v. Barnet Henry Coxon, The Henry v. Adey v. Lee • v. Leigh Hentborn v. Fraser Henwood v. v. PAGK .. 662 524, 534 245, 357 3, 179 .. 279 .. 75 113, 117 .. 173 .. 252 .. 699 . . 836 .. 61 .. 83 .. 379 9 311, 524 Harrison 866, 867, 873 Oliver 712 735 200 45 52 700 414 Hepworth v. Pickles . . Herbert v. Cook . . v. Tuckal v. Wilcocks Hercules Insur. Co., In re Herdman v. Wheeler . . 368, Hereford, &c. Engineering Co., In re 1111 Herefordshire Banking Co., In re 623 Herman v. Jeuchner . . 619, 665 Hermann v. Charlesworth 618, 666 v. Seneschal .. 1143 Heme Bay Steamboat Co. v. Hulton 589 Heseltine v. Siggers .. 527, 572 v. Simmons 1204, 1208, 1211 Heske v. Samuelson . . Hesketh v. Pawcett Heslop v. Chapman Hetherington v. Groome . . ■ v. Hethering- ton v. Kemp Heugh v. L. & N. W. Ry. Co. 806 709 883 1212 Hewer v. Cox v. Dowson Hewitt v. Cory v. Piggott . . ■ v. Thomson Hewlett v. Allan . . ■ v. Crutchley Hext v. Gill . . Hey v. Moorhouse Heyling v. Hastings Heylyn v. Adamson Heyman v. Neale . . Heysharn v. Porster Hey wood, In re v. Collinge ■ v. Mallalieu 535 1047 385 648, 972 1200 868 302 112 383 705 884 814 660 084 392 , 536 213 1102 889 328 Table of Cases Cited. lsxv PAGE Hey wood v. Pickering 408, 701 Hibberd v. Knight 5, 158, 171 Hibbins v. Lee 873 Hibblewhite v. M'Morine 136, 137, 578 219, 586, 787, 788 783 498 598 465, 466 .. 1210 .. 571 Hibbs v. Ross Hibernia, The Hick, In re v. Keats v. Raymond Hickley v. Greenwood Hickling v. Hardey Hickrnan v. Haynes . . 533, 553 v. Machin .. .. 341 v. Maisey . . 939, 942 v. Upsall .. .. 42 Hicks v. Beaufort (Dk. of) . . 384 v. Faulkner 882, 883, 884 v. Hicks 606 v. Newport, &c. Ry. Co 811,812 Hiddlev. National, &c. Insur. Co. of New Zealand . . 457 Hide v. Thornborough . . 813 Hider v. Dorrell 1145 Higginbotham v. Hawkins 346 Higgins v. Betts .. .. 772,821 v. Hopkins . . . . 563 v. M'Adam . . . . 1220 v. Nichols . . . . 364 v. Sargent v. Senior .. Higgons v. Burton 622, 623 17 956 Higgs v. Dixon 132 v. Mortimer v. N. Assam Tea Co ■ v. Scott v. Snell Higham v. Baddeley v. Ridgway Highfield v. Peake I Lighmore v. Primrose Hilbery v. Hatton Hildesheim, Ex parte Hill, Ex parte v. Coombe v. Cooper v. Crook v. Curtis v. Featherstonhaugh 678 706 .. 611 .. 861 .. 712 44, 55 97, 179 359, 369, 628 .. 978 .. 559 .. 1210 .. 178 566, 1178 .. 31 1153, 1158 v. Fox .. v. Gray v. Kempshall v. Leigh v. Manchester works Co. v. New River Co v. Nuttall v. Patten 508, 515 . . . . 285 . . . . 664 .. .. 1027 .. .. 1185 Water- 70, 131, 214 771,781 .. .. 4 .. .. 268 PAGE Hill v. Perrott 550 v. Prosser 156 v. Ramm 232 v. Royds 604 v. Smith 408 v. S. Staffordshire Ry. Co 625 v. Sydney 508 u.Walker .. 1162,1163 v. Wilson . . 470, 598, 954 Hilliardu. Eiffe 151 Hills v. London Gas Co. .. 18 v. Mesnard . . . . 696, 701 ■ v. Mitson 671 Hilton v. Tucker .. 954, 1198 v. Woods 939 Hinchcliff e v. Barwick . . 490 Hinde v. Liddell 547 v. Whitehouse . . 531,534 Hindle v. Pollitt 735 Hindley's case 1101 Hindley v. Westmeath (Ms. of) 566 Hindrnarsh v. Charlton . . 148 Hindsley v. Russell . . . . 1159 Hine v. Campion 845 Hingeston v. Kelly . . . . 507 Hingston v. Wendt . . . . 984 Hinton v. Dibbin 639 v. Heather . . . . 883 Hiort v. Bott .. .. 971,973 v. L. & N. W. Ry. Co. 980 Hipgrave v. Case 326 Hippisley v. Knee Bros. 590, 603 Hiram Maxim Lamp Co., In re 705 Hire Purchase Furnishing Co. v. Richens .. 43, 94, 667 Hirschfield v. L. B. & S. C. Ry. Co. 663, 844 v. Smith . . . . 396 Hirschman v. Budd . . 396, 661 Hirst v. Horn 751 v. Tolson 519 v. W. Riding Union Banking Co. .. 851 Hiscox v. Batchellor .. .. 517 v. Greenwood . . . . 987 Hitchin v. Campbell . . . . 194 v. Groom .. .. 32 Hitchings v. Thompson . . 1084 Hitchius v. Eardley .. .. 47 Hoadly v. M'Laine . . . . 532 Hoare v. Niblett .. ..561,1178 — v. Rennie 542 — v. Silverlock .. 858,871 Hobbs, In re 1073 v. Henning 205, 430, 440 v. L. &. S. W. Ry. Co. 654 Hobson v. Bass 483 v.Bell 323 lxxvi Table of Oases Cited. VAGI'. Hobsou v. Cowley . . 293, 518 v. Gorringe . . . . 970 v. Middleton . . . . 746 v. Thelluson . . 72G, 965, 1187, 1189, 1221 v. Todd . . . . 824, 825 v. Tullock . . . . 735 Hochster v. De la Tour 517, 520 Hochung, The 788 Hockin v. Cooke 27 Hodder v. Williams . . . . 941 Hodenpyl v. Vingerhoed . . 366 Hodge v. Fillis 359 Hodges v. Ancrum . . . . 277 - v. Cobb 188 v. Lawrence . . . . 902 - v. Lichfield (Earl of) 331, 332, 891 Hodgkinson, In re .. .. 1055 v. Ennor 838, 839 v. Fernie . . 784 v. Fletcher 565, 935 v. Marsden . . 753 Hodgman v. W. Midland Ry. Co 644 Hodgskin v. Queensborough 341 727 Hodgson, In re 561, 1155, 1173 ■ v. Davies .. .. 25 ■ v. Johnson . . . . 313 v. Williamson . . 1156 Hodkinson v. L. &. N. W. Ry. Co. . . 654 v. Maver .. .. 756 Hodsoll v. Pare * 865 V. Taylor . . . . 86, 912 Hodson v. Terrill 618 v. Walker . . . . 205 Hoe v. Nathorp 118 v. Nelthrope . . . . 118 v. Taylor 930 lloey v. Felton 885 Hoffman v. Marshall .. .. 443 Hogan v. Page 623 Hogarth v. Jennings . . . . 901 v. Latham . . . . 366 v. Miller 469 v. Wherley . . . . 696 Hogg v. Brooks 1020 v. Skeen .. .. 365, 399 Hoggins v. Gordon . . . . 584 Hoghton v. Hoghton . . . . 62 Holbird v. Anderson . . . . 1191 Holcombe v. Hewson . . . . 84 Holden's case 1106 Holden v. Ballantyne . . . . 294 v. Bostock & Co. . . 492 v. Liverpool Gas Co. 780, 794 - v. Thompson .. Add., 666 Holder v. Coates 935 PAGE Holders. Soulby 657 Holdfast v. Clapham . . . . 1057 Holding v. Elliott .. .. 544 — v. Pigott 26 Holdringshaw v. Rag . . . . 944 Holdsworth v. Barsham . . 500 ■ v. Dartmouth (Mayor of) 174, 217 v. Wilson . . . . 499 ■ v. Wise . . . . 447 Hole v. Barlow 762 v. Chard Union .. 295, 771, 841 v. Harrison 594 v. Sittingbourne Ry. Co. 767 Holford v. Bailey 930 v. Hatch 728 — v. Pritchard . . . . 340 Holker v. Poritt . . . . 838, 839 Holland, In re 314, 317, 1190 v. Cole 732 v. Hodgson . . 903, 970 v. Holland . . 599, 716 v. Russell Holliday v. Camsell v. Hicks . . v. Morgan v. National . 612, 615 979 .' 949, 962 . 489, 491 Tele- phone Co 767 Hollingham v. Head 79, 84, 183 Hollingshead, In re .. 686, 1165 Hollingworth v. Palmer . . 1146 Hollins v. Verney 830 Hollis v. Claridge . . . . 984, 987 v. Goldfinch .. 85,928 Holloway v. Turner . . 922, 927 v. York 704 Holme v. Brunskill . . . . 484 — v. Hammond . . 558, 559 Holmes v. Bell 693 v. Bellingham . . . . 932 — v. Brierley . . . . 497 v. Clarke 802 — v. Goring 835 v. Kerrison . . 414, 682 v. Kidd 395 v. Mather .. 779, 914 v. Mitchell . . . . 481 v. N. E. Ry. Co. .. 797 v. Penney .. .. 1172 v. Pontin 340 v. Simmons .. .. 1042 v. Sixsmith . . . . 224 v. Wilson . . . . 939, 965 Holroyd v. Breare . . . . 919 v. Doncaster .. .. 920 v. Marshall . . . . 954 Holt, Ex parte 62 v. Collyer 734 v. Ely 613 v. Everall 450 Table of Cases Cited. lxxvii l'AGE Holt v. Squire 368 v. Ward 495 Holtby v. Hodgson . . . . 1178 Homan v. Thornpsen . . . . 286 Home v. Bentincke . . . . 173 Home and Colonial Stores v. Todd 743 Home Marine Insur. Co. v. Smith 268 Homersharn v. Wolverhamp- ton Waterworks Co. .. 1126 Honywood v. Honywood . . 346 Hood v. Barrington (Lord) 315 — v. Beauchamp .. 44, 45 Hood-Barrs v. Cathcart . . 1179 v. Heriot .. .. 1178 Hoole v. Speake 847 Hooman, Ex parte . . 1202, 1206 Hooper v. Clark 1025 v. Herts .. .. 574, 1099 — v. Keay 698 — v. Stephens . . 685, 701 - — ■ v. Summersett .. 1157 v. Williams . . . . 414 Hopcroft v. Parker . . . . 563 Hope v. Atkins 16 ■ v. Beadon 12 v. Campbell 1051 v. Evered .. .. 885, 886 v. Hayley 954 v. Hope 59 - v. Walter 327 Hopewell v. De Pinna . . 1172 Hopkins v. Grazebrook . . 332 v. Hitchcock .. 541 v. Logan . . . . 685 v. Ware . . . . 415, 701 Hopkinson v. Lee 718 ■ v. Smith . . . . 508 Hopper, In re 499 V. Burness . . . . 470 v. Reeve 913 v. Smith 155 No. 66, The . . 475, 787 Hopwood v. Thorn . . . . 861 v. Whaley . . . . 1159 Horace, The 300 Hutu i'. Noel 1043 Hornby v. Cardwell . . 300. 596, 741 Horncastle v. Farran .. .. 988 Hornc v. Hughes L208 v. Mackenzie .. .. 177 v. Midland Railway Company . . . . 649 v. Redfeam .. .. 243 v. Wingfield .. .. 323 Horner, In re 625 v. Battyn 921 u.Franklin .. .. 711 Eornidge v. Wilson .. .. 1159 PAGE Hornsey Local Board v. Monarch Investment Bldg. Society 720 Horsefall v. Mather . . . . 347 Horsey's case 679 Horsey v. Graham . . . . 314 Estate v. Steiger . . 1025, 1026, 1030, 1031 Horsfall, Ex parte . . . . 509 v. Handley .. .. 602 v. Hey 251 ■ v. Thomas . . . . 664 Horsford, In re . . 1053, 1055 v. Webster . . . . 908 Horsley v. Bell 584 v. Price .. .. 465,468 Horwood v. Smith . . . . 962 Hosking v. Phillips 750, 771, 939 Hoskins v. Knight . . . . 1219 Hossack v. Gray 785 Hossen v. Union Marine Insur. Co 432 Ho Tung v. Man On Insur. Co 1099 Hough v. Manzanos . . . . 93 v. May .. .. 700,712 Houghton's case 776 Houghton v. Butler . . . . 971 v. Kcenig 3, 717, 728 v. Rusby . . . . 964 Houlden v. Smith . . . . 919 Houlder v. Merchants' Marine Insur. Co 428 v. Weir 464 Houldsworth v. City of Glas- gow Bank 488, 848, 1113 v.Evans.. .. 1115 Houliston v. Smyth . . 116, 565 Hounsell v. Dunning .. .. 1075 v. Smyth .. 763,764 Hounsfield v. Drury . . . . 890 Housego v. Cowne . . . . 382 Household, &c. Insurance Co. V. Grant . . . . 311, 524, 1100 Houseman v. Roberts . . . . 11 House Property, &c. Co. v. H. P. Horse Nail Co. .. 91 1 ioustman v. Thornton . . 438 Houston v. Hughes . . . . 1002 v. Mills 666 v. Sligo (Marquis of) 108,122 How v. Earl of Wintcrton 680, 683 v. Greek 717 v. Hall 7 v. Kirchner 471 I luward's case 1100 Howards. Brownhill .. .. 628 v. Canneld .. .. 177 lxxviii Tabic of fuses Cited. PAGE Howard v. Clarke 923 — v. Crowther .. .. 911 v. Daubury .. 591,598 v. Fanshawe . . . . 1034 v. Hodges .. .. 672 v. Lovegrove . . 593, 891 v. Maitland . . . . 747 v. Patent Ivory Manufacturing Co. 1111 v. Shaw 339 v. Shepherd .. .. 460 v. Sheward . . . . 490 v. Smith .. 63, 331, 1009 v. Tucker 476 v. Wood 616 Howarth v. Brearley v. Howarth ■ v. Sutcliffe Howatson v. Webb Howbeach Coal Co Howcutt v. Bonser Howe v. Finch v. Scarrot v. Smitli .. 513 .. 138 .. 301 .. 717 v. Teague 563, 1102, 1105 . . 688, 723 806 334, 1008, 1085 . . . 323 Howell v. Coupland .. 523, 549 v. Young .. .. 512,773 Howells v. Landore Siernen's Steel Co 801,802 Howes v. Barber 155 -v. Brushfield .. .. 746 v. Martin 597 Howitt P.Harrington (Earl of) 1071 Howlett v. Haswell .. .. 675 Hoye v. Bush 1134 Hoyes v. Tate 298 Hoyle, In re 316, 479, 480, 481 Hubback, In re .. 32, 1161, 1163 v. B. N. Borneo Co. 299 Hubbard, Ex parte .. .. 1198 v. Goodley . . . . 391 ^.Jackson .. 244,429 v. Lees 44, 113, 125, 136 Hubbersty v. Manchester, &c. Ry. Co 1122 v. Ward . . . . 477 Hubbock v. Wilkinson 854, Hubcr v. Steiner . . Hubert v. Treherne v. Turner . . Huckman v. Fernie Hucks v. Thornton Huddleston v. Briscoe Hudson v. Bartram v. Baxendale . v. Buck . . v. Ede v. Hudson y. Revett v. Roberts c. Thompson . 316, 880 678 317 533 284 441 223 324 647 323 466 953 136 790 753 PAGE Hudspeth v. Yarnold . . . . 233 Hudston v. Midland Ry. Co. 655 Huffell v. Armistead . . . . 1016 Hufier v. Allen 887 Huggins v. Ward 105 - v. Waydey . . . . 1143 Hughes v. Breeds 235 v. Buckland .. .. 1143 v. Budd .. .. 11, 12 ■ ■ — ■ v. Coles 720 ■ v. Cornelius .. .. 204 v. Done 670 v. Graeme . . 493, 547 v. Gt. W. Ry. Co. . . 279 v. Little 1211 v. Macfie 781 v. Metropolitan Ry. Co. . . 1033, 1034 v. Pump House Hotel 91, 620 141 1218 213 959 1073 333 339 Hull Flax Co. v. Wellesley 1106 Hull (Mayor of) v. Harding 484 ■ v. Horner 37, 40 Co v. Rogers v. Smallwood v. Wilson Hugill v. Masker . . v. Wilkinson Hull v . Vaughan . . Hulse, In re .. v. Hulse . . Hulthen v. Stewart 678 v. Humble v. Hunt . . v. Hunter v. Langston v. Mitchell Hume v. Bentley . . — v. Druyff . . v. Peploe . . v. Rundell . . — v. Somerton Humfrey v. Dale . . Humphrey v. L. & N. W. Ry Co Humphreys v. Boyce v. Budd v. Franks v. Green v. Jones v. Morton v. Partridge v. Willing 970 397 466 215 17 578 527, 571 322 887 708 204 755 25 Humphries v. Brogden 936 71 83 1017 320 504, 585 1035 982 671 38, 814, 815 .. 1007 .. 568 156, 167 Humphry v. Damion . . Humphrys v. Polak Hunnings v. Williamson Hunt, Ex parte 1203 v. Andrews . . . . 213 V. Bishop .... . . 1026 v. Clifford .. .. 1223 Table of Cases Cited. I xxix PAGE Hunt v. De Blaquiere . . 566 v. Fensham . . . . 1223 v. Gt. N. Ry. Co. ( (1891) 2 Q. B. 189, C. A.) .. 370 v. Gt. N. Rv. Co.((1891) 1 Q. B' 601) . . 805 v. Gunn 580 V. Hooper 1222 v. Massey 35 v. Peake 812 v. Remnant .. .. 1026 v. R. Exchange Assur. Co 447,448 v. Silk 331 v. Stevens . . . . 270 v. Wimbledon L. Board .. .. 1093 v. Wise 74 Hunter v. Britts 946 v. Caldwell . . . . 510 v. Emanuel . . . . 107 v. Pry 468 v. Hunt 597 V. Hunter . . 682, 1055 v. N. Marine Insur- ance Co. . . 426, 468 v. Rice . . . . 219, 965 v. Sharpe .. .. 874 v. Walters .. .. 717 v. Welsh 602 v. Westbrook . . . . 968 v. Young 1155 Huntingdon v. Attn 11 .. 208 Huntingford v. Massey . . 848 Huntley v. Bulwer . . . . 507 v. Donovan .. 127,211, 213 v. Russell .. .. 345 v. Sanderson .. 681 v. Simson .. .. 884 (Mchs. of) v. Gaskell 1038 Huntsman, The 586 Hurd v. Fletcher 746 Hurdman v. N. E. Ry. Co. 760 Hurlbatt v. Barnett . . . . 281 Hurry v. Mangles .. .. 994 Hurst v. Gt. W. Ry. Co. .. 650 v. Hurst 736 v. Parker 684 v. Taylor 764 v. Usborne .. 463,464 — v. Watkis 87 Hussey v. Christie .. .. 984 v. Home Payne 316, 323 Hutcheson v. Eaton . . . . 93 Hutchin v. Groom .. .. 21 Hutchings v. Nunes . . . . 992 Hutchins v. Chambers . . 900 u.Scott 21,244,662, KIM PAGE Hutchinson v. Bernard . . 188 v. Copestake .. 821 v. Hey worth .. 242 v. Johnston . . 964 v. Lowndes .. 1139 v. Tatham .. 25 v. Thomas .. 758 v. York, &c. Ry. Co 802 Huttman v. Bulnois .. .. 515 Hutton v. Bulloch . . . . 555 v. Lippert .. .. 221 v. Mansell . . . . 496 — v. Ras S.S. Co. .. 521, Add., 206 v. Upfill 524 • v. Ward 356 v. Warren . . 26, 348 v. W. Cork Ry. Co. 1126 Huxham v. Smith . . 206, 712 Huxley v. Berg 938 v. West London, &c. Ry. Co 297, 298 Hyam's case 726, 1103 Hyam v. Webster 766 Hyatt, In re 1166 v. Griffiths . . . . 304 Hybart v. Parker .. 1090, 1127 Hyde v. Beardsley . . . . 104 v. Bulmer 849 v. Hyde 1038, 1043, 1173, 1178 v. Johnson 687 v. Palmer .. .. 51, 79 v. Trent and Mersey Navigation Co. . . 647 v. Warden . . . . 329, 1025 v. Wrench . . . . 312, 733 Hyderabad Deccan Co. v. Willoughby 434 Hydraulic Engineering Co. v. McHaffie .. .. 544,548 Hyman v. Nye 778 t'.Van den Bergh Jdrf.,819 Hyne v. Dewdney .. .. 234 IBBETSON, Ex parte ..1201 Ibbett v. Leaver 88 Ibbotson v. Peat 761 Ibbs v. Richardson .. .. 337 Icely v. Grew 326 Ideal Bedding Co. v. Hol- land 1190 [gguldeil v. May 28 llfiacombo Ry. Co. v. Nash 1122 Illingworth v. Houldsworth 1216 v. Leigh . . . . 54 Imperial Bank v. L. & S. Katherine's Docks Co. .. 986 lxxx Tabic of Cases Cited. PAGE Imperial Bank of Canada v. Bank of Hamilton .. 395,610, 611 Imperial Gas Co. v. London Gas Co 681 Imperial Land Co. of Mar- seilles, In re 706 Imperial Loan Co. v. Stone 677 lmray v. Magnay . . 1222, 1223 — v. Oakshette . . . . 1035 Incc Hall Boiling Mills Co. v. Douglas Forge Co 1112 Inckbald v. Bobinson . . . . 761 v. W. Neilgherry Coffee, &c. Co 587 Incledon v. Berry . . . . 884 Ind v. Emmerson . . . . 157 Independent Assur. Co., Inre 1115 Iudermaur v. Dames . . . . 765 Indian Zoedone Co., In re .. 1097 Indus, The 784 Industrie, The 459 Ingham v. Primrose . . . . 398 Ingle v. Bell 922 v. McCutchan . . . . 506 Ingleby v. Swift 76 Ingledew v. Douglas . . . . 675 Inglesant v. Inglesant . . . . 148 Inglis v. Buttery . . . . 20, 738 v. Gt. N. By. Co. 1123, 1124 -v. Haigh 678 V.Robertson .. 104,960 Ingrain v. Lawson . . . . 861 v. Lea 232 v. Morecraft . . . . 826 v. Shirley .. .. 551 Inl. Rev. Corns. See Corns. of Inl. Rev. Inman v. Stamp 313 — — S.S. Co. v. Bischoff . . 438 Innes v. Stephenson . . . . 696 v. Wylie 921 & Co., Inre .. .. 1102 International Tea Stores v. Hobbs 826 Iona, The 784 Ionides v. Pacific, &c. Insur. Co. . . 268, 436, 439, 449i, 449A; — v. Pender .. .. 449ft Ireland v. Hart 1099 v. Johnson . . . . 893 - v. Livingston .. 540, 555 - v. Powell . . . . 49 — v. Thomson . . . . 603 Ireson v. Pearman . . . . 510 Irish Land Commission v. Grant .. .. 1070, 1071, 1078 Irish Peat Co. v. Phillips .. 1121 Irish Society v. Derrv (Bp. of) . . . . 196, 212, 215, 1062 TAGE Iron Ship Coating Co. v. Blunt 1106 Irons v. Smallpiece . . . . 953 Irvine v. Watson 554 v. Union Bank of Aus- tralia 1111 Irving v. Greenwood .. .. 497 — v. Manning . . . . 4496 v. Motly 955 v. Veitch 686 v. Wilson 614 Irwin v. Brandwood . . . . 853 v. Dearman .. .. 911 v. Lever 9 Isaacs' case 1102 Isaacs v. R. Insurance Co. 455 Isaacson v. New Grand (Clap- ham Junction) 809 Isherwood v. Whitmore . . 537 Isis (SS.) v. Bahr . . . . 469 Isitt v. Ry. Passengers' Assur. Co 454 Israel v. Clark 778 v.Douglas .. .. 619 v. Israel 272 Ivay v. Hedges 764 Ive v. Scott 946, 947 Iveson v. Moore 759 Ivimey v. Marks 506 v. Stocker 39, 820, 839 [zard, Ex parte 1209 Izon v. Gorton 338 JACAUD v. French .. .. 402 Jack v. M'Intyre 20 Jacklin v. Fytche . . . . 1146 Jackson, Inre . . . . Add., 41 . v.Allen.. .. 13,139 -v. Anderson .. .. 973 v. Benson .. .. 168 v. Burleigh .. .. 890 ■ — v. Courtenay .. 928 — v. Dickinson 595, 1155 — ■ — v. Forster .. .. 453 v. Hanson .. .. 756 v. Hesketh .. 277,285 v. Hill 805 v. Hopperton . . 859 — ■ — v. Lowe 531 v. Metropolitan Ry. Co. 290, 777, 779, 797 - v. Normanby Brick Co 295 v. Nichol . . . . 990 — v. N. E. By. Co. 599, 716 v. Smithson . . . . 789 v. Stopherd . . . . 621 - v. Thomason . . 175 — v. Tollett .. .. 779 v. Turquand 1100, 1108 Table of Cases Cited. Ixxxi PAGE Jackson v. Union Marine Insur. Co. .. 464 v. Woolley . . . . 687 and Bassford, In re 1216 Jacob v. Down .. 1030, 1034 v. Lee 10 v. Lindsay 272 Jacobs, Ex parte 485 v. Humphrey 1186, 1221 v. Latour 988 v. Morris 617 v. Seward 293, 936, 940, 978, 979 v. Tarleton . . . . 278 Jaederen, The .. .. 23,466 Jaggers v. B innings .. .. 71 Jakeman v. Cook 671 James v. Biddington . . . . 86 v. Catherwood . . . . 227 v. Cochrane .. .. 716 v. Crow 291 — v. Griffin . . . . 990, 991 - v. Gt. W. Ry. Co. . . 795 — v. Plant 836 - v. Ricknell . . . . 501 — v. Salter 1071 - v. Saunders . . . . 1141 — v. Shrimpton . . . . 1055 — ■u.Smith 309 v. Stevenson . . . . 820 v. Swift 1146 v. Vane 302 Janson v. Driefontein, &c. Mines 439,440, 449ft Jaques v. Millar 333 Jardine v. Leathley . . . . 448 v. Payne 224 Jarmain v. Hooper . . 916, 937 Jarman v. Hale 1073 Jarrett v. Hunter 315 v. Kennedy . . 608, 613 Jarvis v. Dean 763 Jay, Ex parte 1202 v. Johnstone . . . . 722 u.Robinson 1178 v. Warren 405 Jayne v. Hughes 1076 v. Price 1037 Jeakes v. White .. .. 313,321 Jebb v. M'Kcirnau . . . . 237 Jefferies v. Duncombe . . 854 Jeffreson V. Morton .. .. 1002 Jeffrey v. Neale 742 Jeffreys v. Evans . . . . 397, 503 Jeffries v. Gt. W. Ry. Co. 966, 981 v. Williams .. .. 815 Jeffry v. Barrow 1168 Jegon v. Vivian '.):!'.) Jekyll v. Moore 865 Jelks v. Hayward 948, 968, 1 L89 Jenkins' Claim 1112 u. — voi,. I. PAGE Jenkins v. Biddulph . . 144, 891 v, Coomber .. 391,481 v.Harvey 35,40,827 v. Hutchinson 17, 92, 493 v. Jackson . . 747, 767 v. Morris 365, 677, 1052 v. Phillips .. .. 858 v. Price . . . . Add. 733 v. Tucker . . . . 597 v. Turner . . . . 789 Jenks v. Clifden (Viscount) 1155 Jenkyns v. Usborne . . . . 957 Jenner's case 1102 Jenner v. A'Beckett . . . . 854 v. Clegg .. .. 339, 1082 v. Fnnch 1054 • v. Morris 599 ■ v. Walker 675 Jennie S. Barker, The . . 784 Jennings v. Christopher . . 230 v. Gt. N. Ry. Co. 652, 653 v. Griffiths .. .. 586 v. Johnson . . . . 507 — — v. Mather .. .. 1226 — v. Rigby . . . . 1160 V.Roberts .. .. 381 — v. Throgmorton 344, 672 Jenoure v. Delmege . . . . S59 Jeremiah Ambler & Sons v. Bradford Cor 1132 Jersey (Earl of) v. Neath Union S14 Jessel v. Bath 477 Jesser v. Giff ord 759 Jesus College v. Gibbs . . 5 Jewan v. Whitworth . . 957, 958 Jewell v. Parr 244 Jewison v. Dyson . . . . 213 Jewry v. Busk 584 Jewsbury v. Mummery 191, 1162, 1166 Jezeph v. Ingram . . . . 1191 Jinks v. Edwards 749 Job v. Job 1159 v. Lamb 344 Johannesburg Hotel Co., In re 1104 John v. Bacon 652 v. Jenkins . . 1012, 1082 John Griffiths Cycle Cor. v. Humber&Co 318 John Morley Building Co. v. Barras 1102 Johns v. Pink 1059 v. Simons 598 v. Ware 1201 Johnson, Ex parte 1203, 1207 , hire 720 v. Alston . . . . 508 u.Baker .. .. 139 v. Barnes .. 39,822 Ixxxn Table of Cases Cited. Johnson v. Blenkiusop v. Blumenthal r u;i: .. 516 957, 958 v. Bragge .. .. 17 v. Credit Lyonneis Co. . . 76, 957, 958 v. Diprose . . 954, 1210 v. Dodgson . . 317, 533 v. Durant . . . . 499 v. Edge 879 v. Emerson . . . . 888 v. Evans . . . . 865 v. Faulkner . . . . 905 v. Gallagher .. .. 1172 v. Goslett . . . . 608 v.Hill 985 • v. Johnson ■v. Lancashire & Yorkshire Ry. Co ■ v. Lawson • v. Lindsay • v. Lyf ord -v. Lyttle's Iron Agency . . . -v. Macdonald - v. M'Adam . . . •v. Marlborough (Duke of) - v. Mason - v. Midland Ry. Co 147 979 46 803 1054 1105 540 911 245 137 630, 632, 657 -V.Pickering .. .. 965 v. Pye 673 ■ v. Raylton . . 22, 541 v. Rea 622 v. R. Mail S. Packet Co. . . 586, 593, 977 v. S. Peter, Here- ford .. .. 347,738 -v. Stear .. .. 974,979 -v. Upharn .. .. 1088 v. Ward .. 201, 212, 428 v. Warwick .. .. 1156 v. Wild 597 — J. C.& Co., In re.. 1216 Johnston v. Boyes . . 330, 711 v. Gt. W. Ry. Co. 782 — -v. Hogg 439 v. Kershaw . . . . 540 — v. Renton . . . . 1119 — v. Sumner . . 564, 566 v. Usbome . . . . 22 &c. v. Consumers Gas Co. of Toronto . . . . 771 Johnstone v. Crompton .. 814 v. Huddlestone 337, 752, 1080 ■ v. Marks . . . . 674 v. Milling . . . . 517 v. Spencer (Earl) 210 v. Sutton . . . . 884 PAGE Joliffe v. Baker .. .. 330,843 v. Wallasley Local Board 765, 1144 Jolly, In re 722 • v. Arbuthnot .. .. 1084 v. Kine 821 v. Rees 564 Jonassohn v. Young .. .. 542 Jones's case 1102 Jones, Ex parte . . 558, 675, 1100, 1101 v. Adamson .. .. 465 ■ V.Arthur .. .. 711,712 v. Biernstein . . . . 902 v . Bird 1145 v. Bone 734 v. Bow 203 v. Broadhurst . . 403, 660 -v. Brooke 597 ■ v. Brown 979 v. Carter 342,1032,1033 v. Chapman . . . . 940 v. Chappell .. .. 346 v. Clayton 1221 v. Cliff 988 v. Corbett 365 v. Curling . . . . 298, 998 ■ v. Daniel 316 v. Dowle 995 v. Dyke 891 ■ — v. Edney 327 ■ — v.Edwards .. .. 11 v. Festiniog Ry. Co. 793 V.Flint .. .. 236,312 v.Foley 940 v. Fort 278 v. Foxall 62 v.Gardiner .. .. 333 v. German 918 v. Gibbons 544 v. Gooday 939 v. Gordon 400 v. Green & Co. . . 465, 466 V.Harris 1206 v.Hart 976 v.Hill 346 v. Holm 464 v. Hough .. .. 461,972 v.Howell 582 v. Hughes 686 v. Humphries . . . . 621 v. Inl. Rev. Corns. . . 246 v. James . . 86, 87, 496 v.Johnson 1138 v.Jones 135,137,943,993 v. Just .. .. 492,541 v. Liverpool (Cor. of) 776 v. Littledale .. 17,544 v. Littler 852 v. Mackie 878 -v. Marsh 1022 Table of Oases Cited. ixxxm PAGE Jones v. Marshall . . . . 600 v. Mason 133 v. Merionethshire, &c. Building Socy. . . 668 v. Mills 1012, 1016, 1024 v. Nanney . . . . 319, 588 u.Nixon 1014 _^ v , Pearle 988 v. Peppercorn . . . . 982 v. Perry 782 v. Phipps 1019 v. Randall 109 v. Reynolds . . 340, 1013 v. Robinson . . . . 1042 v. Rvde 609 v. Ryder . . 244, 685, 688 v. Scullard . . . . 776 v. Shears 1023 v. Simes .. ..822,1150 v.Simpson 241,242,1145 -u.Smith 92 v. Stevens . . . . 852, 877 — v. Tanner 1156 v. Tapling .. .. 821,822 — v. Tarleton . . . . 987 v. Tyler 656 — v. Vaughan .. .. 1135 v. Victoria Graving Dock .. .. 317, 1110 v. Waller 103 — — v. Watts 322 v. Williams 85, 305, 596, 751, 758, 772, 935, 941 v. Wood . . 1185, 1186 Joplin Brewery Co., In re .. 1216 Jordeson v. Sutton Gas Co. 773, 813, 822 Jordin v. Crump 790 Jory v. Orchard . . . . 8, 1135 Joseph v. Corvander . . . . 911 — v. Lyons .. 308, 955, 1001 Josling v. Irvine 492 v. Kingsford . . . . 541 Jourdaine v. Lefevre . . . . 982 •Joy's (Lady) case 216 Joyce v. Kennard 449d V. Realm, &c. Insur. Co 428 v. Swann 462 Joyner v. Weeks 740 Joynt v. Cvcle Trade Pub. Co 873 Judd'scase 1102 Judges. Cox 789 Judson v. Etheridge . . . . 985 Jury v. Barker 414 K A HEN, Ex parte . . 1205, 1206 Kahl v. Jansen 69 Kaini\ Old 542 PAGE Kaiser v. Grout 240 Kaltenbach v. Lewis . . 555, 605, 708, 957, 958, 960 v. Mackenzie . . 447 Kane v. Mulvany . . .. 871,873 Kannen v. M'Mullen . . . . 514 Karberg's case . . . . 844, 1108 Karet v. Kosher Meat Supply Assoc 1209 Karuth's case 1102 Kate, The 788 Katy, The 464 Kaufman v. Gerson . . . . 669 Kavanagh v. Gudge . . . . 943 Kay v. Field 466 ■ v. Oxley 837,838 ■ v. Pienne (Duchesse de) 1171, 1172 v. Wheeler 441 Kaye v. Brett 695 Keable v. Payne 224 Kearley v. Thomson .. 619,671 Kearney v. King . . . . 83, 359 v. L. B. & S. C. Ry. Co 798 v. Whitehaven Col- liery Co 665 Kearon v. Pearson . . . . 465 Kearsley v. Cole . . 484, 485, 702 v. Oxlev .. .. 1159 v. Philips .. 158, 1083 Keate v. Temple 479 Keates v. Cadogan (Earl of) 347 v. Woodward . . . . 303 Keay v. Fenwick . . . . 556, 700 Keechu. Hall 1057 Keegan v. Smith 566 Keeling v. Ball 140 Keen v. Batshore 629 u.Henry 777 v. Keen 1054 — v. Millwall Dock Co. . . 808 v. Priest . . . . 907, 908 Keene v. Deardon .. .. 1003 v. Dilke 927 v. Keene 623 - v. Ward 506 Keesebower v. Tims . . . . 41G Kcighley v. Bell 1142 Maxted & Co. v. Durant . . 312, 524, 926, 977 Keightley r. Birch .. .. 1222 - V. Watson . . . . 718 Kcir v. Lecman 668 Keith v. Burrows .. .. 462,470 — ■ v. R. Gancia & Co. . . 1058 Kelk v. Pearson .. .. 817,821 K'-ll v. Nainby 93 Kollard v. Rooke . . . . 806, 807 Kellock v. Enthoven .. .. 575 Kellow v. Rowden .. .. 1168 /2 lxxxiv Table of Cases Cited. PAGE 602 Kelly r. Curzon ™- „ TC fill find 1AlU 919 302, 303 . 107 861, 868 . 1017 746 v. Kellond v. Lawrence . v. Met. By. Co. . v. Morray . . v. Partington v. Patterson . v. Rogers . . . v. Sherlock »y v. Small <\ f.Solari 611 v.Tinhng °* v . Webster old Kelner v. Baxter 92,493,555,1111 Kembler. Addison .. •• i^' Kemp v. Baerselman .. .. »-* v. Balls v. Burt v. Canavan . o. Clark __ v. Derrett . v. Falk -v. Finden Halliday PAGE 1104, 1109 Council v. . 1132 . 509 . 993 . 460 .. 1016 990, 992, 993 .. 594 .. 445 Kent's case .. Kent County Folkestone Cor. . . Kent v. Fittall • • •■ ■•™> v. Gt. W. Ry. Co. ..1117 „.Lowen .. 52,123,216 v. Midland By. Co. 642, 1144 v. Pickering . • • • l 1 ^ Kenwortky v. Schofield 318, 5^ Kenyon v. Wakes .. •• 88 Keonv. Hart °^' Ker v. Osborne . . Kerby v. Harding Ker ford v. Mondel Kern v. Deslandes Kerrison v. Smith Kerrs' Policy, In re Kershaw v. Cox . . v. Ogden Kettlewell v. Refuge Assur Co Add.,61S Keys v. Harwood ^ Keyse v. Powell •• 1W2 897 .. 987 .. 471 . 944 .. 622 . 244 528, 529 I Inl. Rev. Corns. . . 250 .v. Neville 107, 207, 918, 989. 994 Keyser v. Suse »»* Kempe v. Gibbon . . Kempson v. Boyle . v. Saunders Kempston v. Butler Kempton v. Cross Kendal v. Marshall . v. Wood . . Kendall v. Hamilton ^.L.&S.W.Ry.Go V. Wilkinson Kendrick v. Lomax Kennedy, Ex parte v. Broun v. Green . v. Lee 1139 | . 723 22.535 .. ' 607 813 79, 118, 119 .. 991 .. 611,614 91, 193, 561 631 1138 .. 402 1098, 1102, 1126, 1202 . 584 .. 65 . 315 .. 171 Kevworth v Khedive, The Kibble, Ex parte .. v. Fairthorne v. Gough .. Kidd v. Rawlinson Kiddell v. Burnard 783, 786 /. 676 .. 1070 . 529 .. 1191 490 v.Lyell.. .. •• . v. Panama, ixc. it. Mail Co. . . v. Thomas Kennell v. Abbott Kennett V. Milbank Kenrick v. Beauclerk v. Taylor Kensington v. Inglis 614, 663, S44 . 362 .. 31 . 684 .. 1002 842 6, 176, 268, 434 Kensington, &c Electric Lighting Co. v. Lane Fox Elec. Co. .. ... ■• •• a ' J Kensington Station Act In re -r, ' Kensit V. Great Eastern Ry. Co Kidderminster (Mayor, &c of) v. Hardwick .. ■• 10 Jd Kiddle v. Lovett «0U v. Scott 807 Kidgill v. Moor 759, 760, 825, 831 Kidner v. Keith ^ Kidney v. Cockburn .... 40 Kidston v. Empire Marine Insur.Co 24,449/ Kilgour v. Finlyson . . • • di6 v. Geddes . • • • ° di Killarney The .. .. •• 785 Killby v. Rochussen .. d81, d»d Kilpin v. Rapley »** Kilshaw-y. Jukes ■»» Kilvingtonjy. Stevenson 1153 Kimber v. Press Assocn. 8(1, blA Kinaston v. Moor .. •■ »** Kincaid's case ^« Kindersley v. Chase .. •■ fJt Kine v. Beaumont . . o, d&o — J! Jolly 772,821 King v. Cole g v. Corke ^ v England 898 „. Eversfield .. .. 1014 v. Foster 214 . . v. Francis 87 v. Gillett 703 Table of Cases Cited. lxxxv PAGE King r. Henderson .. .. 888 v. Hoare 193 v. Hutton 578 v. Improved Cab Co. . . 777 v. Jones 726 V. Meredith 552 v. Norman 193 v. Phippard 915 v. Price 491 — v. Smith . . . . 695, 717 — v. Turner 1057 v. Waring 859 -v. Williamson .. .. 289 — v. Wilson 321 F. & Co. v. Gillard & Co. 297 Kingdom v. Cox 545 Kingdon v. Nottle . . . . 726 Kingsford ;--. Marshall . . . . 443 v. Merry . . . . 956 Kingston's (Duchess of) case 76, 116, 191, 194, 203, 208, 337 Kingston v. M'Intosh .. .. 623 v. Phelps . . . . 220 Race Stand v. King- ston (Mayor of) 1070 Kingston-on-Hull (Guardians of) v. Petch 545 Kinloch v. Craig 9S7 v. Nevile . . . . 831 Kinlyside v. Thornton .. 346 Kinnaird v. Webster .. 698,699 Kinnersley V. Orpe .. .. 144 Kino v. Rudkin 822 Kinsman v. Rouse 1076, 1078 Kintrea, Ex parte .. .. 1103 v. Preston . . . . 322 Kipling v. Todd 1125 u.Wood 1120 Kirby v. Banister . . . . 568 v. Biffen 905 v. Gt. W. Ry. Co. .. 643 — v. Simpson 1138, 1140, 1141 Kitchner «. Venus .. 471,986 Kirk v. Blurton 366 v. French 889 v. Gregory . . . . 924, 925 v. Todd .. 1154, 1155 Kirkham v. Attenborough . . 951 v. Peel 605 Kirklandw. Peatfield .. .. 722 Kirkman v. Hargreaves .. 972 v. Shawcross . . 982 Kirkpatrick v. S. Australian Insur. Co 455 Kirkstall Brewery Co. v. Fur- ncss Railway Co. 70, 640, 6 is Kirkton v. Braithwaitc 709, 710 Kirwan v. Cockburn . . . . 190 v. Kirwan . . . . 560 Kirkwood w. Carroll . . . . 413 Kish v. Cory 467 l'AGE Kissam v. Link 124 Kitchen v. Campbell .. .. 616 Kitchin v. Hawkins . . . . 719 Kleinwort v. Shepard . . . . 439 Klingemann, In re .. .. 121 Knatchbull v. Fowle . . . . 187 Knight's Will, In re .. .. 298 Knight of St. Michael, The 441 Knight v. Barber . . . . 233, 236 v. Bennett . . . . 1082 v. Cambers . . . . 591 v. Clements . . 245, 357 v. Coales 281 v. Cox 334 v. Crockford .. 317,533 v. Egerton . . . . S99 v. Faith 445 v. Fitch 577 v. Fox 767 ■ ■ v. Gibbs 862 v. Gravesend, &c. Waterworks Co. 715, 716 v. Martin 9 . v. M'Douall . . . . 1084 v. Pursell 934 v. Waterford .. 57,58 ■ v. Williams . . . . 996 Knights v. Wiffen . . . . 951 Knights' Deep v. Inl. Rev. Corns 265 Knill v. Hooper 432 v. Williams 244 Knott v. Farren 690 U.Jeffrey 863 Knowles v. Compigne . . 72, 912 v. Lane. & Yorkshire Ry. Co 815 v. Scott 1114 Knowlman v. Bluett 293, 525, 526 Knox v. Gye 67'. > Kong Magnus, The . . . . 788 Kopitoff v. Wilson . . . . 476 Koster v. Innes 427 v. Reed 438 Kreeft v. Thompson . . . . 461 Krehl v. Burrell .. .. 822,835 Krell v. Henry . . 20, 30, 340, 589 K rouger v. Blanck .. .. 540 Kruger v. Wilcox 9S3 Kulcn Kemp v. Vigne . . . . 439 Kurtz v. Spence .. .. 292,879 Kuselw. Watson 1012 Kynnaird v. Leslie .. .. 1038 LACA V E r. CrJdit Lyonnais 406, 411 La Cloche v. La Cloche .. 125 La Compagnie de Mawille v. Whitlev 1101 I x x x v i Table of Canes Cited. r \gi, Lacon v. Higgins .. 121, 277, 286 Laccy, In re 724 Lacy, In re 1077 v. Rhys 229, 270 Ladd v. Thomas . . 900, 938, 1088 Lade v. Holford 1003 - v. Shepherd 929 Ladies' Dress Assoc, v. Pul- brook HOG Lady Forrest, &c. Gold Mine 603 Ladyrnan v. Grave . . . . 820 Ladywell Mining Co. v. Brooks 603 Laertes, Cargo ex 473 Lafitte v. Shatter . . . . 388, 389 Lafond v. Ruddock . . . . 683 Lafone v. Smith 878 Lagunas Nitrate Co. v. Lagunas Syndicate 844, 1112, 1113 Laidler v. Burlinson . . . . 953 Laing v. Hollway 464 v. Header 712 — v. Whaley 837 Laird v. Briggs . . 292, 828, 831 ■ v. Pirn 325 Lake v. Argyle (Dk. of) . . 562 - v. Billers 1060 - v. King.. .. 79, 865,867 v. Smith 750 Lamb's case 855 Lamb v. Attenborough . . 958 v. Brewster . . . . 343 v. Burnett . . . . 915, 916 v. Micklethwait . . . . 694 v. Walker 773 Lambert's Estate, In re . . 1179 Lambert, In re 215 - v. Heath . . . . 581 v. Oakes 416 Lambourn v, McLellan . . 970 Lambton v. Mellish . . 769, 834 Lamburn v. Cruden . . . . 520 Lamine v. Dorrell . . . . 616 Lamond v. Richard . . . . 657 Lamont v. Crook 155 v. Southall . . . . 1145 Lampleigh v. Braithwait . . 595 Lampon v. Corke . . . . 65, 76 Lamprell v. Billericay Union 582, 583, 1093 Lanauze v. Palmer . . 8, 385 Lancashire Insur. Co. v. Inl. Rev. Corns 269 Lancashire, &c. Ry. Co. v. Greenwood 640 Lancashire Waggon Co. v. Fitzhugh 949 Lancaster v. Eve 925 v. Lancaster . . 114 l'AGE Lancaster, S. S. County of v. Sharp 477 Lancum v. Lovell . . . . 193 Lander & Bagley's Contract 316 Lands Allotment Co., In re 680, 683 Lane's case 79 Lane v. Applegatc . . . . 876 - v. Chapman 1223 - v. Cotton .. .. 651, 657 v. Cox 769 v. Dixon 936 - v. Eve 291 v. Glenny 506 - v. Goodwin 1040 v. Hill 627 v. Ironmonger .. .. 564 V. Nixon 431 v. Stanhope (Earl) . . 31 Lanesborough's (Earl of) claim 98 Lang v. Anderdon . . . . 429 v. Kerr 104 Langdon v. Godfrey . . . . 510 v. Wilson .. .. 234 Langford v. Foot 1188 Langfort v. Tiler 531 Langhorn v. Allnutt .. .. 69 Langley v. Hammond . . 836, 837 Langridge v. Levy . . . . 847 Langrish v. Watts . . . . 689 Langston v. Corney .. .. 363 Langton v. Carleton . . . . 517 v. Higgins .. .. 951 — v. Hughes .. .. 668 Lanyon v. Davey 286 Laporte v. Costick . . . . 1173 Lapsley v. Grierson . . . . 42 Lapwing, The 788 Larchin v. N. W. Deposit Bank 1207 Lariviere v. Morgan . . . . 620 Larkworthy's case . . . . 1106 Lamer v. Lamer 1179 Lart, In re 192 Lascelles v. Onslow (Lord) . . 825, 943 Last v. Dinn 334 Latch v. Rumner Ry. Co. .. 777 Latham v. Barber . . . . 527 v.Hyde 501 : v. Rutley . . 234, 636 Latimer v. Batson .. .. 1191 Latkow v. Earner 198 Latter v. White .. 351, 413, 995 Lauderdale Peerage 14, 217, 1039 Laugher v. Pointer .. 766,776 Laughton v. Sodor and Man (Bp. of) 870 Laurie v. Scholerleld 19, 293, 481, 482, 484, 693 Tabic of Cases Cited. Ixxxvu l'AGE Lautour v. Teesdale 1039, 1044 Lavery v. Pursell . . . . 313, 319 u. Turley 661 Law u. Harwood 879 ■ v. Hodsou 668 •■ u. Law 844,845 v. Llewellyn . . . . 865, 1139 ■ v. London Indisputable Policy Co 452 - r. Paruell 371 V. Redditch Local Board 326 Lawcs v. Purser . . . . 570, 606 Lawford v. Billericav R. D. Council .. .. 1093 • v. Davies .. .. 1043 Lawless u. Anglo-Egyptian, &c. Co. 855, 867, 870 — v. Queale .. . . 63 Lawrence's case 1108 Lawrence v. Aberdein . . 436 — u. Accid. Insur. Co. 454 u. Clark .. ..8,11 u. Hitch .. .. 41 v. Hodgson . . .. 498 ■ v. Jenkins . . . . 1088 v. Knowles .. .. 537 v . Norreys (Lord) 1078 V. Obee .. .. 820 v. Sydebotbarn . . 433 u. Walmesley .. 485 Laws v. Rand . . . . 35, 407 Lawson v. Burness . . . . 466 v. Langley . . . . 830 — ■ v. Sberwood . . . . 12 u. Wallasey Local Board 582 Lawton u. Hickman . . 550, 580 v. Newland . . . . 598 v. Sweeney . . . . 598 Lax u. Darlington (Cor. of) 765, 797 Lay v. Lawson 871 Lavbourn v. Crisp 113, 116, 189, 193, 200 Laycock v. Pickles .. 325,627 Layer's case 169,173 Lavfield v. Layfield .. .. 1153 Laytboarp v. Bryant 317, 321, 533 Lazarus v. Andrade . . . . 954 Lazonby v. Rawson . . . . 1158 Lea u. Cbarrington . . . . 886 u. Facey 11 !•"> u. Libb 147 Leach v. Simpson . . . . 3 . v. Thomas 347 u. Thompson . . . . 726 Leadbitter v. Farrow . . . . 367 Leader u. Homewood .. .. 969 u. Moody 747 v. Moxton .. .. 769 Leak v. Driffield 1177 PAGE Leake v. Loveday 981 v. Westmeath . . . . 116 Lean v. Schutz 1172 Leap v. Butt 12 Leaper v. Tatton 369 Lcaroyd v. Bracken . . . . 248 v. Brook . . . . 519, 521 v. Halifax Banking Co 157 Leary v. Patrick .. 1138, 1146 Leask v. Scott . . . . 460, 993 Leather Cloth Co. v. Hieroni- mus 537, 553 — — - v. Lorsont 671 Leathes v. Leathes . . . . 995 Leathley v. Spyer 482 Lebel v. Tucker 371 Le Blanche v. L. & N. W. Ry. Co 653,654 Le Brasseur, In re .. .. 584 Lechmere v. Fletcher . . . . 689 Leconfield (Ld.) v. Dixon . . 824 Le Conteur v. L. & S. W. Ry. Co 638 Ledbetter v. Salt 196 Leduc v. Ward . . . . 16, 459 Lee's case 1112 Lee u.Barnes 1212 v. Bayes 961 v. Birrell 173 u.Butler 959 v. Cooke 900 V. Dangar .. 1189, 1224 v. Gaskell 313 v. Griffin .. 235, 514, 527 v. Huson 860 - v. Johnstone . . . . 34 — u.Jones .. .. 483,500 ■ u. Lancashire, &c. Ry. Co 66, 660 v. Levy 405 - v. Merret 602 v. Mann 331 v. Nuttall 1163 — v. Pain 30 — u. Riley 790, 937 — u. Risdon . . . . 550, 570 - u. Robinson . . . . 976, 978 u. Roundwood Colliery Co 1202 - v. Sbore 550 - v. Smith . . 1010, 1083 v. Southern Insurance Co 449c - u. Turner 1207 v. Vessey 1087 - v. Walker 510 o. Wilmot 688 -u.Wilson 506 Conservancy Board v. l'.utton 40 lxxxviii Table of Cases Cited. P U.I. Leeds v. Burrows . . . . 237 — v. Cook . . . . 7, 496 v. Lancashire . . . . 401 v. Wright 991 - Bank v. Walker . . 395, 609 - and Hanley Theatres, &c.,Inre 603,850 Leeke's case 1102 Lees v. Patterson . . 704, 887 Leese v. Martin 982 Leete v. Greskain Insurance Co 284 V. Hart 1143 Le Fanu v. Malcolmson 852, 859 Legatt v. Tollervey . . . . 881 Legge v. Edmonds 47, 68, 1047 Leggott v. Gt. N. By. Co. . . 1149 Legh v. Lillie 736 Legross v. Levemoor . . . . 54 Lehain v. Philpott . . . . 344 Leicester v. Cherryman . . 961 (El. of) v. Walter 877 Leidemann v. Schultz . . 23, 466 335, 595, 1084 932, 1071 539, 54S .. 1086 925, 970 . . 343 .. 101 .. 720 .. 687 4, 800, 844 705 813 513 513 146 627 1048 1072 673 9S7 Leigh v, Dickeson v. Jack ■ v. Paterson ■ v. Shepherd ■ v. Taylor v. Thornton Leishman v. Cochrane Lekeux v. Nash . . Leland v. Murphy Le Lievre v. Gould 7 Le Loir v. Bristow Lernaitre v. Davis Leman v. Fletcher ■ v. Houseley Lemayne v. Stanley Lemere v. Elliott Le Mesurier v. Le Mesurier Lemnion v. Webh 762, 772 Lempriere v. Lange v. Pasley .. Leng, In re 1162 Lennard v. Bobinson . . . . 93 Lenzberg's Policy, In re 614, 619 Leonard v. Baker .. .. 1191 v. Brownrigg .. 302 v. Pranklyn . . . . 215 V. Leonard . . . . 1054 v. Simpson . . . . 1166 Leonis SS. Co. v. Bank .. 465 Lepla v. Bogers 733 Leslie v. Fitzpatrick . . . . 674 Le Trilleur v. S. E. By. Co 1117 Letchford v. Oldham .. .. 443 Letham, Henry, & Sons v. Johnstone-White .. .. 671 Lethulier's case . . . . 21, 83 Leuw v. Dudgeon . . . . 473 I' AGIO Levenc v. Greenwood .. .. 601 Leverson v. Lane 365 Lever v. Koflier 318 Levi v. Anglo-Continental Gold Beefs of Bhodesia . . 289 Levita's (A.) case 1101 — (G. H.)case .. .. 1101 Levett v. Hamblet . . 578, 843 Levy v. Abercorris Slate Co. 1214 v. Alexander .. .. 273 v. Baker 677 - v. Barnard 988 - v. Green 538 v. Hale 1222 v. Lewis 337 v. Herbert (Lord) . . 545 - a.Pope .. .. 169, 171 • v. Warburton . . . . 591 Lewes' Trusts, In re .. .. 42 Lewin v. Trimming . . 300, 302 ^.Wilson.. ..721,1076 Lewis, Ex parte 1202 v. Baker 335, 726, 1014, 1016, 1085 - v. Branthwaite . . 930 • v. Brass 316 - v. Campbell . . . . 596 - v. Gt. W. By. Co. 20, 633, 642, 643 — - v. Inl. Bev. Corns. . . 247 v. Jones . . . . 402, 484 u.Lee .. 1171,1172 — u.Levy .. .. 871,872 - v. L. C. & D. By. Co. 796 v. M'Kee 462 - v. Marshall . . . . 25 - v. Nicholson . . 92, 493 — v. Parker .. .. 78, 284 - v. Peake 492 - v. Price 39 — v. Bogers . . . . 52, 1191 - v. Samuel . . . . 507, 693 • v. Smith 1145 - v. Walter 852 Ley v. Peter .. 69, 72, 1074, 1076 Leyman v. Latimer .. 864, 875 Lichfield Union v. Greene 699, 701 Lickbarrow v. Mason . . 425, 992 Liddiard v. Gale 235 Liddlow v. Wilmot . . . . 565 Lidgett v. Secretan . . 427, 449c Lidster v. Borrow . . . . 1143 Liford's case 944 Liggins v. Inge . . . . 841, 944 Lightfoot v. Creed . . . . 592 Lilley v. Elwin .. .. 515,518 Lilly v. Hays 604 — — - v. Smales .. .. 22,495 Linimer Asphalte Co. v. Inl. Bev. Corns. .. 221,226,251 Table of Cases Cited. Ixxxix PAGE Liinpus v. L. Gen. Omnibus Go 774, 1094 Lindenau v. Desborough .. 176 Lindley v. Lacey . . . . 16, 18 Lindo v. Belisario . . . . 1043 Lindon v. Hooper . . . . 612, 615 Lindsay v. Cundy . . . . 962 v. Janson . . . . 22 Peerage 140 Lindus v. Bradwell . . 367, 373 ■ v. Melrose . . . . 414 Line v. Stephenson .. .. 748 v. Taylor 790 Linfoot v. Pockett 1208, 1212 Linley v. Polden 693 Linnet v. Chaffers . . . . 1226 Linsell v. Bonsor 686 Lintott, Ex parte . . . . 626 Lion, The 785 Lisburne (Earl of) v. Davies 1007 Lisbman v. Cbristie . . . . 477 v. N. Maritime Ins. Co 268,449/,; Lister v. Lane. & Yorkshire By. Co 632 v. Lane . . . . 737, 738 v. Perryman . . 883, 884 v. Priestley . . . . 66 v. Stubbs 603 Litchfield v. Dreyfus . . . . 601 v. Beady 191, 931, 946 Litt v. Martindale . . . . 609 Littlechild v. Banks . . . . 693 Littledale, Ex parte .. .. 1122 v. Liverpool Col- lege 1071,1072 Liver Alkali Co. v. Johnson 472, 630 Liverpool Adelphi Loan As- soc, v. Fairburst . . 673, 1171 Liverpool Banking Co. v. Eccles 317 Liverpool Exchange Co., Ex parte 907 Liverpool Household Stores Assoc, v. Smith .. .. 863 j Liversidge v. Broadbent 619, 620 Livettv. Wilson 39 , Livie v. Janson 436 Livingstone V. Bawvards Coal Co. 939 v. Boss .. .. 311 v. Whiting .. 272 Llandudno Urban Council v. Woods 939 i Llanovcr (Lady) v. Homfray 201 Llewellyn v. Winckwortk . . 367 Lloyd, In re 723 v. Arcbbowle . . . . 557 v. Asbby 365 v. Guibert . . . . 459 V. Harris 889 I'AG B Lloyd v. Howard . . . . 371, 374 v. Johnson . . . . 672 v. Mansel 234 v. Maund 690 v. Nowell 316 v. Ogleby 779 v. Oliver 360 v. Passingham . . 218 v. Bosbee .. .. 750,752 v. Sandilands . . . . 37 - v. Wigney . . . . 774 v. Willan 68 Lloyds v. Harper . . . . 482, 483 Bank v. Cooke . . 368, 414 Load v. Green 955 Loane v. Casey 1163 Lock v. Ashton . . . . 886, 922 v. Furze 748 ■ v. Norborne . . . . 192 v. Pearce 1030 Locke v. Matthews 1073, 1074 Lockett v. Nicklin . . 17, 533 Lockhart v. Falk 467 Locking v. Parker . . . . 1077 Lockley v. Pye 1190 Lockwood v. Levick . . . . 588 Lockyer v. Jones 712 v. Offley .. .. 427,441 Lodder v. Slowery . . . . 581 Loder v. Kekule 547 Lodge v. National Union Invest. Co 669 Loescbman v. Macbin . . 948 Lofft v. Dennis 338 Logan, Ex parte 520 v. Hall . . . . 741, 760 v. Houlditch . . . . 976 Loibl v. Strampfer .. .. 101 Lomas V. Graves & Co. 578, 581 London v. Lynn 217 London & B. By. Co. v. Fair- clough 1124, 1125 V. Truman 762, 793 v. Wilson .. 1125 London and County Bank v. L. & Biver Plate Bank 660, 954, 963 v. Batcliffe 223, 698 London & E. Counties Loan, &c. Co. i\ Creasy .. .. 1210 London & Globe Finance Cor., hire 982 London & Lancashire Paper Mills Co., In re .. .. 1199 London & N. W. By. Co. v. Bartlett .. 647 - v. Buckmaster 1079 v.Evans .. 815 — v. Garnett . . 734 v. Glyn . . 456 v. West 1005, 1007 sc Table of Cast s Cited. PAGE Loudon & IS". W. Ry. Co. v. Westminster Cor 932 London & Provincial Bank v. Bogle 1170 London & B. Plate Bank v. Bank of Liverpool .. 609,610 London it S. W. Bank v. Wentworth .. .. 36S, 369 London & S. W. Ry. Co. v. James * . . 475, 7S7 London & Staffordshire Fire Insur. Co., In re .. .. 1114 London & Suburban Land and Building Co. v. Field 721 London & Westminster Bank v. Inl. Rev. Corns 273 London & Westminster Loan, &c. Co. v. Chase 1206 ■ v. Drake 949, 969 v. L. & N. Ry. Co 1028, 10S6 London & Yorkshire Bank v. Belton 907 London Assur. v. Mansel . . 453 London (City of) v. Clerke . . 192 (Cor.'of) v. Riggs 827, 836 (Mavor of) v. Long 68, 69, 819 ■ v. Pew- terers' Co 819 London Celluloid Co., In re 1105 London Chartered Bank of Australia v. Lempriere . . 1172 London, Chatham & Dover Ry. v. S. E. Ry. .. 022,625 London Clearing Bankers (Ctee. of) v. Inl. Rev. Corns. 239. 241 London Dock Co. v. Sinnott 1092, 1093 London, &c. Coal Co., In re 1101 London, &c. Land Co., In re 1102, 1105 London Founders' Associa- tion v. Clarke 574 London Freehold, &c. Co. v. LordSuffield 139 London General Omnibus Co. v. Lavell 290 London Grand Junction Ry. Co. v. Freeman .. 1121,1123 London Joint Stock Bank v. London (Mayor of) 206 v. Simmons 400, 963, 964 London, Leith, &c. Shipping Co. v. Ferguson . . . . 519 London Marine Assur. Assoc, In re 553 London School Board v. Harvey 109 I'AGE London S.S. Iuaurauce Co. v. Grampian S.S. Co 437 London, Tilbury & Southend Ry. Co. and Gower's Walk Schools, In re 834 London Transport Co. v. Trechmann 469 Long r. Champion .. .. 113 ■ v. Clarke 902 v. Greville 685 V. Miliar 315 v. Orsi 508 Long Eaton, &c. Grounds Co. v. Midland Ry. Co 198 Longbottom v. Berry . . . . 970 Longchamp v. Fish . . . . 146 ■ v. Kenuy . . . . 601 LongdiU v. Jones . . " . . . . 1220 Longford v. Eyre 148 Longman v. Bath Electric Trams 1120 Longmeid i\ Holliday . . 800 Longmore v. Gt. W. Rv. Co. 796, 797 Lonsdale (Earl of) v. Rigg . . 930 Loog v. Bean 863 Looker v. Wrightly . . . . 1127 Loosemore v. Radford . . 980 Lopez v. Andrew 40 Lord v. City of Sydney . . 933 v. Colvin 178 v. Hall 373 v. Lee 498 v. Midland Ry. Co. .. 643 v. Price 952 Lord Advocate v. Lord Blan- tyre 85 Lord of the Isles, The . . . . 596 Loring v. Davis 572 v. Warburton S93, 900, 1088 Lotan v. Cross 925 Lothian v. Henderson .. 204 Lott v. Melville 1226 Loughnan v. Barry . . . . 952 Lound v. Grimwade . . 665, 66S Lousley v. Hayward . . . . 843 Lovatt v. Hamilton .. .. 540 Love v. Bell 814 Lovegrove v. L. B. & S. C. Ry. Co 802 v. White . . . . 510 Lovej ov v. Cole .. .. 301,302 ~Lo\e\\, Ex -parte .. ..732,1030 r. Howell 803 v. Martin 973 v. Newton .. .. 1173 r. Richinga .. .. 906 v. Wallis 187 & Collards' Contract, Lire 249 Lovelock v. Cheveley . . . . 8S Tabic of Case* Cited. xci PAGE Lovelock v. Franklyn . . 257, 330 v. King 582 j Loveridge v. Bothain .. .. 507 Lovett, In re 1158 Low, In re 122 v. Bouverie .. 77, 486, 844 v. Llewellyn 1139 Lowden v. Blakey . . . . 157 Lowe's case 1103 Lowe v. Adams . . . . 341, 944 v. Broxtowe .. .. 1183 v. Carpenter . . . . 330 v. Dixon . . 308, 594, 595 ■ v. Dorling 905 v. Fox 662 v. Holme . . . . 299, 704 v. Howarth . . . . 917 ■ v. Jolliffe 149 v. L. & N. W. By. Co. 1093, 1126 v. Peskett .. 1159,1163 v. Boss 336 Lowenthal, Ex parte . . 387, 1206 Lowis v. Bumney .. .. 1162 Lowndes v. Bray 330 ■ v. Garnett, &c. Gold Mining Co. .. 687 ! j iwry v. Bourdieu . . . . 618 Lows, Ex parte 291 Lowther v. Heaver 292, 1014, 1082 V. Inl. Bev. Corns. 258 v. Radnor (Earl of) 918 Castle, The . . . . 916 Lozano v. Janson . . . . 440 Lubbock v. Tribe 597 Lucas v. Beach 233 v. Bristow .. .. 23 v. De la Cour .. .. 71 v. Dixon 533 v. Godwin . . . . 581, 582 V. How 1025 v. Mason 920 — t\ Nockells _.. .. 964 — ■ v. Novosilieski . . 36 v. Boberts 505 „. Tarleton 292, 893, 897 v. Wilkinson .. .. 697 v. Williams .. .. 3 v. Worswick .. .. 611 Luce v. Izod 21 Lucey v. Ingram 785 Lucton School (Governors of) v. Scarlett 27 Lucy v. Mouflct .. .. 64,569 Ludbrook v. Ludbrook . . 1075 Ludlow, Ex parte .. .. 983 u.Charlton .. .. 112 Ludmore, In re 1224 Luker v. Dennis 734 Lumbv v. Alldav 852 Lumley, In re ' .. 1173, UTS PAGB Lumlev v. Brooks . . . . 507 v. Gye . . 862, 909, 911 v. Musgravc .. 403, 624 . v , Simmons 1212, 1213 Lumsden's case 1108 Lumsden v. Burnett . . . . 898 V. Shipcote Land Co 570 Lund v. Campbell .. .. 299 Lundie v. Robertson . . . . 379 Lungworthy v. Hockmore . . 565 Lunn v. Thornton . . . . 954 Lunt v. L. & N. W. By. Co. 794 Lurgan's (Lord) case .. .. 1108 Luscombe v. Gt. W. By. Co. 795 Lutscher v. Comptoir D'Es- compte de Paris . . . . 987 Luttrell's case 836 Lutterell v. Beynell . . . . 182 Luxmore v. Bobson . . . . 739 Lydall v. Martinson . . . . 295 Lyde v. Barnard . . . . 850, 851 v. Bussell 969 Lydney, &c. Ore Co. v. Bird 603 Lyell v. Kennedy 45, 101, 120, 127, 129, 156, 1037, 1070, 1075 Lygo v. Newbold 781 Lygon v. Strutt 102 Lyle v. Ellwood .. 1038,1043 v. Richards 33 Lvles v. Southend-on-Sea Cor. 1117, 1132 Lynch v. Gierke . . . . 97, 122 — v. Dalzell 455 v. Knight . . . . 862, 863 v. Nurdin .. .. 781,790 Lynde v. Anglo-Italian Hemp, &c. Co 1108 Lynes v. Snaith 1074 Lynne's (i\Iayor of) case .. 132 Lyon v. Fishmongers' Co. . . 837 v. Haynes 1129 v. Holt 405, 484 V. Knowles 558 v. London City & Mid- land Bank .. .. 971 v. Maxwell 402 v. Mells 475 - v. Morris 1213 v. Beed 40, 337 v. Tompkins . . . . 898 v. Weldon 898 Lyons v. Elliott 903 v. Hofmung . . 990, ! 19 1 v. Martin 909 V. Tramwavs Syndi- cate .. ..Add., 262 v. Tucker 1204 & Sons v. Wilkins 761,892 Lysaght v. Bryant .. .. 371 Lythgne v. Vernon .. 617, 966 XC11 Table of Cases Cited. Y\Q E M. r. D , .. 164 Maanss v. Henderson .. .. 983 Maas v. Pepper 1200 Maber v. Maber 686 Maberley v. Eobins .. 321,622 v. Sheppard . . . . 528 Mac, Tbe 784, 1200 M'Adam v. Walter . . . . 1052 M' Andrew v. Bell 425 MacAndrew v. Chappie .. 464 M' Arthur v. Seaforth (Lord) 580 McArthur v. Cornwall 939, 947 v. Dominion Cart- ridge Co 798 Macarthy v. Smith . . . . 89 Macaulay v. Polley . . . . 283 Macbeath v. Haldimand . . 584 Macbeth v. N. & S. Wales Bank 361 M'Call v. Taylor .. .. 244,360 M'Cance v. L. & N. W. Rv. Co 642,650,651 Maccann v. Maccann . . . . 172 McCannou v. Sinclair . . . . 934 McCartney v. Londonderry, &c. Ry. Co 838, 840 M'Carthy v. Metropolitan Bd. of Works 759 MacCarthy v. Young McCawley v. Furness Ry. Co. McCheane V. Giles (No. 2) . . McClure v. Little.. McCollin v. Gilpin M'Combie v. Davies M'Connel v. Murphy v. Wright Me Cord v. Cammell M'Corquodale v. Bell M' Cowan v. Baine M'Craw v. Gentry McCulloch v. Dawes McCullum, In re . . Macdonald, In re v 834 799 652 91 .. 742 30, 494 . . 973 .. 540 846, 847 . . S06 .. 156 437, 786 .. 134 .. 1162 .. 107S .. 1165 30, 538, 539 - v. Law, &c. Insur. Co 452 V. Whitfield 393, 595 Sons & Co., In re 1105 M'Donald v. M'Donald . . 811 Macdonnell v. Evans .. 178, 179 McDonnell v. M'Kinty .. 1071 Macdougal v. Young .. 13,109 Macdougall v. Knight 194, 279, 851, 872 M'Dougall v. Claridge . . . . 868 M'Dougle v. II. Exch. Assur. Co 442 M'Dowall v. Gt. W. Ry. . . 775 v. Lyster .. .. 222 MacDowall's case 519 Lougbottom L'AGB M'Entire v. Crossley .. 960, 1199 ■ v. Potter . . . . 977 M'Euen v. W. London Wharves, &c. Co. . . 1107, 1122 M'Ewen v. Woods .. .. 607 McPadden v. Blue Star Line 472, 474 Macfarlane's claim . . . . 1163 M'Gahey v. Alston .. ..7,43 M'Giffen v. Palmer's Ship- building Co 806 McGowan v. Dyer . . . . 848 v. Middleton . . 704 McGruther v. Pitcher . . . . 524 MacGregor v. Dover & Deal Ry. Co. 82, 666, 1127 ■ v. Rhodes .. 415,416 McGregor v. High . . . . 980 v. McGregor 525, 526, 1173 M'Gregor v. Keily . . . . 506 v. Lowe .. .. 619 — v. Thwaites . . . . 871 McHattie, Ex parte .. .. 1206 Machell v. Kinnear . . . . 374 Machu u. L. & S. W. Ry. Co. 639 Mcllwraith v. Dublin, &c. Ry. Co 1121 Macintosh v. Haydon . . . . 244 v. Marshall .. 212 Macintvre v. Connell .. .. 1090 M'Intyre v. Miller . . . . 696 Mclntyre v. McGavin . . . . 837 Mclver v. Tate Steamers . . 475 Mackay v. Commercial Bank of New Bruns- wick . . 663, 845, 848 v. Dick 543 v. Ford 866 — v. Macreth . . . . 1012 McKav's case 1120 M'Kean v. M'lvor .. 647,972 M'Kenzie v. British Linen Co 77,368 v. Hancock . . . . 491 Mackenzie, Ex parte .. . . 1109 v. Whitworth 419, 423 Mackersy v. Ramsays . . 600, 605 McKewan's case 1107 McKewan v. Sanderson . . 671 M'Kewen v. Cotching . . 165, 975 Mackill v. Wright . . . . 469 M'Kinnell v. Robinson . . 667 M'Kinnon v. Penson . . . . 770 Mackintosh v. Mitcheson 553, 586 • v. Trotter . . . . 969 Mackley's case 1101 Mackreth v. Symmons 65, 987 Maclae v. Sutherland . . . . 366 M'Laughlin v. Pryor . . 776, 926 Table of Cases Cited. xcm PAGE M'Lean v. Clydesdale Bank- ing Co 407 McLean v. Fleming .. 471,477 Maclean v. Dunn . . . . 318, 534 M'Leod v. M'Ghie .. .. 980 v. Power 561 McLeod v. McNab .. 31,1053 Maclure, Ex parte . . 517, 519 Macoun v. Erskine & Co. . . 592 M'Mahon v. Burchell .. .. 340 McMahon, In re 1163 v. Field .. .. 654 McManus v. Bark .. .. 401 ■ v. Cooke . . 319, 526 v. Crickett . . . . 774 v. Fortescue Add., 319, 535 v. Lancashire & Yorkshire By. Co. 631, 641, 642 McMyn, In re 1156 McNab v. Bobinson . . . . 839 Macnee v. Gorst . . . . 957, 958 M'Neil v. Perchard .. .. 1185 McNeill's case 1113 M'Pherson v. Daniels . . . . 876 M'Queen v. Gt. W. By. Co. 640 McQuire v. Western Morn- ing News 873,874 Macrow v. Gt. W. By. Co. 654, 655 Madden v. Kempster . . . . 987 ^.Kensington Vestry 1146 Maddever, In re 1190 Maddick v. Marshall . . . . 563 Maddison v. Alderson 319, 320, 526 Madell v. Thomas .. .. 1200 Maden v. Catanach . . . . 159 Magdalen Hospital v. Knotts 53, 1007, 1009, 1072 Magee v. Atkinson . . . . 17 v. Lavell .. .. 20,326 Magennis v. Dempsey . . . . 1156 Magnay v. Burt 918 v. Edwards . . . . 718 v. Knight .. .. 224 Magnus v. Buttemer .. 436,441 Magor v. Chadwick 39, 279, 838 Magrath v. Hardy .. .. 171 Maguire's case 1115 Maguise v. Liverpool Cor. . . 770 Mahoney v. Besloy . . . . 920 v. Holyford Mining Co 1111 Main, The 424, 449c Mainprice v. Westley .. .. 328 Maimvaring v. Giles 842, 843, 930 v. Leslie . . . . 566 Maitland v. Goldney . . . . 858 Makin v. Watkinson . . . . 741 Malachy v. Soper 878 Malcolmson v. O'Dea .. 53, 199 Maiden v. Fvson 332 PAGK Male v. Boberts 120 Maley, In re 1054 Mallalieu v. Hodgson . . . . 663 Mallet v. Gt. E. By. Co. . . 633 Mallory's case . . 1026, 1080 Malone v. Laskey . . . . 769, 774 Malpas v. Clements . . . . 35 v. L. & S. W. By. Co. 18 Maltass v. Siddle 389 Maltby v. Christie .. .. 66 Man v. Carey 122 Manby v. Curtis 102 v.Scott 564 v. Witt 869 Manchester Bonded Ware- house Co. v. Carr 342, 346, 738, 741 Manchester Brewerv Co. v. Coombs 349, 734, 1026, 1082 Manchester Cor. v. New Moss Colliery 815 Manchester (Mayor of) v. Williams 855 Manchester Overseers v. Headlam 1079 Manchester, &c. By. Co. v. Anderson 747 v. Brooks 707 v. Denabv Main Colliery Co. 633, 640 v. Doncaster Union 692 v. Wallis 795 Manders v. Williams .. 948, 968, 1189 Mandleberg, Ex parte . . 336 Manifold v. Pennington .. 824 Manley v. Field 910 Mann v. Barrett 910 v. Edinburgh N. Trams Co. 666, 1094, 1127 V.Forrester .. .. 983 v.Lang 1158 v. Lovejoy 1010 v. Moors 384 v. Nunn .. .. 18,314 Manning v. Adams .. .. 799 v. Clement . . . . 875 v.Fitzgerald .. 20 v.Phelps .. .. 722 Mansel v. Norton . . . . 348 Mansell v. Clements . . . . 587 Mansfield Union v. Wright 282, 483 Mant v. Collins 925 v. Smith 504 Mantz v. Goring 737 Manville v. Thomson .. .. 911 Manzoni v. Douglas .. .. 779 Maple & Co.v. Inl. Bev. Coins. 252 xciv Table of Gases Cited. l'AGF. Maplin Sands, In re .. . . 178 Mappin v. Liberty & Co. . . 932 Mara v. Quin 1158 Marc v. Rouy . . . . 229, 240 March v. March 207 Marchant v. Morton, Down & Co 136, 137, 556, 621 Mardall v. Thelluson . . . . 1153 Mardorf v. Accident Insur. Co 454 Mare v. Charles 367 Margaret, The 784 Margary v. Eobinson . . . . 147 Margate Pier Co. v. Hannarn 1139, 1141 Margetson v. Glynn . . 420, 459 v.Wright .. 489,491 Margetts v. Ocean Accident, &c. Cor 441 Margrett, Ex parte . . . . 673 Maria, The 785 Maria das Lores, The . . . . 212 Marie Joseph, The 460, 956, 993 Marine Insur. Co. v. China, &c. Steamship Co. ..445, 449r/, 449/ Marine Investment Co. v. Haviside 222, 223 Marine Mansions Co., In re 1204 Marino's case 1103 Marker v. Kenrick . . . . 346 Market Overt, case of . . . . 960 Marks v. Beyfus 173 v. Frogley 923 v. Hamilton . . . . 456 v. Lahee . . . . 59, 985 — v. Samuel 858 Markwick v. Hardingham . . 107S Marlborough (Dk. of) v. Os- borne 736 Marlow v. Pitfield . . 599, 674 Marney v. Scott 799 Marpesia, The . . 785, 786, 789 Marpessa, The 788 Marples v. Hartley .. .. 1204 Marrett, In re 1038 Marriage v. Lawrence . . 217 Marriot v. Hampton 612, 615, 616 Marriott v. Cotton . . . . 739 v. Stanley .. .. 780 Marrow v. Flimby, &c. Brick Co 805 Marryat v. Marryat . . . . 599 Marryatts v. White . . . . 699 Marsden v. City and County Assur. Co. 455, 457 v. Meadows . . . . 1199 v. Reid 449A- Marsden's Estate, In re . . 506 Marsh and Earl Granville, In re 328 Marshall v. Berridge Marsh v. Davies 568 v. Home 95 v. Hutchinson . . . . 1171 ■ v. Jones 348 — v. Keating . . 610, 617 v. Maxwell . . . . 383 - v. Pedder 700 .. .. 316 v. Bolckow . . v. Broadhurst v. Cliff .. .. v. Green v. Lamb v. Lynn v. Matson v. Morrison .. v. Parker v. Pitman v. Powell v. Rutton v. Taylor .. 465 .. 1150 73, 586 313, 531 .. 43 29 .. 653 .. 847 195, 427, 439 .. .. 1079 .. .. 234 .. .. 1171 . . 935, 1071 - v. UlleswaterS. Navi- gation Co. 834, 930 v. York and New- castle Ry. Co 652,654 Marshfield, In re . . Marson v. Petit Marston v. Allen . . — ■ v. Downes ■ v. Phillips .. 723 .. 244 . 371, 374 . 158, 1162 965, 973 1038, 1053 .. 609 1185, 1186 Martin, In re • v. Andrews v. Bell . . v. Gt. Indian Penin- sula Ry. Co. 473, 632. 635, 652, 655 v. Gt. N. Ry. Co. 651, 781 v. Henrickson .. 86 v. Martin .. .. 128 v.Price 822 345, 347, 1011, 1060 18 998 954 1191 505 544, 968 456, 543 .. 1147 v. Smith v. Spicer v, Strachan . v. Whitmore . Martindale v. Booth . — - — ■ v. Falkner v. Smith . Martineau r. Kitching Martins v. Upcher Martyn v. Clue .. 737, 739, 741 v. Gray 557 v. Podger . . . . 1060 v. Williams . . 727, 1026 Marvin, In re .. 1163,1166 v. Wallis . . . . 530 Mary, The 784 Marzetti v. Williams . . 408, 511 Maskelyne v. Smith 1191, 1217 Mason, Ex parte 1211 In re 157 Table of Cases Oited. xcv PAGF. Mason v. Birkenhead Im- provement Com- missioners . . 1144 V. Bradley . . . . 396 v. Ditchbourne 288, 663 ■ v. Farnell 1055, 1156 v. Harvey 455 v.Hill .. .. 39,837 v. Rumsey .. 364, 365 v. Sainsbury . . . . 458 v. Shrewsbury and Hereford Ry. Co. 838, 840 -V.Williams .. .. 851 v. Wood .. 43, 144, 1209 Masper v. Brown 917 Massam v. Thorlev's Cattle Food Co. .. .". .. .. 187 Massey v. Allen . . . . 55, 60 v. Goodall .. .. 348 v. Goyder .. .. 289 v. Johnson 1139, 1141, 1146 v.Sladen.. .. 927,980 Master v. Miller . . 245, 396, 662 Masters' case 1103 Masters v. Baretto . . 359, 414 - v. Farris 908 v. Green 907 v. Pollie 935 Mather v. Ney 1040 Matheson v. Ross .. 225, 273 Mathew v. Blackmore . . 599 Mathews v. Biddulph .. .. 922 Matson v. Baird 795 v. Cook 928 Matthew v. Osborne 946, 1056, 1057 Cay, The . . . . 789 Matthews v. Baxter . . . . 677 v. Bloxsome . . 244 v. Gibbs . . . . 471 v. Mnnster .. .. 283 v. Phillips . . . . 1152 v. Sawell . . . . 337 - — v. Ush( > 307, 1001, 1008 Matthewson v. Lydiate . . 717 Matthias v. Mesnard .. .. 903 Matthiesaen v. L. and Count v Bank 407,411 Matts v. Hawkins 934 Maugham v. Hubbard . . 135, 176, 177 v. Sharp . . . . 954 Maund v. Monmouth Canal Co 926, 1094 Maunder v. Conyers . . . . 553 v. Venn 910 Maunsell v. Ainsworth .. 154 Maying v. Todd 630 PAGE Mavor v. Pyne 526 Mavro v. Ocean Marine Insur. Co 448 Maw v. Jones 520 Mawby v. Barber 877 Mawson v. Hartsink . . . . 183 Maxted v. Morris . . 573, 575, 579 v. Paine 26, 572, 573, 574, 575, 579 Maxwell's case 1104 Maxwell v. Jameson . . . . 590 May, In re 1053 ■ v. Belleville . . . . 826, 837 -v. Burdett 789 ■ ■ v. Chapman 398 -v. Footner 293 v. Lane 308 v. May 217 v. Piatt .. .. 320, 321, 747 v. Tavlor 67 v. Thomson 316 Mayd v. Field 1172 Mayer v. Jadis 374 Mayfield v. Robinson . . . . 235 v. Wadsley . . 550, 697 Mayhew v. Boyce . ." . . 779, 780 v. Herrick .. 973,979, 1190 v. Locke .. .. 1146 ■ v. Nelson . . . . 648 Maynard's case 1102 Mavnard v. Consol Kent Col- lieries 222, 1103, 1109 v. Eaton . . . . 575 Mayo, In re. 31 Mead v. Daubigny . . . . 860 v. Robinson . . . . 122, 212 - v. S. E. Ry. Co 646 Meath (Bishop of) v. Belfield (Lord) 32 v. Win- chester (Marquis of) .. 103 Mecca, The 697 Mechelen v. Wallace . . . . 313 Medawar v. Grand Hotel Co. 94, 656, 657 Meddowcraft v. Gregory . . 1040 Mediana, The 788 Mediterranean S. S. Co. v. Mackay 472 Meet r. Bayliss 264 v. Wendt 493 Mcgginson v. Harper . . . . 686 Melanotte v. Teasdale . . . . 243 Melbourne Banking Co. v. Brougham 1093 Melen v. Andrews .. 64, 860 Melhado v. Porto Alegro Ry. Co 563,584,1111 Melhuish v. Collier .. 174,183 Moiling v. Leak .. 1009,1073 XI' VI Table of Oases Cited. PA.OK Mellish v. Rawdon . . . . 378 Melliss v. Shirlev, &c. Local Board .. .. 6G5 Mellor v. Leather 1079 v. Walmesley 60, 826, 934 v. Watkins " .. 944, 1005 Mellors v. Shaw 801 Meluish v. Milton . . . . 203 Melville's (Ld.) case . . 79, 105 Melville v. Stringer 1211, 1212, 1214 Membery v. Gt. W. Ry. Co. 777, 798, 805 Mendelssohn v. Hoppe . . 303 v. Ratcliffe . . 578 Menetone v. Athawes . . . . 589 Mercantile Bank of London v. Evans 621 Mercantile Bank of Sydney v. Taylor 17 Mercantile, &c. Insur. Co. v. Titherington 427 Mercantile, &c. Co. v. River Plate, &c. Co 192 Mercantile S.S. Co. v. Tyser 449fc Mercer, Ex parte 1190 v. Denne 49, 60, 211, 213 — v. Gooch . . . . 886, 1144 v. Whall . . . . 285, 287 v. Woodgate . . 764, 834 Merceron v. Dowson .. .. 729 Merchant Banking Co. of London v. Phcenix Besse- mer Steel Co 986 Merchant Prince, The . . 286, 786 Merchant Shipping Co. v. Armitage 469, 625 Merchant Taylors' Co. v. Truscot 820 Merchants' Trading Co. v. Universal Marine Co. 432, 437 Mercy u.Galot 694 Meredith v. Footner . . . . 71 v. Meigh 528, 529, 552 Meres v. Ansell 16 Merest v. Harvey . . . . 914, 938 Meriton v. Coombes . . . . 941 Merivale v. Carson . . 853, 873 Merle v. More 171 Merrick v. Waklev . . . . 213 Merry v. Nickalls* . . 26, 572, 573, 574, 575 Merryweather v. Nixan . . 595 Mersey Docks Board v. Gibbs 769 v. Inl. Rev. Corns... 250, 251, 265 Vt Penhal- low .. 769 Mersey Steel & Iron Co. v. Naylor.. .. 542,1112,1162 PAGE Merttens v. Hill 189 Messina v. Petrococchino . . 208 Messing v. Kemble . . . . 897 Metcalfe v. Britannia Iron- works Co. . . 470 — v. L. & Brighton Ry. Co. . . 639, 640, 646 v. Shaw 564 Metropolitan Association, &c. v. Fetch 759 Metropolitan Asylum District v. Hill 771, 773, 793 v. Kingham 312 Metropolitan Bank v. Heiron 679, 681 v. Pooley 889 Metropolitan Board of Works V.Howard 198 Metropolitan Counties, &c. Society v. Brown . . . . 1058 Metropolitan Omnibus Co. v. Hawkins 855 Metropolitan Ry. Co. v. Brog- den 316, 317, 524 — — v. Defries 339 Metters v. Brown .. 1061, 1062 Metzler v. Wood 277 Metzner v. Bolton . . . . 516 Meux v. Cobley .. .. 347,735 v. Gt. E. Ry. Co. .. 652, 775 v. Jacobs 970 Meux's Brewery Co. v. City of London Electric, &c. Co 759 Meux's Executor's case . . 70 Mews v. Carr 318 Mexican Mining Co., In re . . 1099 Meyer v. Dresser . . 24, 472, 477 v. Everth 542 Meyerhoff v. Froehlich . . 691 Meyerstein v. Barber .. 461,462, 471 Meynell v. Angell 1227 Meyrick v. Anderson .. .. 1158 v. Woods .. .. 12 Michael v. Hart 593 v. Stockwith . . . . 717 Michell v. Rabbetts . . . . 102 v. Williams . . . . 883 Micklethwait v. Newlay Bridge Co 932,933 Middleditch v. Ellis .. .. 628 Middleton, Ex parte .. . . 952 v. Barned . . . . 399 v. Melton .. .. 57 v. Pollock.. .. 706 v. Sandford . . 135 Midgley v. Coppock . . . . 743 Table of Cases Cited. xcvn r \ci. Midgley v. Wood 1041 Mid-Kent Fruit Factory, In re 1112 Midland Counties Bank v. Attwood 519 Midland Insur. Co. v. Smith 617, 791 914 961 Midland Ry. Co. v. The A.'-G. ' 248 v. Edmonton Union.. 692 v. Martin.. 997 v. Robinson 815 — v. Taylor .. 1119 v. Withing- ton Local Board .. 1144 v. Wright 1071, 1072 Midland Gt. W. Ry. Co. v. Gordon 1122 Midwood r. Manchester Cor. 773 Mighell V. Sultan of Johore 190 Migotti's case 1102 Milan, The 788 Milbank v. Milbank .. .. 13 Mildmay's case .. .. 19,1168 Mildmay v. Newton . . . . 211 Mildred v. Maspons 555, 605, 707, 983 Miles' claim 365 Miles, Ex parte 991 v. Furber .. .. 903,908 v. Gorton 968 v. Harris 1224 v. New Zealand Estate 397 v. Rose 35 Milgate v. Kebble .. .. 968 Mill v. Hawker 937 v. New Forest (Com. of) 825 Milieu v. Brasch .. .. 475,639 v. Dent 225 Miller's case 1105 Miller v. Biddle 415 V. Borner . . . . 469, 539 v. Caldwell . . . . 690 v.David 861 -v. Dell .. .. 994,998 v. Foster 102 V.Francis 1026 v. Green 905 v. Hancock . . . . 765 v. Johnson .. .. 88 v. Law Accident Insur. 440 v. Lawton 490 w.Miller 133 ■ v. Newman . . . . 550 v. Race 963 v. Salomons . . . . 159 v. Tetherington 23, i¥Jg v. Thomson . . . . 360 v. Travers 29 K. — VOL. I. r LGE Miller & Aldworth v. Sharp 319 Millership v. Brookes . . . . 139 Milligan v. Wedge . . . . 766 Millington v. Loring . . . . 496 Mills' Estate, In re . . . . 296 Mills, Ex parte .. ..559,1061 v. Ball 990 V. Barber 284 ■ ■ v. Capel 1077 v. Charlesworth 1195, 1199 v. Colchester (Mayor of) 41 v. Collett 918 v. East London Union 739 v. Fowkes .. 085,692,697, 698 v. Goff 1021 v. Millward . . . . 1054 v. Oddy .. 286,397,398 v. Stephens .. .. 286 Trusts, In re . . . . 1061 Millwall, The .. .. 492,650 Millward v. Midland Ry. Co. 806 Milne, Ex parte 1217 Milner v. Field 583 Milner's Safe Co. v. Gt. N. & City Ry. Co 836 Milnes v. Duncan . . . . 611 Milton v. Edgeworth . . . . 703 Milward v. Caffin 1079 V. Forbes . . . . 62 v. Hibbert . . . . 434 v. Littlewood .. 495 v. Temple . . . . 72 Miner v. Gilmour .. .. 837 Minet v. Morgan .. .. 157, 170 Minister v. Apperley .. 283, 297 v. Price 1202 Minshall v. Lloyd 8, 949, 1185, 1191 Minshull i;. Oakes .. 737,740 Mirabita v. Imperial Otto- man Bank 461,462 Misa v. Currie . . 26, 239, 982 Mitchell's case .. ..572,1109 claim 62, 688, 689, 691 MitchelU'. Cantrill .. .. 817 v. Cockburne . . 595 v. Crassweller . . 293 v. Darthcz . . . . 470 v. Holmes .. .. 1153 V. Jenkins . . . . 882 v. Lancashire & Yorkshire Ry. Co 648 v. Lapage . . . . 536 v. Moorman .. .. 1153 v. Reynolds . . . . 671 v. Simpson . . 918, 1188 Mitcheson v. Nicol .. .. 470 v.Oliver .. .. 586 Mizen v. Pick 565 xcvm Table of Cases Oiled. PAGE Moakes v. Nicholson .. .. 461 Mod Tryvan Ship Co. v. Kriiger .. ..460, Add., 460 Moens v. Hevworth .. .. 663 Moffat v. Parsons .. .. 709 Moffatt V. Bateman . . . . 778 v. Laurie 587 Mogul S.S. Co. v. McGregor 892 Mohima v. Mohesh . . . . 999 Moir v. R. Exchange Assur. Co 429 Moises v. Thornton .. 131,852 Moldat, lure 1157 Molineaux v. L. Birming- ham, &c. Insur. Co. .. 1102 Mollett v. Brayne . . . . 337 v. Wackerbarth 536, 661 Mollwo v. Court of Wards 558, 559 Molton v. Camroux . . . . 677 Molyneux v. Hawtrey . . 329 v. Richard . . . . 742 Monckton v. Payrie . . . . 682 Mondel v. Steel 569 Monetary Advance Co. v. Cater 1208 Moneux v. Goreham . . . . 966 Money v. Leach 1134 Moneypenny v. Brown . . 1052 Monk, hire 1155 t. Noves 738 v. Wliittenbury . . 958 Monke v. Butler 94 Monks v. Dykes .. .. 915,928 Monkseaton, The 789 Monkton v. Att.-Gen . . 44, 46, 47 Monmouthshire Canal Co. v. Harford 829 Monroe v. Twistleton . . . . 169 Monson v. Tussauds . . 853, 863 Montagu v. Forwood . . . . 707 Montague v. Benedict . . 564 v. Perkins . . . . 368 v. Preston . . . . 616 Montaignac v. Shitta . . . . 599 Monte Rosa, The 780 Montefiore v. Lloyd . . . . 482 Montgomery v. Indemnity Mutual Marine Insur. Co. 449tZ Monti v. Barnes 970 Montoya v. London Assur- ance Co 435 Montreal Gas Co. v. Vasey 545 Montriou v. Jefferys . . . . 589 Monypenny v. Bristow .. 146 Moodie v. Bannister . . . . 723 v. Reid 152 Moody v. Dethick .. .. 1147 v. Steggles . . 39, 925 — ■ v. Thurston . . . . 205 Moon v. Andrews 1164 v. Raphael . . 980, 995, 1187 PAGE Moon v. Towers 882 v. Witney Union . . 585 Moons v. De Bernales . . 204 Moorcock, The .. 486,792,800 Moore v. Burke 846 v. Bushell 604 v. Campbell .. 536, 549 v. Clementson .. .. 707 v. Fulham Vestry . . 615 v. Gamgee 206 v. Garwood 233, 607, 608 — v. Harris 474 u.Hill 628 v. King 148 v. Knight 680 v. Lambeth Water- works Co. . . 770 V. Metropolitan Rv. Co 1095 V. N. W. Bank . . . . 1099 v. Ostler 877 v. Peachey . . . . 13 v. Pyrke 591 v. Rawson.. .. 816,820 v. Robinson . . . . 925 V. Smee 1034 V. Voughton . . . . 624 v. Warren 699 v. Watts 965 v. Woolsey . . 453, 454 Moore & Robinson's Banking Co. , Ex parte 1201 Moore, Nettlefold & Co. v. Singer & Co 898 Moorsom v. Page 469 Moravia v. Sloper . . . . 83 Mordue v. Durham (Dean, &c. of) 814 Mordy v. Jones 445 Morel Brothers & Co. v. El. of Westmoreland . . 561, 564 Moreland v. Bennett . . . . 754 Morewood v. Pollok . . . . 475 v. S. Yorkshire Rv. , &c. Co 1207 v. Wood .. 48,49 Morfee v. Novis 905 Morgan, hire 1188 v. Bain .. .. 545,968 . v , Birnie . . . . 583 v . Bissell . . . . 1012 v . Brydges . . . . 1185 . ■ v. Couchman . . 202 v. Curtis . . . . 842 v. Davies .. .. 1015 v. Griffith . . 18, 314 v. Hardy . . . . 740 v. Harris . . . . 89 v. Hughes . . 918, 919 v. Jones .. .. 62S v. Knight . . . . 981 Table of Cases Cited. xcix Morgan v. Leach PAGE 1147 v. London General Oninibus Co. . . 804 V. Morgan . . 133, 1077 v. Nicholl 201 17. Palmer . . 614, 1141 v. Pike . . . . 22S ,717 v. Powell 939 v. Ravey . . 656, 1155 v. Rowlands .. 685 v. Thomas 1151 v. Vale of Neath Ry. Go. 802 v. Whitmore 36 Galloway & Co. v. 423 v. Brooks 279 Uzielli Moriarty v. L. C. & D. Ry. Co 61,67 Morier, Ex parte 706 Morison v. Gray 966 V. Thompson .. .. 603 Morland v. Pellatt .. .. 1220 Morley v. Attenborough . . 487 v. Clifford .. .. 823 17. Hall 248 ■ v. Pincombc .. .. 905 Morphett V. Jones .. .. 319 Morrell v. Cowan 19 v. Frith 690 — v. Morrell . . . . 1050 Morris, In re 1163 v. Bethell 368 ■ — v. Davies 1047 v. Delobbel-Flipo . . 1201 v. Dixon 234 u.Edwards .. .. 157 v. Hauser 11 v. Levison . . . . 468, 470 v. Lotan 286 ■ — ■ v. Martin 566 y. Matthews .. .. 756 v. Ogden 1062 v. Salberg 937 Morrison v. Chadwick .. 341,728 17. Lennard .. .. 162 v. Universal Marine Insur. Co 11'.)/, Morritt, In re 1213 v. N. E. Ry. Co. . . 639 Morse w. Slue 472, 630 Mors-le-Blanch v. Wilson .. 471 Mortgage Insurance Corpora- tion v. Inl. Rev. Corns. Mortimer v. Gragg 17. M'Calhui v. Preedy Mortimorc V Mortin v. Shoppee Morton's case Morton, In re Wright 242 1224 2, 122 336 567 913 1122 1054 PAGE Morton v. Palmer . . . . 905 V. Tibbett . . 528, 529 v. Woods 1083 Moscatti 17, Lawson Moseley v. Hanford ■ v. Rendfell Moses v. Macferlan Moss 17. Hall . . . . ■ v. Hancock .. v. James 17. Smith v. Sweet Mossam v. Ivy 288 . .. 16 .1150,1151 . 205, 601 . .. 405 . 962, 964 . .. 969 . .. 445 . . . 550 . .. 216 . .. 839 120 Mostyn v. Atherton v. Fabrigas v. W. Mostyn Coal & Iron Co 664,731,748 Mott v. Shoolbred . . . . 760 Motteram v. Eastern Ry. Co. 101 Mouflet v. Cole 672 Moule v. Brown . . . . 407, 408 v. Garrett 593 Moulis 17. Owen 400 Moult v. Halliday . . . . 516 Mounsey v. Blamire . . . . 31 v. Ismay 817, 823, 828 Mount Lyell, &c. Co. v. Inl. (Earl of) Rev. Corns. Mountcashel Barber Mountford v. Gibson v. Harper Mountnoy v. Collier Mountstephen v. Lakeman 262 595 1153 37 341 293, 479 1212 348 Mourmand v. Le Clair Mousley v. Ludlam Mo watt v. Castle Steel, &o. Co 131,1127 v. Londesborough . . i'>-2-~> Mowbray v. Merryweather . . 492 Moxham v. Grant 595 Moyle v. Jenkins 808 Mucklow v. Mangles . . . . 952 Muggleton v. Barnett . . . . 210 Muggridge, In re 679 Muilman v. D'Eguino . . 378, 385 Muir v. Crawford.. .. 405,485 Mulgrave v. Ogden .. .. 971 Mullens 6\ Miller 328 Muller's Margarine Co. v. Inl. Rev. Corns. . . 251, 252 Millett v. Huchison .. 234,273 ■ v. Hulton .. .. 864 v.Hunt 155 — 17. Mason 849 Mullick v. Badakissen .. 378 Mullincr v. Florence .. 974, 983, 984, 985, 988 v. Midland Ry. Co. 832 Mumford v. Collier . . . . 1202 Table of Cases Cited. PAGE Mumford v. Gething .. .. 30 v. Oxford, &c. By. Co 760 Munday v. Asprey . . 314, 317 v. Norton .. .. 282 Mundv v. Jolliffe 319 v. Rutland (Dk. of) 814 Municipal, &c. Building Soc. v. Smith 1026, 1059 Munn v. Godbold .. ..4,255 Munro, Ex parte 503 v. De Chemant . . 567 Munroe v. Pilkington . . . . 208 Munster v. Lamb . . . . 866 v. S. E. By. Co. .. 654 Murchie v. Black 813 Murgatroyd v. Bobinson . . 840 v. Wright . . 964 Murly v. M'Dermott .. 33,934 Murphy v. Boese' 534 v. Caralli .. 767,799 v. Coffin 465 v. Sullivan .. .. 525 Murray v. Bush 1115 — v. Currie . . . . 766, 799 — v. East India Co. .. 1152 v. Gregory .. .. 63 v. Hall .. .. 936,940 — v. Mackenzie . . . . 1206 v. Mann 636 — v. Milner . . . . 47, 1039 v. Stair (El. of) 139, 754 Muscharnp v. Lancaster, &c. By. Co 634 Musgrave v. Drake . . 365, 399 • v. Emmerson .. 58 v. Inclosure Corns. 53 Musgrove v. Newall . . . . 884 Mussen v. Price . . . . 570, 571 Musurus Bey v. Gadbau . . 683 Mutlow v. Bigg 1077 Mutton, Ex parte .. .. 1204 v. Peat 698 Mutual Loan Assoc, v. Sudlow 485 Myers v. Defries 298 v. Elliott 1212 — v. L. & S. W. By. Co. 631 — v. Perigal 314 v. Sari 23 Mynn v. Joliffe 695 Myrtle v. Beaver 584 Mystery, The 784 Mytton v. Midland By. Co. 635, 655 v. Overseers of Thorn- bury 51,102 NANNEY v. Morgan . . .. 1119 Nant-y-glo, &c. Iron Works Co. v. Grave 603 Nargett v. Nias .. Nash v. De Freville v. Duncomb l'AQE 907, 908 .. 404 .. 224 v. Hodgson 685 v. Lucas 902 v. Palmer 746 Natal Land, &c. Co. v. Pauline Colliery, &c. Syndicate . . 1111 Nathan v. Jacob . . . . 14, 63 Nation's case 1103 Nation v. Tozer 338 National Bank v. Silke . . 412 National Exchange Co. of Glasgow v. Drew 70, 848, 1096 National Mercantile Bank, Ex parte 1203, 1205 ■ v. Hampson . . . . 955 v. Bymill . . . . 978 National Phonograph Co. v. Edison Bell, &c. Co. .. 910 National Provincial Bank of England, Ex parte 483 v . Jackson 137, 663, 717 National Provincial, &c. In- surance Co. v. Prudential Assurance Co 821, S22 National Savings Bank Asso- ciation v. Tranah . . . . 571 National Telephone Co. v. Baker 281, 772, 792 ■ v. Inl. Bev. Corns. 246, 258 Navone v . Haddon . . . . 449/ Navlor v. Mangles . . . . 982 v. Taylor 447 Neal v. Erving 421 v. Joy 216 v. Swind 337 Neale's case 216 Neale v. Clarke 302 v. Electric, &c. Go. . . 809 v. Pry 216 • v. Gordon Lennox 280, 283 ■ v. Mackenzie .. .. 341 ■ v. Parkin 65 v. Eatcliffe 741 Neate v. Harding 616 Neaverson v. Peterborough, &c. Council 40 Needham v. Bremner 193, 203, 567 Neeld v. Hendon U.D.C. .. 833 Neill'scase 1100 Neill v. Devonshire (Duke of) 48, 53, 85, 192, 196, 200, 935 v. Whitworth .. .. 540 Neilson v. Jarnes . . Nelson, Ex parte .. ■ v. Cherrill — — — v. Couch . . v. Dahl . . v. Liverpool Brewery Co 572 1203 924 205 465, 467 768 Table of Cases Cited. c\ PAGE Nelson v. Salvador . . . . 429 v. Whittall .. .. 134 (James) & Sons v. Nelson Line, &c. .. Add., 464 (No. 2) 636, Add., 473 Nene Valley Drainage Com- missioners v. Dunkley . . 315 Neou. Neo 34,1038 Nepean v. Doe 1070, 1073, 1078 Ness v. Armstrong . . . . 1122 v. Stephenson . . . . 905 Nevill's case 485 Nevill v. Fine Art Assoc. 853, 871 New Balkis Eesterling v. Randt Gold Mining Co 1106 Newall v. Elliott 220 v. Tomlinson . . . . 612 Newbigging v. Adam . . 558, 844 Newbold & Metropolitan Ry. Co., hire 220 Newbold v. Coltman . . . . 1138 Newbould v. Smith .. 58, 720 New Brunswick, &c. Ry. Co. v. Conybeare 279, 1107 v. Muggeridge 663, 1108 New London Credit Syndi- cate v. Neale 401 New Romney (Mayor, &c. of) v. Corns, of Sewers of New Romney 198 New Sombrero Phosphate Co. v. Erlanger 1154 New Westminster Brewery Co. v. Hannah 187 New York Breweries Co. v. Att.-Gen 1157,1158 New Zealand Gold Co. v. Peacock 1104,1107 New Zealand Land Co. v. Watson . . 293, 555, 605, 708 Newby v. Sharpe .. 292, 341, 742 Newcastle (Duke of) v. Brox- towe .. .. 50 v . Clark . . 928, 934 Newcastle Pilots v. Bradley 36 Newcomen v. Coulson . . 826, 836 Newell o. Nat. Prov. Bank of England .. .. 1153 v. Radford .. 20,582 Newen, In re 283 Newfoundland (Govt, of) v. Newfoundland By. Co. 020, 621, 7( is Newhall V. Holt . . . . 3, 63, 626 Newham v. Raithby .. .. 218 Newitt, Ex parte 1201 Newlove V. Shrewsbury .. 11 '■»'.) Newman, In re 326 y. Newman (1 Stark. 101) .. .. 37 Newman v. Newman (28 Ch. D. 674).. .. v. Rogers v. Zachary .. & Dale S.S. Co. & British, &c.S.S. Co., In re Newmarch v. Clay Newport v. Godfrey Newry and Enniskillen Ry. Co. v. Edmunds . . 1121, Newsam v. Carr . . . . 881 Newsom v. Thornton Newsome v. Coles v. Graham . . I'agi: 451 323 862 463 697 693 1124 ,886 98S 557 612 821 294 Newson v. Pender Newton's case Newton v. Allin 727 — v. Beck 996 v. Belcher . . 61, 540 v. Chaplin . . 158, 279 v. Ellis 1144 v . Foster . . v. Harland v. Liddiard v. Ricketts ■ — ■ v. Sherry.. Niboyet v. Niboyet Nicholas v. Chamberlain Nicholls v. Diamond .. v. Doweling . . v. Downes v. Haywood .. v. Jones.. • o. Parker v. Rosewarno Nichols v. Marsland .. 705 155 61 152 1160 1048 838 358, 367 . 70 65 717 157 48,51 1090 631, 777. 791, 800 Nicholson v. Bradfield Union 1093 v. Brooke v. Coghill v. Cooper v. Gooch ■v. Knowlcs .. v. Lancasbhv, . S. Peter's, Exeter 40, 215 R. — VOL. I. TAGE R. v. Sanders 1134 — v. Scarnmonden . . . . 20 — v.Scott Ill — v. Senior 568 — v. Shropshire Union Rys. &c. Co 1120 — v. Silverlock 142 — v. Silvester 670 — V. Skinner 866 — v. Smith 108, 117 — v. Solomon 853 -v. Sourton 1047 — v. Stoke Golding . . . . 5 — v. Stoke-upon-Trent . . 27 — v. Stourbridge 7 — v. Strachan 260 — v. Strafford (Lord) . . . . 184 — v. Sutton . . 189, 190, 193, 500 — v. Sympson 83 — v. Tankard 667 — v. Thruscross .. .. 119,210 — v. Tibshelf 1040 — v. Tolson 125 — v. Tooke 108 — v. Train 833 — v. Tucker 163 — v. Turner 95 — v. Twiss 203 — v. U. K. Telegraph Co. .. 833 — v. Upper Boddington 169, 170 — v. Varlo 27, 28 — v. Verelst 43 — v. Waite 42 — v. Walker 1136 — U.Wallace 105 — v. Ward 108 — v. Washbrook 219 — v. Watson . . 3, 168, 169, 172, 173, 183, 216, 857 — v. Watts 224 — v. Wavertree 48 — v. Weaver . . . . 101, 125, 127 — v. Weil 1134 — u.Wells 1222 — v. West Mark 833 — v. Wheater 62 — v. White 760 — V. Whitehead . . . . 162, 163 — v. Whitley 67 — v. Whitnash 670 — v. Whittles 84 - v. Wick St. Lawrenco . . 194 — v. Wickham 20 v. Widdop 62 — v. Williams .. 105, 162, 169, 765, 769 — v. Wiltshire 42 - v. Wilson 2, 1038 — v. Winter sett 519 — v. Withers .. .. 83,190 — v. Woodley .. .. 158,170 h v XIV Table of Cases Cited. PAGE R. v. Worth 60 - v. Worfcley 235 — v. Wrangle 3 — v. Wright 933 — v. Wroxton 1041 - v. Yeoveley 108 - u. Yewing 184 v. York (Mayor of) .. .. 193 Rabey v. Gilbert 393 Race v. Ward 837 Racine, The 788 Rackham v. Marriott .. .. 688 Radcliffe, In re 1161 Radford v. M'Intosh . . . . 43 Radley v. L. & N. W. Ry. Co. 780 Raggett v. Musgrave . . . . 36 Railton v. Mathews .. .. 483 Rainbow v. Howkins . . 319, 328, 544, Add., 319, 544 v. Juggins . . . . 486 Rainford v. J. Keith & Co. 1100 Rains v. Buxton 1071 Rainy v. Bravo 4, 293, 294, 853 v. Vernon 587 Rajah, The 475 Raleigh v. Goschen . . 293, 937 Ralli v. Janson 449/ v. Sarell 363 Ralph v. Harvey 562 Rani v, Lamley 865 Rarnage v. Woniack . . . . 719 Rainbert v. Cohen . . 2, 223 Rameshur Singh v. Pattuk 839 Raniozotti v. Bowring . . 707 Ramsay v. Margrett 926, 949, 1179, 1198, 1199, 1202 Rarnsbottorn's case .. .. 118 Rarnsbottom v. Buckhurst 111, 1059 v. Davis . . . . 226 -v. Mortley 233,335 v. Tunbridge 233 Ramsden v. Brearley . . . . 1172 v. Lupton .. .. 1191 v. Manchester, &c. Ry. Co 939,941 Rainsgate Victoria Hotel Co. v. Goldsmidt 1100 Rarnskill v. Edwards . . 595, 1155 Ramuz v. Crowe 357 Rand v. Vaughan . . 1081, 1082 Randall v. Moon 660 v. Newson . . 492, 849 v. Raper .*. . . . . 492 v. Stevens 1073, 1074 Randell v. Trinien . . . . 493 v. Wheble .. .. 1221 Randle v. Blackburn . . . . 78 Randolph v. Gordon .. .. 102 Randt Gold Mining Co., In re 1107 PAGE Ranger v. Gt. W. Ry. Co. .. 583 Raper v. Birkbeck . . . . 662 Raphael v. Bank of England 400 v. Goodman . . . . 1184 v. Pickford . . . . 631 Rapier v. London Tramways Co 761 Rapson v. Cubitt 766 Rashleigh v. S. E. Ry. Co. 715 Ratcliff v. Ratcliff .. .. 128 Rate! ifl'e's case 1036 Ratcliffe v. Evans . . 854, 880 Rathbone v. D. Maclver & Co 472,475 Ratt v. Parkinson .. .. 1138 Ravee v. Farmer 219 Ravenga v. Mackintosh .. 884 Rawley v. Rawley . . 676, 705 Rawlings, Ex parte 944, 955, 1200, 1212, 1213 v. Morgan . . . . 740 Rawlins v. Briggs 744 V. Desborough 284, 286, 288, 453 v. Rickards . . . . 59 Rawlinson v. Marriott .. 751 v. Scholes .. .. 1155 Rawlyns v. Vandyke . . . . 565 Rawson v. Eicke . . . . 333, 1013 v. Johnson . . . . 545 v. Walker . . . . 16 Rawstone v. Preston Corp. 157 Rawstron v. Taylor . . . . 839 Ray v. Barker 550 v. Hazeldine .. .. 818 Raybould, hire 596 Raymond v. Fitch . . . . 726 v. Minton . . . . 521 Rayner, In re 31 v. Godmond .. .. 443 — v. Mitchell . . . . 775 Rayson v. Adcock 1057 v. South London Tramways 880 Read's case 1158 Read v. Anderson . . . . 591 • v. Blunt 1160 v. Brown 620 v. Burley .. .. 903,906 v. Coker . . . . 913, 1143 v. Edwards 937 v. Fairbanks . . 953, 980 - v. Friendly Society of Operative Stone- masons .. .. 892 v. Gamble 401 ■ v. Goldring .. 709, 710, 711 v. Gt. E. Ry. Co. . . 810 v. Joannon 1214 v. Legard . . . . 566, 677 v. Lincoln (Bishop of) 216 Table of Cases Cited. cxv PAGK I Read v. Victoria Station, &c. Ry. Co 198 Reader v. Kingham . . . . 480 Readhead v. Midland Ry. Co. 486, 651, 778 Reading v. Royston .. .. 1168 Real and Personal Advance Co. v. Clears 1210 Rearden v. Minter .. .. 143 Reardon v. Swaby 248 Recepta, The 475 Red Sea, The 470 Reddie v. Scoolt 912 Rede v. Farr 1031 Rcdfern v. Redfern . . . . 168 Redford v. Birley 84 Redgrave v. Hurd . . . . 663 Redhead v. Westwood .. 1199 Redman v. Wilson . . . . 435 Redpath v. Roberts . . . . 337 Reeco v. Taylor 915 v. Trye 170 Reed v. Deere . . . . 224, 225 v. Fairless 155 v. Harrison . . .'. . . 938 v. Jackson .. .. 21,192 v. King 175 v. Lamb .. .. 101, 122 v. Nutt 917 v. Passer . . 1038, 1039 v. Royal Exchange Assur. Co 451 v. Taylor 881 v. Thoyts .. 1186,1219 V. Wilinot 1191 Reedie v. L. & N. W. Ry. Co. 766 Rees v. Harrington . . . . 485 v. Bowen .. .. 113,114 v. De Bernardv . . . . 666 -v. King .. .. .. .. 1028 — — v. Lloyd 42 v. Morgan 1080 v. Smith 277 v. Wan..-; .. .. 192, 1153 v. Williams .. .. 133,503 Reese River Co. v. Smith . . 1108 Reeve v. Bird .. .. 338,341 v. Gibson 297 v. Palmer 995 v. Whitmore .. .. 954 Reeves v. Barlow 955, 1201, 1209 v. Butcher .. .. 681 v. Capper 954 Regent United Service Stores, In re 907 Reg. v. . See It. v. . Regnart v. Porter 1011, 1083 Reid v. Allan 267 v. Batte . . 4, 223, 582 v. Dickons 685 v. Explosives Co. .. 519 PAGE Reid v. Hoskins . . . . 70, 467 v. Margison 98 v. Reid 1178 v. Rigby .. .. 367,617 Reignolds v. Edwards . . . . 835 Reilly v. Fitzgerald . . . . 47 Rein v. Lane 248 Reinhardt v. Mentasti .. 761 Reischer v. Borwick .. .. 435 Rcmfry v. Butler . . . . 608 Remmett v. Lawrence . . 1222 Remmie v. Hall 180 Rcnaux v. Teakle . . . . 564 Reney v. Kirkcudbright (Magistrates of) . . . . 787 Renner v. Tolley 65 Rennie v. Robinson . . . . 334 v. Wynn 563 Renteria v. Ruding . . . . 460 Repetto v. Millar's Karri Forests 459 Restell y. Nye 583 Reuss v. Picksley . . . . 318, 533 Reusse v. Meyers 218 Reuter v. Elec. Telegraph Co. 1092 • v. Sala .. 538,541,542 Revelstoke v. Inl. Rev. Corns. 262 Revett v. Brown 929 Revis v. Smith 865 Rew v. Pettet 686 Rex v. . Sec R. v. . Reynell v. Lewis . . . . 562, 563 Reynolds, Ex parte . . 83, 169 v. Ashby & Sons . . 970 v. Beerling . . . . 706 v. Caswell . . . . 505 v. Chettle . . . . 379 v. Doyle . . . . 681 v. Fcnton . . . . 120 ■ v. N. E. Ry. Co. . . 775 v. Presteign U. Dist. Council .. .. 933 v. Waring .. .. 319 s.Wheeler .. .. 594 Ethind v. Wilkinson .. .. 434 Rhoadcs, In re 1163 Rhodes, In re 677 — - v. Forwood . . 517, 519 v. Gent 369 - v. Moules 511 — v. Rhodes 622 — v. Smetburst .. 684, 1165 r. Switbonbank .. 283 llliyniney liy. Co. v. Price 1079 v. Rhyrn- ueylronCo 626,640 Hi co v. Baxcndale .. .. 648 v. Howard 175 v. Read 617, 702 Rich v. Basterfield . . . . 768 v. Johnson 935 // 2 CXV1 Rich V. Kneeland v. Woolley .. Richards, In re . . v. Barton v. Bassett v. Browne ._ v. Gellatly v. Table of Cases Cited. ■v. v. ■ V. V. V. V. V. PAGE .. 630 .. 1081 .. 970 . 325 . 49, 211 1156, 1162 .. 64 1226, 1227 .. 1227 1215 vagi-: 449c 916 1188 660 1047 Jenkins V. Johnston . . Kidderminster L. B. &S.C.Ry. Co 654 May 58: ^ Morgan 65, 114, 202 Richards .. 877,1037 Rose . . . • 38, 813 West Middlesex Waterworks Co 909 Richards and Home Assur. Association, In re . . Richardson v. Anderson v. Atkinson v. Barnes . . v. Brown . . . v. Chasen . . . v. Du Bois . v. Dunn 64 v. Gifford . . . v. Goss v. Gt. E. Ry. Co Hall . • Rickman v. Carstairs . . Riddell v. Pakeman .. Rideal v. Fort .. •• v. Gt. W. Ry. Co. Rideout's Trusts, In re Rider v. Malbone *° v. Wood bd Ridgway v. Hungerford ^ ' 289 .. 894 .315 . . 294 853, 862, 880 .. 1190 Market Co. v. Philip v. Stafford . . v. Wharton . . 1102 123, 448 .. 972 .. 305 .. 489 325, 331 . 565 552, 849 . 345 Riding v. Hawkins v. Smith .. Ridler, Inrc .. ■■ Ridley v. Gyde . . . v. Plymouth Co. .. v Plymouth Grinding Co. Baking 181 70 1115 Taylor 365 429 Ridsdale v. Newnnam • • *-- Riga, The Rigborgs Minde, The Rigby 789 813 — v . Harris . . — v. Jackson . . — v. Langridge 991 651 338 1203 712 1011 213 Right v. v. v. V. Bennett Connol o7^ Hewett Vo" Beard .. -999,1009 Cuthell .. •• •• 10}9 Darby 339, 1015, 1 Price 146 - v. V. V. V. V. V. 797 631 652 475 v. Mellish .. v. Metropolitan Ry. Co. N. E. Ry. Co. Rowntree Stanton Stormont,Todd &Co. 578,581,706 Sylvester . . 846 Williamson 293, 494 _,;.Willis .. 101,107 . v. Younge . . • • 1°7 8 Richardsons & Samuel, In re ligley «. Daykin .. .. 501 Riley v. Baxendale v. Packington Rileys, In re .. ■■ Rimington v. Cannon Rimini v. Van Praagh 292 . 563 .. 1217 1071, 1077 400, 626, 671 994 498 784 222 &c. Works v. 407 Car- 666, 1094, 1111 1155 176 Richdale, Ex parte Riche v. Ashbury Ry. riage, &c. Co. Richmond v. Nicholson . . Rickards v. Murdock •• •• Ricket v. Metropolitan Ry. Co ...• 198,759,834 Rickett v. Tullick .. •• 344 Ricketts v. Bennett . . 599, 1090 v. E. & W. India Docks, &c. Ry. Co. .. .. ■• 795 v. Weaver . . • • 726 Rickford v. Ridge . . • • 407 Ringham v. Clements Ringland v. Lowndes Ripon, The . . Rippiner v. Wright Risden Iron, Furness Risely v. Ryle Rishton v. Nesbitt v. Whatmore . . Risk Allah Bey v. Johnstone 878 v Whitehurst 863, 873 1112 1218, 1219 . 45 534 Ristv. Faux •• •• •• Ritchie v. Van Gelder Ritso's case Rivaz v. Gerussi . . Rivers v. Griffiths (Lord) v. Adams Riviere v. Bower . . Rivington v. Garden . . Roach v. Wadham Robarts v. Tucker Robbins v. Fennell .. 911 .. 292 .. 1100 .. 449fe .. 713 .. 40 . 818 .. 300 .. 729 .. 364 509, 605 Table of Cases Cited. cxvn TAGK Robbins v. Heath . . 509, 605 v. Jones . . . . 764. 833 Roberts, In re .. ..623,1199 v. Allatt 168 v. Barber .. .. 508 v. Barker . . 26, 348 v. Berry 323 v. Bethell. .. 364,677 v. Bradshaw . . . . 385 v. Brennan . . . . 121 v. Bury Corns. . . 582 u.Crowe 593 v. Davey . . . . 1031 v. Eberhardt . . . . 614 u.Evans.. .. 92,1172 v. Fortune . . . . 195 v. Havelock . . . . 589 v. Holland .. .. 718 v.Hunt 833 V. .Tones 297 v. Karr 831 v. Macord . . . . 818 v. Oppenhcim . . 13 v. Orchard . . . . 1143 v. Phillips .. .. 147 v. Read 773 v. Roberts 863, 1203, 1209, 1210, 1213 v. Rowlands . . . . 329 v. Security Co. . . 458 v. Smith . . 584, 802 v. Watkins . . 583, 1173 v. Williams .. .. 1146 v. Wyatt . . . . 966 Robertson v. French . . 420, 425 v. Hartopp . . . . 825 — v. Jackson .. 21, 23 v. Jenner .. .. 516 ■ v. Money .. .. 22 v. Powell . . . . 1054 v. Skelton . . . . 326 v.Smith .. .. 32 v. Wait .. .. 22 Robin, The 300 Robins v. Gibson 386 v. Goddard . . . . 583 - v. Gray 983 v. Maidstone (Vt.) .. 78 v. Robins .. .. Add., 203 Robinson's case .. .. 191,1100 Robinson v. Ainge .. .. 314 v. Bland . . . . 622 v. Brigga .. .. 1202 v. Cbiirtcred Bank 1103 . v. Collingwood .. 1208 v. Cook .. .. 279, 710 v. Cowpen Local Hoard .. .. 835 v. Currey . . . . 757 v. Davies .. .. 188 v. Davison .. .. 519 PAQE Robinson v. Didcep Singh . . 110, 200, 825, 943 v. Emanuel .. 508, 510 v. Geisel .. .. 91 v. Gt. W. Ry. Co. 633 v. Gregory . . . . 101 v. Harkin . . . . 682 v. Harman . . . . 332 ■ v. Hawksford . . 407 ;;. Hewer .. .. 671 v. Hindman . . 516 v. Hofman . . . . 1086 v. Kilvert . . 747, 763 v. Knights . . . . 469 v. Learoyd .. .. 751 f.L.&S.W.Ry.Co. 644 v. Lyall . . . . 597 v. Lynes .. .. 1170 17. Markis . . 53, 187 v. Mollett . . 26, 540 v. Montgomery Brewery Co. 1120 v. Musgrove .. 327 v. Nahon .. .. 567 v. Pickering .. 1173 v. Rayley .. .. 943 v. Robinson . . .. 163 ■ v. Rutter . . . . 551 v.Vernon (Lord) 230,270 v . Waddington . . 897 v. Yarrow . . . . 371 Gold Mining Co. v. Alliance Assur. Co 439 Robson v. Alexander . . . . 62 v. Andrade . . . . 67 v. Biggar 896 v. Drummond .. 582 v. Edwards . . . . 817 v. Godfrey . . . . 581 v. Kemp 170 v . N. E. Ry. Co. .. 796 v. Olliver 699 v. Rolls 974 v. Turnbull . . . . 293 Rochefoucauld v. Boustead 320 Rochester (Bp. of) v. Le Fanu 336 (Dean, &c. of) v. Pierce 1093 Rock v. Loighton 1166 Rockett 17. Clippingdalo 303, 789 Roddy v. Williams .. .. 330 Roden v. Eyton 898 v. Ryde 136 Roderick 17. Hovil .. .. 267 Rodger v. Comptoir d'Es- compte dc Paris 460, 992, 993 Rodgers v. Nowill .. .. 86 v. Parker .. 897,900 Roddam v. Morley .. .. 724 Rodney, The 174 Rodocauachi v. Elliott 428, 447 cxviii Tahle of Cases Cited. Rodocanachi v. PAGE Millburn 460, 476, 648, 649 Rodrigues v. Melhuish . . 785 Rodriguez v. Tadmire . . . . 886 Rodwell v. Phillips .. .. 312 v. Redge 43 Roe v. Birkenhead, &c. Rv. Co ".. 1095 - v. Bradshaw 1207 v. Charnock 1015 v. Davies 292 v. Davis . . . . 3, 1009, 1027 v. Doe 1015 v. Ferrars 199 ■ v. Harrison . . 731, 732, 1032 - v. Hayley 1019 v. Hersey . . . . 3, 999 v. Kemmis 142 v. Lord 1038 - v. Loveless 1057 v. Minshall 1032 - v. Mutual Loan Fund 617 - v. Paine 1033 — - v. Parker 210 v. Pierce 1020 v. Rawlings . . 45, 56, 140 v. Sales 731 v. Siddons 20 v. Street . . 1010, 1020 v. Ward 1017 v. Wiggs 1020 Roelandts v. Harrison . . 468 Roffe v. Roscoe 1099 Roffey v. Henderson .. 944,969 Rogers' case 1100 Rogers, Ex parte 578 v. Allen 53 - v. Brooks 39 - v. Clifton .. .. 859, 868 - v. Custance .. .. 11 v. Hadley 16 - v. Hull Dock Co. 27, 1016 — ■ v. Humphreys .. 1057 v. Ilscombe . . 889, 891 - v. Ingham .. 601, 611 v. James 229 v.Jones 1140 — v. Kennay . . . . 1226 — v. Lambert .. .. 891 — v. Pitcher . . 334, 1085 - v. Rice 1035 - v. Taylor 814 - v. Whiteley .. .. 409 v. Wood . . 50, 200, 220 Rogerson v. Ladbrooke .. 707 Rohl v. Parr 437 Roles v. Davis 293 Rolf v. Dart 98 Rolfe v. Abbott 567 v. Flower 560 v. Maclaren .. .. 295 PAGE Rolin v. Steward 408 Rollason v. Leon .. .. 257, 1013 Rolls v. Miller 735 v. Rock 931 v. Vestry of St. George, Southwark 933 Rolph, Ex parte, 1203 -v. Crouch .. 492,741, 748 Romor & Haslam, In re . . 509 Romford Canal Co., In re .. 1127 Romney Marsh (Lords of) v. Trinity House 786 Rook v. Hopley 489 Roope v. D'Avigdor 617, 914, 961 Rooth v. N. E. Ry. Co. .. 642 v. Quin . . . . 70, 200 Roots v. Dormer (Lord) .. 322 V.Williamson .. ..1119 Roper, In re 1172 v. Harper 944 - v. Holland . . . . 628 v. Johnson . . 546, 547 -v.Levy 499 Rordasnz v. Leach . . . . 374 Roscow v. Hardy 377 Rose v. Bryant 37 v. Groves 834 v. Kitchin 1144 v. N. E. Ry. Co 796 v. Rowcroft 373 v. Savory 79 ■ ik Tomlinson . . . . 229 Rosenbaum v. Belson . . . . 319 Rosenberg v. Cook . . . . 329 Rosevear China Clay Co., Ex parte 990 Rosewarne v. Billing . . . . 591 Rosewell v. Prior 768 Roskruge v. Caddy .. .. 1080 Ross v. Army and Navy Hotel Co 1215 v. Clifton .. .. 908, 1142 ■ v. Estates Investment Co 1113 v. Fedden 792 v. Hill 630,636 v. Hunter . . . . 94, 441 v. Jobnson .. .. 648,972 Rossiter v. Miller . . . . 315, 316 Rotherey v. Wood . . . . 1218 Rotberam Alum, &c. Co., In 1111 re.. Rotbschild Comms 238 Rothwell v. Humphreys . . 599 Rourke v. White Moss Col- liery Co 776,799,803 Rouse v. Bradford Banking Co 484 v. Dixon 809 Rousi lion v. Rousillon .. 669 Inland Rev. Table of Oases Cited. CX1X TAGE Routh v. Macmillau .. .. 463 - v. Roublot 1206 Routledge v. Grant .. 311,319 v. Hislop . . . . 205 v. Rarosav .. 690,692 v. Thornton . . 237 Roux v. Salvador 447 v. Wiseman 995 Rowbotham v. Wilson . . 814 Rowe v. Brenton .. 38, 57,85,111, 114,119,144,160,187,196, 197, 198, 210, 277, 967 V. Grenfel .. .. 38,935 v. London School Bd. 332 v. Osborne 536 v. Pickford 991 ■ v. Roach 878 v. Tipper 383 v. Young 364 Rowland v. Ashbv . . . . 20 v. Blaksley .. 88, 694 Rowlands v. Samuel . . . . 886 v. De Vecchi . . 60 Rowlandson v. Wainwright 42 Rowles v. Senior 937 Rowlev v. L. & N. W. Ry. Co." 176,782,811 Rowning v. Goodchild .. 651 Rownson, In re 1163 Rowntree v. Jacob . . . . 65 Rowson v. Atlantic Trans- port Co 474 v. Earle 508 Roxburghe v. Cox .. 620, 708 Royal Aquarium, &c. Socy. v. Parkinson .. 860,866,868,1132 Royal Baking Co. v. Wright, Crossley & Co 878, 880 Royal Bank of India's case . . 1106 Royal Bank of Scotland v. Tottenham 238, 407 Royal Bristol Permanent Building Socy. v. Bomash 330, 333 Royal British Bank v. Tur- quand 131, 1116 Royal College of Veterinary Surgeons v. Robinson . . 514 Royal Exchange Shipping Co. v. Dixon .. .. 474,470 Royal Liver Friendly Socy., Re 265 Etuabon Brick Co. v. Gt. W.Ry. 815 Ruabon S.S.Co. v. L. Assur. Co 449a, 449/, 595 Ruben v. Gt. Fingall Consol. 849, 1094, 1119 Ruck v. Hatfield 991 v. Williams 709 Rucker v. Cammeyer .. 584,535 v. Hiller 388 PAGE Rucker v. Palgrave . . . . 75 Ruckmaboye v. Mottichund 683 Rudge v. Bowman . . 572, 578 Ruding v. Smith 1038 Rugby Charity (Trustees of) v. Merryweather . . . . 832 Rugg v. Weir 570 Rumball v. Ball . . . . 36S, 414 v. Metropolitan Bank . . 76, 963 v. Wright .. .. 339 Rummens v. Hare . . 953, 995 Rumsey v. King 283 v. N. E. Ry. Co. .. 655 Rundle v. Beaumont . . . . 212 v. Little 927 Ruppell r. Roberts . . . . 557 Rusby v. Scarlett 553 Rusden v. Pope 1226 Rush v. Baker 977 v. Peacock 68 v. Smith .. .. 158, 181 Rushforth v. Hadfield . . . . 982 Rushmer v. Polsue, &c. 762, 773 Rushworth v. Craven . . 50, 51, 213 — v. Taylor . . . . 976 Russel v. Boheme . . . . 425 v. Com 938 — v. Langstaffe . . . . 379 Russell, Ex parte 1190 — In re .. .. 503, 593, 740 — ■ v. Devon (Men of) . . 770 v. Inl. Rev. Corns. .. 274 — v. Jackson . . 170, 172 v. Niemann . . . . 440 v. Phillips . . . . 363 ■ v. Sa Da Bandeira.. 583 - v. Shenton .. .. 768 — v. Watts 818 Russian S. Navigation Trad- ing Co. v. Silva 23 Rust v. Victoria, &c. Dock Co 760 Rustell v. Macquister . . .. 860 Rustomjee v. The Queen . . 680 Ruston's case 102 Rutherford, In re.. .. 37, :i'.i v. Evans . . . . 852 Rutland's (Css. of) case 28, 995 Rutter v. Chapman .. 73,304 Ruttinger v. Temple .. .. 568 Buys v. R. Exchange Assur. Cor 439,447 Rvall v. Biche 751 Ilyalls v. Leader 871 - v. The Queen . . . . 51 15 Ryan v. Clark 98 1 v. Jenkinson .. .. 517 v. Sams 567 V. Shilcock 902 v. Thompson 343,909,1086 .'\\ Table of Cases Cited. PAGE Ryan v. Wood 873 Ryberg v. Ryberg . . .. 175,182 Ryder v. Townsend .. 711, 712 v. Wombwcll . . 290, 673, 074, G75 Rymer v. Cook 88 SACHS v. Henderson . . . . 303 Sack v. Ford 472 Sadd, Lire 508 Saddlers' Co. v. Badcock .. 456 Sadgrove v. Bryden . . . . 259 v. Hole . . . . 855, 867 Sadler v. Johnson 235 v. Smith 603 v. S. Staffordshire Tramways Co 773 Saffery, Ex parte 1202 — v. Mayer 591 Sahlgreen's case 1100 Sailing Ship " Blairmore " v. Macredie .. 447 "Garston" Co. v. Hickie 426, 468 Saint v. Pilley 969 S. Albans (Bp. of) v. Bat- tersby 734 S. Aubyn v. Smart .. .. 511 S. Cross (Master of) v. Lord Howard de Walden . . . . 27 S. Devereux v. Much Dew Church 1039 S. George & S. Margaret, Inter 1047 S. Leonards (Guardians of) v. Franklin 757 S. Leonard's (Lord) v. Ash- burner 935 S. Marylebone Vestry v. Sheriff of London . . . . 1218 S. Saviour's v. Smith . . .. 726 Salaman, Ex parte . . . . 1217 Sale v. Lambert 315 Salford (Mayor, &c. of) v. Lever .. 603,849 Salisbury's case 1102 Salisbury (Marquis of) v. Gt. N. Ry. Co 932 Salkill v. Shelton 1080 Salmon v. Bensley . . . . 766 - v. Isaac 872 v. Ward 489 v. Watson . . . . 629 Salomon v. Salomon & Co. . . 1112 Salomons v. Nissen . . . . 993 v. Pender .. .. 590 Saloucci v. Woodmas .. .. 204 Salt v. Cooper 10G0 Union v. Brunner & Co. 813, 839 PAGE Saltash (Mayor of) v. Good- man 39, 41 Salte v. Thomas 213 Salter v. Woollams .. 531,552 v. Yeates 237 Salton v. New Beeston Cycle Co 555 Salvesen v. Reden Aktiebola- get, &c 494,549 Salvin v. N. Brancepeth Coal Co 763 Sammell v. Wright . . . . 776 Sampson v. Easterby . . . . 715 v. Hoddinott . . 840 Samson, I? i re 1161 v. Rhodes . . . . 323 Samuel v. Duke 1190 v. Newbold . . . . 601 Sandback v. Thomas .. .. 891 Sandeman v. Scurr . . . . 478 Sanders v. Davis 971 ■ v. Jameson . . . . 542 v. Maclean . . 461, 537 v. Meredith . . . . 39 v. St. Neot's Union 1093 v. Sanders . . 36, 1070, 1075 Clark v. Grosvenor Mansions Co. .. 761 Sanderson v. Aston . . 483, 484 v. Bell . . . . 695, 709 v. Berwick (Mayor of) 747 v. Bowes .. .. 359 v. Blyth Theatre Co 299 ■ v. Collins .. .. 775 v. Graves 29, 313, 537 Sandford v. Alcock . . . . 996 ■ v. Clarke .. .. 1016 Sandilands, In re 137 Sandill v. Franklin . . . . 1016 Sandon v. Jervis 917 Sands v. Clarke 414 to Thompson 1073, 1077 Sandys, Ex parte .. 1101,1105 Saner v. Bilton .. 738, 741, 742 Sanguinetti v. Pacific Steam Nav. Co 464,467 Sankey Brook Coal Co. v. Marsh 1109 San Roman, The 476 Sans Pareil H.M.S 784 Santos v. Illidge 669 Sapsford v. Fletcher . . . . 1086 Sarch v. Blackburn . . . . 790 Sarell v. Wine 1151 Sargent, Ex parte 1099 v. Gannon . . 505, 506 v. Morris . . . . 966 v. Reed 540 Table of Cases Cited. rxxi VAGT. Sargent v. Wedlake . . . . 703 Sarjeant v. Cowan . . . . 1224 Sari v. Bonrdillon .. .. 533 Sarquy v. Hobson .. .. 438 Satterthwaite v. Dewhurst 910 Saunders's case 1055 Saunders v. Edwards .. .. 876 v. Graham .. .. 710 r.Holborn District Board .. .. 771 v. Merryweather 725, 1007 v.Mills 877 v. Milsome . . 599, 716 v. Musgrave 1083, 1219 v. Newbold .. .. 601 v. Newman . . . . 841 v. White 1203, 1211 Saunderson v. Jackson 316, 317 531, 532, 533 Savage, In re 1055 v. Aldren . . . . 682 v. Canning .. 526, 581 Savill v. Barchard .. .. 982 Sawyer v. Sawyer 290 Saxby v. Easterbrook . . . . 880 v. Manchester & Sheffield Rv. Co. 769, 841 Sayer v. Glossop . . . . 2, 125 v. Kitchen 13 Sayers v. Collyer . . 319, 326, 771 v. L. & Birmingham Glass Co 570 Sayles v. Blane .. ..597,1122 Scaife v. Farrant 630 Scales v. Lawrence . . . . 738 Scaltock v. Harston . . . . 1026 Scaramanga v. Stamp 433, 476 Scarborough v. Cosgrave . . 657 Scarf v. Jardine .. .. 511,560 Scarfe v. Hallifax . . 602, 1224 v. Morgan.. 670,985,986 Scarlett v. Hanson . . . . 1222 Scarrv. Gen. Accident Assur. Cor 454 Scarth v. Rutland . . 503, 506 Siuttergood v. Sylvester .. 961 Schibsby v. Westenholz .. 209 Schloss v. Heriot .. .. 463,464 T.Stevens 437 Schmaling v. Thomlinson .. 585 Schmalz v. Avery 92 Schneider v. Foster .. .. 570 v. Heath . . . . 542 v. Morris . . . . 850 v. Norris . . 316, 533 Scholefield v. ltobb .. .. 491 Scboles v. Hilton .. .. 154 Scholev v. Walsby . . 272, 375 v. Walton .. .. 687 TAGE Scholfield v. Londesborough (Earl of) .. .. 245,395,610 Schotsmans v. Lancashire, &c. Ry. Co 990 Schreger v. Garden . . . . 75 Schulze v. Gt. E. Ry. Co. . . 649 Schumack v. Lock . . . . 69 Schuster v. Wheelright . . 294 Schwan, The 475,787 Schwinge v. Dowell . . . . 835 Scobie v. Collins 1083 Scones v. Dowles 17 Scoreli v. Boxall 236 Scotr. Scot 1027 Scothorn v. S. Staffordshire Ry. Co 635 Scotland (Bank of) v. Watson 490 Scott v. Alvarez 322 v. Att.-Gen. .. 1038,1048 v. Avery . . . . 420, 661 v. Brown 572, 619, 665, 667 ■ ■ v. Clare 3, 64 - v. Denton 898 V. Dixon 848 v. E. Counties Ry. Co. 531 v. Ebury (Lord) . . . . 563 v. England 951 v. Firth . . . . 761, 763 v. Gillmore 670 v. Irving 695 v. Jones 7 v. Littledale . . . . 549 v. Liverpool Corpora- tion 583 v. London Docks Co . . 798 v. Manchester (Mayor, &c. of) 769 - v. Marshall 1186 v. Miller 169 v. Morley .. 1173,1178 v. Newington .. .. 988 v. Nixon . . . . 998, 1070 v. Pape 821 v, Parke 598 v. Pettit 991 v. Porcher 604 - v. Sampson .. .. 877 v. Shearman . . . . 195 V. Shepherd 913 V. Stansfield .. 865, 1189 v. Uxbridge, &c. Ry. Co. 712 V. Waithman .. .. 143 & Horton v. Godfrey 578 Scottish Petroleum Co., hire 1113 Scrace v. Whittington .. 509 Scrimgeour's claim .. .. 592 Scrivener v. Pask 480 Scurfield v. Gowland . . . . 600 Sea Insurance Co. v. Blogg 430 v. Hadden 449fZ Seago v. Deane 18 CXM1 Table of Cases Cited. PAGE Seagrave v. 1 . Marine Tnsur. Co 423,425 Seal u. Claridge .. ..135,1205 Sealey v. Tandy . . . . 657, 915 Seaman v. Foneran . . . . 44'Ji v. Netherclift . . .. 865 Sear r. House Property and Investment Soc 732 Searby v. Tottenham By. Co 1071 Searle v. Barrington (Ld.) 37, 58 - v. Cooke . . . . 333, 346 v. Reeves 531 — v. Laverick . . . . 800 v. Lindsay 802 Searles v. Sadgrave . . . . 709 v. Scarlett .. .. 872 Sears v. Lyons 938 Seath v. Moore 953 Seaton v. Burnand . . 279, 458 v. Heath .. .. 458,483 Sewers (Commissioners of) v. Gellatly v. Glasse . . v. Henson Seaward v. Willock Seccombe v. Wood Secretary for War v. Wynne Seddon v. Bank of Bolton . . v. N. E. Salt Co v. Tutop Sedgwick v. Daniel Seed v. Bradley . . Seeger v. Cuthie . . Selby v. Eden v. Greaves .. v. Harris v. Nettlefold Sellen v. Norman Sellick v. Trevor . . Sells v. Hoare Selmes v. Judge . . Selway v. Fogg v. Holloway Semenza v. Brinsley Semple v. Pink v. Steinau Senior v. Armytage v. Ward Sergeson v. Sealey 717 330 786 907 819 614, 664, 844 .. 194 .. 595 1213, 1214 .. 463 .. 364 .. 1083 112, 498 .. 942 .. 36 .. 322 160, 895 .. 1144 .. 589 .. 646 .. 707 .. 480 .. 234 26 .. 802 .. 196 836 Serif v. Acton Local Board Serjeant v. Nash, Field & Co. 342, 731, 1032, 1083, 1085 Serle, In re 1030 v. Waterworth . . . . 1157 Serraino v. Campbell 460, 476, 477 Seton v. Lafone 77 v. Slade 317 Severin v. Keppell .. .. 975 Severn Bridge Co., In re .. 722 Sewell v. Burdick 461 v.Evans 136 - v. Nat. Telephone Co. 920 Seymaync's case . . Seymour v. Bridge — — ■ v. Maddox v. Pickett 200 823 .. .. 941 .. 572,591 . . . . 764 514, 697, 699 Seyton, In re 450 Shackell v. Rosier . . . . 666 Shackleford v. Dangerfield 1097, 1107 Shackleton v. Sutcliffe . . 328 Shadforth v. Cory . . . . 466 Shadwell v. Hutchinson 759, 771, 816, 822 Shaffers v. General Steam Navigation Co 807 Shakespear, In re . . Shand v. Bowes . . — v. Du Buisson v. Grant Shapland v. Cockram Shardlow v. Cotterell Sharland v. Mildon Sharman's case Sharman, In re v. Brandt Sharp v. v. v. V. ■ V. .. 1177 23, 541, 542 .. 242 612, 615 .. 286 .. 315 605, 1158 .. 1101 148, 1161 318, 534, 535, 536, 540 Bailey 389 Brown 1203, 1205, 1208 Fowle . . . . 897, 905 Gray 778 Gt. W. Ry. Co. . . 570 Powell 771 Sharpe v. Birch 1207 ■ v. Lamb 9, 74 Sharpington v. Fulham Guardians . . . . 692, 1132 Sharpies v. Rickard 74, 231, 241, 357 Shattock v. Carden . . . . 1223 Shatwell v. Hall 1133 Shaw v. Arden 508 Att.-Gen 1048 Barbor 1009 Beck 278 Benson 666 Broom 398 .. .. 1048 Gt. W. Ry. .. 640,641 Hertfordshire County Council .. .. 1132 v. Holland . . . . 580, 604 v. Kay (1 Exch. 412) . . 738 v. Kay (5 Tax Ca.) . . 174 v . Keighron . . . . 1075 v. Picton . . . . 66, 76 v. Robberds .. 456, 457 v. Rowley 578 v. Simmons .. .. 667 v. Stenton 710 v. v. v. V. V. v. Gould v. V. Table of Cases Cited. CXXU1 91 848 PAGE Sheau v. Philips 157 Sheape v. Culpeper .. .. 1080 Shearin v. Burnard . . 194, 403 Shears v. Jacob .. ..134,1207 Shedden v. Patrick . . 46, 47 Sheehau v. Gt. E. Ry. Co. Sheen v. Bmnpstead . . Sheffield, &c, Building Soc. v. Harrison 970 Sheffield (Earl of) v. L. Joint Stock Bank . . 963, 964, 1099 Sheffield and Manchester Ry. Co. v. Woodcock 1122, 1123, 1124 Sheffield Cor. v. Barclay 494, 1120 Shelberry v. Briggs Shelbourne v. Law Invest- ment, &c. Cor Sheldon v. Cox Shelfer v. City of London Elec. Lighting Co Shelton v. Livius . . 16, Springett Shenstone v. Hilton Shenton v. Smith Shephard, In re 1038 — v. Payne .. .. 41 Shepheard v. Bray 846, 1154, 1155 Shepherd's case 1103 Shepherd v. Berger . . . . 1033 v. Bristol & Exeter Ry. Co. . . 648 v. Broome .. .. 847 v. Chewter .. .. 448 v. Harrison 461, 552 — v. Johnson . . . . 580 v. Keatley . . . . 322 v. Sharp .. .. 1142 v. Shorthose 96, 118 v. Wheble 1142, 1186 Shepley v. Davis 994 Sheppard V. Sheppard .. 566 v. Union Bank of London 958 Sheridan v. New Quay Co. 650, 976 Sheriff of Herts, Ex ■parte .. 1218 Sherratt v. Mountford . . 30, 31 Sherry v. Oke Sherwood v. Adderley v. Clark Shields v. Boucher - v. Davis .. Accidental Shilling v Insur. Co Shillito v. Biggart Shillitoe v. Claridge Shine v. Dillon Shingler v. Holt .. Ship v. Crosskill . . Shipman's case Shipman v. Thompson Shipton v. Caston v. Thornton ., Shipway v. Broadwood Shires v. Glascock 71 436 551 772 535 567 959 520 332 1167 1059 45 459 Death 451, 452 .. 470 .. 491 . . 337 .. 1227 607, 614 .. 1108 PAGE .. 1153 .. 551 227, 470 .. 664 .. 147 Shirreff v. YYilks 365 Shoebottom v. Egerton . . 765 Shoppee v. Nathan . . . . 1224 Shore v. Bedford 172 Shoreditch Borough Council v. Bull . . . . 770 (Vestry of) v. Hughes 83 Short v. Kalloway v. Lee v. M'Carthy v. Simpson v. Spackman v. Stoy 279 54, 55, 57, 197 .. 512,681 .. .. 461 .. .. 93 64, 86 Shotts Iron Co. v. Inglis 763, 772 Shove v. Webb 606 Shrapnel v. Laing . . 295, 299 Shrewsbury's (Lady) case .. 931 Shrewsbury v. Blount . . 848 (Mercers of) v. Hart . . 124 (El. of) v. N.Staf- fordshire Ry. Co Peerage case 1127 44, 45, 46,48 Shropshire Union Ry., &c. Co. v. Anderson . . . . 1125 Shrosbery v. Osmaston . . 883 Shubrook, Ex parte .. .. 983 Shute v. Robins 378 Shuttleworth, Ex parte .. 699 v. Le Fleming 822, 828, 943 v. Nicholson 279, 288 360 1212 1090 1154 243 1042 630 667 298 813, 816 1015, 1016 Sibley v, v Higgs Clinton . Siboni v. Kirkman Sibree v. Tripp v. Stephens Sichell v. Lambert Sidaways v. Todd Siddall, In re ... Siddons v. Lawrence . V. Short .. Sidebotham v. Holland Sicvewright v. Archibald .. 535, 536 537 Siff ken v. Wray '988 Sinking Walker 365 Siggcrs )--. Brown 383 v. Evans 726, 954, 1189 Sikesw. Wild 332 Sillem v. Thornton .. .. 457 Sills v. Laing 598 exxiv Table of Cases Cited. Silvester, In re 482 Simkin v. Gt. W. Ry. Co. .. 797 Simm v. Anglo-American Telegraph Co 1120 Simmonds v. Parminter .. 375 Simmons v. Lillystone . . 'J75 v. London Joint Stock Bank .. 979 V. Mitchell . . . . 853 v . Norton . . . . 939 v. Swift . . . . 551 v . Woodward 954, 1206, 1211, 1212 Simms v. Henderson . . . . 188 Simon v. Motivos . . . . 331 v. Sedgwick . . . . 428 Simons, In re 502 v . Gt. W. Ry. Co. 641, 642 v. Patchett . . . . 493 Simper v. Foley . . 817, 818, 820 Simpson's case 905 claim 1112 Simpson v. Crippin . . . . 542 v. Dismore .. .. 513 ■ ■ v. Eggington .. 697 v. Fogo 209 ■ v. Godmanchester (Corp. of) . . 828 v. Hartopp 903, 906, 907 ■ v. Henderson .. 17 v. Henning . . . . 703 v. Hill 921 - v. Lamb . . . . 587 v. L. & N. W. Ry. Co 649 ■ v. Margitson . . 18, 28 v. Pickering . . . . 191 v. Robinson .. 64, 860 - v. Savage . . 760, 831 v. Thomson . . U9d, 788, 794 v. Thoreton . . . . 14 Sims v. Landry 318 v. Marryatt 82 v. Thomas 722 . v. Trollope 1211 Simson v. Ingram 697 v. L. Gen. Omnibus Co 778 Simultaneous Colour Printing Syndicate v. Foweraker .. 1226 Sinclair v. Bowles . . . . 582, 589 — v. Eldred . . . . 890, 891 ■ v. Maritime Passen- gers' Assur. Co. 454 v. Stevenson .. 9, 177 Siner v. Gt. W. Ry. Co. . . 790 Singer Manufacturing Co. v. Clark .. 961 - v. L. & S. W. Ry. Co. .. 984 Singh v. Rajah of Faridkote Singleton v. v. PAGE 208, 209 Barrett .. 2,233 E. Counties Ry. Co 781,795 Williamson .. 900, 1087, 1088 786 896, 900, Skeate v. Beale Skeet v. Lindsay . . Skelton v. Hawling v. L. & N. Co. .. Skene v. Cook W 1109 1086 1129 Sisters, The .. Six Carpenter's case 937, 1088 .. 615 689, 690 .. 1166 Ry. .. 795 720, 1071 Skerry v. Preston 1086 Skilbeck v. Garbett .. 385, 505 Skillett v. Fletcher . . 484, 485 Skinner v. City of London Marine Insur. Co v. Hunt . . 343, 909 v. Lambert . . v. L. & Brighton Ry. Co. 775, 777, 778 — v. Shew 879 — v. Stocks .. .. 92 Skinners' Co. v. Knight . . 1030 Skipp v. E. Counties Ry. Co. 801 Skipwith v. Green . . . . 20 Skrine v. Elmore . . . . 235, 489 Skull v. Glenister 836 Skyring v. Greenwood . . 66, 604 Sladden v. Sergeant . . . . 179 Slade's case 194 Slade v. Tucker 122 Slane Peerage case . . 44, 98 Slaney v. Wade . . . . 45, 46 Slater v. Hodgson . . . . 103 v. Swann 926 Slattorie v. Pooley 3, 9, 63, 64, 132, 1009 Slattery v. Dublin, Wicklow, &c. Ry. Co 290,760,795 Slaughter v. Brown 572, 619, 665, 667 Slay v. Tillotson 878 Sleat v. Fagg 651 Sleigh v. Sleigh 594 v. Tysser 431 Slim v. Gt. N. Ry. Co. .. 647 Slinn, In re 32 Slipper v. Tottenham, &c. Ry. Co 322 Slubey v. Heyward . . . . 992 Sly v. Sly .. .. 56,59,145 Sinale v. Burr 1191 Small v. Gibson 430 v. Nat. Prov. Bank of England 1200, 1201 Table of Cases Cited. cxxv PAGE Smallman v. Pollard . . . . 1219 Smallpage's case 371 SmaLLwood v. Sheppards .. 336 Smart V. Harding . . . . 313 v. Hutton 1184 v. Morton 814 v. Nokes 225 v. Rayner 286 v. Sandars 944 v. Stisted 840 Smartle v. Williams . . . . 144 Smee v. Smee 1052 Smeed v. Foord 548 Smelting Co. of Australia v. Inl. Rev. Corns 252 Smethurst v. Taylor . . . . 694 Smidt v. Tiden 470 Smith, Ex parte 1101 In re (15 P. D. 2) . . 148 (45 Ch. D. 632) 146 v. Accident Insur. Co. 454 v. Adkins 153 v. Anderson . . . . 667 v. Andrews . . . . 214 ■ v. Ashforth 894, 895, 897 v. Associated Omni- bus Co 805 v. Baker (L. R. 8 C. P. 350) .. .. 617,820 v. Baker ((1891) A. C. 325) 798, 801, 802, 805, 806, 807, et seq. v. Battams . . . . 24 • v. Battens 35 v. Baxter . . . . 818, 819 v. Bedouin Steam Navigation Co. . . 460 v. Biggs 180 v. Bird 73 v. Birmingham Gas Co. 977, 1020, 1087, 1094 v , Blakey . . . . 55, 60, 61 v. Blandy 78 v. Broadbent . . 585, 1225 v. Bromley . . . . 618 V. Brownlow (Lord) 198 v. Butler .. .. 325,331 v. Cator 236 v. Chadwick . . . . 846 v. Chance 551 v . Cheese . . . . 1206, 1207 v. Clarke 374 v. Clegg 501 v. Compton . . . . 596 v.Cook 790 v. Cuff 619 v. Daniell 171 v. Darby 814 v. Dart .. .. 290,472 v. Davis 1158 Smith v. v. V. V. V. V. V. V. V. V. V. V. V. — ■ V. V. V, V, V. V. ■ V. V. V. ■ V. ■ V. ■ V. V. ■ V. ■ V. ■ V. ■ V. ■ V. ■ V. ■ V. ■ V. ■ V. ■ V. ■ V. ■ V. ■ V. ■ V. ■ V. — V. — V. — V. — V. — V. — V. — V. — V. — V. — V. — V. — V. — V. — V. — V. — V. PAGE Day .. 1085,1162 Dearlove . . 984, 985 Dennis 651 Dimes 502 Dobson 786 Eggington .. .. 349 Egginton . . 918, 938 Eldridge .. .. 339 Enright 1089 Evans 146 Ferrand 700 Feverel 824 Fletcher .. .. 791 Forty 685 Fox 512 Giddy 762 Gold Coast, &c. Explorers .. .. 525 Goldsworthy .. 1129 Goodwin .. .. 1089 Goss 990 Gt. E. Ry. Co. 790,798 Green 849 Gronow 1031 Hartley 498 Hayward . . 516, 520 Hodson 617 Hudson.. .. 529,530 Hughes 664 Hull Glass Co. .. 1115 Humble . . 343, 745 Jeff ryes 25 Johnson 219, 371, 375 Keal 926 Kellv 272 Kenrick.. .. 791,840 King 676 Kirby . . . . 475, 786 Land and House Property Cor. 843, 846 Lindo . . . . 592, 667 Lloyd .. 1071,1072 L. & St. Katherine D. Co. 764, 765, 797, 799 L. & S. W. Ry. Co. 793 Lovcll 660 Lyon 67 M'Clure .. .. 357 Macdonald . . 885, 886 Maclure 970 Maguire . . 223, 253, 470 Marrable .. .. 342 Martin 78 Mathews .. .. 869 Mawhood .. .. 668 Maxwell .. .. 1044 Mercer.. 415,610,701 Milles 925 Morgan . . 68, 177, 1161 Mundy 996 CXXV] Table of Cases Cited. PAGE Smith v. Myers 540 V. Neale 317, 322, 52G, 570 v. New S. Wales (Bank of) . . 379 — v. Peat 739 v. Pocklington . . .. 718 v. Powditoh . . . . 651 v. Pyman . . . . 462, 468 v. Raleigh 341 v. Richardson . . . . 875 - v. Robinson 322, 743, 744 v. Rosario Nitrate Co. 441, 466 — v. Rurnmens . . . . 207 ■ v. Russell 1219 ■ v. S. Michael, Cam- bridge 928 v. Scott 435 i--. Smith 822 v. Sorby 664 v. S. E. Ry. Co. 795, 1095 v. Sparrow .. .. 670 v. Steele 803 v. Surman . . . . 236, 313 v. Sydney 916 v. Tebbitt . . 45, 47, 1052 v. Thackerah . . . . 812 v. Thompson . . 18, 518 v. Thome . . 690, 691, 692 v. Troup 280 ■ v. Trowsdale . . . . 499 v. Union Bank of London . . . . 410 v. A T ertue 363 v. Wall .. 1201, 1202 v. Walton 27 v. Watson . . . . 316, 558 v. Webster . . . . 316, 317 v. W. Derby Local Board 1146 V. White . . . . 344, 672 v , Widlake .. .. 1010 v. Wilson 27 v. Wiltshire .. .. 1136 v. Winter . . . . 373, 693 v. Wood 856 — v. Woodfme . . . . 496 v. Young . . 2, 975, 976 Smout v. Ilbery . . 555, 567, 1165 Smurthwaite v. Hannay . . 90 v. Wilkins . . 462 Smyth v. Anderson .. .. 554 Snark, The 786 Snead v. Watkins .. .. 983 Snearya. Abdy 1189 Sneesby v. Lancashire & Yorkshire Ry. Co 781 Snell v. Pinch 1087 Snelling v. Huntingfield (Lord) 525 Snook v. Mears 689 PAGE Snow v. Phillips 1062 Snowball v. Goodricke 69, 1186 Snowden v. Baines . . . . 806 Snowdon, Ex parte .. .. 594 Soady v. Turnbull . . . . 1166 Soames v. Nicholson . . . . 1016 Soane v. Knight 873 Soar v. Ashwell 679 Soarcs v. Thornton .. .. 441 Sobeyv. Sobey 887 Soblomsten, The 470 Societe General de Paris v. Tramways Union Co. 136, 1099 v. Walker 136, 1099 Softlawu. Welch 1178 Solarte v. Palmer . . . . 381 Solicitors' and General Life Assur. Society v. Lamb . . 453 Solly v. Forbes 702 Solomon v. Mulliner . . . . 302 v. Vintners' Co. . . 813 Solvency Mutual Guarantee Co. v. Freeman . . . . 21 Solway, The 69 Somerset, In re .. .. 683, 685 (Duke of) v. France 85, 119 Somerville v. Hawkins 866, 867 ■ & Turner's Con- tract, In re 1060 Sommerville v. Mirehouse . . 1138 Soper v. Arnold 331 Sorsbie v. Park 718 Sotilichos v. Kemp . . . . 25 Sottomayor v. De Barros . . 1038 Souch v. E. London Ry. Co. 941 v. Strawbridge . . . . 525 Soulsby v. Neving . . . . 751 Souter v. Drake 321 South v. Finch 236 South African, &c. Storage Co., In re 1030 South African Territories v. Wallingford . . . . 600, 1094 South Australian Insur. Co. v. Randell 456, 953 South British, &c. Insur. Co. of N. Zealand v. Da Costa 420 South Carolina Bank v. Case 557 South Eastern Ry. Co. v. Hebblewhite 1125 South Hetton Colliery Co. v. N. E. News Assoc. . . 855, 873 South London Fish Market Co., In re 1121 South of Ireland Colliery Co. v. Waddle .. 1011,1092,1110, 1126 South Shields Waterworks Co. v. Cookson 839 Table of Cases Cited. cxxvn PAGE South Staffordshire Tram. Co. v. Sickness, &c. As- surance 427, 455 South Staffordshire Water Co. v. Sharman . . . . 967 South Wales Atlantic Steam- ship Co., In re 66G South Wales Miners' Federa- tion v. Glamorgan Coal Co. 891, 892, 909 Southall v. Rigg 397 Southam, Ex parte .. . . 1208 Southampton, &c. Bridge Co. v. Southampton Local Board 769 Southampton Dock Co. v. Richards .. 1123,1124,1125 Southampton S. Colliery Co. v. Clarke 469 Southcote v. Stanley .. .. 764 Southernwood v. Ramsden y 912 Southey v. Tuff 289 Southgate v. Bohn .. .. 236 Southport, &c. Banking Co. v. Thompson . . . . 970, 1200 Southwark and Vauxhall Water Co. v. Quick .. .. 157 Southwell v. Bowditch .. 93 Sovereign Life Assurance Co. v. Dodd 1112 Soward v. Leggatt 94, 284, 738 Sowell v. Champion 920, 926, 937 Sowerby v. Smith . . . . 824 Spackman v. Evans .. .. 1115 v. Foster . . 994, 997 Spaight v. Tedcastle 780, 784, 786 Spain v. Arnott 517 Spalding v. Ruding . . . . 993 Spargo's case 1104 Spargo v. Brown . . . . 44, 58 Spark V. Ilrslop 483 Sparke's case, In re .. . . 733 Sparling v. Haddon .. .. 852 Spartali v. Beneckc . . 16, 23, 25 Spawforth v. Alexander . . 272 Speake v. Hughes .. .. 862 Spear v. Travers 994 Spears v. Hartley . . . . 982, 988 Spedding v. Novell .. .. 493 Speight v. Gosney . . . . 862 Speiice r. Spi.'ii<-i: 1002 v. Union Marine Insur. Co 444,449/*, 44!)/ Spenceley v. De Willott .. 178 Spencer's case 729, 737, 749, 826 Spencer v. Barough .. .. 74 v. Clai .. 421,451 — V. Hand ley .. .. 663 v.Jacob 890 v. Parry . . 597, 598, 628 v.Smit'h 670 PAGE Spencer (El.) v. Swannell .. 758 Speyer v. Inl. Rev. Corns. 221, 262 Spice v. Bacon 657 Spicer v. Burgess 137 V. Cooper . . . . 27, 532 Spieres v. Parker 95 Spike v. Harding 346 Spill v. Maule . . . . 867, 871 Spindler v. Grellett . . . . 359 Spiral Globe, In re . . . . 1215 Spirett v. Willows . . . . 1190 Spitty v. Kitchin 1144 Spong v. Wright . . . . 689, 690 Spooner v. Brewster . . . . 934 v. Browning .. .. 578 v. Gardiner .. .. 388 v. Payne 133 Spoor v. Green . . 293, 745, 746 Sprange V. Barnard . . . . 137 Spratt v. Hobhouse . . . . 601 v. Jeffery 322 Sprigge v. Sprigge . . . . 1054 Sproat v. Matthews . . . . 364 Sproule V. Legg 359 Sprowle v. Legge 359 Spurrier v. Hancock . . . . 323 Spybey v . Hide 713 Squier v. Hunt 545 Squire, Ex parte 224 V. Tod 329 v. Wheeler . . . . 657 Stace v. Griffith . . 173, 853, 867 Stackwood v. Dunn . . . . 708 Stacy t\ Firth 674 Stadhard v. Lee 583 Stafford v. Clark 208 v. Gardner .. .. 348 (Marquis of) v. Coy- ney 832 (Mayor of) v. Till .. 1093 Staffordshire Canal Co. v. Birmingham Canal Co. .. 840 Stahlschmidt v. Lett . . . . 1163 Staight v. Burn .. .. 821,822 Stainbank v. Feuning .. 423 v. Shepard . . . . 423 Stainer v. Droitwich .. .. 217 Stamford v. White .. .. 1055 Stamford, &c, Banking Co. V. Smith 686, 688 Stammers v. Dixon .. .. 28 Standard Bank of British S. America v. Stokes .. 934,936 Standard Manufac. Co., In re 1214, 1226 st linden v. Chrismas 210, 334, 347, :;!'.' v. Standen . . . . 54 Standing v. Bowring .. .. 954 Standish v. Boss .. .. 602,611 CXXV111 Table of < 'ases < 'ited. PAGE Stanford, Ex parte 1210, 1212, 1213 — v. Hurlstone 6G, 930 v. Roberts .. .. 504 Stanhope v. Baldwin . . . . 1040 Staniforth v. Fox . . . . 1012 Stanley v. Dowdeswell . . 316 v. Hayes 746 v. Powell . . . . 013, 926 v. Stanley . . . . 1173 v. Towgood . . . . 737 v. Western Insurance Go 457 v. White 85 Stanuard v. Forbes . . . . 748 Stanton v. Austin .. .. 470 v. Richardson 20, 464 Stanynought v. Cosins . . 947 Staple v. Heydon 827 Staple of England (Mayor of) v. Bank of England 131, 1119 Staples v. Young 302 Stapleton, Ex parte .. . . 545 v. Croft . . . . 163 v. Haymen . . . . 953 Stapley v. L. Brighton & S. C. Ry. Co 794 Stapylton v. Clough . . 59, 60 Stark, Ex parte 1101 Starkey v. Bank of England 494, 1120 Star of India, The .. .. 788 Starr-Bowkett Building Soc. and Sibun's Contract, In re 329 Startup v. Macdonald . . . . 537 Stead v. Dawber 29 v. Liddard 226 v. Thornton . . . . 604 Steadman v. Duhaniel 231, 240 v. Hockley . . . . 984 S.S. Balmoral Co. v. Marten 4496 S.S. City of Lincoln v. Smith 476 S.S. County of Lancaster v. Sharp 472, 477 S.S. Isis i'. Bahr 469 Stearn v. Mills 1158 Stebbing v. Spicer . . . . 136 Stedman v. Gooch . . 116, 700 v. Smith 936, 940, 1006 Steeds v. Steeds 754 Steel v. Dixon 594 v. Lester 785 v. Prickett . . . . 50, 932 v. State Line S. Ship Co 473,475 Steele, In re 1053 v. Brown 1191 v. Haddock . . . . 21 v. Mart 19 v. McKinlay . . . . 481 v. Williams .. 614,615 PAGE Steeven's Hospital v. Dyer 124 Steigenberger v. Carr . . 561, 562, 579 Steiglitz v. Eggington . . . . 71 Steinkeller v. Newton . . . . 188 Steinman v. Angier Line . . 473 Stella, The . . . . 475, 645, 810 Stenning, In re 698 Stephen v. Gwenap . . . . 58 Stephens, Ex parte .. .. 969 In re .. ..720,1165 — v. Badcock . . . . 604 v. De Medina 579, 580 v. Dudbridge Iron- works Co. . . 809 v. Elwall .. .. 977 v. L. & S. W. Ry. Co 639 ■ v. Reynolds . . . . 366 v. Robinson . . . . 666 Stephenson v. Hart . . 648, 972 Stern v. The Queen . . . . 270 Sterry, In re 699 Stettin, The 476, 785 Stevens v. Austen 321 v. Biller 983 v. Clark 207 v. Copp 1026 v. Gourley . . . . 666 v. Jackson . . . . 675 v. Marston .. .. 1199 v. Midland Counties Ry. Co 882 v. Sampson .. .. 872 v. Thacker . . . . 68 v. Tillett 195 Stevenson v. Blakelock 983, 988 v. Lambard 341, 727 v. Liverpool (Mayor of) .. 1002, 1055 v. McLean . . . . 311 v. Newnham 892, 977 v. Watson . . . . 583 Steward v. Dunn . . 34, 382, 1128, 1129 v. Greaves .. .. 1128 v. Gromett .. 881,889 v. N. Metropolitan Tramways Co. 292, 293 v. Young . . 290, 878 Stewart's case 1108 Stewart v. Aberdeen . . 449Z, 695 v. Alliston . . . . 327 v. Austin 607 v. Eddowes . . . . 318 v. Lawton . . . . 27 v. Lee 696 v. L. & N. W. Ry. Co .. 644 v. Lupton .. .. 580 Table of Cases Cited. exxix PAGE Stewart v. Merchants' Marine Insur. Co 449/ v. Rogerson . . . . 472 ■ v. Smith 324 v. W. India Steam- ship Co 448,462 Stierneld v. Holden . . . . 973 Stileman-Gibbard v. Wilkin- son 842 Stiles v. Cardiff S. Navigation Co 70,790,1094 Still v. Halford 112, 198, 498, 499 Stimson v. Farnham . . . . 1222 Stirling v. Maitland . . . . 519 Stobart v. Dryden . . . . 662 Stock v. Harris 651 v. Inglis 423 v. Meakin 745 Stockdale v. Ascherberg 743, 744 v. Dunlop . . . . 423 V. Hansard 79, 203, 875 Stocken's case 626 Stocken v. Collin . . 43, 216, 384 Stocker v. Berny 998 Stockrleth v. De Tastet . . 62 Stockport W. Works Co. v. Potter 828 Stocks v. Booth 842 Stoddart v. Palmer . . . . 1220 Stoessiger v. S. E. By. Co. 360, 638 Stogden v. Lee .. .. 1173,1177 Stoke Parish Council v. Price 759 Stokell v. Niven 315 Stokes' case 679 Stokes v. Cooper 341 v. Cox 457 v. La Riviere 990 v. Lewis 592 v. Mason 82 v. Bussell 725 v. Spencer . . . . 1206 V. Twitchen . . . . 619 Stokoe v. Singers 821 Stone, In re 559 v. City & County Bank 613, 1107, 1113 v. Compton . . . . 663 v. Hyde 808 v. Marine Insur. Co. 427, 449w v. Marsh .. 610,617,961 V. Midland Ry. Co. .. 634 v. Rogers 257 Stoneham v. Davies .. .. 1173 v. Ocean, &c. Acci- dent Insur. Co 455 Stonehouse v. Evelyn .. .. 147 Stonelake v. Babb . . . . 252 Stooke v. Taylor . . 299, 302, 704 Storey v. Ashton 775 Storr v. Crowley 647 R. — vol-. I. PAGE Stourbridge Canal Co. v. Dudley 815 Stoveld v. Hughes . . . . 994 Stowe v. Querner .. 3, 10, 63, 230, 253 Stowell v. Robinson . . . . 29 Strachan v. Universal Stock Exchange 617 Stracy v. Blake 72 Straits Settlements (Att.- Gen. of) v. Wemyss .. .. 837 Straker v. Kidd 465 Strang v. Scott .. .. 464,478 Stranks v. St. John 257, 321, 749 Straton v. Rastall . . . . 65 Stratten v. Lawless . . 919, 937 Stratton v. Mathews . . . . 597 v. Pettit 1013 Strauss v. County Hotel, &c. Co 656 v. Francis 283. 294, 854, 873, 874 Stray v. Russell . . . . 574, 608 Streatley, In re 147 Street v. Blay .. .. 488,541 ■ v. Tugwell 760 Streeter v. Bartlett 65, 112, 134 Stretton, In re 507 v. Busnach .. .. 1171 &c, Brewery Co. v. Mayor of Derby .. .. 769 Strickland v. Maxwell . . . . 32 v. Turner . . . . 606 v. Ward .. .. 1140 v. Williams . . 326 Stringer v. English Insur. Co 448 Strithorst v. Graeme .. .. 1152 Stroms Bruks Aktie Bolag v. Hutchinson 648 Strong v. Harvey . . . . 710, 712 Strother v. Barr 2 Stroud 174 — , In re 26 — v. Dandridge .. .. 1158 v. Lawson 90 Stroughill v. Buck .. .. 76 Stroyan v. Knowles . . . . 813 Strutt v. Bovingdon . . 116, 192 v.Smith 570 Stuart v. Bell . . . . 866, 870 — v. Diplock 734 v. Evans . . . . 805, 807 v. Freeman . . . . 450 v. Joy 727 v. Lovell . . . . 87, 860 v, Whittaker . . . . 1223 v. Wilkins 489 Stubbing v. Heintz . . . . 553 Stubbs v. Holywell Rv. Co. 515, 1149, 1154 i cxxx Table of Cases Cited. PAGE Stubbs v. Lainsou .. .. 1220 v. Parsons 1086 Stublev v. L. & N. W. Ry. Co. 795 Stubs v. Stubs 996 Stuckey v. Hooke . . . . 744 Stucley, In re 721 ■ ■ v. Baily 489 Studdy V. Sanders 27, 557, 581 Stumore v. Broen 462 v. Campbell 704, 706, 707 Sturch v. Clarke 1135 Sturge v. Bucbanan . . 12, 14, 35, 113, 180 Sturgeon v. Wingfield . . . . 725 Sturges v. Bridgman .. 762,771, 773, 828 ■ v. Derrick . . . . 389 Sturgisv. Darell 1165 Sturla v. Freccia .. .. 44,211 Sturm v. Jeffree 12 Styart v. Rowland . . . . 628 Submarine Telegrapb Co. v. Dickson 786 Sucksmitb v. Wilson . . . . 348 Suffell v. Bank of England 396, 661 Suffield v. Brown 838 Sugden v. Ld. S. Leonards 145, Sullivan v. Bishop v. Magill v. Mitcalfe Summers, In re . . v. Moorbouse Surnmersett v. Jarvis Sumner v. Bromilow Sumpter v. Hedges Sun Fire Office v. Hart Sunbolf v. Alford . . 1054 752 156 1108 1163 30 .. 971 969, 970 .. 581 .. 455 . . 983 319 1156, 1179 .. 342 744, 745 24, 394 Surcome v. Pinniger . Surman v. Wbarton Surplice v. Farnswortb Surtees v. Woodbouse . Suse v. Pompe Sussex, Tbe 784 Brick Co., In re . . 1103 ■ — Peerage case 48, 54, 55, 59, 120, 121 Sutcliffe v. Booth . . . . 839 Suter v. Burrell 9 Sutton, Ex parte 373 — v. Bath . . 1206, 1207 — v. Buck 967 — — v. Ciceri . . . . 636, 638 v. Davenport . . . . 34 - v. Gt. W. Ry. Co. . . 614, 633, 634 v. Grey . . . . 479, 480 v. Sadler 1051 v. Spectacle Makers' Co 500 PAGK Sutton v. Sutton . . . . 104, 722 - v. Tatbam . . . . 592 - v. Temple 342 r. Toomer.. .. 225,415 Swain v. Ayres 308, 1014, 1029, 1082 ;;. Lewis . . . . 8, 385 - v. Shepherd .. .. 646 Swaine v. Wilson 672 Swainson v. N. E. Ry. Co. 803 Swainston v. Clay . . . . 1200 Swan, Ex parte .. ..706,1119 — v. Cox 363 v, N. British Austra- lasian Co. .. 76,1119 v. Steele 305 & Clelands Co. v. Maritime Insur. Co 449/t Swann v. Falmouth (Earl of) 894, 902 •^.Phillips .. .. 851 v. Sowell 690 Swansborough v. Coventry 817 Swansea Bank v. Thomas 336, 725 Swansea (Mayor of) v. Thomas 727, 729 Swanwick v. Sothern . . . . 994 Swatman v. Ambler . . . . 717 Swayne v. Inl. Rev. Commrs. 251 Sweet v. Lee 317 — ■ v. Seager . . . . 743, 744 -v. Sweet 1179 Sweeting, In re 501 v. Asplin . . . . 589 v. Halse . . . . 225 o. Pearce . . 449Z, 695 v. Turner . . . . 951 Sweetland v. Smith .. .. 332 v. Sweetland 146, 147 Sweetmeat, &c. Co. v. Inl. Rev. Commrs 258 Swelt v. Pym 988 Swift v. Jewsburv 845, 848, 851, 1128 v. Pannell 1209 v. Swift 168 Swinbanks, Ex parte .. .. 695 Swindell v. Bulkeley .. .. 1166 Swindon Waterworks Co. v. Wilts & Berks Canal Co. 837, 838, 840 Swinfen v. Bacon . . . . 751 v. Chelmsford (Lord) 283, 845 v. Swinfen .. .. 283 Swinford v. Burn 584 Swinnerton v. Stafford (Mar- quis of) 15,102 Swintcn v. Baily 1052 Swire v, Francis . . . . 663, 845 Table of < 'ases ' 'ited. CXXXl PAGE Swire v. Leach . . 903, 908, 979 Sybray v. White 69 Sydenham v. Rand .. .. 154 Sydney (Mun. Council of) v. Bourke 770, 771 Syeds v. Hay 972 Syers v. Chapman .. .. 914 v. Jonas . . . . 22, 542 v. Syers 559 Sykes, In re 145 Dunbar.. 174,882,885 v -v. Giles .. .. 695,696 - v. N. E. Ry. Co .. 811 — v. Sykes .. 1157,1188 Syllivan v. Stradling . . . . 333 Sylph, The .. .. Symes v. Green . . Symmons, Ex parte v. Blake Symon's case Symonds v. Atkinson v. Floyd v. Gas Light v. Hallett Syms v. Chaplin .. Synge v. Synge . . .. 205 .. 1051 .. 1202 .. 860 .. 1103 973, 977 23 Co. . . 60 .. 1173 639, 650 .. 496 553, Co. 873 508 323 524 1085 TABART v. Tipper Tabram v. Warren Tadcaster Brewery Wilson Taddy v. Sterious Tadman v. Henman Taff Vale Ry. Co. v. Amal. Sue. of Railwav Servants 892, 1091 Tagart Beaton & Co. v. Fisher 471 Tait v. MacLeay 832 Taite's case 1108 Talbot v. Hodson . . . . 134, 136 — V. Lewis 50 v. Shrewsbury (Earl of) 221 Talbot de Malahide (Lord) v. Cusack 177 Talbutt v. Clark 877 Talley v. Gt. W. Ry. Co. . . 654 Talverv. West .. .. 531,551 Tamvaco v. Lucas . . 538, 539 v. Simpson .. 471, 986 Tancred v. Allgood . . . . 1189 v. Delagoa Bay, &c. By. Go 620 v. Leyland . . . . 892 v. Steel Co. of Scot- land 540 Tanham v. Nicholson . . .. 1022 Tanner v. Bean 892 - v. European I lank .. 1227 v. Scovell 992 Tanner v. Smart TAGK 688, 6S9, 691, 1151 Tanqueray - Willaume and Landau, In re 1002 Tapley v. Wainwright Taplin v. Atty ■ v. Florence Tappenden v. Randall Tarbuck v. Bispham Tarleton v. Shingler ■ v. Tarleton Tarlton v. Fisher . . TarpLey v. Blabey Tarrabochia v. Hickie Tarrant v. Webb . . Tarry v. Ashton . . Tasker v. Shepherd Tatam v. Haslar . . ■ v. Reeve . . Tate v. Humphrey v. Latham .. Tatham v. Hodgson v. Wright Tatton v. Wade . . 675, 825, 943 Taunton v. Royal Insur /;. Wyborn Taurine Co., In re Tayler v. Fisher . . v. Gt. Indian V sular Ry. Co v. Waters . . enin- 136, 1119 .. 944 .. 1081 .. 1023 218, 559 30, 31, 283 . 79 . 730 . 618 . 584 . 22 . 405 . 589 665, 672, 997 & Mid- Co. 666, 1127 . . . . 205 . . 45, 941 . . 140, 203 Dewar 487 Dunbar 436 Fenwick .. .. 1146 Forster 169 v. Glassbrook . . . . 508 Goodwin .. .. 779 Taylerson v. Peters Tayleur v. Wildin Taylor, Ex parte .. , In re .. v. Barclay . . - v. Beal Bowers .. Brewer .. Briggs .. Burgess Caldwell Chester .. Chichester hurst Ry. v. Clemson Cole Cook . . 9, 1185 944 .. 618 .. 629 .. 245 .. 208 .. 918 .. 857 .. 404 .. S01 .. 764 519, 1154 .. 399 .. 591 .. 860 .. 806 .. 436 .. 148 .. 851 .. 174 1112 1039 1103 944 Co. 1099, r v. Gt. E. Ry. Co. 423, . r ,ii7, .Vi.S, 950 v. (It. N. Ry. Co. .. 68] v. Grecnbalgh .. v. Hare 770 606 oxxxn Table of Cases Cited. Taylor v. Hawk i us v. Henniker v. Higgins S59, 866, 869 .. 893 .. 590 .. 505 209, 720 .. 625 - v. Hodgson v. Hollard .. v. Holt v. Hamstead Colly. Co. 809 -v. Horde .. 1070,1078 v. Johnston . . . . 954 ■ v. Laird 518 - v. Lendey 609 - v. Liverpool & Gt. W. Steam. &e. Co. 473 - v. Meads . . . . 153, 1051 - v. Metr. Rv. Co. Add., 634 — v. M'Keand .. .. 955 - v. Parry 86, 189, 227, 935, 967 v. Richardson . . . . 1185 v. Rohinson . . . . 987 - v. Rowan 925 — v. St. Helens (Cor. of) 838 - v. Shum 726 -v. Smith .. .. 315,528 v. Steele . . 234, 243, 273 - v. Stray 592 - v. Taylor . . . . 706, 1153 - v. Wakefield . . . . 530 — v. Whitehead . . . . 942 v. Willans 884 — v. Witham . . . . 55 v. Zamira 1086 Teal v. Auty 526, 627 Tealby v. Gascoigne .. .. 1186 Tebb v. Cave 747 • v. Hodge 970 Tebbutt v. Bristol and Exeter Ry. Co 775 Teebav v. Manchester, &c. Ry. Co 818,826 187 460, 477 909 579, 580 507 1041 Temperley v. Scott S.S. Co. v. Smyth Temperton v. Russell Tempest v. Kilner 527, 571. Templer v. M'Lachlan Templeton v. Tyree Tenant v. Elliott 619 v. Goldwin . . . . 818 Tennant, Ex parte .. .. 558 v. Field 1088 v. Hamilton . . . . 762 Tennent v. City of Glasgow Bank 1113 Tenny v. Jones 40 Terry v. Hutchinson . . 910, 911 Teutonia, The . . 468, 472, 476 Tew v. Jones 336 Thacker v. Hardy . . 577, 591 Thackeray v. Wood . . 746, 747 PAGE Thackray v. Blackett . . . . 388 Thames Avon Dock v. Brymer 702 Tharpe v. Stallwood . . 925, 1061 Tharsis Sulphur and Copper Co. v. M'Elrov 583 v. Morel Thelluson v. Cosling . . Thellusson v. Fergusson v. Liddard v. Shedden 465 190 429 1008 3, 439 783 217 340 785 Theodore H. Rand, The . . Thetford case . . . . 124 Thetford (Mayor of) v. Tyler Thetis, The 774 Theys, Ex parte .. 1097,1113 Thiis v. Byers 465 703 619 546 845 3 226 366 Thimbleby v. Barron . . Thistlewood v. Cracroft Thol v. Hinton Thorn v. Bigland Thomas v. Ansley — v. Bird .. v. Bishop v. Bradbury, Agnew & Co. . . 872, 873 v. Brown .. 315, 331 v. Churton .. .. 865 v. Clarke . . . . 468 ■ v.Cook .. .. 337,480 v. Cross 693 v. Evans .. .. 711 v. Exeter Flying- Post Co 294 v. Foyle 424 v. Fredericks 340, 345, 730 1088 283 629 49 1214 1033 1219 790 174 837 1011 907, 1162 v. Phillips . . . . 925 v. Price 1173 V. Quartermaine 801, 805, 807 v. Rhymney Ry. Co. 652 v. Roberts . . . . 1205 v. Russell . . . . 923 v. Searles 1203,1208, 1210 v. Sylvester . . . . 333 v. Thomas 606, 836, 1018, 1073 v. Williams 518, 520, 863 Harries Harris Hawkes Jenkins Kelly 1211 Lulharn Mirehouse 1213 v. V. V. V. V. V. V. v. Morgan v. Newton v. Owen .. v. Packer v. Patent Lionite Co Table of Cases Cited. cxxxm Thompson v. Adams .. v. Blackhurst Thomson PAGE .. 455 117, 206 v. Brighton (Mayor of) 770 v. Brown . . . . 698 v. City Glass Bottle Co 806 v. Clanmorris (Lord) 757, 847 v. Cohen v. Condy v. Davenport v. Dorniny . . v. Donaldson v. Gardiner v. Gibson . . v. Gillespie v. Hakewell Hervey 534, 305, 954 243 18 460 204 536 760 .. 468 .. 718 .. 565 .. 1072 771, 822 657, 983 743, 744 v. Hickman u.Hill v. Lacy 656 v. Lapworth v. London County Council . . 91 v. Maberley .. 1014 v. Maceroni .. 531 v. Mashiter .. 903 v. Miles . . . . 324 v. Morgan . . . . 369 v. N. E. Marine Engineering Co. 809 v. Nye v. Ross v. Shackell .. v. Shirley .. v. Trail v. Trevanion v. Whitmore v. Wood .. .. v. Austen v. Clydesdale Bank v. Davenport v. Eastwood V. H nnling 1153, v. Lord Clanmorris 836 877 911 873 976 987 52 437 895 79 605, 964 93, 554, 555 .. 722 1154 757, 847 837 452 499 v. Waterlow . v. Weems Thorburn v. Barnes Thorley (Joseph) v. Orchis S.S. Co 474 Thorley's Cattle Food Co. v. Massam 863,880 Thorn v. City Rice Mills .. 719 v. London (Mayor of) 486 Thornbury v. Bevill .. .. 317 Thome (--."Heard 680 v. Smith 402 PAGE Thome r. Thome 1055 v. Tilbury . . . . 981 Thomett v. Haines . . 328, 329 Thornley v. Thornley .. .. 1179 Thornton v. Adams . . . . 1082 v. Charles .. .. 536 v. Prance . . . . 1076 v. M'Kewan . . . . 483 v. Meux . . . . 535 v. Place . . . . 588 v. R. Exchange Assur. Co 176, 432 Thorogood v. Bryan . . . . 780 v. Robinson . . 975 Thorold v. Smith 696 Thorp v. Booth 682 ^.Browne 1206 v. Holdsworth .. .. 659 Thorpe v. Bestwick . . . . 150 v. Brumfitt . . 769, 834 - v. Cooper .. .. 194, 219 v. Evre 220 Threfall, hire 1083 v. Borwick . . . . 983 Thrift v. Youle 474 Throgmorton v. Whelpdale 1023 Thrunscoe, The 437 Thrussell v. Handyside 798, 801, 805 Thurgood v. Richardson . . 1219 Thurle v. Madison . . . . 144 Thurman v. Best .. .. Add., 319 Thurston v. Delahay . . . . 10 v. Slatford . . . . 13 Thwaites v. Sainsbury . . 285 v. Wilding . . 900, 905 Thymic v. Glengall (Earl) . . 319 V. Prothero . . . . 223 Tichbome u, Lushington . . 157 v. Weir . . 729, 1070 Tickle v. Brown 59, 819, 829, 830, 935 Tidd, In re 682 Tidey v. Mollett .. ..257,1013 Tidman v. Ainslie .. .. 876 Tidswcll v. Whitworth .. 744 Tiedemann and Ledemann, In re 524 Tierncy v. Etherington . . 427 Tigress, The 988, 993 Tilbury v. Silva .. .. 39,933 Tildesloy v. Harper .. 292,659 Tilk v. Parsons 862 Till v. Ainsworth 13 Tillet v. Ward 937 Tillev's case 201 Tillry r. 1 .. 321, 323, 324 Tilling T. v. Dich Kerr&Co. 1132 Times Insur. Co. v. Hawkc 293, 735 Timmins v. Gibbins 600, 693, 699 UXXX1V Table of Cases Cited. v. v. V. V. PAGE Timmins v. Rowlinson 752, 1020 Timmis, In re .. . . 680, 720 Timothy v. Simpson 914, 922, 1135 Tinckler v. Prentice .. .. 731 Tindall v. Basket .. .. 286 Tippets v. Heane 685 Tipping v. St. Helen's Smelt- ing Co 763 Tobacco Pipe Co. v. Loder.. 679 Tobin v. Harford 449c Tod-Heatley v. Benham .. 735 Todd v. Ernlv . . . . 553, 717 Flight 768 Hoggart 329 Kellage 516 Kerrich 516 - v. Winchelsea (Earl of) 147 • Birleston & Co. & N. E. Ry., In re 815 Toke v. Andrews 705 Toleman v. Portbury 95, 342, 1025, 1032 Toler v. Slater 717 Tolhurst v. Assoc. Portland Cement Mnfctrs. . . 308, 524 Toll v. Lee .. .. 252,275,562 Tolman v. Johnstone . . . . 17* Tomes v. Hawkes . . . . 237 Tomkins v. Ashby . . . . 273 v. Jones 301 ■ v. Saffery . . . . 578 - r. Savory .. .. 234 Tomkinson v. Balkis, &c. Co. 1109, 1120 - r. Staight .. .. 529 Broadsmith .. 500 Cons. Credit, &c. Cor. 1082, 1214 /'. Dav .. .. 340 ■v. Kliynn .. .. 1220 v. South Eastern Tomlinson v v Ry. Co Tompkinson v. Russell Tompson v. Dash wood Toms v. Wilson . . 927, 955, Tone v. Preston . . . . 813, Tonkin v. Crocker Toogood v. Spyring . . 866, Tooker v. Beaufort (Dk. of) 79 1126 930 866 968, 980 829 77 869 96, 197 Toomev v. L. B. & S. C. Ry. Co. .. 797 Topbam v. Booth 721 v. Braddick .. 36, 994 v. Dent 928 v. Greenside Glazed Firebrick Co 1201 Topley v. Corsbie 1213 Toppin v. Lomas 314 PAGE Topping, Ex parte 626, 685, 687, 688, 691 Torbryan, Tbc 474 Torkington v. Magee .. .. 308 Torrance v. Bank of British N.America 405 Torrens v. Walker . . 738, 741 Torriano v. Young . . . . 347 Torrington (Vt.) v. Lowe . . 573 Tottenham, &c. Council v. Williamson 759 Totterdell r. Fareham Blue Brick, &c. Co 1110 Towers v. Barrett . . . . 488 Towerson v. Jackson . . . . 1058 Towne v. D'Heinrich . . . . 330 v. Lewis 976 Townsend's case 1100 Townsend v. Crowdy . . . . 611 v. Deacon .. .. 1152 v. Moore . . . . 1055 v. Neale . . . . 588 Townshend (Marquis) v. Stan- groom 320 Townson v. Jackson . . . . 694 v. Tickell 1050, 1055 Towse v. Henderson . . . . 463 Toynbee v. Brown . . . . 830 Tozeland v. W. Ham Union Guardians 799, 803 Traae and Lennard & Sons, In re 466 Tracv Peerage case . . 44, 176 Traill v. Kibblewhite . . . . 127 Travis v. Chaloner . . . . 192 Traviss v. Hargreave . . . . 231 Treadwin v. Gt. E. Ry. Co. 638 Tredwen v. Bourne . . 561, 1090 v. Holman . . 420, 448 Tregany v. Fletcher . . . . 81 Trelawney v. Colman . . . . 36 v. Thomas . . . . 623 Treloar v. Bigge 732 v. Lean 1054 Trench v. Newgass . . . . 463 Trent v. Hunt . . . . 897, 1087 Navigation v. Wood . . 631 Tress v. Savage 1010, 1011, 1014, 1015 Trevillian v. Pine . . . . 1086 Trevor v. Whitworth 1106, 1111 Trew v. Ry. Passengers' Assur. Co 454 Tnvvhitt v. Lambert .. .. 4 Tribe v. Taylor 5S7 Trimbey v. Vignier .. .. 371 Trimble v. Hill 61S Trimhlestown v. Kemmis . . 56 Trinmel, In re 147 Trinder v. Thames, &c. Insur. Co 436,447 Table of Cases Cited. cxxxv PAGE Trinidad Asphalte Co. v. Ambard 813 Tripp v. Thomas 861 Trotter, Lire 150 v. Maclean . . 939, 945 Trowell-i;. Castle 112 Trueman's Estate, In re . . 500 Trueman v. Hurst . . 628, 629 v. Loder 25, 26, 535, 536 Trufort, In re 209 Truman's case 1100 Truman v. L. Brighton, &c. Ry. Co 761 Truscott v. Diamond Rock Boring Co 738 Truslove v. Burton .. .. 72 Trustees, &c. Co. v. Short 1070, 1071 Tryon v. National Provident Institution 91 Tuck v. Southern Counties Deposit Bank 1203, 1208, 1210, 1227 Tucker v. Barrow . . 63, 627 v. Imnan 82 v. Linger 26 v. Newman . . . . 759 v. Tucker 687 v. Wilkins .. 103,215 Tuckey r. Hawkins .. .. 723 Tuff v. Warinan .. .. 780,786 Tuffnell's case 1101 Tugman v. Hopkins .. .. 604 Tull v. Parlett . . . . 19, 52 Tullidge v. Wade . . 910, 912, 914 Tullock v. Dunn . . . . 687, 1165 Tully v. Howling 463 ■ v. Terry 469 Tummons v. Ogle . . . . 756 Tunbridge Wells (Mayor of) V. Baird .. .. .. .. 933 Tunley v. Evans 71 Tunney V. Midland Ry. Co. 802 Tunnicliffe v. Moss .. .. 862 v. Wilmot 756, 1089 & Hampson v. W. Leigh Colly. Co 815 Tuiino v. Morris 1185 Tuppcr v. Foulkes .. .. 137 Turbcrville v. Whitehouse 674 Turcan, /// re 954 | Turnbull v. Forman .. .. 1177 & Co. v. Hull Under- writers' Assoc 449# Turner and Skelton, In re .. '■'• 30 Turner, In re . . 45, 121, 218 v. Ambler .. 883, 884 — v. Barnes .. 1081, 1083 ' - v. Beaurain .. .. 331 v. Cameron .. .. 903 I PAGE Turner v. Cameron's Coal- brook Co. . . 336, 931 v. Crisp 37 — — v. Deane 615 v. Diaper 705 v. Doe . . 1009, 1074 v. Ford 966 ■ — - — v. Goldsmith .. .. 519 v. Green . . 283, 664, 845 v. Haji, &c. Azam 460, 471 — v. Hayden .. .. 364 - v. Heyland .. .. 298 v. Horton .. .. 876 v. Leech 383 v. Mason 518 v. Meryweather .. 859 v. Metropolitan Live Stock Co 1115 v. Moon 745 v. Power 222 v. Ringwood Highwav Board .. .."833 v. Robinson . . . . 515 v. Samson .. .. 389 v. Sawdon .. .. 517 v. Sheffield Ry. Co. 816 v. Spooner . . . . 821 v. Stallibrass . . . . 303 v. Stones 699 v. Thomas . . . . 708 V. Thompson . . . . 1048 v. Trisby 673 v. Turner 884 v. Walsh 833 v. Willis 503 Turney v. Dodwell .. .. 686 Turquand, Ex parte . . 1200, 1208 v. Dawson .. .. 156 v. Knight . . . . 170 v. Rhodes .. .. 328 Turrill v. Crawley . . . . 983 Turton v. Barber 170 Tuson v. Evans 870 Tuton v. Sanoner . . . . 1207 Tutton v. Darke 901 Twecdale, Ex parte .. .. 1203 Tweedie, Ex parte .. .. 1201 Twemlow v. Oswin . . . . 438 Twist v. Johnson 12 Twycross v. Grant 847, 849, 1149 Twvnani V. Pickard .. .. 725 Twyne's case .. .. 1190,1191 Tyermau v. Smith .. .. 498 Tyers v. Etosdale, &c. Co. 545, 547 Tyler v. Leeds (Duke of) .. 1221, 1223 v. Merchant Taylors' Co. 146 Tyne [mprovement Commis- sioners v. General S. Navi- gation Co 785 Tyno Shipping Co. v. Leech 465 CXXW1 Table of ('uses i 'ited. PAGE Tyntc, Ex parte 722 Tyrrell v. Painton .. .. 1050 Tyrwhitt v. Wynne .. 85, 1037 Tyte v. Jones 223 UDELL v. Atherton . . . . 845 Udny v. Udny 1038 Uhde V. Walters 21 Ultzen v. Nichols . . . . 657 Underground Electric Rys. Co. r. Inl. Rev. Corns. 252, 265 Underhay v. Read 105S, 1086 Underbill v. Durham . . . . 197 v. Matthews . . 754 v. Witts .. .. 213 Underwood v. Lewis . . . . 509 • v. Underwood .. 660 v. Wing . . . . 42 Ungley v. Ungley 319 Union Bank of London v. Munster 328 ■ v. Lenanton 953, 1200 Union Bank of Manchester v. Beech 484, 702 Union Credit Bank v. Mersey Docks, &c. Board 76, 610, 972, 973 Union Lighterage Co. v. L. Graving Dock Co. 813, 827, 838 Union Marine Insurance Co. v. Martin 449d Union Steamship Co. v. Claridge 803 v. Melbourne Harbour Commissioners 1145 United Fortv Pound Loan Club v. Bexton 1199 United Land Co. v. Gt. E. Ry. Co 836 United Realization Co. v. Inl. Rev. Corns 265 United Service Co., In re .. 76 Unity Joint Stock Mutual Banking Assoc, Ex parte 673 Universal Stock Exchange v. Strachan 577,018 Universities of Oxford and Cambridge v. Gill . . . . 90 Unwin v. Clarke 521 - v. Leaper 618 v. Wolseley . . . . 584 Upsdell v. Stewart . . . . 588 Upton v. Townend .. 341,342 Urmston v. Newcomen .. 567 Urquhart v. Barnard .. .. 433 v. Macpherson 613. 703 Usher v. Martin 1226 Usillfl. Hales .. .. 871,872 Utopia, The 786 I-AGK Uzielli v. Boston Marine Insur. Co 449c VACHER v. Cocks . . 52, 143 Vadala v. Lawes 208 Vaillant V. Dodemead . . . . 171 Valente v. Gibbs 426 Valentini v. Canali . . 675, 726 Valieri v. Boyland .. .. 477 Vallance, In re 672 v. Savage .. .. 760 Valle v. Dumergue . . . . 208 Vallejo v. Wheeler .. .. 441 Yalpy v. Gibson . . 17, 532, 994 v. Manlev 615 v. Oakeley . . 532, 539, 547 Vanw. Corpe 320 Van Casteell v. Booker . . 957 Vancouver, The 449cZ Vandenbergh v. Spooner .. 532 Vanderdonckt v. Thellusson 121, 359 Vandewall v. Tyrrell . . 387, 594 Van Dieman's Land (Bank of) v. Victoria (Bank of) . . 377 Van Dieman's Land Co. v. Table Cape, &c. Bd. 28, 1037 Vane v. Vane 1078 v. Whittington . . . . 74 Van Gelder v. Sowerby Bridge, &c. Flour Socy. 91, 307 Van Grutten v. Foxwell . . 1002 — v. Trevenen . . 1019 Van Omeron v. Dowick 82, 434 Vanquelin v. Bonard . . . . 208 Vansandau v. Browne . . . . 508 Van Toll v. S. E. Ry. Co. 644, 655 Van Wart v. Wolley .. .. 72 Varley v. Coppard . . . . 731 v. Whipp .. 541, 568, 949 Varney v. Hickman . . . . 665 Vaspor v. Edwards . . . . 937 Vaughan v. Fuller . . . . 379 • ■ v. Hancock .. .. 313 v. Martin . . . . 177 v. Matthews . . 610 v. Meulove .. .. 792 v. Taff Vale Ry. Co. 774, 793 Vaughton ?<\ Brine . . . . 233 v. L. & N. W. Ry. Co. 640 Vaux Peerage case 44, 214, 217 Veitch v. Russell . . . . 515, 585 Velasquez, The 784 Venables v. Baring Bros. . . 963 v. Smith .. .. 777 Yenafra v. Johnson . . 20, 884 Venezuela Ry. Co. v. Kisch 1107 Vennall v. Gamer . . 780, 786 Table of Cases Cited. cxxxvn PAGE Venning v. Leckie . . . . 235 Vera Cruz, The .. .. 780,810 Vere v. Ashby . . 557, 558, 560 Vernon v. Boverie . . . . 700 ■ v. Keys 327 v. Smith 737 v. S. Janies (Vestry of) 832 Verrall v. Robinson . . . . 975 Vertue v. Beasley 900 v. Jewell 993 Vezey v. Bashleigh . . . . 29 Vialef. Michael 240 Vibartv. Coles .. .. 308, 1161 Vicars v. Wilcocks 493, 650, 862 Vice v. Anson (Lady) 11, 154, 562 Vickers v. Hertz 958 Victoria, The 787 Victoriau, &c. Svndicate v. Dott 669 Yhtorian By. Commrs. v. Conltas 782 Vigers v. Sanderson . . . . 542 Villers v. Beaniont . . . . 19 Vince, In re 559 Vincent v. Cole .. .. 223,582 v. Holt 501 v. Slaymaker . . . . 504 Yinden v. Hughes .. .. 361 Viner v. Hawkins 611 Viiiiv v. Bignold 455 v. Chaplin 695 Yinnicombe v. Butler.. .. 149 Violett r. Sympson . . . . 891 Virany v. Warne 584 Vivian v. Champion .. .. 739 v. Moat 1024 Vizetelly v. Mudie's Select Library 856 Vlierboom v. Chapman .. 470 Voisey, Krjiurte .. 1082, 1083 Volant v. Soyer 158 Vollans v. Fletcher . . . . 233 Vooght v. Winch .. .. 191, 946 Vorley V. Barrett 21 Vortigcrn, The .. .. 431,475 Vose v. Lancashire, &c. Ry. Co 803 Vowles v. Miller 937 v. Young 46 Vulcan Ironworks Co., In re 1199 WADDELL v. Blockey .. 849 v. Wolfe .. .. 322 Waddington r. Bristow .. 236 v. Francis . . 227 ■ v. Newton 57, 211 v. Roberts 43, 144 \\ ade's case 709 Wade V. Dowling 199 l-AGE Wadham v. Marlowe . . . . 730 v. N. E. Ry. .. 834 Wadsworth v. Marshall . . 154 Waggett v. Shaw 304 Wagstaff v. Anderson . . . . 93 v. Bentley . . . . 298 v. Wilson . . . . 72 Wain v. Bailey 357 v. Warlters .. .. 479,526 Waineright v. Bland .. 451, 452 Wainman v. Kynman . . . . 685 Wait v. Baker 552 Waiter. Gale 118 v. Jennings .. .. 1031 — v. N. E. Ry. Co. .. 781 Waithman v. Wakefield .. 564 • v. Weaver . . . . S77 Wake v. Harrop .. .. 21,414 v. Parker 1172 Wakefield v. Brown . . . . 718 v. Newbon . . . . 615 Wakelin v. L. & S. W. Ry. Co 290, 777, 780, 795 Wakeman v. Lindsey . . . . 897 v. Robinson 779, 914 v. West .. .. 122 Waland v. Elkins . . . . 776 Walcott v. Lyons 92 Waldegrave Peerage 1045, 1046 Waldock v. Winfield . . . . 776 Waldridge v. Kennison 62, 413 Waldrou v. Coombe . . . . 216 Waldyt;. Grav 59 Wale v. Inl. Rev. Corns. 221, 265 Walker's case .. ..341,1103 Walker, hi re . . 42, 485, 954 v. Barnes . . . . 624 v. Bartlett .. 252,574 v. Beauchamp .. 125 V. Bradford Old Bank 621 v. Brewster .. .. 761 v. Butler . . . . 685 v. Clay 955 v. Clements . . . . 705 v. Constable . . . . 331 v. Giles 1083 v. Goe 769 v. Gt. W. Ry. Co. . . 514 v. Hatton . . 737, 741 v. Hirsch .. .. 621 — v. Hobbs 342 r. Jackson .. 630,651 ?•. Macdonald .. 374 r. Matthews .. .. 962 v. Nevill 703 v. Nussey . . . . 531 ?•. Olding .. .. 927 V. Richardson .. 337 V. Rostron 232, 242, 619 V. S. E. Ry. Co. 883, 884, 1095, 1096 cxxxviii Tdblt > .. .. 989 B. 86 .. .. .. 1056 .. .. 989 18 1049,1057,1061 5 (6) .. 989,990 . . . . 990 c. 60 s. 100 . . .. .. 10,56 ( Vrrch. Ship. Act, (7) 988, 990, 992 1894) .. 130, 471, 782 B. 46 (1) .. .. 989 B. 2 (2) . . . . 475, 787 clxxii Tablt of Statutes Cited. 57 & 58 Vict. 1>AGI c. 60, s. 3(1) .. .. 475,' 787 s. 14 . . . . 219, 586 s. 31 586 s. 59 . . 459, 586, 785 s. 64 (2) 130, 219, 425, 586 (3) . . 130, 219 s. 82 475 s. 123 8 s. 165 521 s. 239 (6) . . 130, 212 s. 240 . . . . 129, 130 (6) . . 129, 130 s. 242 130 s. 254 (1) . . 128, 130 (2) .. .. 129 (4) .. .. 129 s. 256 130 s. 267 653 s. 271 '(16) .. .. 449Z s. 309 247 s. 310 (1) .. .. 130 s. 312 810 s. 320 653 (4) .. .. 236 s. 335 424 s. 339 129 s. 358 1133 s. 418 (1) . . . . 782 (2) .. .. 783 s. 419(1) .. .. 783 (3) .. .. 783 (4) . . 783, 788 s. 421(1) .. .. 783 (2) .. .. 783 s. 422 783 s. 424 783 s. 442 784 s. 451 432 s. 458 785 s. 483 .. 521, Add., 206 Part vii 987 s. 502 .. .. 474,787 s. 503 (1) 475, 787, 810 (2) . . 475, 787 (3) . . 475, 787 s. 506 . . . . 267, 424 s. 507 810 s. 508 .. .. 475,787 s. 509 . . . . 474, 785 s. 524 449fZ s. 603 .. .. 475,785 s. 604 (1) .. .. 785 s. 619 .. .. 247,788 s. 620 788 s. 633 (1) .. .. 784 s. 691 202 s. 694 . . . . 130, 134 s. 695 (1) . . 130, 219 (2) .. 99,131 57 & 58 Vict. pagf c. 60, s. 719 131 s. 720 131 (4) • . .. 131 (5) • . .. 131 s. 721 .. . . 736, 250 s. 742 . . . . 283, 784 s. 745 .. . . .. 267 cap. lx., s. 5 .. . .. 919 cap. ccxin. . . . 936 ss. 90, 91 . .. 327 58 & 59 Vict. c.9 . .. 106 c. 16 (Finance Act, 1895) 8.9(1).. . . .. 271 s. 11 .. . . . . 259 s. 12 .. . . . . 250 s. 13 .. 269 s. 14 .. . . . . 262 s. 15 .. . . . . 229 s. 16 . . . . .. 245 c. 25 .. 501 c. 27 ... 344 ss. 1, 3 .. . . . . 347 c. 39 . .. 1172 s. 5 .. . . . . 566 59 & 60 Vict. c. 25, s. 100 . . . . .. 99 c. 28, s. 12 .. . . . . 248 60 & 61 Vict. c. 24, s. 8 .. . . 239, 262 c. 30, s. 1 (1) . .. 962 (2) ■ . . . 962 c. 37 ( Workmen's Com- pensation Act ,1897), 454, 808 c. 46, s. 1 . 27, 669 c. 47 . .. 99 c. 65 (Land Transfer Act, 1897), s. 1 145, 204, 1036, 1049, 1055, 1060, 1151, 1159, 1161, 1164, 1167 (1) • . .. 1060 (2) • . .. 1060 (4) 5) • 1057, 1060 . .. 1060 s. 2 145, 1055, 1060, 1159, 1160, 1161, 1167 (2) • . .. 1060 (3) . . .. 1159 s. 3 1036, 1049, 1055, 1160, 1107, 1169 (1) • . 250, 1061 s.4 (2) . . . . 250 s.8 (4) . . .. 1001 s. 12 .. . . .. 1076 s. 20 .. . . .. 1001 s. 24 (1) . .. 1001 s. 25 . . . . 145, 1060 Tnhle of Statutes Cited. clxxiii 61 & 62 Vict, c. 10, s. 6 c. 29 . . c. 41' .. .. s. 10 s. 11 .. c. 46, s. 7 (1) (2) (3) s. 8 (14) (15) c. 58 .. .. B. 4 s. 6 .. ss. 7, 11 PAGE .. 249 .. 794 .. 155 .. 1134 .. 155 248, 667 .. 221 .. 260 .. 271 .. 271 218, 1042 .. 1042 .. 1042 .. 126 63 & 64 Vict. c. 48, s. 14 (1) c. 60, s. 11 1134 62 & 63 Vict. c. 9 (Finance Act, 1899), s. 4 (1) .. .. 261 (2) .. 261,275 (4) .. ..261 s. 5 (1) . . . . 274 s. 6 261 s. 7 248 s. 8 (1) .. .. 260 (2) .. .. 260 (3) .. .. 260 (5) .. .. 260 s. 9 (1) .. .. 258 (2) .. .. 258 s. 10(1) .. .. 238 (2) .. .. 238 s. 11 269 s. 12(1) .. .. 227 (2) .. .. 227 s. 13 248 c. 14, s. 4 933 c. 33, s. 1 (3) .... 99 b. 7 81 63 & 64 Vict. c. 7 (Finance Act, 1900), s. 10 250 c. 26, s. 2 1060, 1161 -. ■', 1060, 1161 s. 5 1060, 1161 c. 32, s. 1 787 s. 2 800 c. 48 (Cos. Act, 1900), s. 1 (1) 1097, 1098 (4) . . 1097 s. 3 (1) .. .. 1102 s. 4 1101 s. 6 1112 s. 7 (It) .. .. 1104 k. 10 .. .. 847, 1108 (5) .. .. 847 c. 48, 8.10(7) .. .. 847 (8) .. .. 847 i>ac,i: 1112, 1204, 1215 .. .. 1215 .. .. 1215 .. .. 1216 1097 1097 1104 1104 347 349 344 347 (4) (6) s. 15 .. s. 31 .. s. 32 . . s. 33 (1) (2) c. 50 (Agricultural Hold- ings Act, 1900) s. 1 (1) .. .. s. 2 s. 4 Sched. 1 347 Sched. III. .. 347 s. 12 347 c. 51 (Money Lenders Act, 1900), s. 1 (1) 600, 601, 626 (2) .. .. 600 s. 2 600 (1) .. .. 669 s. 3 (2) .. .. 669 s. 6 .. 600, 601, 669 1 Edw. 7, c. 7 (Finance Act, 1901), 11(1) (2) 3) h o. 10, s. 1 s. 2 c. 22, s! 101 (8)' 2 Edw. 7, c. 7, s. 9 0.8, 8. 7 c. 17, s. 1 267, 268 .. 266 .. 266 266, 268 962 n. 962 n. .. 744 B, s, c. 28, s 3 Edw. 7, c. 31 c. 39, s (2) (2) .. 249 126, 253 .. 514 .. 514 .. 514 .. 514 566, 1172 12 c. 42, s. 3 c. 46, s. 7 .. .. s. 8 4 Edw. 7, c. 23, s. 3 5 Edw. 7, c. 4, s. 5 (2) .. .. c. 11, (Ry. Sparks' Fires), " I :: :: s.4 s. 5 81 342 301, 1157 343 255 793 793 793 793 793 clxxiv 5 Edw. 7, c. 15, s. 50 .. s. 51 .. s. 52 (1) (2) s. 73 cap. ccix., s. 20 6 Edw. 7, c. 8, s. 6 c. 16, s. 1 c. 17, s. 1 c. 20, s. 9 c. 27, s. 1 s. 3 Tablt of statute* Cited. r M.V. 99 81 81 . 107 . 107 81,99 . 744 1139, 221 343 1141 411 ,237 491 491 491 (5) .. .. c. 32 (Dogs Act, 190G), s. 1 791 s. 7 791 c. 41 (Marine Insurance Act, 1906) . . 268, 416 s. 3 s. 4 s. 5 s. 6 s. 7 (1) (2) (1) (2) (1) (2) (1) (2) (1) (2) (1) (2) 417 .. 417 .. .. 417 417, 422, 435 .. .. 417 . . 422, 4496 .. 422,665 .. .. 422 . . . . 422 .. 423,435 .. .. 423 .. .. 423 . . . . 423 s.8 .".' 423 s. 9 (1) 423 (2) 423 s. 10 423 s. 11 423 s. 12 423 s. 13 " 423 s. 14 (1) 423 (2) 423 (3) 424 s. 15 424 s. 16(1) .. .. 424, 449 (2) 424 (3) 424 (4) 424 s. 17 449? s. 18 (1) 449//, 449i, 449/c (2) .. 449/z, 449i (3) . . 449/t, 449i (4) 449/i (5) 4497i s. 19 . . 4497t, 449i s. 20 (1) 449/t (2) 449/i (8) 449// (4) 449/; (5) 449// Edw. 7, c. 41, s. 20 (6) (7) s. 21 s. 22 s. 23 (1) (2) (3) (*) (5) s. 24 (1) (2) s. 25 (1) (2) s. 26 (1) (2) (3) (4) s. 27 (1) (2) (3) (4) s. 28 s. 29 (1) (2) (3) w s. 30 (1) (2) s. 31 (1) (2) s. 32 (1) (2) s. 33 (1) (2) (3) s. 34 (1) (2) (3) s. 35 (1) (2) (3) s. 36 (1) (2) s. 37 s. 38 s. 39 (1) (2) 3 (4) (5) s. 40 (1) (2) s. 41 s. 42 (1) (2) s. 43 s. 44 s. 45 (1) (2) PAGE 449/; 449/; 418, 449i, 449A; 418 418 418 418 418 418 418 418 .. 419, 426, 427, 431, 432 419 419 419 419 419 419 419 419 . . . . 419, 444 419 419 419 419 419 419 .. 419,425,435 420 420 4496, 449c, 449m 449o 428 428 428 428 . . . . 428, 431 429 429 429 429 430 430 . . . . 430, 434 430 430 430 .. .. 430,431 431 432 431 431 .. .. 434, 449/j 426 426 . . . . 426, 434 .. .. 426,434 . . . . 426, 434 426 Table of Statutes Cited. clxxv 6 Edw. 7, c. 41, s. 46 (1) (2) (3) s. 47 (1) (2) s. 48 s. 49 (1) (2) s. 50 (1) (2) 3) s. 51 s. 52 s. 53 (1) (2) s. 54 s. 55 (1) (2) s. 56 (1) (2) 8 (5) s. 57 (1) (2) s.58 s. p9 s! 60 (1) (2) s. 61 s. 62 (1) (2) (3 (4) (5) (6) (7) (8) (9) s. 63 (1) (2) s. 64 (1) (2) s. 65 (1) (2) s. 66 (1) s. 67 (1) (2) s. 68 (1) s. 69 PAGE 432 433 433 433 433 433 433 433 . . . . 421, 424 . .. 421, 449g 421 421 420 420, 4497, 449m . 421, 983, 984 449w, 696 434 . 435, 436, 437 443 444 444 444 444 444 444 438 444 ! 444, 447 444 . . . 444, 448 446 446 446 446 446 446 . .. ... 446 446 446 446 446 . . . 448, 449/ 448 448 448 . .. 449,449/ 449 449 449 449 449 . . . 449, 449ost, p. 154, be made as to the proof of particular facts. NATURE OF EVIDENCE. With regard to its nature, evidence may be considered under the following heads: — Primary evidence; secondary evidence; presumptive evidence; % hearsay; admissions. PRIMARY EVIDENCE. It is a general rule, that the best evidence, or rather the highest kind of evidence, must be given of which the nature of the case admits ; and evidence of a nature which supposes better proof to be withheld is only secondary evidence. Thus, where a will of lands was to be proved, the primary evidence of it was the will itself, and not the probate; for the Ecclesiastical Court had no cognizance of reality. B. N. P. 246. So, in general, where a contract has been reduced into writing by the parties, the writiug is the best evidence of its contents and must be produced. These Acts are hereinafter cited, for brevity, as J. Acts, 1873, 1875. t These rules (see preamble and Appendix O) came into force on October 21th. I vv: :;. and replace all former rules, except It. I :. II. T. L853, rr. 14 to 19, relating to juries, but they provide by O. lxxii. r. 2, that, " where ttO other provision is made by the Acta or these rules, the present procedure and practice remain in force." To these rules there have been numerous subs< ipient amendments and additions, but as these have been numbered in with the original rules, they are all hereinafter cited as " Hides, 1883." R, — VOL. J. B 2 Primary Evidence. Fenn v. Griffiths, 6 Bing. 533. So where a person was engaged as secretary on the terms contained in a resolution entered in a certain book of the employer, in action for his salary the book must be produced. Whitford v. Tutin, 10 Bing. 395, cited post, pp. 3, 4. In an action for infringement of a musical composition, the defendant cannot ask a witness whether he has not seen printed copies of it at a certain place and time, or heard it per- formed, in order to disprove the originality; such copies, if any, must be produced and proved, or inability to produce them shown. Boosey v. Davidson, 13 Q. B. 257. But it is not universally necessary, where the matter to be proved has been committed to writing, that the writing should be produced. If, for instance, the narrative of an extrinsic fact has been committed to writing, the fact may yet be proved by oral evidence. Thns, a receipt for money will not exclude oral evidence of the payment. Puimbert v. Cohen, 4 Esp. 213. So where, in trover, the witness stated that he had orally required the defendant to deliver up the property, and at the same time served upon him a notice in writing to the same effect, Ld. Ellenborough, C.J., ruled that it was not necessary that the writing should be produced. Smith v. Young, 1 Camp. 439. In the same manner, what a party says, admitting a debt, is evidence, although the promise to pay is reduced into writing. Singleton v. Barrett, 2 C. & J. 369. So where the fact to be proved was that a certain person occupied land so as to gain a settlement by 13 & 14 C. 2, it was held that, although there was a written demise, the fact might be proved by oral evidence. B. v. Holy Trinity, 7 B. & C. 611 ; 1 M. & Ry. 444. But the parties to the lease, the amount of rent, and the terms of the tenancv, can only be shown by the writing. S. C. ; Strother v. Barr, 5 Bing. 136 ; B. v. Merthyr Tidvil, 1 B. & Ad. 29. In an action inter alios, the laud- lord cannot be called to prove the rent due without producing the written lease if there be one. Augustien v. Challis, 1 Exch. 279. And the fact of a tenancy under a particular person cannot be so proved where there is a writing. Doe v. Harvey, 8 Bing. 239 ; semb. contra, per Alderson, B., in Augustien v. Challis, supra. Although there exists a deed of partnership, yet the fact of partnership may be proved by the acts of the parties. Alderson v. Clay, 1 Stark. 405. The fact of the employment of an agent to sell may be proved by oral evidence, though the terms of his commission are contained iu a letter. Semb. Whitfield v. Brand, 16 M. & W. 282. Where it is necessary to prove a marriage, the entry in the parish register is not the only evidence ; but the fact may be proved by the testimony of persons who were present and witnessed the ceremony, or hy general reputation. Evans v. Morgan, 2 C. & J. 453 ; B. v. Wilson, 3 F. & F. 119 ; Campbell v. Campbell, L. R. 1 H. L. Sc. 201, per Ld. Cranworth. And where evidence of reputa- tion was given, proof of a fiat for a special licence, and of the affidavit on which it was founded, and of an entry in a parish register stating a private marriage in a house, purporting to be signed by the parties, was admitted to confirm the other evidence. Doe d. El. of Egremont v. Grazebrook, 4 Q. B. 406. On an indictment for an unlawful assembly, the inscriptions aud devices on banners displayed at a public meeting may be proved by oral evidence, and it is not necessary to produce the banners themselves. B. v. Hunt, 3 B. & A. 566. And the transactions and proceedings of such a meeting may be proved by oral evidence, as resolutions entered into ; although it should appear that those resolutions were read from a paper. Id. 568. So an inscription on a fixed monument, or writing on a wall, may be proved by oral evidence. Doe d. Coyle v. Cole, 6 C. & P. 359 ; Mortimer v. M'Callan, 6 M. & W. 68, 72, per Cur.; Sayer v. Glossop, 2 Exch. 409; Bartholomeiv v. Stephens, 8 C. & P. 728. In an action for infringement of the copyright of a picture by a photograph, it is not necessary to produce Primary Evidence. 3 the picture; a witness who has seen it can prove that the photograph is taken from an engraving which is the copy of the picture, the engraving and photograph being produced. Lucas v. Williams, (1892) 2 Q. B. 113, C. A. The admission of one of the parties to a suit is primary evidence as against him, and the reported cases which favour a contrary opinion must be con- sidered as overruled by Slatterie v. Pooley, M. & W. 664, where is was decided that oral admissions are evidence against the party making them, although they relate to the contents of a written instrument. See also Newhall v. Holt, Id. 002; and Henman v. Lester, 12 C. B., N. S. 77(J; 31 L. J., C. P. 366. So a copy of a document delivered by a party is primary evidence against him of that document. See Stowe v. Querner, L. B., 5 Ex. 155, 159 ; and further under tit. Admissions, post, pp. 61 et seq. Tne proper evidence of all judicial proceedings is the production of the proceedings themselves or of examined (or office : Bules, 1883, 0. xxxvii. r. 4, vide post, p. 97) copies of them. Thellusson v. Shedden, 2 N. B. 228. It has even been held that oral evidence was not admissible of the day on which a ruisecameon to be tried; as the proper proof is the postea. Thomas v. Ansley, 6 Esp. 80; P. v. Page, Id. 83. But as adjournments during sitting are not noticed on the record, it may well happen that oral evidence is the best and only evidence of the actual day of trial ; Poe d. WrangJiam v. Hersey, 3 Wils. 274; Whittaker v. Wisbey, 12 0. B. 52; 21 L. J.,C.P. 116; though the record may be the only legal evidence of the proceeding at Nisi Prius recorded in it. Where, to prove that the plaintiff had been discharged under the Insolvent Act, it was proposed to give in evidence his admission to that effect, Ld. Elleuborough, C.J., held it insufficient. Scott v. Glare, 3 Camp. 236 ; but see the cases cited under tit. Admissions, post, pp. 63, 64. So oral evidence was not admissible to prove the taking of oaths recpuired by the Toleration Act, which must appear by the records of the court where the oaths were taken. P. v. Hube, Peake, 132. Where the deposition of a witness in a case of misdemeanor was taken under 7 G. 4, c. 64, s. 3, and the plaintiff in an action against the witness offered oral evidence of an admission made by him in such deposition, the court held such evidence to have been rightly rejected. Leach- v. Simpson, 5 M. & W. 309. The counterpart of a deed is admissible as original or primary evidence against the party executing it, and those claiming under him, though no notice to produce the other part has been given ; Burleigh v. Stibbs, 5 T. B. 465 ; Poe d. West v. Davis, 7 East, 3G3 ; Houghton v. Kcenig, 18 C. B. 235 ; 25 L. J., C. P. 218; so a duplicate original may be adduced in evidence without notice to produce the other original ; Colling v. Treweeh, 6 B. & C. 39 1, 398 ; and in the case of printed matter each copy of the same impression is an original. P. v. Watson, 2 Stark. 129. Though a written contract must be produced in an action founded on it, yet a mere memorandum, not signed by the parties nor intended to be final, will not prevent the introduction of oral evidence of a contract. Doe d. Bingham v. Curtwright, 3 B. & A. 326 ; and see Hawkins v. Wurre, 3 B. & 0. 698. So where an oral contract is made for the sale of goods, and is put into writing afterwards by the vendor's agent for the purpose of assisting his recollection, but is not signed by the vendee, the contract may be proved by oral evidence. Dal ism v. Stark, 1 Esp. 102. A vendee may give evidence of warranty, although a note of the sale and receipt of the money, given by the vendor to the vendee after the conclusion of an oral contract, contained no notice of any warranty. Allen v. Pink, 4 M. & W. 140. So of the memorandum of the terms of a lease, not signed by the lessor, but ouly by the wife of the lessee. P. v. St. Martin's, Leicester, 2 Ad. & E. 210. See also P. v. Wrangle, Id. 514. The case of Whitford v. b 2 4 Secondary Evidence. Tutin, 10 Bins;. 395, may seem hardly distinguishable in principle from some of the above. There it was held that a secretary, who accepted an engagement under a society on the terms contained in a resolution entered in the society's book, was held bound to produce the book in an action for his salary, though not a party to the resolution. The distinction seems to be, that the hiring was expressly upon the written terms, though the writing was not in itself a contract. The general proposition established by the cases seems to be that a mere unaccepted proposal, executory memorandum, private minute or unauthorised entry of one of the parties, will not exclude oral proof. But where an oral contract expressly incorporates, or refers to, a written paper as part of its terms, that paper ought to be produced in order to prove those terms. See Hill v. Nuttall, 17 C. B., N. S. 262 ; 33 L. J., C. P. 303. In order to render the production of a writing necessary, it must appear to relate to the matter in question. Thus where oral evidence is offered to prove a tenancy, it is not a valid objection that there is some written agreement relative to the holding, unless it also appear that the agreement was between the parties as landlord and tenant, and that it continues in force at the very time to which the oral evidence applies. Doe d. Wood v. Morris, 12 East, 237. Oral evidence of the terms of a demise is admissible, although the witness called to prove them states that the lessor read them from some paper held in his hand at the time, but which was not shown to, or signed by the lessee. Trewhitt v. Lambert, 10 Ad. & E. 470. If, in an action for work and labour, it appear that the claim is for extras on a written contract, the written contract must be produced. Buxton v. Cornish, 12 M. & W. 426. But if an entirely separate order be given for the extras, then production of the written contract is not necessary. Reid v. Ba tie, M. & M. 413. If oral evidence of an agreement be given at a trial, the party desirous of excluding it may at once interpose and ask the witness whether it was not in writing ; if the witness deny this, he may then give evidence on a collateral issue to show that the agreement was in writing; Cox v. Couveless, 2 F. & F. 139 ; or he may reserve the question for cross-examination, and may inquire as to the contents of the writing, so far as may be necessary, to show that oral evidence is inadmissible. Curtis v. Created, 1 Ad. & E. 167. It is not enough to prove, by a witness, that the solicitor of the opposite party has admitted in conversation that there was a written agree- ment on the subject ; for a solicitor is not an agent of his client to make such admissions. Watson v. King, 3 C. B. 608. Whether the existence of a writing is sufficiently proved to exclude oral evidence is a question for the judge. SECONDAEY EVIDENCE. Secondary evidence is admitted in cases where the principle which excludes it, namely, the supposed existence of better evidence behind, which it is in the power of the party to produce, does not apply. Thus, it is admissible if a ground be laid for it by proving that better evidence cannot be obtained. Rainy v. Bravo, L. B., 4 P. C. 287. In the case of a lost deed, the loss or destruction must be proved ; and if it appear that two or more parts have been executed, the loss of all the parts should, it is said, be proved, otherwise "perhaps" a copy will not be admitted. B. N. P. 254; and see R. v. Castleton, 6 T. B. 236 ; and Munn v. Godbold, 3 Bing. 292, 294, per Best, C.J. So where an instrument is in the possession of the opposite party, oral evidence of its contents may be given, on proof of the service of a notice to produce it. All the proper sources from which the primary Proof of Loss of Document. 5 evidence can be procured mast be exhausted before secondary evidence can be admitted. Thus, the party who has the legal custody of an instrument must be applied to. B. v. Stoke Golding, 1 B. & A. 173. So where a letter, which had been in the possession of the defendant, was tiled in the Court of Chancery pursuant to an order of that court, it was ruled that secondary evidence of it was not admissible, it being in the power of either party to produce it on application to the court. Williams v. Munnings, Ey. & M. 18. The construction of a lost document, though proved by oral evidence, is for the judge, where the veracity of the witness as to its contents is not questioned. Berwick v. Eorsfull, 4 C. B., N. S. 450; 27 L. J., C. P. 193. The wrongful refusal of a third party to produce a document in his possession on subpoena duces, will not let in oral evidence of it. Jesus College v. Qibbs, 1 Y. & C. 156; B. v. Llanfaethly, 2 E. & B. 940; 23 L. J., M. C. 33. But where a document is in the hands of a party, as a solicitor, who is called to produce it, but declines to do so, relying upon his privilege or upon his lien, secondary evidence of its contents may be given. S. C. ; B. v. Leatham, 8 Cox, C. C. 498 ; 30 L. J., Q. B. 209, per Hill, J. ; Oalcraft v. Quest, (1898) 1 Q. B. 759, C. A. See further, post, p. 158. The secondary evidence canuot be received unless the solicitor has been duly served with a subpoena daces; Hibberd v. Knight, 2 Excb. 11; or has the document in court, and refuses on demand to produce it. Semb. Dwger v. Collins, cited post, p. 8. Where a private letter is in the hands of a person resident abroad, and out of the jurisdiction of the English courts, who refused to part with it or produce it on the trial of a cause, the contents may be proved by secondary evidence, if all reasonable exertions have been made to produce the original. Semb. Boyle v. Wiseman, 10 Excb. 647 ; 24 L. J., Ex. 160. In such a case, the person requiring the production should disclose to the proprietor of the instrument the object of the applica- tion. See Brown v. Thornton, 6 Ad. & E. 185; Quitter v. Torss, 14 C. B., N. S. 747. The contents of documents of a public nature, required by law to be kept, may be proved by examined (and in some cases by office or certified) copies without accounting for the non-production of the original document ; vide Proof of documents by copies, post, pp. 96 et seq. ; and the same rule applies to public registers and documents kept abroad; vide post, pp. 97, 98. But in the case of a private document filed in a foreign court, it is necessary to prove that an unsuccessful application has been made to the legal custodian thereof, viz., to the court, before secondary evidence is admissible; an application to an inferior officer of the court, though he have the actual custody of it, is not enough. Crispin v. Doglioni, 32 L. J., P. M. & A. 109. In some cases secondary evidence of oral testimony is admitted; as where the testimony of a witness on a former trial is admitted on another trial without producing him in person. The circumstances under which this may be done will be found post, p. 116. So, where the evidence of a witness is taken out of court by affidavit or deposition, by proper authority ; vide Proof by affidavits or depositions, post, p. 185. Proof of loss 3'J; 21 L. J., Ex. 225. Notice to Produce. 9 Although the contents of a document may be proved by an admission of the opposite party out of court, yet it seems that the party cannot himself be cross-examined (when produced as a witness) respecting its contents, unless he has had notice to produce it. Darby v. Ouseley, 25 L. J., Ex. 227. In this last case it did not appear that the party interrogated had the document in his power or possession, and the language of the court almost goes to the extent of showing that a party cannot be called on to say whether he admits the contents of any document, though his admission out of court would have been evidence according to Slatterie v. Pooley, ante, p. 3. The court considered that there was a difference between proving an admission and calling upon the party in court to make one. See also Whyman v. Garth, 8 Exch. 803 ; 22 L. J., Ex. 316, cited post, p. 132. An admission in the usual form, under a notice to admit, as now required, of the accuracy of a copy, will not dispense with a notice to produce the original, if in the opposite party's possession, or with other pre-requisites for the reception of secondary evidence. See Sharpe v. Lamb, 11 Ad. & E. 805 ; Admission under notice to admit, post, pp. 73 et seq. Notice to produce j proof of possession of original. .] In order to render a notice to produce available, it must be proved that the original instrument is in the hands of the opposite party, or of some person in privity with him. The nature of this evidence must vary according to the nature of the iustrumeut. Where it belongs exclusively to the party, slight evidence is sufficient to raise a presumption that it is in his possession. Thus, where a solicitor proved that he had been employed by the defendant to solicit his certificate, and that looking at his entry of charges he had no doubt the certificate was allowed, this was held to be presumptive proof of the certificate having come to the defendant's hands. Henry v. Leigh, 3 Camp. 502. Where the instrument has been delivered to a third person, between whom and the party to the suit there exists a privity, notice to the latter is sufficient ; as in au action against the owner of a vessel for goods supplied to the use of the vessel, a notice to the defendant to produce the order for the goods, which had been delivered to the master by the defendant, is sufficient. Baldney v. Ritchie, 1 Stark. 338. So in an action against the sheriff, a notice to his solicitor to produce a warrant, which has been returned to the under-sheriff while the defendant was in office, is sufficient, whether the defendant be in or out of office at the time of notice. Taplin v. Atty, 3 Bing. 164 ; Suter v. Burrell, 2 U. & N. 867 ; 27 L. J., Ex. 103. So also notice to a defendant to produce a cheque drawn by him, and paid by his banker, is sufficient to entitle the plaintiff to give secondary evidence of its contents, although the cheque remains in the banker's hands. Partridge v. Coates, Ky. & M. 156. So notice to a party to the action to produce a document in the possession of his solicitor in another action is sufficient. Irwin v. Lever, 2 F. & F. 296. If the instrument were in possession of the party at the time of the service of notice he cannot alterwards voluntarily part with it so as to get rid of the eil'ect of the notice. Dallas, C.J., in Knight v. Martin, Gow, 104; and Best, C.J., in Sinclair v. Stevenson, 1 C. & P. 585. But where the plaintiff was nonsuited in a cause in which he had given defendant notice to produce a lease, and afterwards defendant a-signed the lease, and on a second trial plaintiff again gave defendant's attorney notice to produce it, and was then told by him of the assign- ment, it was held that secondary evidence was inadmissible and a subpoena necessary. Knight v. Martin, (low, 103. Where a paper had been delivered to a third person under whom the defendant justified in an action of trespass, and by whose directions lie acted, a notice to produce, served upon the defendant, was held not sufficient to authorise the aoting as that of Episcopal Registers, mentioned post, p. 215 {sub tit. Effect of Documentary Evidence — Bishop's Begisters), or of old copies and abstracts already referred to. In either case the antiquity of the document, and the inevitable exposure to destruction and loss of very old originals, gave them a title to reception, which recent unexamined copies cannot claim; and the known usage of preserving verbatim enrolments and registers of the title deeds of religious houses imparts to such collections, in some sort, an official character. Such copies, however, have never been admitted unless traced to the custody of some grantee of the corporate lands, and tendered as evidence in support of ancient possession, or preserved among the crown records as muniments of its title. If they come trom custody unconnected with the Proof of Documents by Copies. 15 lands, and even from a public national library, they are inadmissible. Sivinnerton v. Stafford, Mqs. of, 3 Taunt. 91 ; Potts v. Durant, 3 Anst. 789. See further Doe d. Padivich v. Wittcomb, 6 Exch. 601 ; 20 L. J., Ex. 297 ; 4 H. L. C. 425; and Proof of Documents — Custody of Ancient Writings, post, p. 102. Where a will was lost the register or ledger book of the Ecclesiastical Court, or a copy of it, has been admitted as secondary evidence of a will of lands. B. N. P. 246. It is presumed that in this last case the will was of personal as well as real estate. See further, Proof of Probate, post, pp. 118, 119. Where the assignment under a commission of bankrupt was lost before it was enrolled pursuant to the old Act, 6 G. 4, c. 16, s. 96, the counterpart of it was admitted as secondary evidence. Giles v. Smith, 1 C. M. & R. 462. As to the admissibility of secondary evidence where the original docu- ment has been attested, vide Proof of Documents— Proof of attested deed by secondary evidence, post, p. 139. In numerous instances copies of public books and registers are good evidence of documents which are in existence without imposing any obliga- tion to produce, or even to account for the non-production of, the originals. This sort of evidence is no doubt secondary in its nature, but is allowed by common law or statute on the ground of public convenience; vide Proof of Documents, post, p. 96. ORAL EVIDENCE TO EXPLAIN OR ADD TO DOCUMENTS. The rule of law is clear that, where a contract is reduced into writing, it is presumed that the writing contains all the terms of it, and evidence will not be admitted of any previous or contemporaneous oral agreement which would have the effect of adding to or varying it in any way. This is a rule of evidence at common law. The Statute of Frauds, and the Sale of Goods Act, 1893, s. 4, also require that certain contracts should be in writing, and therefore, by implication, evidence relating to such contracts which is not in writing is excluded. In other cases it is the duty of certain officers to record, in a manner more or less solemn, what is said or done ; as in the case of records of courts of law, or depositions taken before magistrates on a criminal charge. How far such authentic memorials are conclusive is not very well settled, but they are certainly so in some cases. It is obvious that evideuce might frequently be objected to as infringing more than one of these rules, and, where several objections might be good, it is not always easy to see which of the two in a particular case forms the ratio decidendi. The cases which we are about to consider are those where the decisions have been founded, or seem likely to have been founded, on the common law rule now under consideration. Another remark which appears to be useful is this: that although the principles upon which the admissibility of evidence in these cases depends would appear to be general as regards all written instruments, they have not been applied in a precisely similar manner to all classes of cases. But per- haps this may be partly explained in the following maimer. Inasmuch as the question is whether the written memorandum by its terms excludes oral evidence, the admissibility of the latter is in all cases, to a certain extent, and in some exclusively so, a question of inleipretution of the written docu- ment. And inasmuch as, in analogy to the use of technical terms, language, by being constantly used for the same purpose, almost always acquires conventional meaning, such corresponding groups of cases as have been mentioned naturally arise. In fact, there are two questions of interpretation to be solved, whenever oral evidence is objected to on the ground that it lt» Oral Evidence to explain or add to Documents. contradicts a written instrument. First, the interpretation of the written contract as it stands; secondly, the interpretation of the clause which it is proposed to insert by way of addition or explanation, for that is really what is done ; and hence the same question as that which is raised upon the admissibility of evidence, may be sometimes raised on the record by an objection in point of law. Under a system of law like our own, in which there are scarcely any canons of interpretation, and in a country where contracts, especially mer- cantile contracts, are very loosely drawn, a decision as to the meaning of one contract is rarely an authority as to the meaning of another. Bearing these remarks in mind, it will be found that the apparent conflict between many of the cases may be reconciled. A good example of the truth of this remark will be found in the cases of Field v. Lelean, and Spartali v. Benecke, p>ost, pp. 23, 25. The following decisions will illustrate what is said above. Thus where it was agreed in writing that A., for certain considerations, should have the produce of Boreham meadow, it was held that he could not prove that it was at the same time agreed orally that he should have both Milcroft and Bore- ham meadow. Meres v. Ansell, 3 Wils. 275 ; Angell v. Duke, 32 L. T. 320, E. T. 1875, Q. B. ; and see Hope v. Atkins, 1 Price, 143. So oral evidence is inadmissible to show that a note, made payable on a day certain, was to be payable on a contingency only. Rawson v. Walker, 1 Stark. 361 ; Foster v. Jolly, 1 C. M. & R. 703. So where a promissory note is expressed to be made payable on demand, oral evidence of a contemporary agreement, that it should not be paid until a given event happened, is inadmissible. Moseley v. Hartford, 10 B. & C. 729 ; see also Besant v. Cross, 10 C. B. 895 ; 20 L. J., 0. P. 173; Adams v. Wordley, 1 M. & W. 374; Henderson v. Arthur, (1907) 1 K. B. 10, C. A. So the terms of a bill of lading cannot be varied by oral evidence. Leduc v. Ward, 20 Q. B. D. 475, C. A. But defendant may show that the agreement, though not under seal, was in the nature of an escrow, and signed on the express condition that a third party approved. Fym v. Campbell, 6 E. & B. 370; 25 L. J., Q. B. 277; Davis v. Jones, 17 C. B. 625; 25 L. J., C. P. 91; Wallis v. Littell, 11 C. B., N. S. 364; 31 L. J., C. P. 100; Rogers v. Hadley, 32 L. J., Ex. 241 ; Lindley v. Lacey, 17 0. B., N. S. 578 ; 34 L. J., C. P. 7, cited post, p. 18. Where the conditions of sale described the number and kind of timber trees to be sold by lot, but not the weight of the timber, it was held, in an action for the purchase-money, that oral evidence could not be given by the defendant that the auctioneer had, at the sale, warranted the timber of a certain weight. Powell v. Edmunds, 12 East, 6; Shelton v. Livius, 2 C. & J. 411. So oral evidence is inadmissible to alter the legal effect and construction of a written agreement. Thus, where an agreement for the sale of goods was silent as to the time of delivery, in which case the law implies a contract to deliver in a reasonable time, it was held that oral evidence of an agreement to take them away immediately was inadmissible. Greaves v.Ashlin, 3 Camp. 426 ; Halliley v. Nicholson, 1 Price, 404. So where a contract of sale, being silent as to time of payment, implies payment on delivery, proof of intended credit is inadmissible. Ford v. Yates, 2 M. & Gr. 549. Where the defendant, the day alter a sale by him of flour to the plaintiff, sent a memorandum of the sale, " Sold White's X. S. ; " and delivered " White's X. S."' accordingly ; it was held, that the plaintiff could not show that the contract was for " White's X. X. S." Hamor v. Groves, 15 C. B. 667 ; 24 L. J., C. P. 53. It is observ- able, however, that the four last cases were for non-performance of executory contracts within the Statute of Frauds, which ought to contain all the terms of agreement. So where the written agreement was to take goods on board a ship " forthwith," oral evidence to show that they were to be received on Oral Evidence — when admissible. 17 board in two days was not allowed. Simpson v. Henderson, M. & M. 300. An absolute sale of a reversion was held not to be qualified by proof of an oral agreement to apportion the accruing rent. Flinn v. Calow, 1 M. & Gr. 589. Nor is a release, by proof of an oral agreement to reserve rights against a co-surety. Mercantile Bank of Sydney v. Taylor, (1893) A. C. 317, J. C. Parol evidence is not in general admissible to vary the terms fixed for pay- meats to be made under a mortgage deed. Williams v. Stem, 5 Q. B. D. 409, C. A., disapproving of Albert v. Grosvenor Investment Co., L. R., 3 Q. B. 123. As to rectification of a deed or writing on the ground of common mistake, see Johnson v. Bragge, (1901) 1 Ch. 28, and post, p. 320. But in order to exclude oral proof of a contract, the writing must purport to be a complete contract. Therefore where a written order for goods was sent without mentioning a time of payment, and they were delivered with an invoice accordingly, it was ruled in an action for goods sold, that an oral agreement for six months' credit might be proved ; for the order per se was no contract, but only evidence of some of the terms of one. Lockett v. Nicklin, 2 Exch. 93. So where a written proposal was not accepted, oral evidence of the terms of the contract is admissible. Scones v. Bowles, 29 L. J., Ex. 122. See also Eden v. Blake, 13 M. & W. 614, post, p. 29. And it would seem that when a writing is not ex necessitate legis (as under the Stat, of Frauds, s. 4, or Sale of Goods Act, 1893, s. 4), the apparent deficiencies of a written agreement as to some particulars of price, time of delivery, &c, may be supplied by oral evidence, although the jury would be directed to presume a reasonable price, or reasonable time, &c, in the absence of such evidence ; for such evidence does not contradict or vary the written document as far as it goes ; and it may be that the parties them- selves did not intend to commit to paper the whole of the contract. See Valpy v. Gibson, 4 C. B. 837. So evidence of what took place prior to the sale of goods is admissible to raise a warranty under the Sale of Goods Act, 1893, s. 14, although the contract was in writing. Gillespie v. Chewy, (1896) 2 Q. B. 59, vide post, pp. 187, 488. Where the Statute of Frauds, &c, apply, oral evidence to supply the intention of the parties would not be admissible, as we have seen above. See further the title Action on Contract of Sale of Goods, post, pp. 535, 536. If a party sign an agreement in his own name he cannot afterwards defeat an action on it by proving lhat he signed only as agent for another. Magee v. Atkinson, 2 M. & W. 440 ; Jones v. Liltledale, 6 Ad. & E. -186 ; Higgins v. Senior, 8 M. & W. 831. Where A. signed a charterparty as shipowner, and was so designated in it, A.'s principal could not sue on it, and prove that he was owner, and not A. Humble v. Hunter, 12 Q. B. 310. But if a sold note be in the form "sold to our principals" oral evidence is admissible to show who those principals arc. Cropper v. Cook, L. It., 3 C. P. 194. Where an instrument professed to bo made between plaintiff and A., and signed by B. as agent for A., it was held that B. was not liable on (he conduct, if it turned out that he had no authority to bind A. Jenkins v. Hutchinson, 13 Q. B. 744. In an action on a written contract between plaintiff and B., oral evidence is admissible, in behalf of the plaintiff, to show that the contract was in fact, though not in form, made by I). as agent of the defendaut ; for the evidence tends not to discharge B., but to charge the dormant principal ; Wilson v. Hart, 7 Taunt. 295; and it is admissible although B. named his principal at the time he entered into the contract. Calder v. Bobell, L. P., 6 G. P. 486, Ex. Ch. Where a deed between A. and Y., which contained a clause, "it is further understood between the parties that S. guarantees payment to Y. of all moneys due to them under this contract," was executed by S. on behalf of A. under a power of attorney, thus, "l'.P.A.— A. — S.," oral evidence was held admissible to show that S. R. — vol. i. c 18 Oral Evidence to explain or add to Documents. signed on behalf of himself as well as for A., as this was doubtful on the face <>f the agreement. Young v. Schuler, 11 Q. B. D. 651, C. A. And see further 2 Smith's L. C, Thompson v. Davenport, in nolis ; and Variance, post, pp. 92, 93. A patent ambiguity is to be explained by the judge, and not left to the jury. Thus, although " months " denote at law "lunar months" the context may show " calendar months " to have been intended, this is a question for the judge; but extrinsic evidence is admissible that a word is used in a sense peculiar to some trade, business, place, or local usage, in which case it is for the jury to find the meaning. Simpson v. Margitson, 11 Q. B. 23; Bruner v. Moore, (1901) 1 Ch. 305; Smith v. Thompson, 8 C. B. 44. See Hills v. London Gas Co., 27 L. J., Ex. 60, where it seems to have been considered that the judge must construe the contract, though its terms be technical or scientific, and that expert evidence on the point would be for the information of the judge, and not of the jury. In that case a patent for the use of hydrate of iron was contested, by showing that the use of carbonate of iron was not new, and that, in commerce, the scientific distinction between those two substances was not preserved, and Pollock, C.B., thereupon directed a nonsuit. But if their commercial identity had been disputed at the trial, there would have been a question for the jury, and on this ground, at semble, a new trial was granted. There are cases in which an oral agreement may exist between the parties to a written agreement on a matter collateral and superadded to it, so that both may well subsist together. In such cases oral evidence of the collateral matter is admissible, for the original contract is unaffected by it. Thus, where the parties to an indenture of charterparty afterwards agreed orally for the use of a shi]) at a period before the charterparty attached, oral evidence of this was held admissible in an action on this latter agreement. White v. Parkin, 12 East, 578. Where there was an oral agreement by the landlord to pay 20?. towards repairs in consideration that plaintiff would become tenant, and plaintiff accepted a lease, and did the repairs, which defendant, the landlord, then promised to repay; held, : ( that plaintiff could recover on au account stated, although the lease itself contained no such agreement. Seago v. Deane, 4 Bing. 459. So where a tenant executed a lease, which reserved the right of shooting to the lessor, on an oral promise by the latter that he would keep down the game : held, that the tenant could sue the lessor for breach of this promise. Morgan v. Griffith, L. R., 6 Ex. 70 ; Erskine v. Adeanc, L. R., 8 Ch. 756. The decision in Mann v. Nunn, 43 L. J., C. P. 241, is to the like effect; it was, however, doubted by Blackburn, J., in Angell v. Duke, 32 L. T. 320, E. T. 1875, Q. B. So evidence may be given of a contract made by a lessor with the lessee on the occasion of a lease of a house, as to the user of the adjacent houses of the lessor. Martin v. Spicer, 34 Ch. D. 1, C. A., affirmed in D. P. on other grounds, 14 Ap. Ca. 12. On the sale of land by auction, evidence was admitted of an oral statement by the auctioneer that there was a certain right of way to the land. Brett v. Clowser, 5 C. P. D. 376. Where A. orally agreed with a railway company that they should carry»his cattle to K. station, and at the same time signed, without noticing its contents, a consignment note for the carriage of the cattle to an intermediate station, E. ; it was held that the oral agreement was admissible in evidence as not contradicting, but being supplemental to, the written contract. Malpas v. L. & S. W. By. Co., L. R., 1 C. P. 336. Where the plaintiff agreed in writing to purchase certain furniture of the defendant, and by that agreement the defendant was authorised to settle an action of C. v. L., it was held that, in an action for not settling the action of C. v. L., evidence was admissible of a distinct oral agreement to settle that action, made immediately before the written agreement. Lindlcy v. Lacey, 17 C. B., Oral Evidence — when admissible. 19 N. S. 578 ; 34 L. J., C. P. 7. These cases are plainly not exceptions to the general rule. Nor is it an exception to this general rule that it does not extend to the exclusion of all the legal incidents which by the general law merchant, or common law, attach to certain instrument?. Thus, the days of grace allowed to the parties to bills ; the necessity of notice of dishonour, &c, are not specified on the bill ; so of implied warranties on policies, &c. In such cases no evidence is admissible ; for the court will take notice of all legal incidents. It is otherwise in regard to particular usages or local customs, which will be mentioned hereinafter. Vide post, pp. 21 et sea. Oral evidence, when admissible to prove a consideration, or to vary the date, or description, (fee] The cases as to proof of consideration stand somewhat apart, and it would be dangerous to draw any inference from them with respect to the general law upon the subject under discussion. It is constantly the practice to show that no consideration has been given for a bill or note, although the instrument bears on its face the words " value received," which clearly import a consideration for the promise contained in the instrument. Upon a contract under seal it is not, as in a contract not under seal, generally necessary to prove that there was any consideration, or the nature of it. But if the consideration come in question at all, it seems generally to have been permitted to inquire into it, notwithstanding any averment in the deed. Thus where the considerations mentioned in a deed were 10,000/., and natural love and affection, an issue was directed to inquire whether natural love and affection formed any part of the consideration. Filmer v. Gott, 4 Bro. P. C. 230. So a deed operating under the Statute of Uses, and reciting no con- sideration, may be supported by showing that a pecuniary one in fact passed. Mildmay's case, 1 Rep. 176. So a deed which recites only a pecuniary con- sideration, may be shown to have been also founded on the consideration of marriage. Id. ; Villas v. Beamont, Dyer, 146 a; Tail v. Parlctt, M. & M. Ill' ; and Clifford v. Turrill, 1 Y. & C. C. C. 138 ; 14 L. J., Ch. 390; S. C, on appeal, Id. 396. So evidence is admissible to show that the consideration stated in a bill of sale is not the true consideration, and that it is, therefore, as against trustees in bankruptcy and execution creditors, void under the Bills of Sale Act, 1878, s. 8. Ex. )de. Carter, 12 Ch. D. 908. The same principle applies to the Bills of Sale Act, 1882, s. 9 and schedule ; see Cochrane v. Moore, 25 Q. B. D. 57, 73, C. A. A guarantee purported to be "in con- sideration of your ha ring advanced this day," &c. ; oral evidence was admitted to show that the advance was contemporaneous with the guarantee, and was therefore a good consideration. Goldshede v. Swan, 1 Exch. 154. See also the following cases in which words of guarantee, founded on a con- sideration ambiguously expressed, so as to import either a past or future credit, were explained by extrinsic evidence that the credit was in fact a future or continuing credit ; or that the consideration and guarantee were simultaneous. Edwards v. Jerons, 8 C. B. 436; Colbown v. Daivson, 10 C. B. 765; 20 L. J., C. P. 151 ; Bainbridge v. Wade, Hi Q. B. 89; 20 L. .1., Q. B. 7 ; Eeffield v. Meadows, \>. I!., I C. P. 595 ; Laurie v. Scholefield, Id. 622. See Morrell v. Cowan, 7 Ch. 1). 151. A deed takes effect from the delivery, and not from the date; therefore oral evidence was allowed to show that a lease dated on Lady Day, 1783, and purporting to commence on Lady Day last past, was in fact executed after the date, and that the term therefore commenced on 'Lady Day, 1783, and Dot 1782. Steele v. Marl, 4 B. & 0. 272. In such case there is no real contradiction. The same consideration will also explain the ground on which oral prcof was permitted to be given by the defendant that the plaintiff had made certain admissions on his examination before commissioners of bankrupt, c2 20 Oral Evidence to explain or add to Documents. although the written examination produced contained no such admissions. Rowland v. Ashby, Ry. & M. 231. So, although the written information taken by a magistrate on a criminal charge is the best evideuce of such information, yet any additional statements made by the informant, and not reduced to writing, may be proved by oral evidence. Venafra v. Johnson, 1 M. & Rob. 3K1. Although no oral evidence can be used to add to or detract from the description in a deed, or to alter it in any respect, yet such evidence is always admissible to show the condition of every part of the property, and all other circumstances necessary to place the court, when it construes an instrument, in the position of the parties to it, so as to enable it to judge of the meaning of the instrument. Baird v. Fortune, 4 Macq. 127, 149, per Ld. Wensley- dale; Magee v. Lavell, L. R., 9 0. P. 107, 112 ; Devonshire, Dk. of v. Pattin- son, 20 Q. 13. D. 263, C. A.'; Roe v. Siddons, 22 Q. B. D. 224, 0. A. " It may be laid down as a broad and distinct rule of law that extrinsic evidence of every material fact which will enable the court to ascertain the nature and qualities of the subject-matter of the instrument, in other words to identify the persons and things to which the instrument refers, must of necessity 1 >e received." 2 Taylor, Evid., Gth ed. § 1082 ; 10th ed. § 1194, cited in Krell v. Henry, (1903) 2 K. B. 740, 753, per Vaughan Williams, L.J. See post, p. 30. See also Inglis v. Battery, 3 Ap. Ca. 552, D. P. The same rule applies in the case of a will, vide post, p. 31 ; and see Way v. Hearn, 13 C. B., N. S. 292 ; 32 L. J., C. P. 34 ; Newell v. Radford, L. R., 3 C. P. 52 ; and Lewis v. Ot. W. Ry. Co., 3 Q. B. D. 195, C. A. See, however, Stanton v. Richardson, L. R., 7 C. P. 428, 434, per Brett, J. Mere words of description in a deed of conveyance, not operating by way of estoppel, may be contradicted by oral evidence ; thus the lessee of land, described as " meadow," may prove it to have been arable in an action by the lessor for ploughing it up; Skipwith v. Green, Stra. 010; or he may show that land described as containing 500 acres does not in fact contain so many ; S. C. as reported Bac. Ab. Pleas I. 11 ; or contains many more. Jack v. M'Intyre, 12 CI. & F. 151; Manning v. Fitzgerald, 29 L. J., Ex. 24. In a settlement case, where the deed of conveyance stated the consideration of the purchase to be 28/., oral evidence was admitted to show that the consideration was in fact 30?. ; R. v. Scammonden, 3 T. R. 474 ; and that money, stated in a deed of apprenticeship to have been paid by J. M., was in fact parish money. R. v. Llangunnor, 2 B. & Ad. 616. In these cases, however, the oral proof was admissible, not on the ground of its consistency with the writing, but because the recital in the deed was res inter alios, which the parishes were not estopped from correcting even by testimony inconsistent with the writing. So a parish may show a settlement by renting a tenement in parish B., though the lease describes it as in parish A. R. v. WicJcham, 2 Ad. & E. 517. Oral evidence, admissible to prove fraud, illegality, or error.'] Where fraud is imputed, any consideration or fact, however contrary to the averment of a deed, may be proved to show the fraudulent nature of the transaction ; B. N. P. 173 ; Paxton v. Popham, 9 East, 421 ; for fraud is a matter extrinsic and collateral, which vitiates all transactions, even the most solemn. Thus, in order to set aside a will, oral evidence may be given of what passed at the signing, and what the testator said, to show that his signature was obtained by fraud. Doe d. Small v. Allen, 8 T. R. 147 ; and vide post, p. 145. And, in general, matter which in law avoids an instrument, whether it be fraud, forgery, duress, illegality, &c, may be proved orally, however con- tradictory to its tenor, provided the pleadings be adapted to such evidence. Oral Evidence— when admissible. 21 See Doe d. Chandler v. Ford, 3 Ad. & E. 619 ; and 1 Smith's L. Cases, Collins v. Blantern, in notis. Evidence is sometimes admissible to show a mistake in a writing ; thus a contract, usurious on the face of it, might have been explained by showing it was made so by a clerical error. Anon., Freem. 253 ; Booth v. Cooke, Id. 2(31. So a house, misdescribed in a lease as No. 38, may he shown to be really No. 35. Hutchins v. Scott, 2 M. & W. 816, per Cur.; Cowen v. Truefitt, (1899) 2 Ch. 309, C. A. See also Eutchin v. Groom, 5 C. B. 515. But where a verdict and judgment were given in evidence to prove a public way, the court will not admit proof that the verdict was entered erroneously by the mistake of the officer. Reed v. Jackson, 1 East, 355. The record in the first action should have been amended by leave of the court. But where a N. P. record was put in evidence to prove damages in a suit against the plaintiff, and the postea did not show on which of two different counts the damages were in fact given, oral evidence was admitted to prove that they were recovered, substantially, on one of the counts only, this being no con- tradiction of the record, the verdict and damages having been entered generally. Preston v. Peehe, E. B. & E. 336 ; 27 L. J., Q. B. 421. Proof of a material and substantial error in the frame of a subsisting contract cannot in general be set up in an action upon it ; Perez v. Oleaga, 11 Exch. 506 ; 25 L. J., Ex. 65 ; Solvency Mutual Guarantee Co. v. Freeman, 7 H. & N. 17 ; 31 L. J., Ex. 197 ; except by way of a claim for rectification under the J. Act, 1873, s. 21 (1-3), on the ground of common mistake. But there is no occasion to reform the contract where an agent is wrongly described as principal ; Wake v. Harrop, 6 H. & N. 768 ; 30 L. J., Ex. 273 ; 1 H. & C. 202 ; 31 L. J., Ex. 451, Ex. Ch. ; or where it has been completely executed according to the intention of the parties ; Steele v. Haddock, 10 Exch. 643 ; 24 L. J., Ex. 78 ; Luce v. Izod, 1 H. & N. 245 ; 25 L. J., Ex. 307 ; Vorley v. Barrett, 1 C. B., N. S. 225; 26 L. J., C. P. 1 ; or where the full per- formance has become impracticable by reason of the default of the plaintiff. Borrowman v. Rossel, 16 C. B., N. S. 58 ; 33 L. J., C. P. 111. And in such cases the mistake will afford a defence without rectification. As to when rectification will be ordered, see Story, Eq. Jur. §§ 152 el seq. Oral evidence, when admissible to explain mercantile contracts and icords of art.] Where the parties have contracted in writing, in many instances oral evidence is admitted to prove an usage affecting the contract, on the ground that, where such usage exists, the parties must be taken to have made their contract subject to its operation. And such evidence is some- times admitted as explanatory of the language of the writing, and sometimes as superadding a tacitly implied incident. Thus, oral evidence is always admitted to show the sense in which, according to the custom of merchants, a mercantile contract is to be understood. See 1 Smith's L. Cases, Wiggles- ivorth v. Dallison, in notis. In such a case it is unobjectionable to ask a witness whether there is any generally understood meaning of certain words among persons engaged in the particular trade or commerce under investiga- tion. Robertson v. Jackson, 2 C. B. 412. And such a question must be put to the witness before he is asked what he understands by the written contract to which it is meant to apply the usage. Curtis v. Peek, 13 \Y. K. 230, M. T. 1861, Ex. Ch. The usage may be excluded by the terms of the contract. Brenda S.S. Co. v. Green, (1900) 1 Q. B. 518. Where a ship was warranted to depart with convoy, evidence of usage was admitted to show that this meant convoy from the usual place of rendezvous. Letlmliers case, 2 Salk. 443. So, to explain the meaning of "days" in a bill of lading ; Cochran v. Retberg, 3 Esp. 121 ; to show that the Gulf of Finland is considered by mariners to be within the Baltic ; Uhde 22 Oral Erid'ii'-i to t-x plain en- ii'l'l to Documents. v. Walters, 3 Camp. 16: or the Mauritius to be an East Indian island. Rohertson v. Money, Ry. & M. 75. So evidence was admitted to explain the term "privilege" m a contract between shipowner and captain; Birch v. Depeyster, 4 Camp. 385 ; and to show the received meaning of " mess pork of S. & Co." Powell v. Eorton, 2 N. C. 668. Where the captain of a ship agreed to convey a boat of certain dimensions for the plaintiff, evidence was admitted on behalf of the captain that the practice was to remove the deck of such boats when put on board. Eaynes v. JJolliday, 7 Bing. 587. Apparent variances in bought and sold notes may be reconciled by the evidence of brokers. Bold v. Rayner, 1 M. & W. 343 ; Kempson v. Boyle, 3 H. & C. 763; 34 L. J., Ex. 191, cited sub. tit. Action for not accepting Goods, post, p. 535. Where it was represented to an insurer that the ship would sail from St. Domingo in October, he was permitted to show in his defence that this was understood among merchants to mean between the 25th and the end of October, whereas the ship sailed on the 11th. Chaurand v. Anger stein, Peake, 43. Oral evidence may be given to explain the meaning of tbe word level in a mining lease ; Clayton v. Gregson, 5 Ad. & E. 302 ; and of the words " across the country " in a wager on a race. Evans v. Pratt, 3 M. Sc Gr. 759. In a contract for the purchase of " 1,170 bales of gambier," it was held that it might be shown that by the usage of that trade a " bale " meant a compressed package, weighing about two cwt. Gorrissen v. Pen-in, 2 C. B., N. S. 681 ; 27 L. J., C. P. 29. See also Taylor v. Briggs, 2 C. & P. 525. So where instructions were given by a principal residing out of Eng- land to his factor to sell corn, a custom in the London corn market to sell in the factor's own name is admissible to explain the instructions. Johnston v. Usborne, 11 Ad. & E. 549. On a sale of goods by a manufacturer who is not a dealer, evidence is admissible of a custom in the particular trade to deliver goods of another manufacturer. Johnson v. Raylton, 7 Q. B. D. 438, C. A. A sale of tobacco may be explained to be a sale by sample, by the general usage of the trade, although the bought and sold notes are silent as to sample. Syers v. Jonas, 2 Exch. 111. As to the variation, by usage, of a right or liability under the Sale of Goods Act, 1893, s. 5, see In re- Walkers, &c, & Shaw & Co., cited post, p. 541. An engagement by a public singer for three years, may be explained to mean three theatrical seasons. Grant v. Maddox, 15 M. & W. 737. Where a charterparty is signed by a shipbroker S. in the form "by telegraphic authority" of the charterer "as agent," this may be explained by usage to warrant only that S. had received a telegram which, if correct, authorised him to enter into such a charter. Lilly v. Smales, (1892) 1 Q. B. 456. In an action by a shipowner on a contract to pay freight at a certain rate per lb., defendant was allowed to show a custom of the trade at a particular port to allow three months' discouut on freights on goods coming from certain ports. Brown v. Byrne, 3 E. & B. 703 ; 23 L. J., Q. B. 313. " After arrival " at a named island may be explained to mean after arrival at a place at sea some miles off the usual port, if it be a place of ordinary anchorage ; and this is a question for the jury. Lindsay v. Jan son, 4 H. & N. 699 ; 28 L. J., Ex. 315. Where by a charterparty the shipowner agreed to consign the ship to A. B., at Calcutta, " on the usual and customary terms," a custom may he proved for consignee to procure the homeward freight on commission; Robertson v. Wait, 8 Exch. 299; 22 L. J., Ex. 209; but where the charter provides that the consignment is to be " free of commission," and says nothing of usual terms, the charterer cannot set up such custom by oral evidence, in an action against the shipowner for not allowing the consignee to procure the homeward freight. Phillipps v. Briard, 1 H. & N. 21; 25 L. J., Ex. L'.'!.".. "A full and complete cargo of sugar" may be explained to mean full and complete according to the customary mode of Oral Evidence — when admissible — to explain Mercantile Contracts, &c. 23 packing and loading sugar at the port where it is loaded. Cuthbert v. Cumming, 11 Exch. 405; 24 L. J., Ex. 310, Ex. Cb. So "regular turns of loading," or "in turns to deliver," may be explained bv local usage. Leidema'nn v. Schultz, 14 C. B. 318; 23 L. J., C. P. 17;" Robertson v. Jackson, 2 C. B. 412; Barque Quilpuev. Brown, (1904) 2 K. B. 264, C. A. So the custom of the port as to when lay days commence ; Norden Steam Co. v. Dempsey, 1 C. P. D. 054; or as to how running days are to be cal- culated ; Nielsen v. Wait, 16 Q. B. D. (57, C. A. ; or as to tbe course of delivery, where " the steamer is to be discharged as fast as she can deliver." The Jaederen, (1892) P. 351. And a custom that in discharging long lengths of timber, the shipowner is bound to put them into lighters brought alongside, is not inconsistent with the terms of the charterparty that the timber shall be taken from alongside at the merchant's expense. Aktieselkab v. Ekman, (1807) 2 Q. B. 83, C. A. " Fifty tons best palm oil, with a fail- allowance for inferior oil, if any," may be explained to be satisfied by the delivery of 50 tons, of which the greater part is inferior. Lucas v. Bristow, E. B. & E. 907 ; 27 L. J., Q. B. 304. A contract in writing to do stone and brickwork at the rate of "3s. per superficial yard of work 9 inches thick, and finding all materials, deductiug all lights," was held not to exclude a custom in the trade to reduce all brickwork for the purpose of measurement to 9 inches in thickness. Symonds v. Floyd, 6 C. B., N. S. 091. So a contract to do certain work and to deliver " a weekly account of work done " was held not inconsistent with a usage in the building trade, that this clause related not to all the work contracted to be done, but to that part only which was of a particular kind. Myers v. Sari, 3 E. & E. 300; 30 L. J., Q. B. 9. Where there was a written contract for the sale of shares at a certain price, "for payment half in 2, half in 4 months," it was held, that evidence was admissible that the seller was by usage not bound to deliver the shares until the appointed time for payment, unless the buyer chose to pay for them earlier. Field v. Lei van, 6 II. & N. 027 ; 30 L. J., Ex. 108, Ex. Ch. See the case of Spartali v. Benecke, post, p. 25, and observations thereon. The usage of a particular port, that the underwriters are not liable for general average in respect of the jettison of timber stowed on the deck, can be annexed to a policy making the underwriter liable for general average without restriction. Miller v. Tether ington, 6 H. & N. 278; 30 L. J., Ex. 217; 7 H. & N. 954; 31 L. J., Ex. 303, Ex. Ch. By a bill of lading of wool, freight was to be paid " at the rate of 80s. per ton of 20 cwt. gross weight, tallow and other goods, grain or seed, in proportion as per London Baltic priuted rates;" evidence was admitted to show that by the usage of the trade this meant that 80s. per ton of 20 cwt. of tallow was to be taken as the standard by which the rate of freight on all other goods was to be measured. Russian S. Navigation Trading Co. v. Silva, 13 C. B., N. S. 010. The question whether a cargo "for shipment in June" was satisfied by a cargo which was loaded half in May and half in June, was held by Martin, Ii., and Lush, J. (dub. Kelly, CM'.., and Blackburn, J.), to be a question for the jury. Alexander v. Vanderzee, L. R., 7 C. P. 530, Ex. Ch. See observations on this case in Shand v. Homes, 2 Ap. Ca. 455, D. P. So, on a sale of goods to be paid for in from " 6 to 8 weeks," the question of the length of credit thereby allowed was loft to the jury, tbe words apart from usage being insensible. Ashford v. Bedford, L. R., 9 C. P. 20. A written agreement at a yearly salary and a bonus at the year's end in case of the employer's approval, may be qualified by proof of a trade custom to dismiss at a month's notice. Parker v. lbbetson, 4 C. B., N. S. 346; 27 L. J., C. P. 236; and see Action for wrongful dismissal, /•us/, p. 516. With reference to the evidence necessary to support an alleged usage, 24 Oral Evidence to explain or add to Documents. it was said in Qhose v. Manickchund, 7 Moo. Ind. App. 263, 282, that " there needs not either the antiquity, the uniformity, or the notoriety of custom, which in respect of all these becomes a local law. The usage may be still iu course of growth ; it may require evidence for its support in each case; but in the result it is enough, if it appear to be so well known and acquiesced in, that it may be reasonably presumed to have been an ingredient tacitly imported by the parties into their contract." The usage must be shown to be certain and reasonable, and so universally acquiesced in that everybody in the particular trade knows it, or might know it if he took the pains to inquire. Plaice v. Allcock, 4 F. & F. 1074, per Willes, J. ; Foxall v. International Land Credit Co., 16 L. T. 637, cor. Byles, J. Where it is attempted to engraft on a contract some usage of a particular trade or local custom, the opposite party is at liberty to disprove the usage or custom by the like evidence, and for that purpose to show other previous transactions in like cases between the same parties wherein the supposed usage or custom was not acted on. Bourne v. Gatlijfe, 3 M. & Gr. 643. If the usage exists, and it is not inconsistent with the written contract, it is precisely the same as if it were written in words attached to the contract, and it cannot be got rid of by proof of an oral agreement to waive or vary it. Fawhes v. Lamb, 31 L. J., Q. B. 98. See also Burges v. Wickham, 3 B. & S. 669; 33 L. J., Q. B. 17; Clapham v. Langton, 5 B. & S. 729; 34 L. J., Q. B. 46, Ex. Gh. It has been said that " the words ' usage of trade ' are to be understood as referring to a particular usage to be established by evidence, and perfectly distinct from that general custom of merchants, which is the universal established law of the land, which is to be collected from decisions, legal principles and analogies, not from evidence in pais, and the knowledge of which resides in the breasts of the judges." 1 Smith, L. C, 11th ed., p. 556. Thus, in Suse v. Pompe, 8 C. B., N. S. 538 ; 30 L. J., 0. P. 75 ; Meyer v. Dresser, 16 C. B., N. S. 646; 33 L. J., 0. P. 289, evidence of a general custom was not admitted to contradict the law merchant. That law has, however, been gradually developed by judicial decisions, ratifying the usages of merchants in the different departments of trade; Goodwin v. Bobarts, L. B., 10 Ex. 337, 346, per Ex. Ch. ; and " where a general usage has been judicially ascertained and established it becomes part of the law merchant which courts of justice are bound to know and recognise." Id. citing Branddo v. Burnett, 12 CI. & F. 805, per Ld. Campbell. It is not easy to define the period at which a usage so becomes incorporated into the law merchant. See further, post, p. 83, and 1 Smith's L. C, 11th ed., pp. 556 et seq. See also Kidston v. Empire Marine Insurance Co., L. B., 1 C. P. 535 ; L. P., 2 C. P. 357, Ex. Ch. Proof of the usage of trade is not admissible to contradict the plain words of an instrument not used in a technical sense; as where a policy of insurance was " on the ship till moored at anchor 24 hours, and on the goods till discharged and safely landed," evidence of a usage that the risk on the goods, as well as the ship, expired in 24 hours, was held inadmis- sible to qualify the unequivocal words of the policy. Parkinson v. Collier, '1 l'ark. Ins. 8th ed. 653-4. So where a charterparty provides that the vessel is to deliver at H., "or so near thereto as she could safely get," a custom that the charterer should take delivery at H. only, is excluded. Hayton v. Irwin, 5 C. P. D. 130, C. A. See also The Nifa, (1892) P. 411 ; and The Alhambra, 6 P. D. 68, C. A. So a contract for payment in money cannot be explained to mean payment in goods; but it may be shown that goods were in fact accepted as cash in the particular transaction. Smith v. Bottoms, 26 L. J. Ex. 232. So where goods are sold under a memorandum to be paid for by bill, oral evidence is inadmissible to show that bill means a Oral Evidence — when admissible — to explain Mercantile Contracts, &c. 25 approved bill. Hodgson v. Davies, 2 Camp. 530. So in an action on a warranty of " prime singed bacon," oral evidence was rejected of a practice in the bacon trade to receive bacon in some degree tainted as " prime singed bacon." Yates v. Pym, 6 Taunt. 446 ; 2 Marsh. 141. So oral evidence is not admissible to explain the meaning of the words " more or less" in a mercantile contract; semble, Cross v. Eglin, 2 B. & Ad. 106; or to show that "cargo" and "freight" apply to passengers as well as goods ; Lewis v. Marshall, 7 M. & Gr. 729 ; or to show that boats on the outside of a ship, slung upon the quarter, are not protected by a marine policy in the usual form on the ship and furniture ; Blackett v. R. Exchange Assur. Co., 2 C. &. J. 244 ; or to show a custom within the port of London that the insurers of jettisoned goods are only liable for the share of the loss cast upon the owner of jettisoned goods in the general average state- ment ; Dickenson v. Jardine, L. R., 3 C. P. 639 ; or to show that a contract to sell "ware potatoes" means a certain sort of "ware potatoes"; Smith v. Jeff ryes, 15 M. & W. 561 ; or that on a contract to sell wool " to be paid for by cash in one month, less 5 per cent, discount," the vendor has a lien on it for payment by usage of the trade ; Spartali v. Benecke, 10 C. B. 212 ; 19 L. J., C. P. 293 ; Qodts v. Rose, 25 L. J., C. P. 61. The case of Spartali v. Benecke, supra, was a good deal observed upon by the Ex. Ch. in Field v. Lelean, 6 H. & N. 627 ; 30 L. J., Ex. 170 ; ante, p. 23 ; but the difference of opinion is not as to the principle, but as to the meaning of the contract and the effect of the custom. See also Phillipps v. Briard, I H. & N. 21 ; 25 L. J., Ex. 233 ; ante, p. 22. Oral evidence of what the parties meant by a provision in the sale of a cargo, that " 14 days are to be allowed for delivery," was not admitted ; but if evidence of a general usage explaining those words had been offered, it would perhaps have been admissible. Sotilichos v. Kemp, 3 Exch. 105. In a contract for the sale of tallow by defendant in the name of a broker who was his known repre- sentative, the defendant was not allowed to show a custom of trade upon such a contract to look to the broker for its completion. Trueman v. Loder, II Ad. & E, 589. But usage of trade is admissible to show that the broker is personally liable on a contract of sale on behalf of an undisclosed principal. Eumfrey v. Dale, 7 E. & B. 266 ; 26 L. J., Q. B. 137 ; E. B. & E. 1004 ; 27 L. J., Q. B. 390, Ex. Ch. See also Cropper v. Cook, L. R., 3 C. P. 194, 199. So where a broker sells goods " for and on account of the owner," evidence was held admissible of a usage of trade that a broker who does not disclose the name of his principal at the time of making the contract is personally liable. Pike v. Ongley, 18 Q. B. D. 708, C. A. See also Hutchin- son v. Tatham, L. P., 8 C. P. 482. The evidence of such usages may be confirmed by evidence of a similar custom in a similar trade in the same place, e.g., in the colonial market, to corroborate the usage in the fruit market. Fleet v. Murton, L. R., 7 Q. R. 126. So by evidence of a similar custom in the same trade at a neighbouring place. Plaice v. Allcock, 4 F. & F. 1074, cor. Willes, J. The distinction between these latter cases and Trueman v. Loder, supra, is founded on the rule that oral evidence may be given to establish the right or liability of an undisclosed principal, but not for the purpose of excluding from liability a person liable on the face of a written contract, for the effect of evidence admitted for this latter purpose would be to contradict the written document. But a custom that an agent's authority to underwrite policies is limited to a particular sum, is good, though the insured is not aware of the limitation. Baines v. Ewing, L. R., 1 Ex. 220. A clause in a contract of sale for the final settlement of any difference under the contract by the selling brokers is inconsistent with their personal liability. Barrow v. Dyster, 13 Q. B. D. 635. It has been doubted whether the practice of admitting oral evidence in 26 Oral Evidence to explain or add to Documents. these cases has not been carried to an inconvenient length. Sec Anderson v. Pitcher, 2 B. & P. 168. "How far a mercantile contract reduced to writing and signed by the parties, which is silent on a particular point, may have that silence supplied by evidence of a general course and usage of the trade to which it relates, is a question which it would be difficult to answer with exactness and precision." Per Tindal, C.J., in Whittaker v. Mason, 2 N. C. 369, 370 ; and per Our. in Trueman v. Loder, ante, p. 25, "The cases go no further thaa to permit the explanation of words used in a sense different from their ordinary meaning, or the addition of known terms not inconsistent with the written contract." The usages of a market are binding on principals ordeiing goods to be bought on a market by their agents; Inland, v. Livingstone, L. R., 2 Q. B. 99, 107 (affirm. L. W., 5 H. L. 395, on another ground); Baylife v. Butter- worth, I Exch. 425; Maxted v. Paine, L. R. 6 Ex. 132, Ex. Oh.; Merry v. Niclealls, L. R., 7 H. L. 530. It is immaterial whether the principal did or did not know of the usage, provided it be reasonable, Orissell v. Bristowe, L. R., 4 C. P. 49, but not otherwise; Perry v. Burnett, 15 Q. B. D. 388, C. A. ; or if the usage not only regulate the mode of performing the contract, but also change its intrinsic character. Robinson v. Mollett, L. R., 7 H. L. 802, 836. A person employed to act as broker cannot, by the custom of the market, assume the character of principal, where his employer is ignorant of the custom. S. 0. The customer of a bank is bound by the custom of bankers. Emanuel v. Bobarts, 9 B. & S. 121. So are mercantile persons having dealings with bankers. Misa v. Ourrie, 1 Ap. Ca. 554, D. P. Oral evidence, when admissible to control or explain agricultural contracts.^ A custom affecting the contract may be proved by oral evidence in other, as well as in mercantile, contracts; as in the case of agricultural contracts. Thus, it may be proved that a heriot is due by custom on the death of a tenant, though not expressed in the lease. WJiite v. Sayer, Palm. 211. Or, that a leasee by deed or writing is entitled by custom to an away- going crop, though it be not mentioned in the deed. Wigglesworth v. Dallison, 1 Doug. 201 ; Senior v. Armytage, Holt, N. P. 197. But where a covenant excludes the customary right by an express provision on the subject-matter of the custom, evidence of such right is inadmissible. Webb v. Plummer, 2 B. & A. 746; Roberts v. Barker, 1 Or. & M. 808; Clarke v. Roijstone, 13 M. & W. 752. So where a brickfield was let at a yearly rent of 3s. per 1,000 bricks made, it was held that evidence of a custom that a lease of brickland on those terms should operate as a longer tenancy than a yearly one, was inadmissible. In re Stroud, 8 C. B. 502. Yet the custom may still prevail, though the terms of the holding are inconsistent with it, if it only relate to the period of quitting. Holding v. Pigott, 7 liiog. 475. And even where there is an express stipulation respecting the quitting, it may not always be sufficient to exclude the custom. Thus, where the custom was for the tenant to be paid for the last year's ploughing and sow- ing, and to leave the manure if the landlord would buy it; and the lease provided that the tenant should spend more manure than the custom required, leaving the rest to be paid for by the landlord at the end of the term ; held that the tenant was still entitled to be paid for the last year's ploughing and sowing under the custom. Ilutton v. Warren, 1 M. & W. 466. A custom to sell flints turned up in the ordinary course of good husbandry, for the tenant's benefit, is not inconsistent with a reservation of minerals to the landlord. Tucker v. Linger, 8 Ap. Oa. 508, D. P. See Dashwood v. Magniac, (1891) 3 Oh. 306, O. A. (the case of a devise). On the lease of a rabbit warren, oral evidence was admitted to show tliat by the custom of the county, the word " thousand " means 1,200 when applied to Oral Evidence — iohen admissible. 27 rabbits. Smith v. Wilson, 3 B. & Ad. 728. A contract for the sale of cider may be explained, by local usage, to mean apple juice before it has been made into cider in its usual form. Studdy v. Sanders, 5 B. & C. 628. A sale of hops at " 100s." may be explained to mean 51. per cwt. Sjpicer v. Cooper, 1 Q. B. 424. A contract of hiring; may be qualified by proof of customary holidays. It. v. Stoke-upon-Trent, 5 Q. B. 303. As to such proof, see Devonald v. Rosser, (1906) 2 K. B. 728, C. A. Oral evidence, when admissible to explain words having a statutory meaning.'] Certain weights and measures were fixed by the Weights and Measures Act, 1878 (41 & 42 V. c. 49), which by sect. 19 provided that a contract made by any other measures than those defined by the Act was void; but the metric system is now allowed, 60 & 61 V. c. 46, s. 1. The general rule is that where a statute has given a definite meaning to a word denoting quantity, evidence of custom is not admissible to show that it is used in a written contract in another sense. Smith v. Wilson, 3 B. & Ad. 728, 732, 733. See also Wing v. Earle, Cro. Eliz. 267; Noble v. Durell, 3 T. R. 271; Jlockin v. Cooke, 4 T. R. 314; S. Cross, Master of, v. Ld. Howard de Walden, 6 T. R. 338. A somewhat similar question arises upon the statute 24 G. 2, c. 23, which changes the style. In Farley d. Mayor, (fee, of Canterbury v. Wood, 1 Esp. 198, Runnington on Eject., 2nd ed., 129, it was held by Ld. Kenyon that evidence was admissible to show that by the custom of the country the word " Michaelmas," in a notice to quit, meant " Old Michaelmas." It has been since assumed that this was a parol demise ; but as the lands are stated to have beea held by lease from a corporation, this was probably not so. In Doe d. Spicer v. Lea, 11 East, 312, however, it was held that evidence was rightly rejected when offered to show that " the feast of S. Michael," in a lease under seal, meant Old Michaelmas. A few days afterwards, M'Donald, C.B., held that a notice to quit at " Michaelmas " might be shown to mean "Old Michaelmas." Doe d. Hinde v. Vince, 2 Camp. 256: S. P. ruled by Ld. Ellenborough in Doe v. Brookes, at Hereford, same assizes, ut audivi. Id. 257, u. It does not appear whether the leases in these last two cases were by deed or parol. In Doe d. Hall v. Benson, 4 B. & A. 588, the dis- tinction between leases under seal and those not so, was taken by the court, and it was held that on a parol demise it might be shown that "Lady Day" meant "Old Lady Day." The cases of Doe d. Peters v. HojpMnson, 3 D. & Ry. 507; and Rogers v. Hull Dock Co., 34 L. J., Ch. 165, are to the same effect. In pleading, it was held that "Martinmas" must mean "New Martinmas," even though followed by the words " to wit, the 23rd of Novem- ber," which is the day on which Old Martinmas fell. Smith v. Walton, 8 Bing. 235. In many parts of the country the practice of letting lands, according to the old style, is still retained ; and many text writers have expressed a general opinion that evidence of a custom of the country is always admissible to show that the feast day mentioned in the lease is referable to the old style, even though the lease be by deed. Vide tamen, I Smith's L. C. 11th ed. 569-571. Oral evidence, when admissible to explain ancient charters, (/rants, 'tween the parties and their agents. Beaumont v. Field, 1 B. & A. 217. Where a farmer contracted in writing (as required by the Stat, of Frauds) to sell his ' ; wool " at a certain price, evidence of a previous conversation between him and the buyer was held admissible to prove that his " wool" meant wool in his possession bought by him of other farmers, as well as wool of his own growth, but not admissible to prove that only a 30 Oral Evidence to explain or add to Documents. limited quantity of such wool was intended to be bought. Macdonald v. Longhottom, 1 E. & E. 077; 28 L J., Q, B. 298; 1 E. & E. 987; 29 L. J., Q. B. 256, Ex. Ch. See also Buxton v. Must, L. R., 7 Ex. 280, 281, Ex. Ch. per Willes, J., and Bank of New Zealand v. Simpson, (1900) A. C. 182, J. C. So in construing a written contract of service under which A. was " to enter into the employ " of B., or A. was " to give the whole of his services to B.," oral evidence is admissible to show in what capacity A. was to serve B. Mumford v. Gething, 7 C. B., N. S. 305 ; 29 L. J., C. P. 105 ; Price v. Mouat, 11 C. B., N. S. 508; even although the Stat, of Frauds required a written contract. S. C. See also Chadwick v. Burnley, 12 W. R. 1077 ; T. T. 1864, Q. B. So where there was a written contract to hire a flat for certain days, evidence was admitted that it had been previously announced that on those days processions would pass along a route visible from the flat, and that the taking place of those processions was the basis of the contract. Krell v. Henry, (1903) 2 K. B. 740, C. A. Where by a written agreement purporting to be betweeu a company and the plaintiff, three of the directors of the company, who signed the same, agreed, in consideration of the advance of 500/. by the plaintiff to the company, to repay the same to the plaintiff, oral evidence was held admissible to prove that it was binding on the directors personally. McGollin v. Gilpin, 6 Q. B. D. 516, C. A. Where C. D. signed a voting paper, which had been filled up in the body of it with the name of A. B. as the person giving it, oral evidence was admitted to explain the mistake. Summers v. Moorhou.se, 13 Q. B. D. 388. Where a devise was to S. H., second son of T. H., but in fact S. H. was the third son, evidence of the state of the testator's family, and of other circumstances, was admitted to show whether he had mistaken the name or the description. Doe d. Le Chevalier v. Jluthwaite, 3 B. & A. (>32. There are also other authorities lor admitting evidence that the testator was accustomed to misname a person, and thus to show who was meant by him, although there be a person in existence whose name corresponds with that in the will. Blundell v. Gladstone, 11 Sim. 467 ; 1 H. L. C. 778 ; Lee v. Pain, 4 Hare, 251. So by " my nephew, J. G.," testator's wife's nephew may be shown to be meant, though the testator also had a nephew J. G. Grant v. Grant, L. 1!., 2 P. & M. 8 ; Id. v. Id. L. R., 5 C. P. 380; Id. 727, Ex. Ch.; Shcrrutt v. Mountford, post, p. 31. See Wells v. Wells, L. R., 18 Eq. 504, cor. Jessel, M.R., contra, and In re Taylor, 34 Ch. D. 255, C. A. See further In re Ashton, (1892) P. 83. Where the devise was to John A., grandson of T. A., with a charge in favour of " each of the brothers and sisters" of the said John A., and it appeared there were two grandsons of T. A., both named J. A.; held, that oral declarations of the testator were admissible to show which was meant, although it also appeared that only one of the grandsons had several brothers and sisters. Doe d. Allen v. Allen, 12 Ad. & E. 451. In the case of a devise to testator's niece, remainder to her three daughters M., E., and A., the niece at the time of making the will had two legitimate daughters, M. and A., and one illegitimate, E. : held, that the claim of the latter might be rebutted by showing that the niece formerly had a legitimate daughter, E., and that the testator knew nothing of the death of the legitimate, or the birth of the illegitimate, E. Doe d. Thomas v. Beynon, Id. 431. See also Hill v. Crook, post, p. 31, and In re Ashton, supra. Evidence of the testator's declaration of intention is only admissible where the language is clear and unambiguous, but the ambiguity arises from some of the circumstances admitted in proof, as to which of two or more persons the testator intended to express. Doe d. Biscocks v. lliscocks, 5 M. & W. 363, 369 ; Charter v. Charter, L. R., 7 H. L. 364. Where a devise was to John H., the eldest son of John H., and it appeared that John H., the father, had an eldest son named Simon, and a son by a second marriage named Oral Evidence — when admissible. 31 John ; held, that the declarations of the testator were not admissible to show which was meant. Doe d. Hiscocks v. Hiscocks, ante, p. 30. Where the devise was to the testator's "nephews," and evidence had been adduced to show that he had no nephews, but that his wile's nephews were meant, it was held that evidence that these could not have been intended by the testator was not admissible, without also showing some other class who were intended to take. Sherratt v. Mountford, L. B., 8 Ch. 928. See further In re Mayo, (1901) 1 Ch. -104. A devise to " my dear wife, C." cannot be defeated by showing that the devisor had a lawful wife, M., alive when he went through a form of marriage with C. Doe d. Gains v. Bouse, 5 C. B. 422. But where B. makes a devise to his wife A., the devise may be defeated by showing that A. fraudulently concealed from B. that she had a husband living when she went through a form of marriage with B. Wilkinson v. Jonghin, L. K., 2 Eq. 319, following Kennell v. Abbott, 4 Ves. 802. Where a fine was levied of 12 messuages in Chelsea, and it appeared that the cognisor had more than 12 messuages in Chelsea, oral evidence was admitted to show which messuages in particular the cognisor intended to pass. Doe d. Bulkeley v. Wilford, By. & M. 88 ; S. C, 8 D. & By. 549. It may be laid down as a general rule, that all facts relating to the subject of the devise, such as that it was not in the possession of the testator, the mode of acquiring it, the local situation, and the distribution, of the property, are admissible to aid "in ascertaining what is meant by the words used in a will. Parke, J., in Doe d. Templeman v. Martin, 3 B. & Ad. 785; Webber v. Stanley, 16 C. B., N. S. 098, 751, 752 ; 33 L. J., C. P. 217, 220, per Cur. ; McLeod v. McNab, (1891) A. C. 471, 474, J. C. ; Wigram on Interp. Wills, 51. Even the value of the property and the charges upon it in the will may- be shown in explanation of it. Semb. Nightingall v. Smith, 1 Exch. 879. See also Allyood v. Blake, L. K., 8 Ex. 160, 162, Ex. Ch. and In re Glass- ington, (1906) 2 Ch. 305. In construing a will the court should place itself as fully as possible in the situation of the testator, and guide its construction of his intention in some degree by the light of the knowledge thus acquired. Ilill v. Crook, L. K., 6 H. L. 265, 277 ; Charter v. Charier, L. B., 7 H. L. 364, per Lds. Cairns, C, and Selborne ; In re Taylor, 34 Ch. D. 255, C. A. See further, ante, p. 20. As to the admissibility of evidence to show in what sense the testator used the word " securities," see In re Rayner, (1904) 1 CI). 176, C. A. Where a subject-matter exists which satisfies the terms of the will, and to which they are perfectly applicable, there is no latent ambiguity, and no evidence can be admitted for the purpose of applying the terms to a different object. Thus, where a testator devised his " estate at Ashton," it was held that oral evidence was inadmissible to show that he was accustomed to call all his maternal estate "his Ashton estate," there being an estate in the parish of Ashton which was .sufiicient to satisfy the devise. Doe d. Chichester v. Oxenden, 3 Taunt. 147; S. C, 4 Dow, 65; Webber v. Stanley, supra; Pedlcy v. Dodds, L. R., 2 Eq. 819. See also Carrulhcrs v. Sh<. When the bona fides of a sale to the plaintiff by a bankrupt was disputed by the assignees, the plaintiff was allowed to use a receipt aud delivery order for the goods, dated at the time of the alleged sale, but not delivered to the witness who produced them till after the sale and bankruptcy, as con- firmatory evidence of the date of the sale. Morgan, v. Whitmore, 6 Exch. 710; 20 L. J., Kx. 289. On the ground of danger of collusion, it was considered necessary to give extrinsic evidence of the date of letters put in to show the terms on which husband and wife were living, in an action for adultery. Trelawneyv. Column, 2 Stark. 1 93. In many cases, though the fact of actual knowledge cannot be proved, it will be presumed. Thus, where the rules of a club are contained in a bunk openly kept by the proper officer or servant of the club, every member of the club must be presumed to be acquainted with them. Raggett v. Musgrave, 2 C. & P. 556; Alderson v. Clay, 1 Stark. 405 ; Wiltzie v. Adamson, 1 Phill. iV- Am. Ev. 339, 10th ed. A person dealing with a registered company is presumed to know the registered constitution of the company. Balfour v. Ernest, 5 0. B., N. S. 600'; 28 L. J., C. P. 170. It is not very easy to distinguish those presumptions which are obligatory on a jury from those which they are at liberty to disregard and to negative, even when not rebutted. Judges have entertained different opinions on this head as regards the effect of long user in proof of prescriptions and customs. On the one hand, the title to important rights can hardly be considered as secure, if no antiquity of enjoyment can prevent them from being exposed to the casualties of a verdict ; on the other hand, it seems to be a contradiction in terms to leave to the jury presumptive evidence of a fact with no alternative but to find it. See the remarks in Neivcastle, Pilots of, v. Bradley, 2 E. & B. 430-1, n. It is not permitted to the parties to prove every fact which would lead to a presumption in some measure bearing on the question in issue. If there were no limits to this, it is obvious that a trial might be unduly lengthened ; and it is clear that a judge may refuse to receive evidence which only leads to a very weak presumption. See Proof of Collattral facts, post, pp. 84, 85. Presumption ofjpaymentJ] If a landlord give a receipt for the rent last due, it is presumable that all former rent has been paid. Gilb. Ev. 6th ed. 142. And payment from 1864 to 1877 by a tenant in common to his co- tenant of a moiety of the rent of the lands is said to be evidence of such payment prior to 1864. Sanders v. Sanders, 19 Ch. D. 373, C. A. Where a bill of exchange, negotiated after acceptance, is produced from the hands of the acceptor after it is due, the presumption is, that the acceptor has paid it ; Gibbon v. Featherstonhaugh, 1 Stark. 225 ; but not without proof of circulation after acceptance. Pfiel v. Vanbatenberg, 2 Camp. 439. Proof that the plaintiff and other workmen employed by the defendant came to him regularly every week to receive their wages from him, and that the plaintiff had not been heard to complain of non-payment, is presumptive evidence of payment of his past wages. Lucas v. Novosilieshi, 1 Esp. 296 ; Sellen v. Norman, 4 C. & P. 80. So where the demand was for the proceeds of milk sold daily to customers by the defendant as agent to the plaintilf, ami it appeared that the course of dealing was for the defendant to pay the plaintiff every day the money which she had received without any written voucher passing, it was ruled that it was to be presumed that the delendant had in fact accounted, and that the onus of proving the contrary lay on the plaintiff. Evans v. Birch, 3 Camp. 10. So where goods have been consigned to a factor to sell on commission, it may be presumed, after a reasonable time [e.g. 14 years], that he has accounted. Topham v. Braddick, 1 Taunt. 572. Payment. 37 A debt, whether by simple contract or specialty, may be presumed to be satisfied from mere lapse of time. Thus, a simple loan 13 years ago may be presumed to be repaid, where no evidence to the contrary is offerer!. Cooper v. Turner, 2 Stark. 497. A similiar presumption was held to arise in the case of a promissory note ; Duffidd v. Creed, 5 Esp. 52 ; see also In re Rutherford, 14 Ch. D. 687, C. A. ; this was, however, doubted by Abbott, C.J., in Du Belloix v. Waterpark, 1 D. & Ry. 16. The production of a cheque drawn by the defendant on his banker, and payable to the plaintiff, with proof that plaintiff indorsed his name upon it, and that it had been paid, affords prima facie evidence of payment to him. Egg v. Barnett, 3 Esp. 190 ; BosweU v. Smith, 6 C. & P. 60. So the drawing of a cheque by A. in favour of B., and payment of it to B., was held proof of payment by A. to B., without showing that A. gave it to B. Mowntford v. Harper, 16 M. & W. 825 ; correcting the decision in Lloyd v. Sandilands, Gow, 16. The strength of evidence such as that in the cases last cited must necessarily vary with the character of the debt, the mode in which it has been contracted, the position of the parties, and other similar circumstances. As if the party producing the instrument were lellow-lodger or clerk to the original holder, or his near relation, or in any position where he might easily possess himself of the document. Where S. proved tbat he lent B. a cheque on his bankers for 100?., and produced the cheque crossed with the names of B.'s bankers, and showed that 100?. bad been paid to the account of B. the day after the cheque became due ; but it appeared that the papers of B., after he became bankrupt, fell into the hands of S. : it was held that there was no presump- tion that the amount of the cheque had been paid to B. Bleasby v. Crossley, 3 Bing. 430. In an action by indorsee against acceptor, to which defendant pleaded payment, the plaintiff produced the bill on which a receipt was indorsed ; proof was given that an unknown person had, after dishonour by the defendant, paid ttie amount to a holder, and taken it away with the receipt indorsed : held, that this was no evidence of payment by the defendant. Phillips v. Warren, 14 M. & \V. 379. Although a limitation of actions on bonds, &c, is now provided for by stat. 3 & 4 W. 4, c. 42, yet a reference to the cases under the former law will still be occasionally necessary or convenient. Payment of a bond is presumed after 20 years without demand made: Oswald v. Legh, IT. R. 270 ; Bostock v. Hume, 7 M. & G. 893 ; and even after the lapse of a less time, if other circumstances concur to fortify the presumption, as a settle- ment of accouuts in the meantime. S. 0. Colsell v. Budd, 1 Camp. 27. The presumption may be rebutted by circumstances, as by the defendant's admission of the debt, or by proof of payment of interest within 20 years. So by proof that the defendant has resided abroad during the whole of the time; Newman v. Newman, 1 Stark. 101; Elliott v. Elliott, 1 M. & Rob. 44; or was insolvent; Fladong v. Winter, 1!> Ves. 196; see 1 1 nil, Mayor of, v. Horner, Cowp. 109, and .'5 Man. & Ry. 118, n., where the origin of the doctrine of L'O years' presumption is discussed. But see Willanme v. Gorges, 1 Camp. 217, contra. On the ground that they are against the obligee's interest, indorsements on a bond made by the deceased obligee, acknowledging the receipt of interest within 20 years, have been admitted t" rebut the presumption of payment of principal, provided there be evidence that such indorsements existed before the presumption of payment arose. Searle v. Barrington, Ld., 2 Stra. 826 ; Pose v. Bryant, 2 Camp. 322; Gleadow v. Atkin, 1 Cr. & M. 421. But where the indorsement was made after the lapse of 20 years it was not admissible in evidence; Tamer v. Crisp, cited Stra. 827. Since Ld. Tenterden's Act (!) G. 4, c. 14), s. .'!, indorsements of this kind arc no longer sufficient to prevent the operation of the Statute of Limitations in the case 38 Pi'esumptive Evidence. of bills, notes, and other simple contracts within the provisions of that statute ; but they may still be admissible for uther purposes, as to rebut the presumption of payment of principal ; and as the Act of 9 G. 4 seems to contemplate only " writings" within the old Statute of Limitations, and no similar provision is contained in the stat. 3 &4 W. 4, c. 42, indorsements on bonds and specialties may still be available to exempt the debt from the operation of the statute, by constituting evidence of part payment under sect. 5 of the last Act. If so, it may be a question whether, notwithstanding the decisions mentioned under the last head respecting the presumption in favour of the dates which instruments purport to bear, some extrinsic evidence ought not to be given that the indorsements were really made at the date thereof, or at least before the time of limitation had lapsed. See the observations in 1 Taylor, Bvid., 10th ed. §§ 690-696A. The preponder- ance of authority is at present against the admission of such indorsements without extrinsic proof of the date. An indorsement, made within 20 years, of the payment of interest within 20 years, is sufficient to rebut the presumption, though the interest accrued beyond 20 years. Sanders v. Meredith, 3 M. & Ry. 116. An indorsement on a note, payable after demand, of the payment of interest, is evidence of the note having become payable by a demand having been made. In re Rutherford, 14 Ch. D. 687, C. A. Presumption of property.] Proof of the possession of land, or of the receipt of rent from the person in possession, is prima facie evideace of seisin in fee. See tit. Action for recovery of land, post, p. 1037. The owner of the fee simple is presumed to have a right to the minerals ; but that presumption may be rebutted by non-enjoyment, and by the user of persons not the owners of the soil. Bowe v. Qrenfel, Ry. & M. 396 ; Howe v. Brenton, 8 B. & C. 737. Payment of a small unvaried rent for a long series of years {e.g. 38] to the iord of a manor, raises the presumption that the rent is a quit rent, and not rent service. Doe d. Whittick v. Johnson, Gow, 173. Sed qu. see Eardon v. Heskcth, 4 H. & N. 175; 28 L. J., Ex. 137. But long-continued payment by one lord of a manor to another lord is not presumptive evidence that one manor was originally part of the other. Anglesey, Mqs. of, v. Hatherton, Ld., 10 M. & W. 218. In ejectment for a mine, a former recovery in trover for lead dug out of it, does not per se afford evidence of the plaintiffs then possession of the mine. B. N. P. 102. The owners of contiguous houses have no presumed right of mutual support. It must be claimed by actual or implied grant or reservation. 2 Roll. Ab. 564, 1. 50 ; Partridge v. Scott, 3 M. & W. 220 ; and see Angus v. Bolton, 6 Ap. Ca. 740, D. P. But it is otherwise in the case of the ownership of adjoining land in its natural state. Roll. Ab. supra, and cases cited in Humphries v. Brogden, infra. So where the surface and the subsoil are vested in different owners, the presumption is that the owner of the surface has a right to the support of the subsoil. Humphries v. Brogden, 12 Q. B. 739, and judgment, Id. See further, tit. Action for disturbance of right of support, jjost, pp. 812, et seq. In all these cases the presumption may be displaced or reversed by proof of express covenants between the parties, or by implied obligations arising out of the original circumstances under which the propeity became divided. See Bichards v. Bose, 9 Exch. 218 ; 23 L. J., Ex. 3. For other cases of presumed ownership, or property, see further, the heads Action jur nuisance, post, p. 759, and Trespass to land, post, p. 928. Presumption of grants, tfec] It is a rule of prescription that "'antiquity of time justifies all titles and supposeth the best begiuning the law can give them. 1 So that if evidence be given, after long enjoyment of property to the Grants, &c. 39 exclusion of others, of such a character as to establish that it was dealt with as of right as a distinct and separate property in a manner referable to a possible legal origin, it is presumed that the enjoyment in the manner long used was in pursuance of such an origin, which, in the absence of proof that it was modern, is deemed to have taken place beyond legal memory." Johnson v. Barnes, L. E., 7 C. P. 592, 604, per Cur. ; L. R., 8 C. P. 527, Ex. Ch. Thus, independently of the statute 2 & 3 W. 4, c. 71, for shortening the time of prescription, evidence of the adverse enjoyment of an easement (as of lights or a way) for 20 years or upwards, unexplained, is held to afford a presumption of a grant or other lawful title to enjoy it. Lewis v. Price, 2 Wins. Saund. 175 a ; Campbell v. Wilson, 3 East, 294 ; Livett v. Wilson, 2 Bing. 115; and see Action for disturbance of way, post, pp. 826, 827. But the presumption " only applies where the enjoyment cannot otherwise be reasonably accounted for." Gardner v. Hodysons, &c, Brewery Co., (1903) A. C. 229, 240, per Ld. Lindley. The uninterrupted possession of a pew for 36 years has been held to afford a presumption of title by faculty or otherwise. Rogers v. Brooks, cited 1 T. B. 431, n. See also Halliday v. Phillips, (1891) A. C. 228, D. P. So the use for over 40 years of a sign board attached to an adjacent house is evidence of a grant of the easement to keep it there. Moody v. Steggles, 12 Ch. D. 261. Exclusive possession of a stream of water in any particular manner for 20 years is presumptive evidence of right in the party enjoying it, derived from a grant, or, if need be, an Act of Parliament. Bealey v. Shaw, 6 East, 215. See Mason v. Hill, 5 B. & Ad. 1 ; Magor v. Chadwich, 11 Ad. & E. 571 ; Ivimey v. Stacker, L. R., 1 Ch. 396. So from 20 years' enjoyment the jury may presume a grant of the right of landing nets on another's ground to the owners of a fishery. Gray v. Bond, 2 B. & B. 667. When rights of common and estovers have been enjoyed for many years by the freehold tenants of a manor, and also by the inhabitants, the latter will be presumed to claim through the former, so as to have acquired a legal origin for the right. Warrick v. Queen's Coll., Oxford, L. R. 6 Ch. 716. So where a borough corporation had by prescription a several oyster fishery in an estuary, and the free inhabitants of ancient tenements in the borough from time im- memorial, without interruption and claiming as of right, exercised the privilege of dredging for oysters without stint during a portion of the year, it was held that the right of the corporation must be presumed to have been granted to them, subject to a trust or condition in favour of such inhabitants, in accordance with the usage. Saltash, Mayor of, v. Goodman, 7 Ap. Ca. 633, D. P.; Haigh v. West, (1893) 2 Q. B. 19. See Tilbury v. Silva, 45 Ch. D. 98, C. A. In order, however, to establish the presumption of a grant of an easement, it must appear that the enjoyment was with the acquiescence of him who was seised of an estate of inheritance ; for a tenant for life or years has no power to grant such right, except as against himself. Barker v. Richardson, 4 B. & A. 579 ; Daniel v. North, 11 East, 372. And in order to make the enjoyment evidence as against a reversioner, there must be evidence against him of acquiescence distinct from the mere enjoyment of the easement. S. C. But, if the easement existed previously to the com- mencement of the tenancy, the fact of the premises having been for a long time in the possession of a tenant will not defeat the presumption of a grant. Cross v. Lewis, 2 B. & C. 686 ; see Action for disturbance of way ; Proof of public way, post, p. 831. As to presumption of a grant of support of land from, subjacent strata, see Clippens Oil Co. v. Edinburgh, &c, Water Trustees (1904) A. C. 64, D. P. As to that of lateral support for a building, see Angus v. Dalton, 6 Ap. Ca. 740, D. P., post, p. 813. So of access of air thereto, see Bass v. Gregory, 25 Q. B. D. 481. As to presumed grants and reservations of easements, see further, sub. tit. Actions for disturbance of support of land, 40 Presumptive Evidence. post, p. 812 : for obstruction of light and air,post, p. 816, and for disturbance of watercourse, post, p. 837. As a jury will be at liberty to negative a grant, unless some probable evidence of one is laid before them, the title by lost grant cannot always be relied on. See Norfolk; Dk. of, v. Arbuthnot, 5 C. P. D. 390, 392. Such grant cannot be presumed where it would have been in contravention of a statute. Neaverson v. Peterborough, &c, Council, (1902) 1 Ch. 557, C. A. The stat. 2 & 3 W. 4, c. 71, while on the one hand it confers a new title by uninterrupted enjoyments, and so dispenses with the necessity of presuming grants, on the other hand enacts (sect. 6), that in the cases therein provided for (that is, cases of easements and profits a prendre) no presumption shall be made in support of a claim on proof of enjoyment for a less period than the number of years specified in the Act. Charters and grants from the Crown may be presumed from length of possession (a?, for instance, 100 years) not merely in suits between private parties, but even against the Crown itself, if the Crown be capable of making the grant. Hull, Mayor of, v. Homer, Cowp. 102 ; Jenkins v. Harvey, 1 C. M. & K. 877. Even where there is no person competent to make an indefeasible grant, an Act of Parliament may be presumed in favour of very long user. Lopez v. Andrew, 3 M. & By. 329, n. But it has been said that " no judge would venture to direct a jury that they could affirm the passing of an Act of Parliament within the last 250 years, on an important subject of general interest, of which no vestige can be found on the parliament rolls or other records, or in the history of the country : " and the court accordingly refused to presume any Act sanctioning a mode of nominating by the Crown to a deanery, which was shown to have begun in the 16th century, and to have continued, without interruption, for the last 250 years. B. v. S. Peter's, Exeter, 12 Ad. & B. 512; and see a like opinion expressed in A.-G. v. Ewelme Hospital, 17 Beav. 366 ; 22 L. J., Ch. 846. See also Chilton v. London Cor., 7 Ch. D. 735, and Neaverson v. Peterborough, &c, Council, supra. See also cases of presumption arising from long possession mentioned arguendo, in Tenny v. Jones, 10 Bing. 78 ; Doe d. Millelt v. Millett, 11 Q. B. 1036; Lyon v. Reed, 13 M. & W. 285. The circumstances may negative the presumption of the grant notwithstanding long user, e.g., where the enjoyment has been under a void charter. A.-G. v. Horner, 14 Q. B. D. 245, C. A. Where by an Act of Will. 3, certain corporation land was set apart for a burial ground, which was afterwards consecrated, it was held that a conveyance of the land from the corporation might be presumed. Campbell v. Liverpool, Mayor of, L. B., 9 Eq. 579. And where a grant is presumed from long enjoyment, enrolment of the giant may, if necessary, also be presumed. Haigli v. West, ante, p. 38. Where the origin of the possession is accounted for without the aid of a grant or conveyance, and it is consistent with the fact of there having been mi conveyance, it requires stronger evidence than mere possession to warrant a jury in saying that any conveyance has been executed. Doe d. Femvick v. Peed, 5 B. & A. 232. And user of land is evidence of a grant thereof, only where the user would otherwise be illegal; where the user is referable to an existing easement, there is no presumption of such grant. Lee Con- servancy Board v. Button, 12 Ch. D. 383, 406, 409, C. A. ; 6 Ap. Ca. 685, I). P. Where there is no evidence of the right to an easement, except mere . without any trace of the commencement of it, it is evidence of a title by prescription rather than by grant. Blewett v. Tregonning, 3 Ad. & E. 554. A Crown grant of a profit a prendre to the inhabitants of a parish, thereby incorporating them, will not be presumed if the presumption is inconsistent with the past and existing state of things, and there is no trace of such a corporation having existed. Lit vers, Ld. v. Adams, 3 Ex. D. 361 ; Grants, &c. — Duration of Life, dec. 41 Saltash, Mayor of, v. Goodman, 7 Ap. Ca. 633, 637. And it seems that a jury ought not to be encouraged to presume a Crown grant from mere user in favour of a party, who might, if he pleased, have produced an authentic eurolment of it, which was shown by his own witnesses to be in existence at the Tower. Brum v. Thompson, 4 Q. B. 543. Where the plaintiff claimed, on an indebitatus count, a toll by prescription, and proved constant percep- tion of a fixed amount, which the jury found to be unreasonable ; held, that the plaintiff was not entitled to recover at all, although the jury found what amount would have been reasonable. S. C. As to presumption of fees, tolls, &c, being payable from long-continued payment of them, see the following cases— tihephard v. Payne, 12 C. B., N. S. 433 ; 31 L. J., C. P. 297 ; 16 C. B., N. S. 132; 33 L. J., C. P. 158; Bryant v. Foot, L. P., 3 Q. B. 497, Ex. Oh. ; Lawrence v. Hitch, Id. 521, Ex. Cb. ; Mills v. Mayor of Colchester, L. R., 2 C. P. 476; L. R., 3 C. P. 575; Gann v. Free Fishers of Whitstable, 11 H. L. C. 192; 32 L. J., C. P. 29; Free Fishers of Whitstable v. Foreman, L. R., 4 H. L. 266. Mere possession of a lease by the lessor, with the seals cut off, affords no presumption of a surrender in writing under the Stat, of Frauds. Doe d. Courtail v. Thomas, 9 B. & C. 288. Presumption of the duration of life and survivorship.'] The presumption of the duration of life of persons of whom no account can be given, generally ends at the expiration of 7 years from the time when they were last known to be living. Per Ld. Ellenborough, C.J., Doe d. George v. Jesson, 6 East, 84 ; Doe d. Lloyd v. Deakin, 4 B. & A. 433. By stat. 19 C. 2, c. 11, s. 1, in action by lessor or reversioner for the recovery of lands granted or leased for lives, or for years determinable on lives, the cestuis que vie shall be accounted to be naturally dead if they shall remain beyond the seas, or elsewhere absent themselves within the realm, by the space of 7 years together, and no sufficient or evident proof be made of the lives of such persons: sect. 4 pro- vides for the recovery of the laud and mesne profits where the cestuis que vie are afterwards shown to have beeu living. At common law, proof by one of a family, that, many years before, a younger brother of the person last seised had gone abroad, that the reputation in the family was that he had died there, and that the witness had never heard in the family of his having been married, is presumptive evidence of his death without issue. Doe d. Banning v. Griffin, 15 East, 293. So where a person is shown to have been in exist- ence a long time ago, as 100 years, his death unmarried and without issue will be presumed in the absence of any evidence to the contrary. Doe d. Oldham v. Wolley, 8 B. & C. 22 ; Greaves v. Grtcnwnud, 2 Ex. D. 289, C. A. But in shorter periods (as 50 years), inquiry must be made in proper quarters, and from persons likely to know, whether the missing party, A., has been heard of. Dm: d. France v. Andn ws, 15 Q. B. 756. If those persons say that they have heard of A., the onus of proof is shifted, but the party seeking to prove A.'s death may then give evidence to show that their only informa- tion is erroneous. Fdmonds v. Prudent ml ^l^sur. Co., 2 Ap. Ca. 487, 511, 514, per Ld. Blackburn. Proof that a person sailed in a ship bound for the West Indies, two or three years ago, and that the ship has not since been li' ard of, is presumptive that the person is dead ; but the precise time of the death, if material, must depend upon the circumstances of the case. Watson v. Fin,/, 1 Stark. 121. See also Doe d. Ld. Ashburnham v. Michael, 17 Q. B. 276 ; 20 L. J., Q. B. 480, cited post, p. 58. The fact of the party being alive or dead at any particular period within, or at the end of, the seven years, must lie proved by the party asserting that fact. Doe d. Knight v. Nepean, 5 I'.. .V Ad. 86; 2 M. A; W. 894, Ex. Ch. ; In re Phene's Trusts, infra; In re Aldersey, ( L905) 2 Ch. L81. In a case 42 Presumptive Evidence. where a girl of 16 ran away from her father, a small farmer, and was never heard of after 1814, when she left England, Shadwell, V.-C, refused to pre- sume, in 1841, that she had died in 1821 ; the mere fact of her not having been heard of since is II a Horded no inference of her death; fur the circum- stances of her case made it probable that she would never be heard of by her relations. Watson v. England, 14 Sim. 28 ; Dowley v. Winfield, Id. 277 ; Bowden v. Henderson, 2 Km. & Gift". 360. In the cases of In re Beasney's Trusts, L. It., 7 Eq. 498, and In re Henderson's Trusts, cited Id. 499, it was held that where a person had not applied for the payment of an annuity which he had previously received, and on which he was dependent for las support, there was evidence of his death before the payment became due. See also Hickman v. Upsall, L. E., 20 Eq. 136 ; 4 Ch. D. 144. Presumptions as to the continuance of life are not legal presumptions, but presumptions of fact only, depending on the circumstances of each case. Lapshy v. Grierson, 1 H. L. C. 498 ; R. v. Lumley, L. R., 1 C. C. 196 ; It. v. Willshire, 6 Q. B. D. 366. Where N., born in 1829, went to America in 1853, and frequently wrote home till August, 1858, when he wrote from on board an American war-shij), but from that time nothing was heard about him except that he was entered in the books of the American navy as having deserted on the 16th June, 1860, while on leave, Giffard, L.J., refused to presume that N. was alive on the 6th Jan. 1861. In re Phene's Trusts, L. R., 5 Ch. 139 ; accord. In re Lewes'. Trusts, L. R., 6 Ch. 356. See also In re Walker, L. R., 7 Ch. 120; and In re Benjamin, (1902) 1 Ch. 723. Where a husband and wife had been carried off the deck of a vessel by the same wave, it was held that there was no inference of law as to sur- vivorship from the different sex, age, and state of health of the husband and wife; that the question was, from beginning to end, one of fact; and the difference in strength, age, and in other respects was merely matter of evidence for the jury. Underwood v. Wing, 23 L. J., Ch. 982; 4 D. M. & G. 633 ; 24 L. J., Ch. 293 ; affirm, in Wing v. Angrave, 8 H. L. C. 183 ; 30 L. J., Ch. 65 ; Re Green's Settlement, L. R., 1 Eq. 289. See further, 1 Dart's Vendors and Purchasers, 7th ed., pp. 380 et seq., where all the cases on these subjects are collected. A presumption which juries ought to make is, that males under 14 are incapable of sexual intercourse. See R. v. Waite, (1892), 2 Q. B. 600. The period of gestation is also presumed to be about 9 calendar months. The exact limits of variation of this period are not very clearly settled ; so that if there were any circumstances from which an unusually short or long period of gestation might be inferred, or if it were necessary to ascertain the period with nicety, special medical testimony would be required. The subject was elaborately discussed in the Gardiner Peerage case, which is reported separately by Le Marchant. See also Bosvile v. A.-G., 12 P. D. 177. In ordinary cases juries would be directed that fruitful intercourse and par- turition are separated by a period not varying more than a week either way from that above mentioned. Presumption in favour of the regularity of acts, appointments, &c.~\ The legal maxim here applicable is omnia yrozsumuntur rite et solenniter esse acta. Where a feoffment has been proved, livery of seisin may be pre- sumed after 20 years, if possession has gone along with the feoffment ; Biden v. Loveday, cited 1 Vern. 196; Rees v. Lloyd, Wightw. 123; but a less time than 20 years is not sufficient; Doe d. Wilkins v. Cleveland, Ms. of, 9 B. & C. 864 ; except as against one who claims under it. Doe d. Rowlandson v. Wainwright, 5 Ad. & E. 520. As to a presumption of the regularity of acts done after a lapse of time without impeachment of them, see the observations of the court in Williams v. Eyton, 2 II. & N. Regularity of Acts, &c. 43 771 ; 27 L. J., Ex. 176 ; S. C. in Ex. Ob., 4 H. & N. 357 ; 28 L. J., Ex. 146. A person will not be presumed to have committed an unlawful act; there- fore, when performances appeared to have taken place at a theatre, a licence was presumed in an action against a performer for not acting. Rodwell v. Hedge, 1 C. & P. 220. But where the Act requiring the licence directs that a notice of it shall be painted on the outside of the house, and there is no such notice, it will be presumed, in an action for the penalty, that there is no licence. Gregory v. Tuffs, 6 C. & P. 271. Generally it may be laid down that illegality is not presumed. Gleadow v. Atkin, 1 Cr. & M. 418, per Bay ley, B. ; Eire Purchase Furnishing Co. v. Richens, 20 Q. B. D. 389, per BoweD, L. J. See Onus Probandi, post, pp. 94, 95. So a fact may be presumed from the regular course of a public office; thus, where it was proved that the custom-house would not permit an entry to be made, unless there had been indorsement on a licence, it was held (the licence being lost) that from this entry the indorsement might be presumed. Butler v. Allnutt, 1 Stark. 222. So when a statute enjoins a public officer to make an entry of registration of a deed when brought to him with an affidavit of certain particulars, it must be presumed from such entry being made that the affidavit was left with the deed, as required by the statute ; Waddington v. Roberts, L. R., 3 Q. B. 579 ; the deed in this case was a composition deed under the Bankruptcy Act, 1861, s. 192, and the court followed Grindell v. Brendon, 6 C. B., N. S. 698 ; 28 L. J., C. P. 333, where the deed was a bill of sale ; Gugen v. Sampson, 4 F. & F. 974, 976, cor. Channell, B., is to the like effect. In Mason v. Wood, 1 C. P. D. 63, the court declined to follow these cases, on the ground, apparently, that the statute did not direct the officer not to file the bill of sale without the affidavit. In the case of the post-office, there is a presumption that a letter properly directed and posted will be delivered in due course. See British & American Telegraph Co. v. Colson, L. R., 6 Ex. 122, per Bramwell, B. ; and Stocken v. Collin, 7 M. & W. 515. This presumption is, it would seem, to be extended to postal telegrams, now that the inland telegraphs form part of the Government postal system. The most common application of this presumption is in favour of the regular appointment of an officer in the execution of his duty. Thus, the fact of a person acting in an official capacity as a surrogate, is prima facie evidence that he is duly appointed, and has competent authority. R. v. Vertlst, 3 Camp. 432. So of other public officers ; though the appointment must he in writing; as in the case of justices of the peace, constables, &c. Berry man v. Wise, 4 T. R. 366 ; Doe d. Davy v. Haddon, 3 Dougl. 310 ; Marshall v. Lamb, 5 Q. B. 115. So, where a soldier is employed in recruiting, it will be presumed that he is a duly "attested soldier" within the Mutiny Act. Wotton v. Gavin, 16 Q. B. 48; 20 L. J., Q. B. 73. See also R. v. Hawkins, 10 East, 211. So in the case of a constable appointed by commissioners under a local Act. Butler v. Ford, 1 Cr. & M. 662. And the fact is evidence even in his own favour. S. C. So, where it is necessary to prove the swearing of an affidavit before a commissioner of one of the superior courts, evidence of his acting as such is sufficient. JR. v. Hoivard, 1 M. & Rob. 187. Similar proof of a party's appointment as vestry clerk, M'Gahey v. Alston, 2 M. & W. 206 ; as solicitor, Bcrryman v. Wise, supra ; as overseer, Cannell v. Curtis, 2 N. C. 228 ; Doe d. Boivlcy v. Bairn s, 8 Q. B. 1037 ; or as incumbent of a living, Radford v. M'lntosh, 3 T. R. 635 — has been held sufficient. So the regularity of the constitution of a commission issued by a Bishop under stats. 1 & 2 V. c. 106, s. 77, & 48 & 49 V. c. 54, s. 3 will be presumed. Barratt v. Reams, (1905) 1 K. B. 504, C. A., cited post, p. 865. But in all these cases the evidence is only pre- sumptive, and may be rebutted, when the regularity of the appointment is a pertinent inquiry. 44 //,,;/ -sil.i/. As to presumption that an instrument lost, or not produced on notice, is or is not duly stamped, see tit. Stamps — Effect of want of stamp; Stamp, when presumed, post, p. '_"-!L'. HEARSAY. It is a general rule of evidence that declarations of persons not made upon oath are inadmissible evidence of the fact declared; Spargo v. Brown, 9 B. & C. 938; unless it be by way of admission by a party to the suit. Therefore, hearsay evidence, which is the mere repetition of such declara- tions upon the oath of a witness who heard them, is excluded. There are, however, certain classes of cases in which hearsay is on various grounds admissible. See Sturla v. Freccia, 5 Ap. Ca. 640 et sea., per Ld. Blackburn. Hearsay admissible in questions of pedigree.'] In questions of pedigree, the oral or written declarations of deceased members of the family are admissible to prove a pedigree. And this exception is founded on the obvious difficulty of tracing descent and the relationship of deceased members of families by any other evidence. Thus, declarations of dectased parents are admissible to prove the legitimacy of their children. So, hearsay is good evidence to prove who is a persou's grandfather; when he married; what children he had ; or the death of a relation beyond sea, &c. B. N. P. 294-5 ; Bridget v. Iluelt, 2 F. & F. 35. The declarations of a deceased parent and another relation were admitted to show which of several children born at a birth was the eldest. Per Beynolds, C.B., 12 Vin. Abr. 247 ; cited 4 Camp. 410. Declarations in a family, descriptions in wills, inscriptions upou monuments, in bibles or other books, and in registry books, are all admitted, upon the principle that they are the natural effusions of a party who must know the truth, and who speaks upon an occasion where the mind stands in an even position, without any temptation to exceed or fall short of it. Per Ld. Eldon, Whitelocke v. Baker, 13 Ves. 514 ; Higham v. Ridgway, 10 Eust, 109 ; Berkeley Peerage case, 4 Camp. 418. And see the Slane Peerage ease, 5 CI. & Fin. 23; and the Vaux Peerage, lb. 526. Entries in a family Bible are admissible iu evidence, on the ground that, being in that place, they are to be taken as assented to by those having the custody of the book ; proof of the handwriting of the entries is therefore immaterial. Hubbard v. Lees, L. lv., 1 Ex. 255. See also Berkeley Peerage case, 4 Camp. 421 ; per Lds. Ellenborough and Redesdale. It seems, however, that iu the case of any other book the entries must be proved to have been made by a member of the family ; Tracy Peerage, Ilubback, Evid. of Succession, 673 ; or that they have been treated by a relative as a correct family memorial. Hood v. Beaucliamp, 8 Sim. 26. A pedigree which has long hung up in a family mansion is good evidence in such cases ; Goodright d. Stevens v. Moss, 2 Cowp. 594 ; or a marriage certificate kept I y the family. Doe d. Jenkins v. Dames, 10 Q. B. 314. A minutebook of a visitation, signed by the heads of the family, has been admitted, though produced from a private library. I'ii tony. Walter, 1 Stra. 162. A signed pedigree delivered to the Heralds' College by virtue of a commission under which the college was authorised to receive and enrol such pedigrees, was admitted. Shrewsbury Peerage case, 7 II. L. C. 19. So a paper in the handwriting of a deceased member of the family, purporting to give a genealogical account of the family, was held admissible, though never made public by the writer, erroneous in many particulars, and professing to be founded partly on hearsay. Monkton v. A.-G., 2 Russ. & Myl. 147. So a ring, worn publicly, stating the date ol the person's death whose name is engraved upon it. S. C, Id. 162. So a description of a party as "daughter and heir" in a deed signed by the party Pedigree. 45 so described. Doe d. Jenkins v. Davies, ante, p. 44; Smith v. Tebbitt, L. R , P. & M. 354. But an old pedigree, professing on the face of it to be compiled from " registers, wills, monumental inscriptions, family records, and history," and going back to a fabulous date, is not evidence, though proved to be signed by members of the family, except so far as it relates to persons presumably known to them, or respecting whom they may have obtained information from other members of the family ; whether the mere recognition of a pedigree by a deceased ancestor will make it legitimate evidence (except against claimants under him) is doubtful. Davies v. Lowndes, 5 N. C. 161 ; 6 M. & Gr. 471, 512, 525, &c, Ex. Ch. The ground upon winch the inscription on a tombstone, or a tablet in a church, is admitted, is that it is presumed to have been put there by a member of the family cognizant of the facts, and whose declaration would be evidence. Id. 512, per Parke, B. The memoranda of a parent have been held good evidence to prove the time of the birth of a child. Herbert v. Tuchal, T. Raym. 84, cited by Ld. Ellenborough in Boe d. Brune v. Rawlings, 7 East, 290. So the statement of a parent, though written long after the time of birth, hi re Turner, 29 Ch. D. 985. But only in a case of pedigree. Haines v. Guthrie, 13 Q. B. D. 818, C. A. So the declaration of a father as to the place of birth of a son was considered inadmissible, as being a mere question of locality, and not of pedigree, in B. v. Erith, 8 East, 512. So, in Shields v. Boucher, 1 De G. & Sm. 40, Wilde, C.J., rejected, upon the trial of an issue, declarations of a relation as to the part of England from which he had originally come; but on moving for a new trial, Knight-Bruce, V.-C, expressed a strong opinion in favour of their admissibility in a case of mere genealogy, and with a view to identify ancestors, and distinguished B. v. Erith, supra. Accord, per Kindersley, V.-C, in Batter v. Mitford, 7 W. R. 570, June, 1859 ; and declarations of a party, showing that he has or had relations living at A., have been admitted to identify persons whose existence is proved aliunde. Bishton v. Nesbitt, 2 M. & Rob. 554; Hood v. Beauchamp, Hubback, Evid. of Succession, 468, cited 1 Taylor, Evid., 10th ed., § G47. The declarations of a party as to his own illegitimacy, or place of birth, seem inadmissible except against himself, or those claiming under him by title posterior to the declaration. B. v. Bishworth, 2 Q. B. 476. Where statements contained in monumental inscriptions, and declarations made by a deceased relation, were offered in evidence upon the trial of an issue out of Chancery to prove the ages of the parties referred to, Tindal, C.J., rejected the evidence ; but Ld. Brougham, C, after argument, expressed a very strong opinion in favour of it; and afterwards stated that he had the concurring opinions of Littledale, J., and Parke J., but, the suit being compromised, no further opinion was delivered. Kidney v. C'ockhurn, '1 Russ. & Myl. 167. An inscription on a tombstone, stating the death of a party at the age of 90, was admitted as evidence of the age. Bider v. MaJbone, cor. Littledale, -I., cited Id. pp. 169, 170. For other cases in which inscriptions on monuments have been admitted in proof of pedigree, see 1 Taylor, Ev., 9th ed., § 652, and Shretosbury Beerage, 7 H. L. C. 1. So, an old tracing from an effaced monument has been admitted. SJaney v. Wade, 7 Sim. 595. A bill in Chancery by a father, stating his pedigree, was admitted iu Taylor v. Cole, 7 T. R. 3, n. ; but this is contrary to the resolution of the judges in the Banbury Beerage case, 2 Selw. N. P., 2nd ed. 773, and to Boileau v. Butlin, 2 Exch. 678. An answer in Chancery, sworn ante litem motam,seems unexceptionable as evidence nf pedigree incidentally set forth in it ; but in the Wharton Peerage case, 12 CI. & F. 295, an answer, sworn but not filed, was rejected as evidence of pedigree. Pr. ceedings in the sheriff's court in Scotland are admissible, when the pedigree is incidentally ^tited, Lyell v. Kennedy, 14 Ap. Ca. 437, 1). P. The recital in a family 46 Hearsay. conveyance by a trustee is evidence of parentage. Slaney v. Wade, supra. So an old and cancelled will lias been allowed as evidence of the existence and relative ages of certain deceased members of the family from whom both parties derived title. Doe d. Johnson v. Pembroke, Earl of, 11 East, 504. The probate of a will is not primary evidence for this purpose. Doe d. WUd v. Ormevod, 1 M. & Rob. 466 ; Dike v. Polhill, 1 Ld. Raym. 744. The will itself and signature of the testator must be proved, unless the age of the documentor other circumstance dispense with such proof: it is said, how- ever, that the " ledger book" or "original rolls" of the Ecclesiastical Court, containing an enrolment of the will, are admissible evidence to prove relation- ship. B. N. P. 246. It is not necessary that the declarations should he contemporaneous with the facts declared ; thus, a person's declaration, that his grandmother's maiden name was A. B. is admissible. Per Ld. Brougham, C, Monkton v. A.-O., 2 Russ. & Myl. 158. Nor is it necessary that the fact declared should be in the personal knowledge of the declarant ; thus, the declaration of A. as to what he heard from B. is admissible, if both be relations. S. C. Id. 165. Declarations of the kind above described are strictly admissible only in inquiries relating to descent or relationship, or in tracing the devolution of property. In proving recent events, such as the place of birth, age, death, &c, of a person, where that fact is directly in issue, stricter proof is required. Thus the declaration of a parent as to the time of a child's birth is not admissible to prove a defence of infancy. Haines v. Guthrie, 13 Q. B. D. 818, C. A. In peerage cases, also, unusually strict evidence is exacted. General reputation is good evidence in pedigree cases, e.g., of heirship ; Bridger v. Huett, 2 F. & F. 35 ; of marriage, Evans v. Morgan, 2 C. & J. 453; Shedden v. Patrick, 2 Sw. & Tr. 170; 30 L. J., P. M. & A. 217; Campbell v. Campbell, L. R., 1 H. L. Sc. 201, per Ld. Cranworth ; but if it appear on cross-examination or otherwise that the witness is speaking of evidence given him by some individual, even as to the general reputation, the evidence ceases to be admissible. Shedden v. Patrick, supra. Hearsay, of what persons, admissible in questions of pedigree.'] The hear- say must be from persons bavins; such a connection by blood or marriage with the party to whom it relates, that it is natural and likely, from their domestic habits and connections, that they are speaking the truth and are not mistaken. Per Ld. Eldon, C, WJiitelocke v. Baker, 13 Ves. 514. Declarations by a deceased person as to her own legitimacy are evidence. Procur.-Qen. v. Williams, 31 L. J., P. M. & A. 157. So by a deceased husband as to the legitimacy of his wife, aud as to the pedigree of her family, are evidence. Voivles v. Young, 13 Ves. 148 ; Doe d. Northey v. Harvey, Ry. & M. 297. So the declaration of a wife as to her husband's family. Shrewsbury Peerage, 7 H. L. C. 1. But not the declarations of her father. S. C. Nor the declarations of illegitimate relations. Doe d. Bamford v. Barton, 2 M. & Rob. 28; Crispin v. Doglioni, 3 Sw. & Tr. 44; 42 L. J., P. M. & A. 109. The declarations of servants and intimate acquaintance are not admissible. Johnson v. Lawson, 2 Bing. 86 ; S. C, 9 B. Moore, 183. The declarations of a deceased person, as to the fact of his own marriage, are evidence. B. N. P. 112 ; R. v. Bramley, 6 T. R. 330. The declarations of a deceased mother as to the non-access of her husband, are not evidence, on grounds of policy. R. v. Luffe, 8 East, 193; Coodright d. Stevens v. Moss, Cowp. 594. Nor are her declarations, or those of her husband, that her son is the son of another man. Cope v. Cope, 1 M. & Rob. 269. But where the non-access is admitted or established, the mother's declarations may be proof Pedigree. 47 of paternity. Legge v. Edmonds, 25 L. J., Ch. 125. And her declarations that her child is a bastard, are admissible as evidence of her conduct ; Ayles- ford Peerage, 11 Ap. Ca. 1, D. P. ; and so are those of the putative father ; Burnaby v. Baillie, 42 Ch. D. 282 ; although the declarants are alive. And although the declarations of the parents are not admissible to bastardize a child born after marriage, they are admissible to prove that the child was born before marriage. Goodright d. Stevens v. Moss, Cowp. 591 ; Murray v. Milner, 12 Ch. D. 845. Before any such declaration can be admitted in evidence the relationship of the declarant by blood or marriage must be established by some proof independent of the declaration itself; it is the duty of the judge to decide whether this relationship is proved ; slight evidence will, however, be sufficient. Plant v. Taylor, 7 H. & N. 237 ; 31 L. J., Ex. 289 ; Smith v. Tebbitt, L. E., 1 P. & M. 354. Old depositions in a suit, purporting on the face of them to be made by relations, but not proved aliunde to have been so made, were not held evidence in the Banbury Peerage case, 2 Selw. N. P., 2nd ed. 773 : Accord. Davies v. Morgan, 1 C. & J. 591 ; but see Freeman v. Phillipps, 4 M. & S. 486, cited post, p. 51, where the antiquity of the depositions was held to dispense with such extrinsic proof. Although it is necessary to give evidence dehors to connect the persons making them with the family, yet where the question is whether A. be related to C, the declarations of B., who is proved to have been related to A., are evidence to prove C. related to A., without evidence dehors to show B. related to C. Monkton v. A.-G., 2 Russ. & Myl. 156. When the judge has decided that the evidence is sufficient, he may receive the declaration, although the fact of relationship is the very point in issue in the cause ; Doe d. Jenkins v. Davies, 10 Q. B. 314 ; and he is not bound to hear evidence on the voir dire to rebut the evidence of relationship. Hitchins v. Eardley, L. R., 2 P. & M. 248. It is no objection that the person who made the declaration stood in paricasu with the person tendering it in evidence. Monkton v. A.-G., 2 Russ. & Myl. 159. In a claim of peerage a widow was admitted to prove declarations of her deceased husband in support of her son's title, though the husband, if living, would have had the right which the declarations went to establish. Cited by Abbott, C.J., in Doe d. Tihnan v. Tarver, Ry. & M. 141. So declarations are admissible, though they tend to show the declarant's own title at the time, provided there was no lis mota ; S. C. ; Doe d. Jenkins v. Davies, supra ; but in Plant v. Taylor, supra, it was doubted whether a declaration by a person obviously in his own interest ought to be received. A deposition of a deceased relative taken on a commission of inquirj r as to the next of kin of a lunatic, is admissible to establish the title of the lunatic's heir-at-law. Gee v. Ward, 7 E. & B. 509. The relative, whose declarations are offered, must be proved to bo dead before they can be admitted in evidence. Butler v. Mountgarret, Vt., 7 H. L. C. 633. Unless, indeed, from the circumstances, his death may be presumed ; vide ante, p. 41. Hearsay in questions of pedigree post litem motam.] If the declarations were made after a controversy has arisen with regard to the point in question, they are inadmissible. Berkeley Peerage, 4 Camp. 401. It is not necessary, in order to exclude the evidence, to show that the controversy was known to the person making the declaration. Id. 417 ; Reilly v. Fitzgerald, 6 Ir. Eq. Hep. 348 ; Shedden v. Patrick, 2 Sw. & Tr. 170 ; 30 L. J., P. M. & A. 217. The declaration may be admissible though made from interested motives, and in order to prevent future controversy. Berkeley Peerage, 4 Camp. 418. The term controversy must not be understood as necessarily signifying an existing suit. Monkton v. A.-G., 2 Russ. & Myl. 161; Butler v. 48 Hearsay. Mountgarret, Vt.,ante, p. 47 ; Frederick v. A.-G., L. R., 3 P. & M. 270. Nor a suit for tin same purpose as the suit or proceeding in which the evidence is ofi'ered. Berh h y Pet rage, ante, p. 47 ; Sussex Peerage, 11 CI. & F. 85 ; see Shrewsbury Peerage, 7 11. L. C. 1 ; and Davies v. Lowndes, 6 M. & Gr. 471, Ex. Ch. Hearsay admissible to provepublie rights.'] Another exception to the rule which excludes hearsay evidence is where the question relates to matters of public or general interest. The term " interest " here means pecuniary interest, or some interests by which the legal rights or liabilities of a class of the community are affected ; and the grounds of admissibility are, — because the origin of such rights is generally ancient and obscure, and consequently incapable of direct proof; — because in local matters all persons living in the neighbourhood, and interested in them, are likely to be conversant witb them ; — because common rights are naturally the subject of common and public conversation, in the course of which, statements are made, which, uncontradicted, are likely to be true ; and tbus a trustworthy reputation may arise from the concurrence of many unconnected with each other, and interested in investigating tbe truth. Per Ld. Campbell, in P. v. Bedford- shire, 4 E. & B. 541-2 ; 24 L. J., Q. B. 81. It will be seen from the following illustrations of the rule that all the grounds above enumerated need not exist in order to justify tbe reception of hearsay ; and that, in some instances, other grounds may be adduced in favour of it. Common reputation is admissible to prove not only public or general rights (Berkeley Peerage, 4 Camp. 415 ; Weeks v. Sparke, 1 M. & S. 68G ; Morewood v. Wood, 14 East, 329), but also rights affecting a number of persons, and therefore in the nature of public rights, as a manorial custom ; Perm d. Goodwin v. Spray, 1 T. R. 4(36 ; or the extent of a manor ; Doe d. Padwick v. Skinner, 3 Exch. 84; or a reputed manor which once existed ; Doe d. Molesworth v. Sleeman, 9 Q. B. 298 ; or common by cause of vicinage ; Pritchard v. Poiuell, 10 Q. B. 589 ; or otherwise ; Evans v. Merthyr Tydfil Council, (1899) 1 Ch. 241, C. A. ; or a custom in a borough to exclude foreigners ; sernb. Davies v. Morgan, 1 C. & J. 587 ; or tbe boundaries between parishes or manors ; Nicholls v. Parker, 14 East, 331, n. ; a parish modus; Weeks v. Sparke, 1 M. & S. 091 ; White v. Lisle, 4 Madd. 215; or parochial cbapelry ; Carr v. Mostyn, 5 Exch. 09 ; a toll traverse; Brett v. Beales, M. & M. 410; a ferry; Pirn v. Gurell, 6 M. & W. 234; a county bridge ; P. v. Bedfordshire, 4 E. & B. 535 ; 24 L. J., Q. B. 81 ; a several fishery; Neill v. Devonshire, Dk. of, 8 A p. Ca. 135, D. P.; or a right of freewarren by prescription over an entire manor, including demesne and tenemental lands ; Carnarvon, El. of, v. Villebois, 13 M. & W. 313. There- fore the declaration of deceased copyholders ; or a saving of the right in a private Act for inclosure, inter alia, of copyholders' common rights; or a verdict and judgment against a copyholder, are all evidence of such a right of freewarren. S. C, Id. A deed between the lord and certain copyholders, ratifying customs claimed by the latter in consideration of a payment to the lord, i8 evidence as against other copyholders where they set up a general custom negatived by the deed. Semb. Anglesey, Mqs. of, v. Atherton, Ld., 10 M. & W. 218. A customary heriot payable by a freeholder of a manor, may be proved by presentments and payments of heriots by other freeholders of the manor. Damerell v. Protheroe, 10 Q. B. 20. Reputation is admissible to prove the prescriptive liability of certain landowners to repair a county bridge ; for it is a matter of public interest, though private interests are also involved. P. v. Bedfordshire, supra; overruling P. v. Wavertree, 2 M. & Rob. 353. But to prove a prescriptive right, strictly private, such evidence is not Public Bights. 49 admissible ; Morewood v. Wood, 14 East, 327 ; Richards v. Bassett, 10 B. & C. U63 ; and Weeks v. Sparke, 1 M. & S. 687; where it was allowed in support of a claim of a prescriptive right for the plaintiff, owner of a certain estate, to abridge by tillage the rights of common appurtenant claimed by the defendant and many others is overruled by Dunraven, El. of, v. Llewellyn, 15 Q. B. 791 ; 19 L. J., Q. B. 388, Ex. Ch. (this last case is explained in Warrick v. Queen's College, Oxford, L. R., 6 Ch. 716, 729). So, reputation as to the exemption of the sheriff of a county from the performance of a public duty, viz., the execution of criminals, was rejected in R. v. Antrobus, 2 Ad. & E. 793. But where the boundary of a tenement and a hamlet are proved to coincide, then evidence of reputation as to the bounds of the latter is legitimate evidence of the former. Tliomas v. Jenkins, 6 Ad. & E. 525. On a question whether a certain road was a highway, a copperplate map was produced, in which it was so described ; it purported to have been taken by the direction of the churchwardens, and proof was offered that it was generally received in the parish as an authentic map ; but Ld. Kenyon rejected the evidence. Pollard v. Scott, Peake, 18. So the production of au old printed map of a county from the custody of a county magistrate, who had it some years in his possession, does not make it admissible to prove the bounds of the county. Hammond v. Bradstreet, 10 Exch. 390; 23 L. J., Ex. 332, Ex. Ch. It should seem, however, that if such a map had been supported by proof of its compilation by persons having particular means of knowledge of the bounds, or had been in some way sanctioned publicly as authentic, it might have been admissible as reputation ; otherwise there is no reason for attaching more value to an engraved map than to a printed book as evidence of its contents ; nor does the current use of it by those who reside in the district delineated in it imply an assent to all its details. The tithe commission maps are not, under 6 & 7 W. 4, c. 71, s. 61, evidence as to the boundary of land in the case of disputed title. Wilberforce v. LTear- field, 5 Ch. D. 709. But they are evidence as to the existence of a public road across the land. A.-G. v. Antrobus, (1905) 2 Ch. 188, 193; so are deposited plans for a light railway across it; Id., 194. The maps of the Ordinance survey are evidence of the existence of a visible track across the land. Id., 203. An old map commonly used at a manor court to define the limits of copyholds, is not evidence of a highway, though ways may be indicated upon it; especially if it does not purport to describe them as public ways. Pipe v. Fulcher, 1 E. & E. Ill; 28 L. J., Q. B. 12. See further, R. v. Berger, infra. A public meeting called for the purpose of considering about repairing a way, at which several present signed a paper stating that it was not a public way, is evidence, though slight, against the right. Barraclough v. Johnson, 8 Ad. & E. 99. Even where general reputation is evidence, yet the traditiou of a particular fact is not; as that a house once stood in a particular spot. Ireland v. Powell, Peake, Kvid. 15 ; Mercer v. Denne, (1904) 2 Ch. 534, 543; (1905) 2 Ch. 538, C. A. Nor is reputation admissible evidence of a farm modus. Pritchett v. Honeyborne, 1 Y. & J. 135. Where a question of public way was in issue, the declarations of a di ceased occupier of land made whilst planting a tree, stated that he planted ii to show the boundary of the road, are not evidence of the public right, for it is not a statement of general reputation but of a particular fact. R. v. Bliss, 7 Ad. & El. 550; R. v. Berger, (1894) 1 Q. B. 823. The declarations of a deceased lord of the manor as to the extent of the waste are not evidence in extension of it. Crease v. Barrett, 1 C. M. & R. 919. Where the question was whether a place was within the limits of a hundred, ancient entries of orders of justices in sessions stating the place to be within such limits, were held to be evidence of reputation, E. — voi,. r. E 50 Hearsay. though the justices were not proved to have heeu resident within the hundred or county. Newcastle, Dk. of, v. Jiroxtowe, 4 B. & Ad. 273. So the question being whether certain land is in the parish of A. or B., ancient leases, in which they are described as lying in parish B., are evidence that the land is in that parish. Blaxtou v. Dare, 10 B. & C. 17. In assumpsit for tolls by a lessee of the corporation of Cambridge, an old deed of composition between it and the University, recognising the right, was admitted in behalf of the plaintiff, though not proved to have been acted upon. Brett v. Beales, M. & M. 416. Aliter of a mere award, not proved to have been acquiesced in! S. C. So an award inter alios is not evidence, as reputation, of the boundary of a parish and county. Evans v. Bees, 10 Ad. & E. 151 ; Wenman v. Mackenzie, 5 E. & B. 447. The finding of a jury under a commission duly issued out of the duchy court of Lancaster on the petition of the parties to ascertain the bounds of adjoining manors, is evidence of such bounds. Brisco v. Lomax, 8 Ad. & E. 198. But an interlocutory order of the same court, containing only a provisional arrangement between the parties, is not evidence of reputation. Pirn v. Curell, 6 M. & W. 234. Generally, a verdict, and judgment thereon, in a matter in which reputation is admissible evidence, 'is also admissible ; so of a decree, or inquest of office lawfully authorised. See Effect of documentary evidence, post, pp. 192, 196, 200. Reputation alone is said to he evidence of the existence of a manor ; Steel v. Brickett, 2 Stark. 463 ; but it seems that some foundation should be laid by proof of acts done, as holding couits, &c. ; and the production of a deputation to kill game is not of itself sufficient proof even of a colourable title to a real manor; Bushworth v. Craven, M'Cl. & Y. 417 ; for the lord of a mere reputed manor may grant one. The rule with regard to the parties from whom the declarations proceed has been thus laid down: In cases of rights or customs which are not, strictly speaking, public, but are of a general nature and concern a multitude of persons (as in questions with respect to boundaries and customs of par- ticular districts), it seems that hearsay evidence is not admissible, unless it be derived from persons conversant with the neighbourhood. On the other hand, actual inhabitancy in the place, the boundaries of which are in dispute, is unnecessary. But where the right is strictly public (a claim ot highway, for instance), in which all the kiDg's subjects are interested, it is difficult to say that there ought to be any such limitation. In a matter in which all are concerned, reputation from any one appears to be receivable, but almost worthless unless it came from persons who are shown to have some means of knowledge, as by living in the neighbourhood, or frequently using the road in dispute. Ber Parke, B., in Crease v. Barrett, 1 0. M. & R. 919; Doe d. Molesworth v. Sleeman, 9 Q. B. 301, per Cur. Thus a docu- ment purporting to be a decree of certain persons, the Lord Treasurer and Chancellor of the Exchequer, &c, who had no authority as a court, was held to be inadmissible evidence as reputation on a question whether the city of Chester, before it was made a county itself, formed a part of the county palatinate, because those personages had from their situations no peculiar knowledge of the facts. Bogers v. Wood, 2 B. & Ad. 245. So the answers of the tenants of a manor to an old commission of survey issued by the lord, finding the bounds of a manor and his right to wreck, are evidence of the former, but not of the latter, they having no peculiar means of know- ledge, and the lord's title to such a franchise not being a matter of public concern. Talbot v. Lewis, 1 C. M. & R. 495. Such a claim of wreck is one affecting onlv the interests of the Crown, and not the tenants; and the case differs in that respect from a right of freewarren in Carnarvon, El. of, v. Villebois, 13 M. & W. 313. Ancient answers of the customary tenants of a manor, stating the rights Public Bights. — Part of Transaction. 51 of the lord of the manor to all mines within it, are evidence even against the freeholders, for this claim affects all the tenants. Crease v. Barrett, ante, p. 51. As to the admissibility of inquisitions and surveys, as evidence of reputation, see Effect of inquisitions, &c, post, p. 196. Declarations of old persons concerning the boundaries of parishes and manors have been admitted in evidence, though they were parishioners and claimed right of common on the wastes which their declarations had a tendency to enlarge. Nicholls v. Parker, 14 East, 331 ; Plaxton v. Dare, 10 B. & C. 19. See also B. v. Mytton, 2 E. & E. 557 ; S. C. sab nom. Mytton v. Thornbury, 29 L. J., M. 0. 109, post, p. 102. So declarations on a question of parochial modus were received, though the deceased was a parishioner, and liable to pay tithe. Harwood v. Sims, Wightw. 112; Beach v. Hancock, M'Clel. 85; S. C, 13 Price, 226. So, a written declaration of a deceased corporator was considered to be evidence in support of a custom to exclude foreigners. Davies v. Morgan, 1 C. & J. 5S7. In order to the admission of evidence of reputation, it is not necessary that the fact of user should be shown; Crease v. Barrett, supra; although there are cases in which it has been so considered; see Weeks v. Sparke, 1 M. & S. 686; Bushworth v. Craven, M'CL & Y. 417; and it is obvious that such evidence without user will be of little weight. Such declarations, as in questions of pedigree (vide ante, p. 47), must not have been made post litem motam. B. v. Cotton, 3 Camp. 444. But where, in a suit as to the custom of a manor, depositions in a former suit relative to a custom of the same manor were offered in evidence, it was held no objection that the depositions taken in the former suit were post litem motam, if the two suits were not upon the same custom ; and where the former suit was very ancient, it was held unnecessary to prove by intrinsic evidence that the witnesses who made the depositions were in the situation in which they professed to stand, or that they had the means of becoming acquainted with the customs of the manor. Freeman v. Phillipps, 4 M. & S. 486; but see Banbury Peerage case, 2 Selw. N. P., 2nd ed. 773, ante, p. 47. The declarations of old persons still alive cannot be admitted as proof of reputation. Woolway v. Boive, 1 Ad. & E. 117. Hearsay admissible when part of the transaction.} When hearsay is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself a part of the transaction in question, and explanatory of it, it is admissible. Words and declarations are admissible when they accompany some act, the nature, object, or motive of which are the subject of the inquiry. 1 Phill. & Arn. Ev., 10th ed. 152, cited by Blackburn, J., Hyde v. Palmer, 3 B. & S. 657 ; 32 L. J., Q. B. 126 ; and see Bennison v. Cartwright, 5 B. & S. 1. In the case of an equivocal act, the accompanying declarations are often absolutely necessary to show the animus of the actor. Thus, if a debtor leaves home, the intent to avoid his creditors may be shown by his declarations at the time. Bateman v. Bailey, 5 T. 1!. 512. So a payment by a debtor may be explained by an accompanying request to apply it to a certain debt. In a suit for a false representation of the solvency of A. B., whereby the plaintiffs trusted him with goods, their declarations at the time that they trusted him in consequence of the repre- sentation are admissible in evidence for them. Fellowes v. Williamson, M. & M. 306. So in an action against the drawer of a bill of exchange, what was said by the drawee, on the bill being presented, is evidence for the plaintiff as to want of assets; but not what passed between the drawee and tin' holder afterwards. Prideaux v. Collin-, '1 Stark. 57. A letter sent by plaintiff to his indorser with the promissory note on which the maker is sued, may he read for the plaintiff to show why it was sent. Bruce v. Hurly, E 2 52 Hearsay. 1 Stark. L' 1 ; and see Kent v. Lowen, 1 Camp. 177. To prove that there was a good consideration for a conveyance, the verbal instructions of the alienor to his solicitor to prepare it are good evidence. Tall v. Parlett, M. & M. 472. In an action to recover money paid by a bankrupt in con- templation of a bankruptcy, his declarations as to the state of his affairs, made about the time of the transaction, are admissible for the plaintiffs. Vacher v. Cocks, ]\1. & M. 353; Herbert v. Wikoclcs, Id. 355, n. So in an act inn to recover fraudulent payments, answers to letters written by a bankrupt, requesting assistance, may be read to prove the refusal to give assistance, and his consequent knowledge of the state of his affairs. Vacher v. Cocks, supra. A trader being in embarrassed circumstances, executed an assignment of all his "effects, stock, books, and book-debts," for the benefit of his creditors : in an action after his death against the assignee, as executor de son tort, it was held that a list of creditors, made out by the direction of tbe assignor about the time of the execution of the assignment, was evidence for defendant for the purpose of rebutting fraud. Leivis v. "Rogers, 1 C. M. . , a servant of the vendor, whose duty it was to report the sale to A., was rejected as evidence of the sale, though A. and B. were both dead. Brain v. Preece, 11 M. & W. 773. Where a person employed to serve a notice on Pi. brought back the duplicate notice mdor.-ed as so served, but stated orally that he had delivered it to W., it was held that, after the death of the person serving, it was not competent to give in evidence his oral statement of service on W. Slapylton v. Clough, 2 E. & B. 933; 23 L. J., Q. B. 5. The entry must relate to something actually done. Rowlands v. De Vecchi, 1 Cab. & Ell. 10, cor. Day, J. As to proof of notice of calls made by a public company from the memorandum of a deceased clerk, see E. Union By. Co. v. Symonds, 5 Exch. 237, cited, post, Part III., Actions by companies. An entry in a letter-book kept by a deceased clerk in the course of duty is secondary proof of the contents of the letter sent, and of the posting of it, if that were the course of business. Pritt v. Fairclough, 3 Camp. 305; Hagedom v. Beid, lb. 379. By stat. 7 J. 1, c. 12, s. 1, the shop-book of a tradesman shall not be evidence in any action for wares delivered, or work done, above one year before the bringing of the action, except the tradesman or his executor shall have obtained a bill of debt or obligation of the debtor for his said debt, or shall have brought against him, or his executors, some action for the said del it within a year next after the delivery of the wares, or the work done. By sect. 2, the Act is not to extend to traffic, or dealing between merchant and merchant, merchant and tradesman, or tradesman and tradesman, for anything within the compass of their mutual trades and merchandise. This statute seems to recognise the previous admissibility of shop-books; it has been continued by subsequent Acts; but it is of little practical importance, and the admissibility of such books at comrnou law in favour of the trades- man must generally depend on the principles already referred to. See S;imovds v. Oas Light Co., 11 Beav. 283. Entries made by deceased persons in the course of their business, or in discharge of their duty, are admissible only where it is the duty of the deceased both to do the act and to make an entry or record of having done it. Smith v. Blakey, L. P., 2 Q. B. 326; Massey v. Allen, 13 Ch. D. 558 ; Mercer v. Denne, (1905) 2 Ch. 538, C. A. Thus an entry of a hiring at certain wages in the deceased master's private book, with a memorandum of payment, is inadmissible evidence, inter alios : R. v. Worth, 4 Q. B. 132; for it was neither his duty to make it, nor was he interested in making it in the proper sense of "interest." An entry purporting to be the substance of a lease made by the lord of a manor, contained in a book of his steward 200 years old, is not evidence of the lease either as secondary evidence or as an entry made in the course of duty or business. Doe d. Padwick v. Skinner, :: Exch. 84. See also Doe d. Padwick v. Wittcomb, 6 Exch. 601; 20 L. J., Ex. 297 ; 4 H. L. C. 425. Entries in Discharge of Ordinary Business. 61 Entries made in the log of a ship by a deceased mate cannot be used as evidence for her owners in an action brought against them for collision. The Henry Coxon, 3 P. D. 156. A book in which a deceased chief rabbi had made an entry of circum- cisions performed by him, was held inadmissible to prove the age of a Jew, although it was proved that a Jew was ordinarily circumcised on the eighth day after his birth. Davis v. Lloyd, 1 Car. & K. 275, cor. Denman, C.J., after consulting Patteson, J. In Edie v. Kingsford, 14 C. B. 759; 23 L. J., C P. 123, Jervis, C.J., stated that declarations " in the course of business " were, while declarations " in the course of duty " were not, receivable in evidence, but the cases, supra, recognise no such distinction. Though a contemporaneous entry made in the course of office, reporting facts necessary to the performance of a duty, may be admissible, yet the statement in it of other extraneous circumstances, however naturally they may find a place in the narrative, is no proof of these circumstances. Ch'imbers v. Bernasconi, 1 C. M. & R. 317; 1 Tyrw. 531, Ex. Ch. ; Polini v. Gray, ante, p. 60. Thus, a return by a sheriffs officer of an arrest at a specified place is not evidence, inter alios, of the place of arrest. Chambers v. Bernasconi, supra. There are some important distinctions between the effect of declarations against interest and declarations made in the course of office or business. The former declarations are evidence of all the facts stated and whensoever made ; the latter are evidence only of the facts which it was the business of the officer or writer to state, and they must generally be contemporaneous with the act done. Smith v. Blakey, ante, p. 60, per Cur. The cases on this subject are collected in Smith's L. Cases, notes to Price v. Torrington, Ld. As to entries in public books, registers, &c, see post, Effect of documentary evidence. ADMISSIONS. Admissions by a party to the record out of c mrt are evidence, and primary evidence, of the facts so admitted. In an action by M. and his wife, for injuries caused to the wife by defendants' negligence, the defendants were allowed to prove that M. and C, his attorney's clerk, had conspired to suborn false witnesses, as this was an admission, by conduct, of M., that he had a bad case. Moriarty v. L. Chatham, . xxxii. r. 1, "any party to a cause or matter may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other part}'." Admissions made with a view to a compromise, and in order " to buy peace," are not evidence against the maker. B. N. P. 236. But an acknowledgment of a party's handwriting, though made pending a treaty of compromise, is evidence against him. Waldridge v. Kennison, 1 Esp. It.".. Si i an admission of facts before arbitrators. Gregory v. Howard, 3 Esp. 113. An offer of a specific sum by way of compromise is evidence, unless accompanied with a caution that the offer is confidential, or without prejudice. Wallace v. Small, M. & M. -±40; Nicholson v. Smith, 3 Stark. 128. Put generally, neither letters written " without prejudice," nor replies to such letters, though not similarly guarded, can be used as evidence. Paddock v. Forrester, 3 M. & Gr. 903 ; Hoghton v. Hoghton, 15 Beav. 278, 321 ; 21 L. J., Ch. 482, 493 ; Walker v. Wilsher, 23 Q. B. D. 335 ; and see Mitchell's Claim, L. R., 6 Ch. 822. So, where a correspondence has begun with a letter written " without prejudice," that covers the whole correspond- ence. Ex pte. Harris, 44 L. J. Bky. 33. The fact that offers have been made, though " without prejudice," may, however, sometimes be given in evidence/or the person making the offer, to show that an attempt has been made to settle the dispute, in order to rebut the suggestion of laches, &c. Jones v. Foxcdl, 15 Beav. 388; 21 L. J., Ch. 725; Walker v. Wilsher, 23 Q. B. D. 338, 339, per Lindley and Bowen, L. JJ., dissenting from Williams v. Thomas, 2 Dr. & S. 29; 31 L. J., Ch. 674, where the rule as to admission of the evidence was much more widely stated by Kindersley, V.-C. The principle of excluding offers made without prejudice does not apply " unless some person is in dispute or negotiat'on with another and terms are offered for the settlement of the dispute or negotiation." Ex pte. Holt, (1893) 2 Q. B. 116, 119. Thus it does not apply to a notice by a debtor to his creditor that he is about to suspend payment, when relied on as an act ot bankruptcy. S. C. It is the duty of the judge to examine the document and decide whether from its nature it is admissible or not. S. C. Admissions on compulsory process.'] It is no objection to the proof of an admission that it was made under compulsory process ; thus, as answer to a bill in Chancery, filed against the defendant by a stranger, may be read against him, to show the admission of a particular fact. Grant v. Jackson, Peake, 203. So, the defendant's answer to interrogatories administered by the plaintiff to him in another suit is admissible against him. Fleet v. Ferrins, L. R., 3 Q. B. 536, Ex. Ch. ; L. R., 4 Q. B. 500. But sernb. the compulsion must not be illegal. R. v. Garbett, 1 Den. C. C. 236. See R. v. Coote, L. R., 4 P. C. 599. The examination of a party before commissioners of bankrupt is evidence against him ; Robson v. Alexander, 1 Moore & P. 4 1s ; R. v. Wheater, 2 Moo. C. C. 45 ; although there was an irregularity in the proceedings which had been waived by the appearance of the bankrupt for examination ; R. v. Widdop, L. R., 2 C. C. 3 ; or though part only of his deposition was noted down; Milward v. Forbes, 4 Esp. 172; or though the compulsory power was exercised on irrelevant matters. Stockfleth v. He Tastet, 4 Camp. 10. So testimony given in court may be used in an action against the witness, though he was prevented from entering into an ex- planation of the circumstances under which the fact took place, it being irrele- vant. Collett v. Keith, Ld., 4 Esp. 212. So testimony on process to compel attendance before the House of Commons. R. v. Merceron, 2 Stark. 366. On Compulsory Process. — Of Contents of Documents. 63 See observation in B. v. Oilham, 1 Moo. C. C. 203. But such compulsory- admission is no evidence of an account stated. Tucker v. Barrow, 7 B. & C. 623. Admission of the contents of documents^] Though the contents of a written instrument cannot in general be proved by a witness without pro- duction of it (see ante, p. 1), yet what a party to the record says is primary evidence against himself as an admission, though it relates to the contents of a written instrument, and though the contents be directly in issue in the cause. This was first deliberately ruled in Slatterie v. Pooley, 6M. & W. 664 ; followed by King v. Cole, 2 Esch. 628 ; Fox v. Waters, 12 Ad. fr E. 43. The doctrine has been impugned and legarded as objectionable ; see Lawless v. Queale, 8 Ir. L. Rep. 382 ; it is, however, established by subse- quent cases. There can be no doubt, however, that such an admission ought in some cases to have no weight ; as where the party relying upon it is manifestly withholding more satisfactory evidence in his own power; or where the admission assumes a degree of knowledge, whether of law or of fact, which the party admitting is not likely to possess; as the construction of a deed of settlement ; the contents of a fine or recovery, &c. " If the plaintiff is himself in the box, you may ask him as to the contents of a document, and his answer will be good evidence. . . . Perhaps the judge might say that the document ought to be produced. I should do so myself in some cases." Per Pollock, C.B., in Farrow v. Blomfield, 1 P. &. F. 653. See also the observations in Boulter v. Peploio, 9 C. B. 493 ; 19 L. J., C. P. 190. To make such oral admission of any value when it relates to a written document, it ought to be clear and distinct ; thus where the defendant, in order to show that an expired lease had been renewed by the ancestor of the plaintiff, proved a statement by the ancestor many years ago, that the land had been "new-lived" by him, without more, it was held insufficient. Doe d. Lord v. Crago, 6 C. B. 90. A statement made by the plaintiff that his demand for work done had been referred to an arbitrator, who awarded that nothing was due, was admitted as evidence against him. Murray v. Gregory, 5 Exch. 468. The registered copy of a deed, signed and certified by the plaintiff, was held to be primary evidence of the contents against him. Boulter v. Peplow, supra. A copy of a document sent by a party is primary evidence against him. See Stowe v. Querner, L. Pi., 5 Ex. 155, 159. A machine copy of a letter written by the plaintiff to a third person may be used as an admission on the part of the plaintiff, though not admissible as a letter. Nathan v. Jacob, 1 F. & F. 452. So an abstract of title containing recit ds, which had beeu relied upon by the defendant in a suit in Chancery, was admitted as evidence against him, in a subsequent action of the matters so recited, without producing the original deeds. Pritchardv. Bagshaw, 11 ( '. 1',. 459; 20 L. J., C. P. 161. See also B. v. Basingstoke, 14 Q. B. 611. The follow in.; are some of the earlier cases hearing on the same doctrine : — The terms of a lease may be proved by oral admissions. Howard v. Smith, 3 M. & Gr. 254. An oral admission of a debt is evidence on an account stated, though it refers to a written instrument not produced. Newhall v. Holt, 6 M. &f W. 662. A defendant, in an action lor the recovery of land may prove an admission of the plaintiff that he had sold and assigned his lease to a third person, though such assignment must be in writing. Doe d. Lowden v. Watson, 2 Stark. 230. A notice signed by partners, stating that the partnership " has been dissolved," is evidence against them of the dis- solution, though the partnership was by deed. Doe d. Waithman v. Miles, 1 Stark. 181; 4 Camp. 373. It was formerly held, that au admission in an answer in Chancery of the execution of a deed was only secondary evidence, ''1 Admissions. and did not supersede the necessity of proving it in the regular way. Callv. Dunning, I East, 58; Cunliffe v. Sefton, 2 East, 187, 188. So with regard to matters of record and judicial proceedings, as the insolvency and discharge of the plaintiff, oral evidence of admissions has been held insufficient. Scott v. Glare, 3 Camp. 236. But since the case of Slatterie v. Pooley, ante, p. 63, the cases of Scott v. Clare, Cat! v. Dunning, supra, and other earlier cases are open to question. Admissions by acquiescence.} Admissions may sometimes be presumed from the silence or conduct of a party when certain statements are made. On this ground it is that the uncontradicted statements of any one, made in the presence and hearing of the party against whom they are offered, are evidence. Bessela v. Stem, 2 C. P. D. 265, C. A., post, p. 495. But of course no inference against him can be reasonably drawn, if the fact stated before him be one which is plainly not within his own knowledge; for he may be unable either to admit or coctradict it. So the deposition of a witness, taken in a judicial proceeding against a party, is not evidence in another proceeding against that party merely on the ground that he was present, and did not cross-examine or contradict the witness; Helen v. Andrews, M. & M. 330 ; for the nature of a judicial proceeding prevents a party from interposing to contradict or comment on the statement of a witness, as he would in common conversation. Accord, per Alderson, B., in Short v. Stoy, Winton Sum. Ass. 1836. Cases, however, may occur, in which the refusal of a person to contradict or cross-examine a witness, even in a judicial proceeding, may be admissible. See Simpson v. Robinson, 12 Q. B. 511, cited post, p. 860. It should be observed, that although silence has been cocsidered to be evidence of assent to a statement made orally in the presence of the party, no such inference can be fairly drawn from the mere omission of a party to reply to a letter ; Felthouse v. Bindley, 11 C. B., N. S. 869, 875 ; 31 L. J., C. P. 201, per Willes, J. ; Richards v. Oellatly, L. R., 7 C. P. 131, per Id.; Wiedemann v. Walpole, (1891) 2 Q. B. 534, C. A. ; unless sent under cir- cumstances which entitle the writer to an answer. See S. CC. ; Edwards v. Towels, 5 M. & Gr. 624 ; Richardson v. Dunn, 2 Q. B. 218. A statement which may be, but is not, immediately contradicted without further trouble than an oral denial, may be presumed to be true ; but no one is, or ought to be, expected to answer every officious letter that is written to him. It has been held, however, that such a letter may sometimes be used as evidence of a demand, and of so much as may explain the demand. Thus, where the plaintiff discovered that he had inadvertently paid a debt to the defendant twice over, and his accountant wrote repeatedly to the defendant, explaining how the mistake arose, and requesting repayment, but the defendant took no notice of the letters, it was held that the letters were all admissible in evidence against him in an action to recover back the payment. Gaskill v. Skene, 14 Q. B. 664 ; and see Fairlie v. Denton, 3 C. & P. 103. So in the case of a letter written by A. to B., to which the position of the parties justifies A. in expecting an answer, — as where the subject of it is a contract or negotiation before pending between them, — the silence of B. may be important evidence against him. See Lucy v. Mouflet, 5 H. & N. 229 ; 29 L. J., Ex. 110, cited sub. tit. Action for goods sold, post, p. 569. Where the plaintiff puts in, the letter written in his behalf by a third person to the defendant, the defendant is entitled to put in his answer to it, although it states, as a fact, a circumstance which, if true, is a defence to the action, for it shows that that circumstance has been brought under the plaintiff's notice Came v. Steer, 5 H. & N. 628 ; 29 L. J., Ex. 281. The following are also examples of admissions implied from negative Acquiescence. — Receipts. 65 conduct or acquiescence : — If A. having title to premises in the possession of B., suffers B. to make alterations inconsistent with such title, it is evidence to go to the jury that A. has recognised the right of B., and has done such acts as are necessary to confirm it. Doe d. Winckley v. Pye, 1 Esp. 364. So where, upon a building lease of 59 feet, more or less, the lessee took 62i feet, but the ground taken agreed with the abuttals in the lease, and the lessor marked out the ground, and saw the progress of the defendant's building without objection, this is evidence of the lessee's title. Neale d. Peroux v. Parkin, Id. 229. And in action for a debt, evidence that the plaintiff was an insolvent debtor, and had not inserted the debt in question in his schedule, was an admission, as against him, of its not being due. Nicholls v. Dowries, 1 M. & Rob. 13. But it was held that the attesting witness of the schedule must be called to prove it. Streeter v. Bartlett, 5 C. B. 562. As to which see, however, Bailey v. Bidwell, 13 M. & W. 73, post, p. 134. To this head may also be referred the case in which the depositions or statements of third persons have been held to be evidence against a party who has, on a former occasion, caused them to be made and used them as true for his own purposes. Brickell v. Hufoe, 7 Ad. & E. 455; Gardner v. Moult, 10 Ad. & E. 464; Richards v. Morgan, 4 B. & S. 641 ; 33 L. J., Q. B. 114, cited Effect of depositions, post, pp. 201, 202 ; aud the comments per curiam, in Boileau v. Rutlin, 2 Exch. 679, 680. But in an action by a bankrupt against his assignees to try the validity of his commission, depositions of deceased persons taken under the com- mission, aud enrolled by the assignees, were not evidence against them as admissions by reason of such enrolment. Chambers v. Bemasconi, 1 C. M. & R. 347. As to admissions by parties identified in interest, see ante, tit. Hearsay, p. 50 ; and see piost, pp. 66 et seq. ; Admissions by Trustees, &c. Receipts .] At common law the acknowledgment in a deed of the receipt of money was couclusive evidence as between the parties to it of such receipt. Baker v. Dewey, 1 B. & C. 701 ; Rowntree v. Jacob, 2 Taunt. 141. But not where the recital of the deed showed only an "agreement to pay," and the receipt was of money " so paid as above-mentioned," as usual in purchase deeds. Bottrell v. Summers, 2 Y. & J. 507; Lamport v. Oorke, 5 B. & A. 606. Nor was the receipt indorsed on the back of the deed conclusive. Straton v. Rastall, 2 '1'. I!. 366. In equity the absence of a receipt at the back of the deed would put a subsequent purchaser on inquiry as to whether the purchase-money had been paid ; see Kennedy v. Green, 3 Myl. & K. 699 ; for the land in the hands of a purchaser with notice that the prior purchase-money remained unpaid, or of a volunteer, would be liable to lien for it notwithstanding the conveyance expressed the consideration to have been paid, and there is an indorsed receipt. S. C. ; Winter v. Anson, I A., •"> Uuss. 488. See notes to Mackreth v. Symmons, 1 White & T. Lead. < 'ases. But now in case of deeds executed after Dec. 31st, 1881, tlie Couveyancing and Law of Property Act, 1881 (41 & 15 V. c. 41), s. 55, provides that^'a receipt for consideration money or other consideration in the body of a deed or indorsed thereon shall, in favour of a subsequent purchaser not having notice that the money or other consideration thereby acknowledged to be received was not in fact paid or given wholly or in part, be sufficient evidence of the payment or giving of the whole amount thereof." This section requires, as was necessary at common law (vide supra), that there should be an express acknowledgment by the vendor of the receipt of the money. Ilenner v. Tolley, 68 L. T. 815, E. S. (1893), Stirling, J. In general, a receipt not under seal is only a prima facie acknowledgment that it. — vol. i. F (ifi Admissions. the money has been paid ; and therefore may be contradicted or explained. Craves v. Key, 3 B. & Ad. 318. Even though expressed to be "in full of all demands." Fitch v. Sutton, 5 East, 230 ; Lee v. Lancashire and Yorkshire By. Co., L. R. 6 Ch. 527, 534; see also Bowes v. Foster, 2 H. & N. 779; 27 L. J., Ex. 262. These two last cases overrule Alner v. George, 1 Camp. 392, cor. Ld. Ellenborough. See further notes to Cumber v. Wane, 1 Smith's L. C. as to the effect of a receipt " without prejudice," see Oliver v. Nautilus S. S. Co., (1903) 2 K. B. 639, C. A. A receipt being given in the settlement of an account may be evidence of sums being allowed on the settlement, and such allowance being equivalent to the payment of money, cannot be after- wards recovered by the person making the allowance. Bramston v. Robins, 4 Bing. 11. As between the underwriter and the assured, the acknowledg- ment in the policy of the receipt of the premium by the broker is conclusive; Dalzell v. Mair, 1 Camp. 532; and see Xenos v. Wickham, L. R., 2 H. L. 296, 319 ; unless there was a fraud practised by the assured to induce the broker to give credit to him. Foy v. Bell, 3 Taunt. 493. If an agent employed to receive money, and bound by his duty to his principal to communicate to him whether the money is received or not, renders an account from time to time which contains an intentional misstatement that the money has been received, he is so far bound by that account that he cauuot make his principal refuud moneys paid to him on it. Shaw v. Picton, 4 B. & C. 729; Skyring v. Greenwood, Id. 281. A receipt may operate as an estoppel in lavour of third persons, as where a transferee of a mortgage takes the security with an indorsed receipt, without notice that the sum purporting to be secured has not in fact been advanced. Bicker- ton v. Walker, 31 Ch. D. 151, C. A.; accord. Bateman v. Hunt, (1904) 2 K. B. 530, C. A. As proof of receipts for legacies, vide Stamps ; Receipt, 2>ost, p. 272. Admissions implied from the acts of the party. .] The plaintiff's title to sue, or the character in which the plaintiff sues, or in which the defendant is sued, is frequently admitted by the acts and conduct of the opposite party ; and in some cases the admission, though not strictly an estoppel, is con- clusive. Thus, if B. has dealt with A. as farmer of the post-horse duties, it is evidence in an action by A. against B. to prove that he is such farmer. Radford v. M'lntosh, 3 T. R. 632. And see Peacock v. Harris, 10 East, 104. So in an action for slandering the plaintiff in his profession of an attorney, the words themselves, importing that the defendant would have the plaintiff struck off the roll of attorneys, were held to be an admission of the plaintiff's character of attorney. Berrymau v. Wise, 4 T. R. 366 ; Pearce v. Wliale, 5 B. & C. 38. So in the case of a libel on the plaintiff as envoy of a foreign state. Yrisarri v. Clement, 3 Bing. 432. In an action for penalties against a collector of taxes, proof of the defendant having collected the taxes is sufficient proof of his being collector, though the appointment is by warrant. Lister v. Priestley, Wightw. 67. So payment of tithes by a parishioner to the plaintiff, is evidence against the former of the plaintiff's title to the living. Chapman v. Beard, 3 Anstr. 942. Where an auctioneer has ad- vertised for sale the " property of J. S., a bankrupt," this is evidence of the bankruptcy in an action brought by the assiguee against the auctioneer for the proceeds. Maltby v. Christie, 1 Esp. 340. Where A. brings an action against B. to recover possession of land, he thereby admits B.'s possession of the land. Stanford v. Hurlstone, L. R., 9 Ch. 11G. Mere subscription of a paper, as witness, is not in itself a proof of his knowledge of its contents. Harding v. Crcthom, 1 Esp. 58. As to estoppel arising from the acts of a party, vide post, p. 76. Trustees, &c. 67 Admission by trustees ; or of persons not entitled to the suit, but interested in it.~\ An admission is evidence whether made by a trustee, or nominal party, who sues for the benefit of another; Bauerman v. Badenius, 7 T. K. 664 ; Gibson v. Winter, 5 B. & Ad. 96 ; or by husband in action by him and his wife; Moriarty v. L., Chatham, and Dover By. Co., L. K., 5 Q. B. 314 ; cited ante, p. 61 ; or by the person really interested in the suit, but not named on the record. Thus, in action on a bond conditioned for the payment of money to L. D., the declaration of L. D. that the defendant owes nothing is evidence against the plaintiff. Hanson v. Parker, 1 Wils. 257. So in an action by the master of a ship for freight, brought for the benefit of the owner, the admissions of the latter are evidence. Sinith v. Lyon, 3 Camp. 465. So in actions on policies, the declarations of the party really interested are admissible. Fer Ld. Ellenborough, Bell v. Ansley, 16 East, 143. But the statement of a cestui que trust is either wholly inadmissible against his trustee, or admissible only as to his own interest, where the trustee holds in trust, not for him only, but for others. Thus, where an action of ejectment was brought by a trustee having the legal estate in fee, and the defendant offered evidence of admissions made by the cestui que trust of a particular estate, it was considered doubtful whether such evidence could be received, inasmuch as the interest of the cestui que trust was not co-extensive with that of the lessor of the plaintiff, and the declarations were prejudicial to the remainderman. Doe d. Boiulandson v. Wainwright, 8 Ad. & E. 691. And according to May v. Taylor, 6 M. & Gr. 261, in order to make the state- ments of the cestui que trust admissible against the trustee, the interest of the cestui que trust ought to be identical with that of the trustee, and it is not enough to prove a subsisting trust without showing the nature and extent of it, or that the cestui que trust is the real party to the action, and the nominal party a mere agent. It is said in B. N. P. 237, that an "answer" by a trustee can in no case be used as evidence against cestui que trust. It is, however, probable that this passage related to evidence in equity ; for it was there only that a cestui que trust could be a party to the suit, and the trustee would be a co-defendant. Admissions by tenants of the existence of rights or easements are not evidence against their landlords. Bapendick v. Bridgwater, 5 E. & B. 166 ; 24 L. J., Q. B. 289. But where, in an action of ejectment, one of the defendants defended, in the character of landlord to the other defendants, their admissions were evidence against him. Doe d. Mee v. Litherland, 4 Ad. & E. 784. On an appeal against an order of removal, the admissions of rated inhabi- tants of a parish are evidence against that parish, for they are the parties really interested. B. v. Whitley, 1 M. & S. 636. So, in an action against the sheriff, the declarations of a party, who has indemnified the sheriff, are evidence against the defendant. Dyke v. Aldridge, cited 7 T. R. 665. So in trover for a deed, which the defendant detained at the request of W., and in the detainer of which W. was substantially interested, the declarations of W. in favour ^f the plaintiff's claim were held admissible. Harrison v. Vallance, 1 Bing. 45; and see Robson v. Andrade, 1 Stark. 372. So the declarations of the party for wlmse benefit the plaintiff sues on a bill; Welstead v. Levy, 1 M. & Rob. L38; or of a party from whom he received the bill or note when overdue, arc evidence against the plaintiff'. Beaiichamp v. Barry, 1 B. & Ad. 8'.i. Admissions by one of several trustees will not affect his co-trustees where they are not all personally liable. Daoics v. Ridge, '■', Esp. 101. The declarations of a party proved to be a joint contractor with the defendant, though not joined in the action, or though nol-prossed on a plea <>l bankruptcy, were admissible. Grant v. Jackson, Peake, 203; Wood v. p " |'>' S Admissions. Braddick, V Taunt. 101. But admissions by co-trespassers, or joint defendants, in actions for tort, are not generally evidence except against them- selves, unless there be proof of common motive and object, and the declarations relate to them. Daniels v. Potter, M. & M. 501; and see the observations in It. v. llardivick, 11 East, 578. Nor are they evidence in actions ex contractu, unless they relate to a matter in which there is an identity of interest: thus where the plaintiff in covenant alleged an eviction by two defendants under a prior lawful title, an admission by one of the defendants after eviction was held no evidence of such title, although the defendants were co-executors of the covenanter, and had joined in the eviction. Fox v. Waters, 12 Ad. & E. 43. An admission by a private individual of a corporation is not evidence against the corporate body. London, Mayor of, v. Long, 1 Camp. 23. But where a corporation sues for a disturbance in exercising a corporate office, what is said by the officer respecting the exercise of it is evidence against the corporation. Id. 25, per Ld. Ellenborough. As to admissions by the agents of corporations and companies, see Admissions by agents, post, pp. 69, 70. Where plaintiff sueel as administrator durante absentia of the executor, the admissions of the executor were held inadmissible against the plaintiff. Rush v. Peacock, 2 M. & Bob. 162. In a suit by assignees of bankrupt, admissions by them before their appointment were received in evidence against tbem by Tiudal, C.J., in Smith v. Morgan, Id. 257 ; but they were rejected, by Abbott, C. J., in a previous case of Fenwiclc v. Thornton, M. & M. 51. In Legge v. Edmonds, 25 L. J., Oh. 125, letters written by a defendant, sued as administratrix, containing admissions made by her before letters ot administration had been taken out, were rejected as evidence against her. Berhaps the admissibility of statements made by executors, assignees, and others filling an official character, but before they were invested with that character, will be found to depend on the nature of the facts stated by them. So an admission, before probate, by an executor may perhaps be entitled to more consideration than the admission of a mere strauger who has afterwards obtained letters of administration, for the executor takes his title from the will. When an official manager of a company, appointed under the Winding- up Act, 11 & 12 V. c. 45, was substituted as defendant by order in Chancery, instead of a shareholder D., who had been sued by a creditor of the company "as nominal defendant," it was held that the declarations of D., while defendant, were not evidence against the official manager. Armstrong v. Normandy, 5 Exch. 409. The decision here turned on the misnaming of D. on the record as " nominal defendant only." Admissions by guardian and prochein amy.'] The admissions of a guardian are not evidence against an infant who sues by his guardian. Cowling v. Ely, 2 Stark. 366 ; Eggleston v. Spehe, 3 Mod. 258. Nor the admission of prochein amy. Webb v. Smith, By. & M. 106. Admissions by agents and servants.] Where a party to the suit directly or impliedly constitutes a third person his agent for the purpose of an admission, the admission so made is evidence. Thus, if a person agree to admit a claim, provided J. S. will make an affidavit in support of it, such affidavit is proof against him. Lloyd v. Willan, 1 Esp. 178 ; Stevens v. Thacker, Beake, 187. And it is conclusive in an action founded on the special agreement. Amy v. Andreivs, Freem. 133. But see Garnet v. Ball, 3 Stark. 160. So if the vendee of goods deny having received them, but add, " If the carrier's servant says he delivered the goods, I will pay you," the answer of the servant when applied to on the subject may 1 e given in evidence. Daniel v. Pitt, 1 Camp. 366, n. ; Williams v. Lines, Id. 364. In an By Agents and Servants. 69 action for the loss of a horse through the defendant's negligence in not fencing a shaft, defendant consented to pay compensation if a miners' jury should say the shaft was his; held, that the finding of such jury was evidence against him of negligence, though not conclusive. Sybray v. White, 1 M. & W. 435. With regard to the admissions of agents in general, the rule is this : When it is proved that A. is agent of B., whatever A. does, or says, or writes, in the making of a contract as agent of B., is admissible in evidence against B., because it is part of the contract which he makes for B., and which therefore binds B. ; but it is not admissible merely as the asent's account of what has passed. Per Gibbs, J., Langhorn v. AUnutt, 4 Taunt. 519. Thus the declaration of a servant employed to sell a horse is evidence to charge the master with a warranty, if made at the time of sale; but statements made at any other time are not admissible against him. Helyear v. JIawke, 5 Esp. 72. So where the servant of a horsedealer, who was employed to take a horse to the stables of the purchaser, had signed a receipt containing a warranty, this receipt without proof of the servant's authority to give a warranty was rejected in an action against his master. Wuodin v. Burford, 2 Cr. & M. 391. An admission by a servant, in a transaction not relating to the business in which he is employed, is not evidence against his master. Thus where a pawnbroker's shopman was heard to state that his master had lent 200?. at 5 per cent, on the security of certain plate, this was held inad- missible as against the master. Garth v. Howard, 8 Bing. 451. But if the statement had been made by him in the course of a transaction in the ordinary course of a pawnbroker's business, it would have been different. Id. 543; Schumack v. Loch, 10 B. Moo. 39. The letters of an agent to his principal, containing a narrative of past transactions in which he had been employed, are not admissible in evidence against the principal. Kahl v. Jansen, 4 Taunt. 565 ; Fairlie v. Hastings, 10 Yes. 128 ; Betham v. Benson, Gow, 45. An admission by a person who has generally managed A.'s landed property, and received his rents, is not evidence against A. as to his employer's title, there being no other proof of his agency ad hoc. Ley v. Peter, 3 H. & N. 101 ; 27 L. J., Ex. 239. So in an action against a surety, the admissions or declarations of the principal, to whom goods have been sent by the plaintiff at the defendant's request, are not evidence against the defendant either as to the receipt of the goods, or as to other facts respecting them. Evans v. Beattie, 5 Esp. 26 ; Bacon v. Chesney, 1 Stark. 192. But a letter from an agent abroad stating the receipt of money, coupled with the answer of the principal directing the disposition of the money, will be evidence of the receipt by the principal. Contes v. Bainbridge, 5 Bing. 58. And a letter from the master of a ship to her owners has been held admis- sible against them, with regard to the facts, but not to the opinions therein Stated. The Bolway, 10 P. D. 137. The admissions of an under-sheriff are evidence against a sheriff, for he is the general agent of the sheriff; Drake v. Sykes, Y T. R. 117 ; but not unless they accompany an act done, or they tend to charge himself ; he being the real party in the cause. Snoivball v. Ooodricke, 4 B. & Ad. 541. The admissions of a bailiff are evidence against the sheriff, like the statements of any other agent, only when they form part of the transaction. North v. Miles, 1 Camp. 389. The admissions of a surveyor of a corporation respecting a house belonging to the corporation, are evidence against the latter in an action for an injury to the plaintiff's house by works done on the defendant's premises. Peyton v. S. Thomas's Hospital, 3 M. & Ry. 625, n.; 3 I '. .V I'. 303; and see London, Mayor of, v. Long, 1 Camp. 25, cited ante, ■p. 68; and /,'. v. Adder- bury, East, 5 Q. B. 187. Kvidence may be given against companies, of 70 Admissions. admissions made by their directors or agents relating to matters within the scope of their authority. In Meux's Executors' Case, 2 D. M. & G. 522, a letter written by the secretary of a company by order of the acting directors, stating the number of shares held by M., was admitted on behalf of his executors, in proceedings against them. See also National Exchange Co. of Glasgow v. Drew, 2 Macq. 103. But a statement made by the chairman of a company incorporated under the Companies Act, 1862, at a general meeting of the company, cannot be used as an admission against the company. In re Devala Provident Gold Mining Co., 22 Ch. D. 593. And the secretary of a projected company has not, by virtue only of his office, any power to bind the members of the provisional committee by admissions. Burnside v. Dayrell, 3 Exch. 225. In Bruff v. Gt. N. By. Co., 1 F. & F. 345, Willes, J., rejected an admission of the secretary of a company as to the receipt of a letter. And an admission by the board meeting of a company registered under 7 & 8 V. c. 110, consisting of a less number of directors than was required by the deed of settlement, was rejected in Bidley v. Plymouth Baking Co., 2 Exch. 711. In an action against an incorporated company by one of its members on a bond, entries in a book kept by the clerk of the company, to which all members by the act of incorporation had access, cannot be used against the plaintiff as an admission. Hill v. Manchester, &c, Waterworks Co., 5 B. & Ad. 866. Admissions by servants of a company as to the ferocious habits of a dog, were not allowed to bind the company, in the absence of evidence that these servants had the care of the animal. Stiles v. Cardiff S. Navigation Co., 33 L. J., Q. B. 310. As to admissibility of statements by servants of a railway company with reference to delay in delivery or loss of goods, see Gt. W. By. Co. v. Willis, 18 C. B., N. S. 748 ; 3-4 L. J., C. P. 195 ; and Kirkstall Brewery Co. v. Furness By. Co., L. R., 9 Q. B. 468, cited post, p. 648. Before the admissions of an agent can be received, the fact of his agency must be proved. This can be done by proving that the agent has acquired credit by acting in that capacity, and that he has been recognised by the principal in other instances of a similar character to that in question. In Watlcins v. Vince, 2 Stark. 368, a guarantee signed by a son for his father was admitted upon proof of the son having signed for his lather upon three or four previous occasions. But in Conrteen v. Touse, 1 Camp. 43, n., where, in an action upon a policy, a witness proved that he had often seen B. sign policies for the defendant, but was not acquainted with any instance in which the defendant had paid a loss upon a policy so subscribed, it was held that the agency was not sufficiently proved. A receipt for debt and costs, indorsed by the plaintiff's solicitor's town agent on a writ of summons, is evidence of payment against the plaintiff, without further proof of agency. Weary v. Alderson, 2 M. & Rob. 127. "Where the statements of a party's agent are admissible, the statements of the agent's interpreter, made while acting as such in the agent's presence, may be given in evidence, without calling the interpreter. Beid v. Hoskins, 5 E. & B. 729. Admissions by partner. ,] By the Partnership Act, 1890, 53 & 54 V. c. 39, s. 15, " An admission or representation made by any partner concerning the partnership affairs, and in the ordinary course of its business, is evidence against the firm." After prima facie evidence of partnership, as to which vide post, p. 556, the declaration of one partner is evidence against his co- partners as to partnership business ; Nicholls v. Dowding, 1 Stark. 81 ; Grant v. Jackson, Peake, 203, post, p. 200; though the former is no party to the suit. Wood v. Ilnuldick, 1 Taunt. 104 ; but see Booth v. Quin, 7 Price, 198, post, p. 200. And it is evidence, though made after the dissolution of By Partner.— Wife. 71 partnership, if made as to a transaction which took place hefore the dissolu- tion ; Wood v. Braddich, ante, p. 70 ; hut not so as to bind his co-partners as to a transaction which occurred previously to the partnership, unless a joint responsibility be proved as a foundation for the evidence. Catt v. Howard, 3 Stark. 3. Admissions made by one of several partners after the dissolution of the partnership, are admissible to prove payment, after the dissolution, of a debt due to the partnership. Pritckard v. Draper, 1 Russ. & Myl. 191. A declaration by one of several partners, joint plaintiffs, that goods, the subject-matter of the suit, were his separate property, is evidence against all the plaintiffs ; Lucas v. De la Cour, 1 M. & S. 249 ; but an admission by a partner as to a subject, not of co-partnership, but of joint ownership of a vessel, is not admissible against his co-partner. Jaggers v. Binnings, 1 Stark. 64. In an action against two partners on a deed purporting to be executed by one defendant " for self and partner," a subsequent acknowledgment of the deed by the other defendant was held not evidence to prove the actual execution by him, without producing the authority under seal. Steiglitz v. Eggington, Holt, N. P. 141. But see Ball v. Dunsterville, 4 T. R. 313, p>ost, p. 136. And in Harvey v. Kay, 9 B. & C. 356, letters of a member of a joint stock company, admitting that he was a partner in it, were received as proof of that fact, without any evidence of his having executed the deed of settle- ment by which the company was formed. A statement by one who became partner after the cause cf action arose, is not evidence against his co-partner who sues on it. Tunley v. Evans, 2 D. & L. 747, Wightman, J. Admissions by wife.] In general, the admissions of a wife will not affect the husband. Thus, the wife's receipt for money, or admission of a trespass, is not evidence against the husband. Hall v. Hill, Stra. 1094 ; Denn v. White, 7 T. R. 112. But where the wife can be considered the agent of her husband, her admissions may be received as evidence against him. Emerson v. Blonden, 1 Esp. 142 ; Anderson v. Sanderson, 2 Stark. 204 ; S. C, Holt, N. P. 591. Thus, in an action for goods sold aud delivered at the defendant's shop, an offer made by his wife to settle the demand is admissible in evidence, if she were accustomed to serve in the shop, and to transact the business in her husband's absence ; Clifford v. Burton, 1 Bing. 199; and her admission, under such circumstances, will take a case out of the Statute of Limitations. Palethorp v. Furnish, 2 Esp. 511, n. But her admissions are not evidence of the terms of her husband's tenancy of the shop, in a suit for the rent, although she is carrying on business in it by her husband's authority in his absence. Meredith v. Footner, 11 M. & W. 202. A wife's declaration that she agreed to pay 4.s. a week for nursing a child will charge the husband, it being a matter usually transacted by women. Anon., Stra. 527. In an action against defendant, as administrator of his wife, for money lent to her before marriage, admissions of the debt made by her during coverture are evidence. Per Ld. Tenterden, C.J., Humphreys v. Boyce, 1 M. & Rob. 140. But in an* action by husband and wife for a loan by the wife dum sola, her admissions, after coverture, negativing the debt, were refused by Ld. Kenyon, C.J. Kelly v. Small, 2 Esp. 716. So, when- plaintiff sued, with bis wife as executrix, her declarations were inadmissible. Alban v. Pritcheti, 6 T. R. 680. A joint answer in Chancery by husband and wife was not evidence ■\" dust her, being considered as the answer of the husband alone. Elston v. Wood, 2 My. & K. 678. In Shdberry v. Briggs, 2 Vern. 2 lit, in a bill against husband and wife for payment of a legacy under a will, of which the wife was executrix, the answer was admitted against, the wife after the death of her husband. Sm Wrottesley v. Bendish, 3 1'. Wins. 238. In the case of a wife sued, with her husband, in respect of her separate estate, it would seem that her admissions, but not those of her husband, would be evidence '- Admissions. against Lor. Where the conduct of the wife is in question, her declarations have, in some cases, been held admissible for her husband, in an action against him. Thus, iu an action for necessaries supplied to the wife, the defence being that the husband had turned her out of doors for adultery, her declarations as to the adultery, made previously to her expulsion, were admitted by Abbott, C.J., Walton v. Green, 1 C. & P. G21 ; this decision, however, as reported, seems unsatisfactory. See 1 Taylor, Evid., 10th ed. § 7G7, n. In an action for seduction, declarations of defendant's wife, tending to show that she aided and colluded with the defendant in seducing the plaintiffs daughter, were admitted as evidence in aggravation. Per Gurney, B., Knowles v. Compigne, Winton Sum. Ass. 1835. Admissions by counsel or solicitor.} In Colledge v. Horn, 3 Bing. 122, Burrough, J., expressed an opinion that if one of the parties to a cause were in court and had heard an admission made by his counsel in his opening statement, this was evidence against him. In Holler v. Worman, 2 F. & F. 165, where, in an action of detinue, it was proved that the defendant's counsel had stated, while attending a summons at chambers, that his client had the papers in his possession ; this was admitted at the trial to negative the plea of " not possessed." When the counsel in a cause so conducts it as to lead to an inference that a certain fact is admitted by him, the jury may take it as proved ; Stracy v. Blake, 1 M. & W. 168 ; and the judge is also warranted in acting upon such tacit admission. Semble, Doe d. Child v. Roe, 1 E. & B. 279. So, where a fact is assumed at Nisi Prius for the purpose of supporting one issue, it must be taken as admitted for the purpose of disproving another issue. Semble, Bolton v. Sherman, 2 M. & W. 403. And if counsel for the plaintiff open a fact from which his client's possession of a document may be presumed (as payment of a cheque), though he offers no proof of it, yet defendant may give secondary evidence of it after notice to produce, without further proof of the plaintiff's possession. Buncombe v. Daniell, 8 C. & P. 222. Where, after a verdict subject to a special case, a new trial has been directed, the special case, signed by counsel on both sides, is evidence of the facts there stated. Van Wart v. Wolley, By. & M. 4. In a case where the statement of counsel as to the limitations of a deed on a former trial was offered as secondary evidence of its contents, the admissibility of it was considered questionable, even if the parties had been the same ; but it was rejected on the ground that the defendant, against whom it was offered, was different. Doe d. Gilbert v. Ross, 7 M. & W. 102. An admission made by the solicitor of one of the parties to prevent the necessity of proving a fact, on the trial is sufficient evidence of that fact; Young v. Wright, 1 Camp. 141; as where he admits the handwriting of an attesting witness. Milward v. Temple, Id. 375 ; and see Truslove v. Burton, 9 B. Moore, 64. See also Rules, 0. xxxii. r. 1, cited ante, p. 62. Admissions made by the defendant's solicitor, when making proposals on behalf of his client respecting the plaintiffs demand (the solicitor refusing to be examined), are evidence against the defendant ; and proof that they were made by the solicitor on the record will be sufficient to establish his agency. Gains/ord v. Grammar, 2 Camp. 9. Put an admission made in a letter written by a solicitor (who was afterwards the solicitor in the cause) before the commencement of the action, is not evidence against the defendant, ■without some proof of his having authorized the communication. Wagstaff v. Wilson, 4 B. & Ad. 339 ; Ley v. 1', ter, 3 H. & N. 101, 111 ; 27 L. J., Ex. 239, 242, per Watson, P. See also Blackstone v. Wilson, 27 L. J., Ex. 229. And an admission made in the course of conversation between the two solicitors respecting the cause, but not with a view to dispense with proof, cannot be given in evidence. Petch v. Lyon, 9 Q. B. 147. See Parkins v. Under Notice to Admit. 73 Hawhshaiv, 2 Stark. 239. An undertaking to appear for " Messrs. T. & M., joint owners of the sloop A.," given by the solicitor on the record, is evidence of the joint ownership. Marshall v. Cliff, 4 Camp. 133. An agreement by the solicitor " to admit on the trial of this cause," &c, may be used on a new trial; Elton v. Larkins, 1 M. & Rob. 196; even though the solicitor retract it before the new trial. Doe d. Wetherell v. Bird, 7 C. & P. 6. Admission under a notice to admitJ] By Rules, 1883, 0. xxxii. r. 2, "Either party may call upon the other party to admit any document, saving all just exceptions ; and in case of refusal or neglect to admit after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the cause or matter may be, unless at the trial or hearing the court or a judge shall certify that the refusal to admit was reasonable, and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the taxing officer, a saving of expense." By rule 4, " Any party may, by notice in writing, at any time not later than nine days before the da} r for which notice of trial has been given, call on any other party to admit, for the purposes of the cause, matter, or issue only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the court or a judge, the costs of proving such fact or facts shall be paid by the party so neglectiDg or refusing, whatever the result of the cause, matter, or issue may be, unless at the trial or hearing the court or a judge certify that the refusal to admit was reasonable, or unless the court or a judge shall at any time otherwise order or direct. Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular cause, matler, or issue, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giviog the notice ; provided also, that the court or a judge may at any time allow any party to amend or withdraw any admission so made on such terms as may be just." By rule 7, " An affidavit of the solicitor or his clerk, of the due signature of any admissions made in pursuance of any notice to admit documents or facts shall be sufficient evidence of such admissions, if evidence thereof be required." It would seem that "sufficient evidence," in rule 7, means prima facie evidence only; see Barraclough v. Qreenhough, L. I!., 2 Q. B. 612, Ex. Ch. ■post, p. 151. Forms of notice to admit facts and of admissions thereunder are given by rule 5, and App. B., Forms Nos. 12, 13. A form of notice to admit docu- ments is given by rule 3, and App. B., Form No. 11 ; but this form is only applicable where the document is in the custody of the party giving the notice. See Butte)- v. Chapman, 8 M. & YV. 388. Prior to R. G. EL T. 1853, r. 29, which gave a form identical with the above, by rule II. T. 4 W. 4, ' a judge's order to admit was required. The judge is not now called upon to interfere except on application for a certificate by the refusing party at the trial, and only in such case nerd the notice to admit be proved. The above provisions apply to every document a party means to adduce in evidence, and are not confined to documents in his custody or control ; Rutter v. Chapman, supra, in which case the costs of proving signatures to a petition for a charter, under 1 V. c. 71, s. 19, were not allowed, no notice to admit having been given. It seems that "any document" includes a foreign judgment. Smith v. Bird, 3 Dowl. 641. It was held under the old rules that a variation in the description of the instrument, if not of a nature to mislead, would not release the party from the obligation to admit it ; as where the date of a bill, annexed to the order, 74 Admissions. was misdescribed. Field v. Fhmming, 5 Dowl. 450 ; Bittleston v. Cooper, 14 M. & W. 399. And where the order was to admit "the counterpart of a lease," and the instrument produced, and referred to in the order, was in fact an original lease stamped as a counterpart ; held, that the party was bound to admit the lease, and could not object to the stamp. Doe d. Wright v. Smith, 8 Ad.& E. 255. An order to admit an acceptance " by B., for the defendants," was held to operate as an admission that B. had power to accept for defendants. Wilkes v. Hopkins, 1 C. B. 737. So an admission of letters written by A., " the agent of the defendant," is an admission of the agency. Hunt v. Wise, 1 P. & F. 445. The admission by judge's order was held to waive any objection to interlineations in the document. Freeman v. Steggall, 14 Q. B. 202. An admission of an acceptance of a bill, without a saving of all just exceptions, dispenses with the necessity of producing the bill on the trial. Chaplin v. Levy, 9 Exch. 531 ; 23 L. J., Ex. 117. But see Sharpies v. Richard, 2 H. & N. 57 ; 26 L. J., Ex. 302. If that saving had not been omitted, the bill must have been produced, and the want of a stamp might have been objected to. Vane v. Whittington, 2 Dowl. N. S. 757. A saving of "just exceptions" does not allow exceptions to the authenticity of any part of letters admitted. Haiok v. Freund, 1 F. & P. 295, Byles, J. The party must serve the proper notice, although the document may be alleged by the opposite party, in his pleadings or otherwise, to be a forgery, and although the opposite party may have notified his intention not to admit it. Spencer v. Barough, 9 M. & W. 425. Admissions made under the above provision are, of course, conclusive at the trial ; but facts incidentally stated in the description of the document as admitted, are not to be taken as also conclusively admitted, though the description may be prima facie evidence against, the party admitting. Filgrimv. Southampton & Dorchester By. Co., 18 L. J., C. P. 330. The description of a letter respecting a certain field, " then in the plaintiff's possession," was admitted as evidence, but not conclusive, of such possession. S. C. This decision seems to qualify some of those cited above. The party called upon to make admissions should be cautious not to admit more than the mere document mentioned in the notice, and to guard against being inadvertently drawn into admissions of the kind referred to in Wilkes v. Hopkins, Hunt v. Wise, and Pilgrim v. Southampton & Dorchester By. Co., supra. An admission, under notice, of the accuracy of a copy, will not dispense with notice to produce the original, or with other pre-requisites for the reception of secondary evidence. See Sharpe v. Lamb, 11 Ad. & E. 805. Admissions by payment of money into court.~\ The practice as to payment of money into court is now regulated by Bules, 1883, O. xxii. By rule 1, the defendant may, in any action brought to recover a debt or damages, " pay into court a sum of money by way of satisfaction, which shall be taken to admit the claim or cause of action in respect of which the payment is made ; or he may with a defence denying liability (except in actions or counter-claims for libel or slander) pay money into court, which shall be subject to the provisions of rule 6, provided that in an action on a bond under the statute, 8 & 9 W. 3, c. 11, payment into court shall be admissible to particular breaches only, and not to the whole action." By rule 2, " pay- ment into court shall be signified in the defence, and the claim or cause of action in satisfaction of which such payment is made shall be specified therein." By rule 6, " when the liability of the defendant, in respect of the claim or cause of action in satisfaction of which the payment into court has been made, is denied in the defence, the following rules shall apply ":—... By Payment of Money into Court. — By Recital. 75 (c) If the plaintiff" does not accept, in satisfaction of the claim or cause of action in respect of which the payment into court has been made, the sum so paid in, but proceeds with the action in respect of such claim or cause of action, or any part thereof, the money shall remain in court and be subject to the order of the court or a judge, and shall not be paid out of court except in pursuance of an order. If the plaintiff proceeds with the action in respect of such claim or cause of action, or any part thereof, and recovers less than the amount paid into court, the amount paid in shall be applied, so far as is necessary, in satisfaction of the plaintiff's claim, and the balance (if any) shall, under such order, be repaid to the defendant. If the defendant succeeds in respect of such claim or cause of action, the whole amount shall, under such order, be repaid to him." By rule 9, " a plaintiff may in answer to a counter-claim pay money into court in satisfaction thereof, subject to the like conditions as to costs and otherwise as upon payment into court by a defendant." As to the question how far payment into court, simpliciter, under 0. xxii. r. 1, ante, p. 74, operates as an admission of the plaintiff's entire claim, it must be observed that 0. xxi. r. 4, provides that " no denial or defence shall be necessary as to damages claimed or their amount, but they shall be deemed to be put in issue in all cases unless expressly admitted," and 0. xix. r. 17, which requires each party to " deal specifically with each allegation of fact of which he does not admit the truth," expressly excepts damages, hence it follows that payment into court does not admit the quantum of liability where the action sounds in damages. Thus it is no admission of a total loss on a policy. Buckerv. Palsgrave, 1 Camp. 557. The effect of such payment into court may, it seems, be thus summarised : — 1. That where there is a general money claim, Hennell v. Davies (1893), 1 Q. B. 367 ; or a general and divisible allegation of wrong (as in case of trespass or trover for several articles taken or converted), Schreger v. Carden, 11 C. B. 851 ; 21 L. J., C. P. 135; payment into court does not dispense with proof of a cause of action upon the issue of damages, ultra. 2. That where the claim, whether in contract or tort, is special, and the breach single and indivisible, payment into court relieves the plaintiff from proof of any part of the cause of actioD, except so far as may happen to be necessarily incidental to the proof of damages, ultra. Ptrren v. Monmouthshire By. Co., 11 C. B. 855 ; 22 L. J., C. P. 162; Dumbletonx. Williams, 76 L. T. 81, H. S. 1897, 0. A. See further the cases collected in earlier editions of this work, e.g., the 13th (1875), pp. 79-82. As to the effect of acceptance of money paid in with a denial of liability, see Coote v. Ford, (1899) 2 Ch. 93, C. A. Admission by recital — Estoppel.~\ A recital in a deed is evidence against him who executed the deed, or any person claiming under him. Com. Dig. Evid. (B. 5). And such recital operates as an estoppel in an action founded on the deed; Carpenter v. Buller, 8 M. & W. 212 ; unless the parties in their pleading voluntarily waive it, and instead of replying the estoppel, submit the fact recited to a jurj'. Young v. Baincock, 7 C. B. 310. Thus the recital of a lease in a release is evidence of the lease against the rtdeasor, and those claiming under him. Ford v. Grey, 1 Salk. 286; Crease v. Barrett, 1 C. M. & R. 919. But in order to create an estoppel, the deed must con- tain a precise statement of the fact relied on ; e.g., in a grant of land by A., that A. was seised of the legal estate ; a covenant that the grantor had power to grant is insufficient, (leneral Finance, &c, Co. v. Liberator, &c, Building Soc, 10 Ch. D. 15; Onward Building Soc. v. Smithson, (1893) 1 Ch. 1, C. A. Where the recital in a lease has ceased to be an estoppel in consequence of its dropping, it continues to be prima facie evidence against those who claim under the parties to it. Bayby v. Bradley, 5 C. B. 396. 76 Admissions. In trespass against a sheriff, a bill of sale executed by him, reciting the writ, the taking, and the pale of the goods, is evidence against him of those facts. Woodviard v. Larking, 3 Esp. 286. So the recital of an ancient royal charter in a modern charter is evidence. Per Abbot, J., Gervisv. Gd. W. Canal Co., 5 M. & S. 78. The recitals in a deed may confine the effect of admissions in the same instrument. Lampon v. Oorke, 5 B. & A. 607. But the recital iu a bond, that the parties had agreed to execute a bond in the sum of 500?., will not confine the bond to that sum, if actually executed in the penal sum of 1,000/. Ingleby v. Swift, 10 Bing. 84. A party claiming under a certain title does not necessarily admit statements in previous deeds which make up his title; thus, where a deed, reciting the bankruptcy of A., conveys an estate to B., and B. (being a party to, but not having executed that deed) conveys the estate to another by a deed making no such recital, the above deeds are no evidence of the bankruptcy as against B. in an action concerning other lands. Doe d. Mellon v. Shelton, 3 Ad. & E. 265. A recital is not necessarily an estoppel to both parties unless the mutuality appears; if it is the statement of one party only, it estops only that party. Stroughill v. Buck, 14 Q. B. 787. Where the recital in a deed is used as an admission, it must be proved strictly, although cancelled ; Breton v. Cope, Peake, 44 ; and a recited instrument is only admitted for so much as is recited ; if any other part of it is to be proved, it must be produced and proved in the usual way. Gi/lett v. Abbott, 7 Ad. & E. 783. See further as to estoppels by deed, notes to Kingston's (Ds. of) ease, 2 Smith's L. C, 11th ed. 823 et seq. Admission by estoppel in pais.] There is a class of cases in which a party may be estopped or precluded by his wilful misstatement in pais from disputing a state of things upon the faith of which another party has been induced to act or to rely to his own prejudice. The case of Shaw v. Picton, 4 B. & C. 729, cited ante, p. 66, is an instance. So the cases of Pickard v. Sears, 6 Ad. & E. 469 ; Gregg v. Wells, 10 Ad. & E. 90 ; Freeman v. Cooke, 2 Exch. 654, established the doctrine that a voluntary misstatement of fact by A., — such as a misrepresentation of the property in goods, whereby a party, B. } is deceived, — precludes A. from denying such property in a suit between A. and B. See on the principle of these cases, Foster v. Mentor Life Insur. Co., 3 E. & B. 48 ; 23 L. J., Q. B. 145 ; Clarke v. Hart, 6 H. L. C. 633, 655; 27 L. J., Ch. 615, 018. And this doctrine has been extended to the case of sale where the defendant has so conducted himself as uninten- tionally to induce a belief in the plaintiff that defendant had bought the goods. Cornish v. AUngton, 4 H. & N. 549 ; 28 L. J., Ex. 262. So where a negotiable security is intrusted by the owner to an agent for a specific purpose, any innocent transferee for value from the agent acquires a good title against the owner. Goodwin v. Bobarts, 1 Ap. Ca. 476, D. P. ; Bumball v. Metropolitan Bank, 2 Q. B. D. 191; Webb v. Alexandria Water Co., 21 T. L. B. 572 ; June 1st, 1905, K. B. D., post, p. %3. The propositions on estoppel in pais are summed up in the judgment in Carr v. L. & N. W. By. Go., L. R., 10 C. P. 307. See thereon Dixon v. Kennaway, (1900) 1 Ch. 833 ; Whitt church, George v. Cavanagh, (1902) A. C. 117, 130. There must be a representation of a fact ; a statement of intention is not sufficient. Citizens' Bank of Louisiana v. First National Bank of New Orleans, L. R., 6 H. L. 352. The misstatement or negligence whereby the other person is injured must lie in the transaction itself and he the proximate cause of the injury ; hi re United Service Co., L. R., 6 Ch. 212 ; Baxendale v. Bennett, 3 Q. B. D. 525, C. A.; Swan v. N. British Australasian Co., 7 H. & N. 003 ; 31 L. J., Ex. 425 ; 2 H. & C. 175 ; 32 L. J., Ex. 273, Ex. Ch. ; and the negligence must be of some dutv owing to him. S. C. : Johnson v. Credit Lyonnais Co., 3 C. P. D. 32, C. A.; Union Credit Bank v. Mersey By Estoppel. — On the Record. 77 Docks, &c, Board, (1899) 2 Q. B. 204. The estoppel may arise from an innocent misstatement. Low v. Bouverie, (1891) 3 Ch. 82, per C. A. See also Arnold v. Cheque Bank, 1 C. P. D. 578; Coventry v. Gt. E. By. Co., 11 Q. B. D. 776 ; Seton v. Lafone, 18 Q. B. D. 139 ; 19 Id. 68, C. A. ; and Bank of England v. Vagliano, (1891) A. C. 107, D. P. It does not arise where such misstatement was induced by the misrepresentation or conceal- ment of the persons to whom it was made. Porter v. Moore, (1904) 2 Ch. 367. As to an estoppel arising from silence, see McKenzie v. British Linen Co., 6 Ap. Ca. 82, D. P. ; Oyilvie v. W. Australian, &c, Cor., (1896) A. C. 257, J. C. As to that arising from the issue of a blank transfer of shares, see Williams v. Colonial Bank, 38 Ch. D. 388, C. A.; 15 Ap. Ca. 267, and cases there cited. Where a conijmny i-sues share or debenture certificates, stating that a certain person is the holder of the shares or debentures, or where they register shares in his name, this may operate as an estoppel against the company ; vide post, p. 1119. As to the effect of " certifi- cation " by a company on a transfer of their shares, that the certificates of the shares have been lodged with them, vide post, p. 1120. See further as to estoppels inpais, 2 Smith's L. C, 11th ed. 832 et seq. Admissions of the title of a person to land by accepting a tenancy, or possession of land from him, are considered post, p. 1004. Admissions on the record.'] By Rules, 1S83, 0. xix. r. 13, every allegation of fact in any pleading, " if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind, not so found by inquisition." By rule 14 " any condition precedent, the performance or occurrence of which is intended to be con- tested, shall be distinctly specified in his pleading by the plaintiff or defendant (as the case may be) ; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading." By rule 15, each party must raise " by his pleading all matters which show the action or counter-claim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality, either by statute or common law, or Statute of Frauds." By rule 17, " it shall not be sufficient for a defendant in his statement of defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counter-claim, but each party must deal specifuially with each allegation of fact of which he does nut admit the truth, except damages." Rule 13 follows in the main the old common law rule. See B. N. P. 298; Wimbish v. Tailbois, Plowd. is; Tonkin v. Crocker, 2 Lutw. 1215. Bat 1 rule 15, which requires the Stat, of Frauds to be pleaded, goes much further. It has been considered that a fact admitted on the pleadings by implication is not in every respect on the same footing as if it had been proved to the jury. Thus, if the defendant plead that a note originated in a gaming debt, and that plaintiff took it with knowledge and without consideration, and plaintiff deny any knowledge of the illegality, it has been held that he need not prove the consideration unless the defendant proves the illegality. Ed niunds v. Groves, 2 M. & W. 612. But in Bingham v. Stanley, 2 Q. B. 117, where the plea to a cheque stated an original illegal transaction and transfer to the plaintiff without consideration, to which the plaintiff replied 78 Admissions. a good consideration, on which issue was joined, the Ct. of Q. B. held that such admission on the record put the plaintiff on proof of consideration, and they dissented from the doctrine laid down by the Ct. of Exch. in the above case, viz., that facts admitted in the pleadings are not to be taken as if proved to the jury. Since the decision of this case the Ct. of Exch., in Smith v. Martin, 9 M. & W. 304, expressed their adherence to their former opinion ; and in Fearn v. Filica, 7 M. & Gr. 513, observations made by the Ct. of C. P. in argument seem to countenance the doctrine of the Exch. In Robins v. Maidstone, Vt., 4 Q. B. 815, Ld. Denman, C.J., corrected the lauguage attributed to the Ct. of Q. B. in Bingham v. Stanley, ante, p. 77, and laid down the rule that admissions in pleading of material allegations are to be taken as made for all purposes in the cause " regarding the issue arising from that pleading." This qualification will, perhaps, be found to reduce the difference of opinion between the courts. And in Carter v. James, 13 M. & W. 144, Alderson, B., expressed his opinion that Bingham v. Stanley, ante, p. 77, was rightly decided, though he could not agree with the reasons given. See also Lewis v. Parker, 4 Ad. & E. 838. It is very doubtful, however, whether since the J. Acts and the Bills of Exchange Act, 1882, s. 30 (2), post, p. 399, these decisions would now be followed. See further as to admissions on the pleadings, Blewett v. Tregonning, 3 Ad. & E. 554, 579, 583 ; Cowlishaw v. Cheslyn, 1 C. & J. 48 ; Cooke v. Blake, 1 Exch. 220 ; and Boileau v. Rutlin, 2 Exch. 665. It seems that statements made by parties in the course of their pleadings in another action are not to be used as admissions by them in a subsequent action, except where they are estoppels. As several claims or defences are often put in, contradictory admissions might be proved, if such evidence were allowed. Semble, Boileau v. Rutlin, arg., 2 Exch. 665. See also Carter v. James, 13 M. & W. 137. A plea in a discontinued action was not evidence against the defendant in another action. Allen v. Hartley, 4 Doug. 20. Suffering a judgment by default is an admission on the record of the cause of action. Thus in an action against the acceptor of a bill, the defendant, by suffering judgment by default, admits a cause of action to the amount of the bill, unless part payment be indorsed. Green v. Hearne, 3 T. R. 301. So in an action on a contract the defendant cannot, after judgment by default, insist upon the fraud of the plaintiff. E. India Co. v. Glover, 1 Stra. 612. Whole admission to be taken together.'] The whole of an admission must be taken together; therefore, where an amount rendered by the defendant is produced to establish the plaintiff's demand, it is evidence to prove both the debtor and creditor side of the account. Handle v. Blackburn, 5 Taunt. 245 ; Thomson v. Austen, 2 D. & Ry. 361. But the jury are not bound to believe both sides of the account ; therefore, where the plaintiff put in evidence an account rendered by the defendant in which he had stated a counter- claim, the plaintiff was permitted to disprove the counter-claim, and to recover the amount admitted. Rose v. Savory, 2 N. C. 145. And see Baildonv. Walton, 1 Exch. 617, cited p>ost, p. 687. Where the plaintiff put in the defendant's answer in Chancery to prove an admission, defendant had a right to have the bill read, but the judge cautioned the jury not to take the allegations as true. Pennell v. Meyer, 2 M. & Rob. 98. See Proof of Chancery proceedings, post, pp. 112 et seq. The assertion of a party, in a conversation given in evidence against him, of facts in his favour, is evidence for him of those facts. Smith v. Blandy, Ky. & M. 257. But a party cannot examine a witness, who is called to prove the conversation against him, as to unconnected statements made by him (the party) on the same occasion containiug distinct assertions of his own rights. In other words, there are Object of Evidence. 79 limits to tne general proposition that the whole of a conversation is evidence, where part is admissible. Semb. Prince v. Samo, 7 Ad. & E. 627, cited under lie-examination of witnesses, post, p. 184. OBJECT OF EVIDENCE. The object of evidence is to prove the point in issue between the parties ; and in doing this, there are three general rules to be kept in view: 1. That the evidence be confined to the issue ; 2. That the substance of the issue only need be proved ; 3. That the burden of proof lies on the party asserting an affirmative fact, if it be unsupported by any presumption of law. EVIDENCE CONFINED TO THE ISSUE. As the object of pleading is to reduce the matters in difference between the parties to distinct and simple issues, so the rules of evidence require that no proof, oral or documentary, shall be received that is not referable to those issues. All evidence of matters which the courts judicially notice, or of matters immaterial, superfluous, or irrelevant, is therefore excluded. Thus, where the inquiry is, whether A. made a qualified, or an unqualified sale of goods to B. ; and A. denies the qualification, it cannot be shown in disproof of the denial that he had sold to others the like articles subject to such qualification; and it is doubtful whether he can be asked the question, though merely to test his veracity of memory, Hollingliam v. Head, 4 C. B., N. S. 338; 27 L. J., C. P. 241. For another instance of this rule, see Hyde v. Palmer, 3 B. & S. 657 ; 32 L. J., Q. B. 126 ; and see on the Cross- examination of witnesses, post, p. 179. Facts of which the court ivill take judicial notice.'] There are many facts which the courts will notice judicially, and of which it is therefore unneces- sary to give any evidence. The following are examples : — They will judicially notice the order and course of proceedings in Parliament, Lake v. King, 1 Wms. Saund. 131 b ; the established privileges of the House of Commons, Stockdale v. Hansard, 9 Ad. & E. 1 ; Bradlaugh v. Gossett, 12 Q. B. D. 271 ; the existence of war with a foreign state, li. v. De Berenger, 3 M. & S. 67 ; the existence of a foreign state recognised by the British Government ; but not otherwise, Taylor v. Barclay, 2 Sim. 213; Berne, City of, v. Bank of England, 9 Ves. 347; Foster v. Globe Venture Syndicate, (1900) 1 Ch. 811 ; and whether a certain territory is within it; S. C. ; the several seals of the King; as the great seal, Ld. Mel utiles case, 29 How. St. Tr. 707; privy seal, privy signet, and seal of the Exchequer attached to leases of laud in its management; Lane's case, 2 Rep. 17 b. The court took judicial notice of the seal of the city of London ; Hoc d. Wood/mass v. Mason, 1 Esp. 53; so i if a seal of a superior court of Westminster. Tookcr v. Beaufort, Dk. of, Say. 297. It is said also that tin; seals of the Great Sessions ot Wales, and of the Ecclesiastical and Admiralty Courts, prove themselves ; but the cases usually cited to show this are not satisfactory. See Kempton v. Cross, Cas. temp. Ilardw. 108 (Ecclesiastical Courts); Green v. Waller, 2 Ld. Kaym. 893 (Admiralty Court) ; Olive v. Guin, 2 Sid. 145; Hardres, 118 (the Great Sessions of Wales), Com. Dig. Testm. (A. 1), (A. 2) ; which have ruled, that the seal of those courts authenticates their proceedings ; but not that it proves itself; nor does it follow, that where a statute authorises the use of a seal, the court is to take notice of the seal without proof of it. 80 Evidence confined to the Issue. The following seals are required by statute to be judicially noticed: the Chancery Common Law Seal, 12 & 13 V. c. 109, s. 11 ; the Seal of the Enrol- ment Office in Chancery, 12 & 13 V. c. 109, s. 17 ; of the Probate Court, 20 & 21 V. c. 77, s. 22 ; of the Divorce Court, 20 & 21 V. c. 85, s. 13 ; of the Admiralty Court, 24 & 25 V. c. 10, s. 14 ; of the Bankruptcy Court, 46 & 47 V. c. 52, s. 137; the Wafer Great Seal, and Wafer Privy Seal, 40 & 41 V. c. 41, ss. 4, 5 (3a) ; the Patent Office Seal, 46 &, 47 V. c. 57, s. 84 ; the Seal of the Railway and Canal Commission, 51 & 52 V. c. 25, s. 2. By Rules, 1883, O. lxi. r. 7, " all copies, certificates, and other documents appearing to be sealed with the seal of the Central Office shall be presumed to be office copies or certificates or other documents issued from the Central Office, and if duly stamped may be received in evidence, and no signature or other formality, except the sealing with a seal of the Central Office, shall be required for the authentication of any such copy, certificate, or other document." By the J. Act, 1873, s. 61, writs and documents, and all exemplifications and copies thereof, purporting to be sealed with the seal of a- district registry of the High Court of Justice, shall be received in evidence without further proof. The seal of a notary public has been judicially noticed ; Bayley on Bills, 6th ed. 490; Anon., 12 Mod. 345; Cole v. Sherard, 11 Exch. 482; and see stat. 52 & 53 V. c. 10, s. 6, infra; see, further, Effect of notarial and consular certificates, 'post, p. 215. By the 14 & 15 V. c. 99, s. 10, "Every document which by any law now in force, or hereafter to be in force, is or shall be admissible in evidence of any particular in any court of justice in Ireland, without proof of the seal, or stamp, or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same, shall be admitted in evidence to the same extent, and for the same purposes in any court of justice in England or Wales, or before any person having in England or Wales by law, or by consent of parties, authority to hear, receive and examine evidence, without proof of the seal or stamp, or signature authen- ticating the same, or of the judicial or official character of the person appear- ing to bave signed the same." By the Commissioners for Oaths Act, 1889 (52 & 53 V. c. 10), s. 3 (1), " Any oath or affidavit required for the purpose of any court or matter in England, or for the purpose of the registration of any instrument in any part of the United Kingdom, may be taken or made in any place out of England before any person having authority to administer an oath in that place. (2) In the case of a person having such authority otherwise than by the law of a foreign country, judicial and official notice shall be taken of his seal or signature affixed, impressed, or subscribed to or on any such oath or affidavit." By sect. 6 (1), " Every British ambassador, envoy, minister, charge d'affaires, and secretary of embassy or legation exercising his functions in any foreign country, and every British consul-general, consul, vice-consul, acting-consul, pro-consul, and consular agent, acting consul-general, acting vice-consul, and acting consular agent " (54 & 55 V. c. 50, s. 2), "exercising his functions in any foreign place may, in that country or place, administer any oath and take any affidavit, and also do any notarial act which any notary public can do within the United Kingdom ; and every oath, affidavit, and notarial act administered, sworn, or done by or before any such person shall be as effectual as if duly administered, sworn, or done by or before any lawful authority in any part of the United Kingdom. (2) Any document purporting to have affixed, impressed, or subscribed thereon or thereto the seal and signature of any person authorized by this section to administer an Facts of which the Court will take Judicial Notice. 81 oath in testimony of any oath, affidavit:, or act being administered, taken, or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of that person, or of the official character of that person." By sect. 11, "In this Act, unless the context otherwise requires, 'oath' includes affirmation and declaration; 'affidavit ' includes affirmation, statu- tory or other declaration, acknowledgment, examination, and attestation or protestation of honour ; ' swear ' includes affirm, declare, and protest." Sect. 12 repeals 18 & 19 V. c. 42, s. 3 ;• 15 & 16 V. c. 86, s. 22 ; and 21 & 22 V. c. 95, s. 31. Sects. 3, 6, and 11, ante, p. 80 and supra, replace and extend the provisions of these repealed sections, and avoid the difficulties that arose thereunder. Rules, 1883, O. xxxviii. r. 6, which relate to the swearing of affidavits and their proof, seems also to be replaced by 52 & 53 V. c. 10, ss. 3, 6, ante, p. 80. There are numerous provisions which make copies of documents, authenti- cated by the seal of a court or public body, good evidence without further proof. See post, pp. 98 et seq. By the 8 & 9 V. c. 113, s. 2, " All courts, judges, justices, masters in chaucery, masters of courts, commissioners judicially acting, and other judicial officers shall henceforth take judicial notice of the signature of any of the equity or common law judges of the superior courts at Westminster, provided such signature be attached or appended to any decree, order, certificate, or other judicial or official document." This section applies when the signature is affixed by a stamp in the usual manner. See Blades v. Lawrence, L. R., 9 Q. B. 374. By the Bankruptcy Act, 1883 (46 & 47 V. c. 52), s. 137, judicial notice shall in all legal proceedings be taken of the seal and of the signature of the judge or registrar of any court having jurisdiction in bankruptcy. By sect. 127, general rules and orders made under the Act are to be judicially noticed. See also sect. 140, as to orders and certificates issued by the Board of Trade. By the Railway and Canal Traffic Act, 1888 (51 & 52 V. c. 25), s. 20, general rules made by the railway and canal commission under that Act, for carrying it into effect, are to be judicially noticed. By 52 & 53 V. c. 30, s. 6 (2), the seal of the Board of Agriculture shall be "judicially noticed, and such seal shall be authenticated by the signature of the president," &c. See also sect. 7, as to orders and certificates. This Board is now styled the Board of Agriculture & Fisheries; 3 E. 7, c. 31. Similar provision is made by 62 & 63 Vict. c. 33, s. 7, with respect to the Board of Education. By the Land Transfer Act, 1875 (38 & 39 V. c. 87), s. Ill, rules made thereunder are to be judicially noticed. By the Patents, Designs, and Trade Marks Act, 1883 (46 & 47 V.c. 57), s. 96, certain certificates purporting to ba under the hand of the comptroller of patents are prima facie evidence ; but by the Trade Marks Act, 1905, 5 E. 7, c. 15, ss. 51, 73, such certificates so far as they relate to trade marks are now to be under the hand of the registrar of trade marks. See further Id. s. 52, post, p. 107. Under the Fisheries Acts (46 & 47 V. c. 22, s. 17 ; 56 & 57 V. c. 17, s. 8 & Id. c. 23, s. 3), documents drawn up under those acts are admissible as evidence of the facts therein stated, if purporting to be signed by the officers named in the respective sections. There is no doubt that the existence of all the superior courts will be judicially noticed; Treijany v. Fletcher, 1 Ld. Raym. 154; and so of course will that of all courts established by Act of Parliament. In Dobson v. Bell, R. — VOL. I. G 82 Evidence confined to the Issue. 2 Lev. 170, and Pugh v. Robinson, 1 T. K., 118, it was stated, generally, that the practice of the superior courts would be judicially noticed; but in ( 'a/dwell v. Hunter, 10 Q. B. 86, Ex. Ch., Maule, J., seemed inclined to doubt whether, the jury having found the practice to be one way, the court could hold it to be another, when the practice was not prescribed by statute, or by the common law, by which latter expression he seems to mean immemorial usage, as distinguished from modern usage. The doubt is altogether not very clearly expressed, and Parke, B., appears not to have assented to it. The courts formerly took notice of the law of England as administered in the Court of Chaucery. Sims v. Marryatt, 17 Q. B. 28 L; 20 L. J., Q. B. 454. But the practice of that court was proved by oral evidence, as in Dicas v. Brougham, Ld., 1 M. & Hob. 309, where Ld. Eldon was called as a witness to prove that practice, and in Tucker v. Inman, 4 M. & Gr. 1040, where equity counsel were called for a similar purpose. In Place v. Potts, 8 Exch. 705 ; 22 L. J., Ex. 269, the court informed itself by private inquiry as to the jurisdiction of, and proceedings in the Court of Admiralty ; which is the same thing as taking judicial notice of it. The court took a similar course with reference to the practice in the Enrolment Office of the Court of Chancery in Doe d. Williams v. Lloyd, 1 M. & Gr. 671. Now under the J. Act, 1873, s. 24, all the courts constituted under that Act are to give effect to every equitable estate, right, and ground of relief. It would seem therefore that every judge of the High Court is bound at Nisi Prius to take judicial notice of the practice of the several divisions of the court. In Pilkington v. Cooke, 16 M. & W. 615, the court refused to take judicial notice of when an order of the judges, allowing a scale of fees to be taken by sheriffs, was made. The courts take notice of the diocese in which the superior courts at West- minster are situate, Adams v. Savage, 6 Mod. 134; the privileges of their officers, including those of solicitors, Stokes v. Mason, 9 East, 426 ; Ogle v. Norcliffe, 2 Ld. Raym. 869; the beginning and end of terms, Estwick v. Cooke, Id. 1557; the King's proclamation, at least if the Gazette or other authorized copy be produced, Van Omeron v. Doivick, 2 Camp. 41; Dupays v. Shepherd, 12 Mod. 216 ; and see post, pp. 105, 106 ; they will take notice of the different counties, palatinates, and counties corporate, in England, 2 Inst, 557 ; DeybeVs case, 4 B. & A. 248 ; P. v. S. Maurice, 16 Q. B. 908 ; 20 L. J., M. C. 221 ; the existence of the two English universities, and of the purposes of their institution, viz., religion and learning, Re Oxford rate, 8 E. & B. 184 ; the days of festivals appointed by the calendar of the Church of England, Brough v. Perkins, 6 Mod. 81 ; the number of days in a particular month, 1 Rol. Ab. 524 ; that a particular day of the month in* a year falls on Sunday, Hanson v. Shackelton, 4 Dowl. 48; that a place lies east or west of Greenwich, and that its true time therefore differs from that of Greenwich, Curtis v. Marsh, 28 L. J., Ex. 36, per Pollock, C.B. ; that a colony, or place therein, is not in England, Cooke v. Wilson, 1 C. B., N. S. 153 ; 26 L. J., C. P. 15; that the value of money has diminished since the time of Richard I., Bryant v. Foot, L. R., 3 Q. B. 497, Ex. Ch. per Kelly, C. B. In construiug a marine policy, the court will take judicial notice of what appears on the admiralty chart of the portion of the sea to which the insurance relates ; Birrell v. Dryer, 9 Ap. Ca. 345-347, 353, D. P. A company incorporated by public statute will be noticed, and its identity with the one named in the pleadings will be assumed. MacUregor v. Dover By. Co., 18 Q. B. 618, 627 ; Church v. Imperial Cas Co., 6 Ad. & E. 856. When any facts are notified by a public Act of Parliament, it seems that they must be judicially noticed ; thus the courts will notice that the Isle of Ely is a franchise in the nature of a riding, liable to the repair of its bridges Facts of which the Court will take Judicial Notice. 83 since 7 W. 4 & 1 V. c. 53. R. v. Ely, 15 Q. B. 827. In R. v. Anderson, 9 Q. B. 663, the court took judicial notice that the assessor and collector of the land-tax assessed taxes were " public annual " officers within the meaning of the 3 W. & M. c. 11, s. 6. The cuurts will not notice judicially the nature and jurisdiction of a local inferior court, Moravia v. Sloper, Willes, 37; nor Scotch, colonial, or foreign law, vide Proof of foreign laiv, post, p. 120; nor particular customs, as those of London, Argyle v. Hunt, Stra. 187 ; unless duly certified by the recorder, Blacquiere v. Hawkins, 1 Doug. 378 ; Piper v. Chappell, 14 M. & W. 624 ; as to which see 1 Taylor Ev. 10th ed. § 5, pp. 7, 8 ; nor that a particular town is within a certain diocese, R. v. Sympson, 2 Ld. Eaym. 1379. It is indeed said, in the report of Adams v. Savage, Id. 851, that the courts notice the "limits of ecclesiastical jurisdiction; " but the report in 6 Mod. 134, shows only that the courts at Westminster will take notice iu what diocese they are, and that there is an ecclesiastical division of England into provinces and dioceses. They will not notice the local situation of a town or a street in a county, Deybel's case, 4 B. & A. 243 ; Humphreys v. Budd, 9 Dowl. 1000 ; nor that part of the Tower of London is within the city of London, Brune v. Thompson, 2 Q. B. 789 ; nor that a particular town (as Dublin) is in Ireland, Kearney v. King, 2 B. & A. 303 ; sed quaere ? for this appears in several Acts of Parliament. Though the courts took judicial notice of the articles of war which were printed by the King's printer, Bradley v. Arthur, 4 B. & C. 304 ; R. v. Withers, cited 5 T. R. 446, and are now bound to do so by the Army Act, 1881, s. 69, yet the book called " Rules and Regulations for the Government of the Army " will not be noticed. Bradley v. Arthur, supra. The courts would not formerly notice the seal or proceedings of a foreign court ; Henry v. Adey, 3 East, 221 ; Ganer v. Lanesborough, Lady, Peake, 17; but this is altered by the 14 & 15 V. c. 99, s. 7, cited post, p. 100. The courts are bound to take notice of the law and privilege of the Stannaries. Co. Litt. lib; Gaved v. Martyn, 19 C. B., N. S. 732, 757 ; 34 L. J., C. P. 353, 362, per Erie, C. J. As to how far judicial notice will be taken of the custom of gavelkind and borough English, see Co. Litt. 175 b (4); Robinson on Gavelkind, 3rd ed., 48 ; Rider v. Wood, 1 Kay & J. 644 ; 24 L. J., Ch. 737 ; In re Chenoweth (1902) 2 Ch. 488 ; 1 Taylor Evid., 10th ed. § 5, p. 6. There are other customs of which judicial notice would be taken, especially some of those in use amongst persons engaged in commerce. See Lethidier's case, 2 Salk. 443. " When a general usage has been judicially ascertained and established, it becomes part of the law merchant which courts of justice are bound to recog- nize." Brandao v. Barnett, 3 C. B. 519, 530, per Ld. Campbell, C. See also Ex parte Reynolds, 15 Q. B. D. 184, 185, per Brett, M. R. Thus the court took judicial notice of the lieu of bankers on the securities of customers in their custody. Brandao v. Barnett, supra. So of the negotiability of bonds, &c, " to bearer; " Edelstein v. Schulcr (1902), 2 K. B. 144; vide post, ]'. '.ii>3. Probably judicial notice would, in some cases, be taken of the practice of solicitors. Shoreditch Vestry v. Hughes, 17 C. B., N. S. 137; 33 L. J., C. P. 349. In the case of In re Bodmin United Mines, 23 Beav. 370; 26 L. J., Ch. 570, Romilly, M. R., refused to take judicial notice of the nature of an association on the cost-book principle ; but the constitution of these associations lias since been recognised by the legislature in the Stan- naries Act, 1869 (32 & 33 V. c. 19). A custom of which judicial notice is taken ought to be considered, not as a fact, but as part of the general law of the land ; vide ante, p. 24. The courts of the City of London will take judicial notice of the city a 2 84 Evidence confined to the Issue. customs ; Cam. Dig. London (N. 1), (N. 7) ; 1 Doug. 3S0, n. ; and the Court of Quarter Sessions, of petty sessional divisions of a county. B. v Whittles, 13 Q. B. 248. Evidence of collateral facts."] In general, evidence of collateral facts, not pertinent to the issue, is nut admissible. Thus, where the question was whether beer supplied by plaintiff to the defendant was good, the plaintiff was not allowed to give evidence of the quality of beer supplied by him to othrr persons. 1M combe v. Ilewson, 2 Camp, 391. In an action by indorsee against the acceptor of a bill, who defends on the ground of ibrgery, evidence that the drawer suspected of the forgery has forged the defendant's name in other instances is inadmissible. Balcetti v. Serani, Pcake, 142; Oriffits v. Payne, 11 Ad. iv E. 131. See also Hollinyham v. Head, 4 C. B., N. S. 338 ; 27 L. J., C. P. 241, ante, p. 79. But where a collateral fact is material to the proof of the issue joined between the parties, evidence of such fact is admissible. Thus in an action for work done and materials supplied to certain houses on the orders of a third person, the defendant denying that he is the owner of the house or the real principal, evidence is admissible to show that other persons had received orders from the defendant to do work at the same houses without showing that the plaintiff knew of these orders at the time he did the work. Woodiuard v. Buchanan, L. B., 5 Q. B. 285. So in an action by a rector for tithes, where the question is whether a modus exists of a certain sum of money for a particular farm in a township within the parish, the plaintiff may inquire whether other farms in the same township are not subject to the same pay- ment, for the purpose of showing that such payments cannot be a farm modus. Blundell v. Howard, 1 M. & S. 292. So proof of the local usage of trade, &c, may be material to explain a contract, or to disprove an alleged breach of it. Noble v. Kennoway, 2 Doug. 510. But the usage at Lloyd's is not evidence, unless the contract be made with reference to that usage. Gabay v. Lloyd, 3 B. & C. 793. In a case of libel, where the meaning is ambiguous, other similar libels on the plaintiff by the same defendant may be shown against him. See Action for defamation, post, p. 860. Upon a question of skill and judgment, evidence may be given of facts, which, although in other respects collateral, are by means of the skill and judgment of the wituess connected with, and tend to elucidate, the issue. Folkes v. Ohadd, 3 Doug. 157. See Opinion of Witness, when admissible, post, p. 175. Where the object of the evidence is to show the knowledge of the party with regard to the nature of a particular transaction, evidence of his having ■fceen engaged in other transactions of the same kind is admissible : thus, in cases of forgery and coining, proof that the prisoner has passed other forged notes, or other counterfeit coin, is constantly admitted. So also upon questions of intent, evidence of other transactions is admissible. In an action for bribery, evidence of other acts of bribery by the defendant at the same time and place is admissible to show the animus. Webb v. Smith, 4 N. C. 373. The seditious object of a meeting may be shown by the acts of similar meetings in other places convened by the same person. Bedford v. Birley, 3 Stark. 93. In order to prove that the acceptor of a bill knew the payee to be a fictitious person, or that the drawer had a general authority from him to fill up bills with the name of a fictitious payee, evidence may be adduced that he had accepted other similar bills under circumstances that indicated such knowledge or authority. Gibson v. Hunter, 2 H. Bl. 288. Examples of the exclusion or admission of collateral facts might be multi- plied to any extent; but it will be enough to add generally, that all proof of facts which merely tends to create an unjust prejudice, or unduly to influence the jury, or occupy the time of the court in irrelevant inquiries, Collateral Facts. — Bights in other Manors and Places. 85 is inadmissible; but if the proof be directly or inferentially pertinent to the issue, it will be admitted. As to the admission, in a quia timet action to restrain the erection of a smallpox hospital on the ground of apprehended nuisance, of evidence of what has occurred in the neighbourhood of other smallpox hospitals carried on under similar conditions, see A.-G. v. Nottingham Cor., (1904) 1 Ch. 673. Evidence of rights in other manors and places.] As a general rule, proof of a customary right in a particular manor or parish is no evidence as to the customary right in an adjoining manor or parish. Somerset, Dk. of v. France, 1 Stra. 661. But there are occasions on which such evidence is relevant. Thus, where there is proof that all the manors in a particular district are held under the same tenure, and a question arises in one of the manors as to an incident to the tenure, evidence may be given of the usage prevailing in the others. S. C. ; Champiati v. Atkinson, 3 Keb. 90 ; B. v. Ellis, 1 M. & S. 662. So where in each of several detached manors called by the common name of " assessionable manors," and parcel of the possessions of an ancient earldom and duchy, it appeared that there was a peculiar class of tenants answering the same description, to whom tenements were granted by similar words, it was held that evidence of the mineral and other rights enjoyed by those tenants in one manor might be received to show what were their rights in another. Bowe v. Brenton, 8 B. & C. 758 (case of the duchy of Cornwall). But mere contiguity, or the identity of the leet or parish hi which two manors are situate, or payment of a chief rent by one to the other, will not let in such evidence. Anglesey, Mqs. of, v. Hatherton, Ld., 10 M. & W. 218. Where the question was, whether a slip of land between some old iuclosures and the highway was vested in the lord of the manor or the owner of the adjoining freehold, it was held that evidence could not be received of acts of ownership by the lord of the manor on similar, but distinct, slips of land within the manor. Aliter, if the strips, though detached, could be regarded as part of a continuous tract of waste adjoining the same high- way. Doe d. Barrett v. Kemp, 2 N. 0. 102, Ex. Ch. And, even if the continuity be broken, it is a question for the jury whether such strips along- side the same road be not waste. Bendy v. Simpson, IS C. B. 331. Where the question was as to the right to certain trees growing in a woody belt held entire and undivided under one title, evidence was admitted of acts of owner- ship in different parts of the belt. Stanley v. White, 14 East, 332. So acts of ownership in part of a wood, though unenclosed, or in part of a continuous fence, are evidence as to the whole. Jones v. Williams, 2 M. & W. 331. So where the plaintiff claims the whole bed of a river between his land and the defendant's, acts of ownership over the river just below the defendant's land are admissible ; and the evidence need not be confined to the precis. spot of the trespass. Id. 336 ; Neill v. Devonshire, Dk. of, 8 Ap. Ca. 135, D. P. This principle applies also to the foreshore of a navigable tidal river. Ld. Advocate v. Blantyre, Ld., 4 Ap. Ca. 770, 791, D. P. So in the case of an inland non-tidal lake. Bristow v. Cormican, 3 Ap. Ca. 641, 670, per Ld. Blackburn. But in trespass by the proprietors of a canal, it was doubted whether evidence of acts of ownership by the proprietors on other parts of the banks than those in question was admissible to prove property without showing that they had belonged to one person ; for the proprietors may have bought the freehold in one place and not in another; and, being unnecessary, there was no ground for presuming such a purchase in any place. Hollis v. Goldfinch, 1 B. & C. 205 ; Tyrwhitt v. Wynne, 2 B. & A. 554. In proof of the boundary between the manors A. and B., evidence is admissible of the boundary between A. and C, C. being a manor abutting on B., and separated from A. by a natural boundary (namely, a mountain ridge), which continued 86 Evidence confined to the Issue. between A. and B. Brisco v. Lomax, 8 Ad. & E. 198. Under a lease of all minerals under a tract of waste land called M. mountain, working a mine under one part of it is evidence of possession of the whole subject of demise, so as to entitle the lessee to sue in trover for ore taken by a wrongdoer from any part of it. Taylor v. Parry, 1 M. & Gr. 604 ; Wild v. Holt, 9M.&W. 672. Where the question was whether a township, A., was liable to repair an ancient highway, the conviction of an adjoining township, B., for non- repair of the part situate in the latter, is evidence against A. that the highway situate in A. is also ancient, B. v. Brightside Bierlow, 13 Q. B. 933. Where the construction of the charters of the Duchy of Lancaster was in question, proof that under them coroners were always appointed in some parts of the Duchy was admitted to prove the like right of appointment in any part. Jeioison v. Dyson, 9 M. & W. 540. Evidence of damage.] By Rules, 1883, 0. xxi. r. 4, ante, p. 75, damages, unless exjiressly admitted, are deemed to be put in issue. Evidence tending to increase or diminish the damage is, of course, admissible, though not expressly involved in the issue. Thus, in an action for breach of promise of marriage, plaintiff may give evidence of the defendant's fortune; for it obviously tends to prove the loss sustained by the plaintiff; but not in an action for adultery ; James v. Biddington, 6 C. & P. 589 ; nor for seduction ; Hodsoll v. Taylor, L. R., 9 Q. B., 79 ; nor for malicious prosecution ; for it is nothing to the purpose " that damages are taken from a deep pocket." Short v. Stoy, Winton Sum. As. 1836, per Alderson, B. But special damage cannot be shown unless alleged in the statement of claim ; and it must be alleged with certainty on the sufficiency of which the judge is to decide, who will require that the averment shall be so made as to enable the defendant to meet it by counter-evidence, if untrue. Thus, where, in an action for an irregular distress, it was averred that the plaintiff, in consequence of the injury, bad lost divers lodgers, without naming any, Ld. Ellenborough rejected evidence of the damage. Westwood v. Cowne, 1 Stark. 172. See further Craft v. Boite, 1 Wms. Saund. 243 d. (5) ; Martin v. Henrickson, 2 Ld. Raym. 1007; and see Action for defamation, post, p. 861. And now, Rules, 1883, O. xix. r. 15, ante, p. 77, require the plaintiff to allege all such facts as he relies on, as if not so alleged would be likely to take the defendant by surprise. But evidence of the amount of damage which is the necessary and obvious result of the defendant's breach of con- tract or tort may, it would seem, still be proved, though only alleged-^enerally in the statement of claim. Thus, formerly, in an action for not giving plaintiff possession of premises demised to him by the defendant, plaintiff was allowed to show his consequent loss of business, though only alleged generally, and though the plaintiff's business was not mentioned in the pleadings. Ward v. Smith, 11 Price, 19. See also Bodgers v. Nowill, 5 C. B. 109. Evidence of character.'] In general, in actions unconnected with character evidence as to the character of either of the parties to a suit is inadmissible, being foreign to the point in issue, and only calculated to create prejudice. For the same reason where particular acts of misconduct are imputed to a party, evidence of general character is excluded ; but it is otherwise where general character is put in issue ; Doe d. Farr v. Hicks, per Buller, J., cited 4 Esp. 51 ; Jones v. James, post, p. 87 ; 1 Taylor, Evid. 10th ed., §§ 354, 355 ; for evidence of bad character is admitted in some actions with a view to the amount of damages. Thus, in actions of crim. con., the defendant could adduce evidence of the wife's bad character for chastity, and even of particular acts of adultery committed by her before her intercourse with him ; for by Evidence of Character. — Plaintiff confined to his Particulars. 87 bringing the action, the husband put her general behaviour in issue. B. N. P. 27, 290. So, in seduction, the defendant may show the previous bad character of the person seduced. See Action for seduction, post, p. 913. But even in such cases it has been held that the plaintiff cannot give evidence of the good character of the wife or daughter, until evidence has been offered on the other side to impeach it ; Bamfield v. Massey, 1 Camp. 460 ; and if such evidence be not general, but go only to a specific instance, it has been ruled that the plaintiff cannot, in reply, give evidence of general character, but must be restricted to disproof of the specific instance. S. C. ; Dodd v. Norris, 3 Camp. 519. So, in an action for slander imputing dishonesty to the plaintiff, he cannot adduce evidence in the first instance of good character. Stuart v. Lovell, 2 Stark. 93 ; Cornwall v. Richardson, Ry. & M. 305. Where the cross-examiDation of the plaintiff's witness has been directed to impeach the character of the plaintiff, and the witnesses deny the imputation intended, proof of the plaintiff's good character is not admissible. King v. Francis, 3 Esp. 116. The practice, as reported in some of the above cases, which excludes the proof of general good character, where it is obviously attacked at the trial, though unsuccessfully, has been generally condemned by later text writers; and there are some authorities at N. P. for the admissibility of such testi- mony. See Actions for defamation and for seduction, post, pp. 861, 912 ; and 1 Taylor Evid. 10th ed., § 362. In an action for breach of promise of marriage, where the defendant by his defence sets up a general charge of immodesty, the plaintiff may, in the first instance, give general evidence of good character for modesty and propriety of demeanor ; though this could not be done in the case of a specific charge of immoral acts. Jones v. James, 18 L. T. 243; E. T. 1868, Ex. Where a general character is in issue, evidence of general reputation is admissible. Foulkes v. Selhvay, 3 Esp. 236. As to evidence of character, in reference to the veracity of a witness, vide post, p. 183. Plaintiff confined to his particulars.] The delivery of particulars of claim or defence in ordinary actions is now regulated by Rules, 1883, O. xix. rr. 0, 7, ami particulars are now usually given in the pleadings. A special indorsement under O. iii. r. 6, on a writ of summons, now con- stitutes a statement of claim, see O. xx. r. la, and particulars therein have the same effect as in pleadings. Where the plaintiff has delivered particulars of his demand, he will be precluded from giving any evidence of demand not contained in them. But the plaintiff may recover more than his particulars demand, where it appears to be due on the defendant's own evidence; as where the defendant gave in evidence an account from which it appeared that there was a sum of money due to the plaintiff beyond that claimed in his particulars. Hurst v. Watkis, 1 Camp. 68. Accord, per Parke, B., in Fisher v. Wainwriqht, 1 M. & W. 486. See also Green v. Marsh, 5 Dowl. 669. A mistake in the particulars, not tending to mislead, is immaterial. The materiality of the variance is a question for the judge, subject to the opinion of the court above. The particulars may be amended, even after the discovery of their in- sufficiency on the trial ; and where the mistake has been made inadvertently, and the defendant has not been prejudiced, they will be amended almost as a matter of course. If the amendment may prejudice the defendant the judge may sometimes think proper to adjourn the cause. See Fromant v. Ashley, 1 E. & B. 724. This power of amendment renders it useless to retain many cases formerly collected under this head. After delivery of 88 Evidence confined to the Issue. particulars under a judge's order (or, ut semb., under 0. xix. r. C), fresh or amended particulars cannot be delivered except by a judge's order or l>y consent, so as to supersede the first at the trial. Brown v. Watts, 1 Taunt. 353. It is, however, competent lor the opposite party to waive the objec- tion and accept the second particulars; and it' the party served plead over and go to trial, lie will be taken to have accepted them. Fromant v. Ashley, ante, p. 87. If the particulars are too general, or not sufficiently explicit, the remedy is to apply for better ; for it seems to be no ground of objection at the trial, except in the case of particulars of set-off, and in that case, where the terms of the order exclude the proof unless the particulars comply strictly with the terms of the order, if the particulars do not strictly comply with the order, the judge will reject the proof of it at the trial ; lllett v. Leaver, 16 M. & W. 770 ; Young v. Geiger, 6 C. B. 552 ; and the plaintiff does not waive the objection by merely denying the set-off and going to trial. S. CC. Irregular particulars of set-off may, however, be waived. Thus, where the order was to deliver it in a fortnight, and the plaintiff accepted it three weeks later, and the plaintiff afterwards amended his declaration by consent, Ld. Tenterdeu, C.J., admitted proof of the set-off. Wallis v. Anderson, M. & M. 291 ; also Lovelock v. Cheveley, Holt, N. P. 552. Effect of particulars as an admission.'] The object of particulars is to control the generality of the claim, or set-off, in respect of which they are delivered. Their value as an admission depends upon the mode in which they are framed. When they merely limit the amount claimed in the pleadings, no admission can be implied ; but where they, in addition, give credit to the opposing party for some particular specific item, they are evidence in his favour as to the date, origin, and nature of that item. In Bymer v. Cool; M. & M. 8G, n., where the defendant put in particulars of the plaintiff's demand, containing an admission that he was indebted to the defendant in a certain sum, it was held that that admission was evidence. In Kenyon v. Wakes, 2 M. & W. 764, where a payment on account to the amount of 70?. was admitted in the particulars, and the jury found that 707. was all that was due, it was held that the particulars were properly received in evidence as an admission of the payment of that sum. See Boidton v. Pritchard, 4 D. & L. 117, post, p. 89, apd liowland v. Blaksley, 1 Q. B. 413. In Buchmaster v. Meiklejohn, 8 Exch. 634 ; 22 L. J., Ex. 242, particulars delivered with a plea of set-off, which had been withdrawn, were admitted in support of a replication of fraud to a plea 'jmis darrein continuance. It would seem, however, that particulars can only be made use of as an admission in an issue upou the pleadings in respect of which they are delivered. Therefore, in Miller v. Johnson, 2 Esp. 602, where the notice of set-off contained an admission of a sale, this was not allowed to be taken as an admission of the sale upon the plea of never indebted. In Harington v. Macmorris, 5 Taunt. 229, an admission of the debt in the notice of set-off was not received in the issue raised upon non-assumpsit. And in Burkitt v. Blanshard, 3 Exch. 89, where a simple payment of 507. was inserted in the particulars of set-off, Parke, B., expressed an opinion that the plaintiff could not have taken this as an admission of a part payment in order to prevent the operation of the Statute of Limitations. Proof of partiadars.'] The particulars were formerly proved by the production and proof of the judge's order and the particulars themselves : •ind by proof of the signature of the party, his attornej', or agent. The Proof of Particulars. — Variances requiring Amendment. 89 R. G., II. T. 1853, r. 19, which directed that a copy of the particulars of demand and the defendant's set-off should he annexed by the plaintiff's attorney to the record at the time it is entered for trial, obviated the necessity of proving the delivery of them. Macarihy v. Smith, 8 Bing. 145. But the particulars were- not thereby made part of the N. P. record and incorporated with the pleading to which they were annexed. Booth v. Howard, 5 Dowl. 438 ; Ferguson v. Mahon, 9 Ad. & E. 245. The Rules, 1883, contain no provision similar to R. G., H. T. 1853, r. 19, supra (see O. xxxvi. r. 30, post, p. 110), and it seems therefore that particulars, unless they are in the pleadings, or have been entered with them, must be proved in the same way as was done before 1853. If the defendant require to prove a special indorsement under Rules, 1883, O. iii. r. 6, on the writ of summons, the copy writ served on him, would, it seems, be primary evidence against the plaintiff; vide ante, p. 3, and post, p. 111. If the particulars of demand refer to a fuller account already delivered (which it may do without re-starting it, ut semb. Hatchet v. Marshall, Peake, 172), the plaintiff ought either to enter the account also with the pleadings, or prove it at the trial. See 2 Chit. Prac, 12th ed. 1450. If the plaintiff delivers "further and better " particulars, in which he omits a specific credit given in his first, it seems that both should be annexed to the record ; and if the second alone is annexed, the defendant may nevertheless prove the first in order to dispense with a plea of payment. Boulton v. Pritchard, 4 D. & L. 117. Where the particulars annexed differ from those delivered, the defendant may prove the latter, and confine the plaintiff to those. But if the defendant is not prepared to prove the real particulars, the plaintiff, if he obtain a verdict for any items not contained in them, is in peril of a new trial. Morgan v. Harris, 2 C. & J. 461. If none are annexed, the judge may order the plaintiff to annex them at N. P. THE SUBSTANCE OF THE ISSUE ONLY NEED BE PROVED. It was always the common law rule that the substance of the issue joined between the parties need alone be proved, and numerous illustrations of this principle will be found under various titles in this work. Variances requiring amendment.'] It is a general rule that a party must recover secundum allegata et probata, and cannot succeed upon a proof that differs from his allegation ; if his proof so differ it is called a variance. Now, however, by Rules, 1883, 0. xxviii. r. 1, either party may at any time be allowed to amend their pleadings, " and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." Since this rule parties must not go to trial on the mere hope that a variance will be fatal. They ought to anticipate that all amendments will be allowed which are necessary to determine the real question in controversy, which both parties must have had in contemplation when the suit commenced. Examples of amendments that have been allowed will be found sub tit. Practice at Nisi Prius, — Amendment, post, pp. 291 ct seq. The only cases of variance which it is necessary to consider here are those relating to parties. Variance in the parlies.] The objection on the ground of variance in the parties is now reduced to within very narrow limits by Rules, L883. By 0. xvi. r. 1 (as amended in is; Hi by the addition of the words in italics), "All persons may be joined in one action as [plaintiffs in whom any right to 90 Substance of Issue to he Proved. relief in respect of or arising out of the same transaction or series of trans- actions is alleged to exist, whether jointly, severally, or in the alternative, where if such persons brought separate actions any common question of law or fact would arise ; " . . . "and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment ; " rule 3 provides that the improper or unnecessary joinder of a co-plaintiff shall not defeat a set-off or counter-claim if the defendant prove it as against the other plaintiffs ; rule 4 contains similar provisions with respect to defendants ; rule 5 provides that it shall not be necessary for every defendant to be interested as to all the relief prayed for or as to every cause of action included in the action ; by rule 6, the plaintiff may join as parties "all or any of the persons severally liable on any one contract, including parties to bills of exchange and promissory notes; " by rule 7, where the plaintiff is in doubt, he may join two or more defendants, to the intent that the question as to which, if any, is liable, and to what, extent, may be determined as between all parties. By rule 2, provision is made for the substitution or addition of a plaintiff in the case of a hond fide mistake. By rule 11, " No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings, as against such party, shall be deemed to have begun oyly on the service of such writ or notice." Rule 12, " Any application to add or strike out or substitute a plaintiff or defendant may be made to the court or a judge at any time before trial by motion or summons, or at the trial of the action in a summary manner." And by 0. xxi. r. 20, " No plea or defence shall be pleaded in abatement." The object of the alteration of 0. xvi. r. 1, ante, p. 89, was to allow plaintiffs to join different causes of action where under the old rules, as in Smurihwaite v. Hannay, (1894) A. 0. 494, D. P., they could not do so; such causes may now be joined when the right to relief arises out of the same transaction, and there is also a common question of law or fact. Stroud v. Lawson, (1898) 2 Q. B. 44, 54, per Vanghau Williams, L.J. ; Walters v. Green, (1899) 2 (Jh. 696. " Transaction " does not necessarily imply something taking place between two parties. Drincqbier v. Wood, (1899) 1 Ch. 393, 397, per Byrne, J. Thus, four persons who each separately took debentures of a company on the faith of statements in the prospectus, and covering letter issued by the directors, may join in an action against the directors for mis- representations contained therein. S. C. See also Universities of Oxford & Cambridge v. Gill, Id. 55, Bennetts v. Mcllwraith, (1896) 2 Q. B. 464, and Ellis v. of Bedford, Dk. of, (1 901) A. C. 1, D. P. The court may require the Att.-Gen. to be added as a co-defendant to represent the public, when their rights would be affected by its decision. S. C. (1899) 1 Ch. 494, C. A. Sed Variance in the Parties. 91 quaere, whether his presence was necessary in this case? See S. C, (1901) A. C. 12, 23, D. P. But the order relates only to the proper parties, and does not enable a plaintiff to bring separate causes of action arising out of several transactions against different persons in one action, although the resulting damage may be the same in each case. T/wmpson v. L. County Council, (1899) 1 Q. B. 840, C. A. As to uniting several persons as co-defendants in respect of substantially the same cause of action, see Frankenberg v. Ot. Horseless Carriage Co., (1900) 1 Q. B. 504, C. A.; Walters v. Green, ante, p. 91. Where a child sued the husband on the covenant for maintenance in a separation deed, the wife and the trustees of the deed were allowed to be added as plaintiffs under rule 2. Qandy v. Gaudy, 30 Ch. D. 57. So, where the real question in the action was the effect of a covenant, and it appeared that some personal bar- might exist against the plaintiff, a plaintiff in a similar position, but without the bar, may be added. Ayscough v. Bullar, 41 Ch. D. 341, C. A. So where a plaintiff H. sued after he had assigned his cause of action to L., the name of L. was allowed to be substituted for that of H. Hughes v. Pump House Hotel Co., (1902) 2 K. B. 485, C. A. But a party can only be added under rule 2, where there has been a bond fide mistake; Cloives v. Billiard, 4 Ch. D. 413; a mistake of law is sufficient. Ducket t v. Cover, 6 Ch. D. 82. A defendant may be added under rule 4, although alternative relief is claimed against him which is inconsistent with that claimed against the other defendant. Child v. Stenning, 5 Ch. D. 695, C. A. Any objection as to parties which was formerly taken by plea in abate- ment, may now be taken by the application for an order under O. xvi. r. 11 ; Kendall v. Hamilton, 4 Ap. Ca. 504, 516, per Ld. Cairns, C. ; Wegg-Prosser v. Evans, (1895) 1 Q. B. 108, 114, 116, 118, per M. R. & L. JJ. ; before the trial; Sheehan v. Gt. E. Ry. Co., 16 Ch. D. 59. A person, W., will not be added as plaintiff, unless his consent in writing, signed by him, has been obtained, see r. 11, ante, p. 90; the consent of his solicitor, C, written and signed by C. in W.'s presence, is insufficient. Fricker v. Van Qrutten, (1896) 2 Ch. 649. This consent of W. is required even although terms necessary for his indemnity have been offered to him ; Tryon v. National Provident Institution, 16 Q. B. D. 678; and although he is trustee for the plaintiff of the property in respect of which the action is brought. JJesley v. Besley, 37 Ch. D. (!48. The plaintiff may now, however, join as a co-defendant any person to whose nonjoinder as a co-plaintiff exception is taken, and who has not consented to be co-plaintiff on an indemnity against costs having been tendered him. Cullen v. Knowles, (1898) 2 Q. B. 380. See also Van Geldcr v. Soivcrby Bridge, &c, Flour Soc, 44 Ch. D. 374, C. A. The judge will usually, in his discretion, grant a defendant in an action of contract, an order for the joinder of his co-contractors as defendants, if they are all residing within the jurisdiction. Pilley v. Bobinson, 20 Q. B. D. 155 ; see Wilson, Sons A Co. v. Balcarres Brook SS. Co., (189.;) 1 Q. B. 122 C. A. ; but not otherwise, S. C. And where the order has been made the action will not be stayed if the plaintiff cannot find the new defendant although he be within the jurisdiction. Jlobinson v. Geisel (1894), 2 Q. B. 685, C. A. See also Tiyrne v. Brown, 22 Q. B. D. (157, C. A. But where M. having a joint and several claim against *f, p. 284. In many cases there are statutable provisions regulating the burden of proof. See them collected in 1 Taylor, Evid., 10th ed., §§ 372-37-4; but these chiefly relate to criminal proceedings. & PROOF OF DOCUMENTS. rjnder the present head will be considered the mode in which various kinds of documents, usually adduced in evidence, must be proved. As a general rule, before a document can be proved at a trial it must itself be produced in court, but there are certain documents of a public character which either at common law or by statute are provable by copies without production of the original in court. And under 0. xxx. r. 7, post, p. 154, an order may be made that evidence of a specific fact shall be given by copies of documents or entries in books. Before enumerating the means of proving the several documents under their respective heads, it will be convenient to show here when and how this method of proof is admissible. PROOF BY COPIES. The various kinds of copies by which original documents may in general be proved may be classed under four heads, viz.: 1. Exemplifications; 2. Office copies ; 3. Examined copies ; and 4. Certified copies. There are certain statutory provisions for proving particular documents ; these will be found under the title of the documents to which they respec- tively apply. Proof by Exemplification. Exemplifications are of two kinds : — under the Great Seal, or under the seal of the court in which the record is preserved. An exemplification under the Great Seal may be obtained of any record of the Court of Chancery, or of any record which has been removed thither by certiorari; but private deeds, so exemplified, will not be admitted in evidence. B. N. P. 227. An exempli- fication produced from the proper custody, and purporting to exemplify a commission from the Crown, is evidence, though the seal has been lost. Beverley, Mayor of, v. Craven, 2 M. & Bob. 140. An exemplification under the seal of the Exchequer is evidence of a commission out of that court and of the return thereto, in respect of Crown lands. Tooker v. Beaufort, Dk. of, Siver, 207. So an exemplification of a recovery under the seal of the Great Sessions of Wales, Olive v. Guin, 2 Sid. 145. So of Chester, S. C. Id. And the seals of those courts (it is said) prove themselves. Com. Dig. Testm. (A. 2), anil, p. 79. Exemplifications may be given of a lost probate. Shepherd v. tihvrtlwse, Stra. 412. Office Copies — Examined Copies. 97 Proof by Office Copy. An office copy, that is, a copy made by the officer having custody of the document, always was, in the same court and in the same cause, equivalent to the document of which it was a copy. Per Ld. Mansfield in Denn d. Lucas v. Fulford, 2 Burr. 1179 ; B. N. P. 229. And for this purpose the jud^e who tried the issue at N. P. was considered as acting under the authority of the court in which the action is pending, and as an emanation of that court. B. v. Jolliffe, 4 T. R. 285, 292. And now by the J. Act, 1873, ss. 29, 30, a judge or commissioner trying causes shall be deemed to constitute a court of the High Court of Justice. An office copy of depositions in Chancery was evidence in that court, but would not be admitted in a court of common law without examination with the original; B. N. P. 229 ; unless, perhaps, in the case of the trial of an issue out of Chancery. See Highfield v. Peake, M. & M. 109, per Littledale, J. See, however, Burnand v. Nerot, 1 C. & P. 578, cor. Best, C.J., contra. See, further, as to proof of depositions, affidavits, &c, by office copies, post, pp. 115, 116. Iu an action against the sheriff for a false return, the plaintiff could not use office copies of the writ and return, though the original cause was in the same court, for the cause is a different one. Pitcher v. King, 1 Car. & K. 655. By Rules, 1883, O. xxxvii. r. 4, " Office copies of all writs, records, pleadings, and documents filed in the High Court of Justice shall be admissible in evidence in all causes and matters, and between all persons or parties to the same extent as the original would be admissible." The rule, however, in so far as it alters the rule of evidence above stated, seems to be ultra vires ; see J. Act, 1875, s. 20, post, p. 153. By O. Ixi. r. 7, ante, p. 80, office copies are sufficiently authenticated if they appear to be stamped with a seal of the central office (constituted by stat. 42 & 43 V. c. 78, ss. 4 et seq.). Office copies of doctiments registered or deposited in the central office, e.g., bills of sale, under 41 & 42 V. c. 31, s. 16 ; powers of attorney, under 44 & 45 V. c. 41, s. 48, post, p. 138, are made evidence in some cases by statute. Where a copy is made by a public officer specially intrusted to make copies and to deliver them to the parties as part of their title, they are admissible in evidence without proof of having been actually examined. B. N. P. 229 ; Appleton v. Braybrook, Ld., 6 M. & S. 34, 38. But a copy of a judgment purporting to have been examined by the clerk of the Treasury (who is not intrusted to make copies), is not admissible without proof of its accuracy. B. N. P. 229. See further, Proof by certified copy, post, p. 98 ; Effect of public books and documents, post, pp. 211 et seq. Proof by Examined Copy. The contents of a document of a public nature required by law to be kept, may be proved hy producing a copy verified by the oath of a witness who has compared it with the original, and will swear that it is complete and correct. What are public documents, in this sense, has never been very accurately defined; but the term seems to include all documents in which the community at large is interested, and which it is desirable not to remove from their place of deposit. Lynch v. Clerke, 3 Salk. 154. The term would clearly include all records of any court whatsoever, and all registers of births, deaths, and marriages ; registers having reference to shipping and navigation, to trade, and to the public health ; vide post, pp. 125 et seq. The rule B. — VOL. I. II 98 Proof of Documents. applies equally to such public registers kept abroad, as there is a presumption that the foreign authority in whose custody they are, would not allow their removal to this country. R. v. Castro, Q. B., trial at bar (shorthand notes, pp. 3033-4) 28th Nov., 1873, (post, p. 131), following LanesborougVs (El. of) Ch,im, 1 II. L. C. 510, n., and Abbott v. Abbott, 29 L. J., P. M. & A. 57, cited post, p. 129. See Burnaby v. Baillic, 42 Ch. D. 282. As to proof of depositions and affidavits filed in court, see Proof of deposi- tions and affidavits, post, pp. 114 et seq. An examined copy of a record or other document must be proved by a witness who has examined it line for line with the original, or who has examined the copy while another person read the original. Reid v. Margison, 1 Camp. 469. And it is not necessary (though in peerage cases a more rigorous rule prevails; Slane Peerage, 5 CI. & Fin. 42) for the persons examining to exchange papers, and read them alternately. Gyles v. Hill, 1 Camp. 471, n. ; Rolf v. Dart, 2 Taunt. 52. The copy must not contain abbreviations which do not occur in the original. R. v. Christian, Car. & M. 388. Where an examined copy is put in evidence some account should be given of the original record ; thus, it ought to be shown that the record, from which the copy was taken, was seen in the hands of the proper officer, or was in the proper place for the custody of such records. Adam- thwaite v. Synge, 1 Stark. 183 ; S. C, 4 Camp. 372. The 14 & 15 V. c. 99, s. 14 (post, p. 101), contains provisions for the admissibility of examined copies of public books and documents, and puts examined copies and copies certified under that Act on the same footing. See cases decided thereon, post, p. 101. Kxamined copies of bankers' books may be given in evidence, and may be verified by affidavit. Bankers' Books Evidence Act, 1879, 42 & 43 V. c. 11, ss. 3 — 5, vide post, pp. 123, 124. Proof by Certified Copy. By the Public Record Offices Act, 1838 (1 & 2 V. c. 94), s. 12, it is pro- vided " that the Master of the Rolls, or deputy keeper of the records, may allow copies to be made of any records in the custody of the Master of the Rolls, at the request and costs of any person desirous of procuring the same : and any copy so made shall be examined and certified as a true and authentic copy by the deputy keeper of the records, or one of the assistant record keepers," appointed under the Act, " and shall be sealed or stamped with the seal of the Record Office, and delivered to the party for whose use it was made." By sect. 13, " every copy of a record in the custody of the Master of the Rolls, certified as aforesaid, and purporting to be sealed or stamped with the seal of the Record Office, shall be received as evidence in all courts of justice, and before all legal tribunals, and before either House of Parliament, or any committee of either house, without any further or other proof thereof, in every case in which the original record could have been received there as evidence." The records of all the superior courts, and some public records not of a judicial character, are, after the lapse of a certain time, deposited in the Record Office, in the custody of the Master of the Rolls. There are some cases in which copies certified by persons not attached to any court, but holding a public position, are made evidence. The following are amongst the statutes containing provisions making certified copies evidence :— The 3 & 4 W. 4, c. 87, ss. 2 and 4; 8 & 9 V. c. 118, s. 146, awards and orders of Inclosure Commissioners ; 7 G. 4, c. 46, ss. 4 and 6, returns made by bankers of the members, &c, of their firms ; 5 & 6 V. c. 27, s. 14, leases and exchanges by ecclesiastical corporations ; Certified Copies. 99 6 & 7 W. 4, c. 86, s. 38, documents from the General Register Office ; 5 & 6 V. c. 45, s. 11 ; 7 & 8 V. c. 12, s. 8 ; 25 & 26 V. c. 68, ss. 4 and 5, entries at Stationers' Hall relating to copyright ; 49 & 50 V. c. 33, ss. 7, 8 (2), copyright register abroad or in colony ; 6 & 7 V. c. 18, s. 68, decisions in appeals from revising barristers ; 5 & 6 V. c. 108, s. 29, leases and instru- ments deposited with the Ecclesiastical Commissioners; 6 & 7 V. c. 86, s. 16, cab licences ; 46 & 47 V. c. 52, s. 134, proceedings of the Court of Bankruptcy ; 7 & 8 V. c. 101, s. (i'J, proceedings of boards of guardians; 8 & 9 V. c. 18, s. 50, proceedings of the sheriff's court under the Lands Clauses Consolidation Act, 1845 ; Id. c. 20, s. 10, plans and books deposited with clerks of the peace by railway companies, with whose Acts the Railways Clauses Consolidation Act, 1845, is incorporated ; 53 & 54 V. c. 5, s. 144, orders, reports, and certificates in lunacy ; Id. s. 152, licences, orders, and instruments of Lunacy Commissioners; 51 & 52 V. c. 43, s. 28, proceedings in the County Courts ; 25 & 26 V. c. 53, s. 123 ; 38 & 39 V. c. 87, ss. 80, 107, 120, certificates and instruments from the office of land registry ; 45 & 46 V. c. 39, s. 7 (8), acknowledgments of deeds by married women ; 21 & 22 V. c. 97, s. 7, amended by 62 & 63 V. c. 33, s. 1 (3), orders of the Privy Council under the Public Health Act, 1858 ; 38 & 39 V. c. 55, s. 186, bye-laws made by local authority under the Public Health Act, 1875, and Id. s. 326, bye-laws not inconsistent with that Act, and made under Public Health Acts thereby repealed; 54 & 55 V. c. 76, s. 114, bye-laws made by the county council or any sanitary authority under the Public Health (London) Act, 1891 ; 14 & 15 V. c. 99, ss. 7, 8, 13 (post, pp. 100, 101), proclamations, treaties, and other acts of state, and judgments, decrees, orders, and other judicial proceed- ings of any foreign state, or in any British colony, and qualifications of apothecaries ; 53 & 54 V. c. 21, s. 24, regulations, minutes and notices issued by the Commissioners of Inland Revenue; 16 & 17 V. c. 137, s. 8 ; 18 & 19 V. c. 124, s. 5 ; 50 & 51 V. c. 49, s. 3, orders and proceedings of the Board of Charity Commissioners ; 33 & 34 V. c. 75, s. 83, orders, &c, of Committee of Privy Council on Education ; 49 & 50 V. c. 48, s. 23, orders made under the Medical Acts, or the Dentists Act, 1878; 16 & 17 V. c. 41, s. 5, entries in registers kept under the Common Lodging House Acts of 1851, 1853, in the Metropolis (see 55 & 56 V. c. 19); 57 & 58 V. c. 60, s. 695 (2), shipping documents; 37 & 38 V. c. 42, s. 20, certificate of incorporation, &c, and rules of building societies ; 59 & 60 V. c. 25, s. 100; 56 & 57 V. c. 39, s. 75, documents relating to friendly and industrial and provident societies ; 25 & 26 V. c. 89, ss. 61, 174 ; 40 & 41 V. c. 26, s. 6, proceedings of joint stock companies; 26 &, 27 V. c. 65, s. 24; 60 & 61 V. c. 47, rules of volunteer corps ; certificates under 27 & 28 V. c. 120, s. IS, and c. 121, s. 20, relating to railways; 28 & 29 V. c. 63, s. 6, colonial laws; 29 & 30 V. c. 117, s. 33, and c. 118, s. 29, rules of reformatory and industrial schools; 31 & 23 V. c. 37 (extended by several subsequent Acts, vide post, pp. 105-7, proclama- tions and orders; 32 & 33 V. c. 67, s. 64, valuation of property in the metropolis; 33 & 34 V. c. 14, s. 12, declarations and certificates under Naturalization Act, 1870 ; 44 & 45 V. c. 58, s. 165, proceedings of court martial; 41 & 45 V. c. 60, s. 15, register of newspaper proprietors; 45 & 16 V. c. 50, s. 24, bye-laws and proceedings of municipal corporations; 46 & 17 V. c. 57, ss. 89, 96, amended as to trade marks by 5 E. 7, c. 15, ss. 50, 73, patents ami documents and registers in the Patent Office; 49 & 50 V. c. 39, s. 4 (3), orders, certificates, &c, under the Salmon and Freshwater Fisheries Acts; 51 & 52 V. c. 54, s. 5 (I), bye-laws under the Sea Fisheries Regulation Act, 1888. There are also provisions which authenticate registers of births, baptisms, marriages, deaths, and burials, which are noticed at length post, pp. L25rf seq. By the Crown Lands Act, L873(36 & 37 V. c. 36), S. 6, a print, purporting to have been made by the order of either House of Parliament, of n 2 inn Proof of Documents. a report made l>y the Commissioners of Woods and Forests to her Majesty or Parliament, is as good evidence as the original. By the 1 >ocumentary Evidence Act (8 y any Act dow in force, or hereafter to be in force, any certificate, official or public document, or document or proceeding of any corporation, or joint stock or other company, or any certified copy of any document, bye-law, entry in any register or other book, or of any other proceeding, shall be receivable in evidence of any particular in any court or justice, or before any legal tribunal, or either House of Parliament, or any committee of either house, or in any judicial proceeding, the same shall respectively be admitted in evidence, provided they respectively purport to be sealed or impressed with a stamp, or scaled and signed, or signed alone, as required, or impressed with a stamp, and signed as directed by the respective Acts made or to be hereafter made, without any proof of the seal or stamp, where a seal or stamp is necessary, or of the signature, or of the official character of the person appearing to have signed the same, and without any further proof thereof in every case in which the original record could have been received in evidence." The meaning of the last paragraph in this section is by no means clear. In many cases there is no original record. The object of the statute seems to have been to dispense with proof of the genuineness of a document in all cases where it is by statute made evidence of the facts to which it relates. The signature of a de facto officer, who by virtue of that office has the custody of the records, is sufficient under this section, even though he be not the officer dejure. 11. v. Parsons, \i. R., 1 C. C. 24. By the Evidence Act, 1851 (14 & 15 V. c. 99), s. 7, "All proclamations, treaties, and other acts of state of any foreign state, or of any British colony, and all judgments, decrees, orders, and other judicial proceedings of any court of justice in any foreign state or in any British colony, and all affidavits, pleadings, and other legal documents filed or deposited in any such court, may be proved in any court of justice, or before any person having by daw, or by consent of parties, authority to hear, receive, and examine evidence, either by examined copies, or by copies authenticated as hereinafter men- tioned ; that is to say, if the document sought to be proved be a proclama- tion, treaty, or other act of state, the authenticated copy, to be admissible in evidence, must purport to be sealc 1 with the seal of the foreign state or British colony to which the original document belongs; and if the document sought to be proved be a judgment, decree, order, or other judicial proceeding of any foreign or colonial court, or an affidavit, pleading, or other legal docu- ment filed or deposited in any such court, the authenticated copy, to be admissible in evidence, must purport either to be sealed with the seal of the foreign or colonial court to which the original document belongs, or in the event of such court having no seal, to be signed by the judge, or if there be more than one judge, by any one of the judges of the said court, and such judge shall attach to his signature a statement in writing on the said copy thai the court whereof he is judge has no seal; but if any of the aforesaid authenticated copies shall purport to be sealed or signed as hereinbefore respectively directed, the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the on appearing to have made such signature and statement." A foreign patent is an "act of state" within the meaning of this section. In re Betfs Patent, 1 Moo. P. C, N. S. 49. And an order of a foreign court made ex parte on a shareholder is a judicial proceeding within the same Certified Copies. 101 section. Leishman v. Cochrane, Id. 315. "Where the seal of the foreign court is affixed to a copy of the proceedings, for the double purpose of authenticating the proceedings and cancelling a stamp affixed thereon, that is sufficient. Loibl v. Strampfer, 16 L. T. 720, cor. Lush, J. It seems that the seal should be used, though so much worn as no longer to make any impression. Cavan v. Stewart, 1 Stark. 525. By sect. 8, a certificate of the qualification of an apothecary, purporting to be under the common seal of the society of apothecaries of the city of London, shall be received in evidence, without further proof. Sect. 12, now repealed, related to registers, &c, of shipping : for the exist- ing enactments vide post, p. 130. By sect. 13, " Whenever in any proceeding whatever it may be necessa^ to prove the trial and conviction or acquittal of any person charged with any indictable offence, it shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy thereof, but it shall be sufficient that it be certified, or purport to be certified, under the hand of the clerk of the court or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copy of the record of the indictment, trial, conviction, and judgment or acquittal, as the case may be, omitting the formal parts thereof." See R. v. Parsons, L. R., 1 C. C. 24, cited ante, p. 100. This section applies to proof in civil proceedings, even on the issue of nul tiel record. Richardson v. Willis, L. R., 8 Ex. 69. Stat. 34 & 35 V. c. 112, s. 18 is to the same effect as regards the proof of convictions, and includes summary convictions, vide post, p. 109. As to proof, under the Crim. P. Act, 1865, s. 6, of a conviction, in order to discredit a witness, see post, p. 183. Hy sect. 14, " Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof, or extract therefrom, shall be admissible in evidence in any court of justice, or before any person now or hereafter having, by law, or by consent of parties, authority to hear, receive, and examine evidence, provided it be proved to be an examined copy or extract, or pro- vided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted ; " and the officer is required to furnish such certified copy or extract on application at a reasonable time and payment of a reasonable sum not exceeding 4tf. per folio of 90 words. The first part of this last section down to the word "or" seems merely to declare the common law rule; vide Proof by examined copy, ante, p. 98. When; the copy is signed and certified as the section provides, it, is admissible on its mere production in court. R. v. Weaver, L. R., 2 (J. 0. 85. Where a copy is informally certified, and therefore inadmissible, under this section, it may yet lie proved to be an examined copy by rird voce evidence, for the provisions of the section are cumulative. Ji. v. Manwaring, 1 Dears. & B. 132, 141 ; 26 L. J., M. C. 10, 14. The register of parliamentary voters of a borough and the poll books were provable under this section by copies; Eeed v. Lamb, 6 11. & N. 75; 29 L. J., Ex. 452; so are registers of births, marriages, &c; vide post, pp. 125 et seq.; and Scottish parochial registers of baptism ; Lyellv. Kennedy, L4Ap.Ca. 137, D. P. ; and the bye-laws of a railway company duly made and allowed under 8 & 9 V. c. 20, ss. 108 — 1 1 1, may be proved by a certified copy under the hand of the secretary of the company in whose custody they are. Motteram v. _/-;. Cotmides By. Co., 7 0. B., N. 8. 58; 29 L. J., M. C. 57. As to proof of the bye-laws of a municipal corporation under 45 & It; V. c. 50, s. 24, see Robinson v. Gregory, (1905) 1 K. B. 534. 102 Proof of Documents. It should bo observed that copies or extracts, attested or in any manner authenticated, are in many cases liable to stamp duty. Vide Stamps— Copy , post, p. 225. CUSTODY OF ANCIENT WRITINGS. In general the admissibility of ancient writings, which are incapable of direct proof, depends upon the custody from which they are produced, and from which their genuineness may be inferred; before, therefore, proceeding to consider the proof of particular documents, a few observations of a general character will be maile on this subject. Ancient ecclesiastical terriers are not admissible unless found in a proper repository, viz. the registry of the bishop, or of the archdeacon of the diocese ; Atkins v. Hatton, 2 Anstr. 386; Potts v. Durant, 3 Anstr. 795; or, as it seems, the church chest; Armstrong v. Hewitt, 4 Price, 216; which are also the proper repositories for the vicar's books ; S. C. A terrier found in the registry of the dean and chapter of Lichfield has been admitted as against a prebendary of Lichfield. Miller v. Foster, 2 Anstr. 387, n. But mere private custody is not sufficient. Potts v. Durant, 3 Anstr. 789; Atkins v. Drake, M < I. & V. 213. See also, as to terriers, R. v. Hall, L. R., 1 Q. B. 632. On an issue respecting the boundaries of two parishes, certain old papers were produced by the plaintiff (the rector of one of the parishes), which had come into the possession of the son of a former rector on his father's death, and had been delivered by him, as papers belonging to the parish, to the witness (an attorney) ; it was held that the papers were sufficiently authenticated without calling the son of the former rector. Earl v. Lewis, 4 Esp. 1. "Where a book, purporting to be the book of a former rector, came out of the custody of the defendant, his grandson, the proof was held insufficient ; it not appearing how it came into the defendant's possession. Randolph v. Gordon, 5 Price, 312. In a suit for tithes, a receipt purporting to be a receipt given by a former rector forty-five years ago to a person of the same name as the defendant, and produced from the custody of the defendant, has been held admissible. Bertie v. Beaumont, 2 Price, 303. Where A., the defendant in a tithe suit, offered in evidence a receipt purporting to be a receipt from one B. to one A. fifty years before, without showing who B. was, or where the paper had been kept, it was rejected. Mariby v. Curtis, 1 Price, 225, Wood, B., dissentiente. An ancient document relating to the interest of all the estates in the parish would reasonably be expected to be found among the title deeds of a large • state in the parish. R. v. Mytton, 2 E. & E. 557; S. C, sub nom. Mytton v. Tlwrnbury, 29 L. J., M. C. 109. An ancient writing enumerating the possessions of a monastery, produced loan the Herald's Office, is inadmissible. Lygon v. Strutt,2 Anstr. 601. So an old grant to an abbey, contained in a manuscript register entitled " Secre- tum Abbatis " in the Bodleian library, was rejected, as not coming from the proper repository. Michell v. Rabbctts, cited 3 Taunt. 91 ; Bank of England v. Anderson, 4 Scott, 83. So an ancient grant to a priory among the Cottonian manuscripts in the British Museum was rejected ; it not appearing that the possession of the grant was connected with any person having an interest in the estate. Swinnerton v. Stafford, Mqs. of, 3 Taunt. 91. In order to make an old document, as a manor book, &c, evidence, it was held not enough to produce it in court by the counsel of the party to whose custody it belongs, or by his steward, or even by the party himself; some witness who can speak as to the custody of it, should be sworn in court. Evans v. Rees, 10 Ad. & E. 151. And if any suspicion arise as to the Custody of Ancient Writings. 103 genuineness of it, the judge, before he admits it in evidence, will require information where it has been kept for some years back ; when it was first seen, &c. R. v. Mothersell, Stra. 93. But however reasonable this security against fraud may be in some cases, it has been held enough if it be shown that such an instrument as an expired lease comes from the possession of the land agent of the lessor, though lie may not be in court to produce it; Doe d. El. Shrewsbury v. Keeling, 11 Q. B. 884 ; or from the family solicitor ; Doe d. Jacobs v. Phillips, 8 Q. B. 158. In this, as in other cases, the admissibility of the evidence is for the determination of the court. The "proper custody " means that in which the document may be reason- ably expected to be found, although in strictness it ought to be in another place ; thus a cartulary in the possession of the owner of a part of some abbey lauds is admissible, though not owner of the greater part : in such a case the Augmentation Office will also be a proper place of deposit. Bullen v. Michel, 2 Price, 113 ; 4 Dow, 297. So, a tithe collector's book, produced from the possession of his successor. Jones v. Waller, 3 Grwill. 847. So, a bond to indemnify overseers in a case of bastardy from a chest in the union workhouse. Slater v. Hodgson, 9 Q. B. 727. So, a document relating to a bishop's see may be produced from the custody either of his descendants or of his successors in the see. Meath, Bp. of, v. Winchester, Mqs. of, 3 N. C. 183, D. P. ; and see Id. 201, per Tindal, C.J. ; Doe d. Neale v. Samples, 8 Ad. & E. 151; Oroughton v. Blake, 12 M. & W. 205; Doe d. Jacobs v. Phillips ; and R. v. Mytton, ante, p. 102. In a suit for tithes by a rector against occupiers, the defendants pleaded a modus payable to the vicar for the tithes claimed. It was held, first, that the copy of the vicar's endowment, contained in an old book, recording the acts of former bishops of the diocese, was admissible for the plaintiff (the bishop's registry having been searched for the original without success), and that no search was necessary either iu the public Record Offices, or in the vicar's house, although it was expressed in the instrument that one part of it was to remain with the vicar; secondly, that a terrier, appearing to be signed by a former incumbent, who was both rector and vicar of the parish, and whose handwriting was proved by the churchwardens, was admissible for the plaintiff, though produced from the custody of one who claimed the tithes in a particular district in the parish, and not from the usual depositories. Tucker v. Wilkins, 4 Sim. 241. The bishop's registry is the proper place for sequestrator's receipts and accounts. Pulley v. Hilton, 12 Price, 629. A will of lands relating also to personal property is properly produced from a box containing the title deeds of the tenant for life of the lands. Andrew v. Motley, 12 C. B., N. S. 527 ; 32 L. J., C. P. 128. Expired leases, coming from the possession of the lessor, are admissible. Plaxtonv. Dare, 10 B. & C. 17 ; Doe d. El. Shrewsbury v. Keeling, supra; Or from that of the lessee. Hall v. Ball, 3 M. & Gr. 242 ; Elworthy v. Sandford, 3 H. & C. 330 ; 34 L. J., Ex. 42. PROOF OP PARTICULAR DOCUMENTS. Those classes of documents which it is most frequently required to prove at Nisi Priiis, will lie found classified below, under appropriate headings. Proof of Acts and Journals of Parliament. Acts of Parliament may be divided into four classes: — 1. Public general Acts; 2. Public local and personal Acts; 3. Private Acts, printed by the King's printer ; 1. Private Acts, not printed by the King's printer. This 104 Proof of Documents. division is only established by custom, ami this a very uncertain one, at least until lately. A table (No. iii.) of all these classes is given at the end of the King's printer's edition of the statutes. Formerly it was the custom to declare most local and personal Acts to be public; some of these were printed by the Queen's printer with, and formed part of, the regular series of public. Acts; other public local and personal Acts, as well as local and personal Acts not public, and private Acts, were not always printed. The public local and personal Acts not printed were chiefly road Acts. By a resolution of both Houses of Parliament, which took effect in the year 1798 (38 G. 3), the public Acts were divided into two series: public general Acts, and public local and personal Acts ; and all public local and persona] Acts have, since that time, been printed. The other Acts were all classed as private, although they included many which ought clearly to come under the denomination of local and personal ; as, for instance, Inclosure Acts. Since 1815 the series of public local and personal Acts have been numbered by small Eoman numerals, by way of distinction. In 1815 a resolution was passed, under which almost all private Acts — except name Acts, estate Acts, naturalization Acts, and divorce Acts — have been printed. These form a third series of printed Acts; they are numbered by italic Arabic numerals. All public Acts, whether general or local and personal, are part of the law of the land, which all tribunals are bound to notice and apply. By the Interpretation Act, 1889 (52 & 53 V. c. 63), s. 9 (replacing 13 & 14 V. c. 21, s. 7), it is provided that "every Act" (including, by sect. 39, a local and personal Act, aud a private Act), "passed after the year 1850, whether before or after the commencement of this Act " (Jan. 1st, 1890) "shall be a public Act, and shall be judicially noticed as such, unless the contrary is expressly provided by the Act." Such Acts should be, and probably are, all inserted in the series of public general, or public local and personal Acts. The printed statute book is used as evidence of a public statute, not as an authentic copy of the record itself, but as aids to the memory of that which is supposed to be in every man's mind already. Gilb. Evid., 6th ed. 8, 9. By the 8 & 9 V. c. 113, s. 3, it is provided that " all copies of private, and local and personal Acts of Parliament, not public Acts, if purporting to be printed by the Queen's printers, and all copies of the journals of either House of Parliament, and of royal proclamations, purporting to be printed by the printers to the Crown, or by the printers to either House of Parliament, or by auy or either of them, shall be admitted as evidence thereof by all courts, judges, justices, and others, without any proof being given that such copies were so printed." But the marginal note of a statute in the copy so printed forms no part of the statute itself, and cannot be used to explain or construe the section ; Claydon v. Green, L. R., 3 C. P. 511. See also A.-G. v. Gt. E. By. Co., 11 (Jh. D. 460, 461, 465, per C. A., and Sutton v. Sutton, 22 Ch. D. 513, per Jessel, M.R. This is in accordance with the parliamentary practice, that no amendments can be moved to marginal notes, or titles to clauses as printed in the bill. See Hansard's Pari. Deb., H. Com. 20th July, 1875, pp. 1759— 60. Hence a title to sections or groups of sections is not in general part of the Act, notwithstanding dicta to the contrary attributed to Ld. Esher in R. v. Local Gov. Board, 10 Q. B. D. 321 ; and In re Noyce, (1892) 1 Q. B. 6 M, 645; and to the D. P. in Jnglis v. Robertson, (1898) A. C. 616; though it is otherwise if such title is so referred to in the sections of the Act as to become incorporated in it; see Lang v. Kerr, 3 Ap. Ca. 535, 536, 542, per Acts and Journals of Parliament. — Proclamations and Orders. 105 Lds. Cairns, C, and Hatherley ; or is in the nature of a subsidiary preamble, as in the case of the Lands Clauses Act, 1845 (8 & 9 V. c. 18). E. Counties, &c, By. Cos. v. Marriage, 9 H. L. C. 32. See Fletcher v. Birkenhead Cor., infra. It was formerly held that the title of a statute formed no part of the law ; Claydon v. Green, L. P., 3 C. P. 522, per Willes, J.; B. v. Williams, 1 W. Bl. 95 ; as it did "not pass with the same solemnity as the law itself," S. C. ; 8 II. L. C. 603, n. But this is now otherwise; it is subject to amendment in either House of Parliament, and is part of the statute. Fielden (or Melding) v. Morley Cor., (1899) 1 Ch. 1, 3, 4, C. A.; B. v. Cockerton, (1901) 1 K. B. 726, 731, C. A.; see also In re a Debtor, (1903) K. B. 708, per Collins, M.K. In re Cross, (1904) P. 269, the title was not allowed to cut down the gener- ality of a section; nor in Fletcher x. Birkenhead Cor., (1906) 1 K. B. 605 ; (1907) 2 K. B. 205, C. A., was a subsidiary preamble, vide supra. See, however, Fielden v. Morley, supra, cited post, p. 1132. The punctuation is not part of the statute. Claydon v. Green, ante, p. 104. If it should be necessary to prove a private Act, not printed by the Queen's printer, it must be done by procuring an examined copy of the Parliament roll. B. N. P. 225. This was the way in which the journals of Parliament were formerly proved, the printed journals not being evidence of them. Melville's (Ld.) case, 29 How. St. Tr. 683 ; B. v. Gordon, 2 Doug. 593. As to secondary proof of a private Act, see Doe d. Bacon v. Brydges, 6 M. & Gr. 282. In searcliiii'_ r for private Acts (and they are sometimes very difficult to find), Vardou's Index to the Local and Personal and Private Acts from 1798 to 1839, Bramwell's Analytical Table of the Private Statutes from 1727 to 1812, and the Index to the Statutes, Public and Private, published by the Select Committee on the Library of the House of Lords, from 1810 to 1859, will bo found useful. The best collection of private Acts is in the British Museum. There are also fair collections in the binaries of the Inner Temple, Lincoln's Inn, and the Incorporated Law Society. The stat. 41 Geo. 3, c. 90, s. 9 (post, p. 120), provides for the proof of Irish statutes passed prior to the Union. Proof of Proclamations and Orders. The provisions of 8 & 9 V. c. 113, s. 3 (ante, p. 104), have been extended by the Documentary Evidence Act, 1868 (31 & 32 V. c. 37), which, by sect. 2, provides that u prima facie evidence of any proclamation, order, or regulation issued before or after the passing of this Act, by her Majesty or by the Privy Council, also of any proclamation, order, or regulation issued before or after the passing of tliis Aei by or under the authority of any such department of the Gowrnmeul or officer as is mentioned in the first column of the schedule hereto, may lie given in all courts of justice and in all Legal proceedings whatsoever, in all or any of the modes hereinafter mentioned: that is to say, (1.) "By the production of a copy of the Gazette purporting to contain such proclamation, order, or regulation." See The Oliria, 1 Lush. 107, decided on 17 & 18 V. c. 104, s. 295. (2.) "By the production of a copy of such proclamation, order, or regula- tion purporting to bit printed by l he Government printer." See //. v. Wallace, II W. I;. 162, C. C. R. Ir. This provision has been extended by the Documentary Evidence Act, L882 (45 & 46 V. < . 9), s. 2, to a copy purporting " to be printed under the superin- tendence or authority of her Majesty's Stationery Office." The production of such evidence is prvmd facie evidence of publication of the o:der. Euggins v. Ward, L. I!., 8 Q. B. 521. lot; Pn>of of Documents. (3.) " By the production, in the case of any proclamation, order, or regulation issued by her Majesty or by the Privy Council, of a copy or extract purporting to be certified to be true by the clerk of the Privy Council, or by any one of the lords or others of the Privy Council; and in the case of any proclamation, order, or regulation issued by or under the authority of any of the said departments or officers, by the production of a copy or extract purporting to be certified to be true by the person or persons specified in the second column of the said schedule in connexion with such department or officer. "Any copy or extract made in pursuance of this Act may be in print or in writing, or partly in print and partly in writing. " No proof shall be required of the handwriting or official position of any person certifying, in pursuance of this Act, to the truth of any copy of or extract from any proclamation, order, or regulation." " Schedule. Column 1. Names of Department or' Officer, The Commissioners of the Treasury The Commissioners for executing the office of Lord High Admiral. Column 2. Names of Certifying Officers. Any Commissioner, Secretary, or Assistant-Secretary of the Treasury. Any of the Commissioners for executing the office of Lord High Admiral, or either of the Secretaries to the said Com- missioners. Any Secretary or Under Secretary of State. Any member of the Committee of Privy Council for Trade or any Secretary or Assistant-Secretary of the said Committee. Any Commissioner of the Poor Law Board, or any Secretary or Assistant-Secretary of the said Board." Vide infra. This schedule has been extended by subsequent Acts, as follows : — Secretaries of State. Committee of Privy Council for Trade. The Poor Law Board. The Education Department (33 & 34 V. c. 75, s. 83). The Postmaster- General c. 79, s. 21). The Board V. c. 9). (33 & 34 of Agriculture (58 & 59 Any member of the Education Department, or any Secretary or Assistant-Secretary thereof. Any Secretary or Assistant- Secretary of the Post Office. The President or any member of the Board, or the Secretary of the Board, or any person autho- rised by the President to act on behalf of the Secretary. The Act applies to the Local Government Board appointed under 34 & 35 V. c. 70, in the same way as it previously applied to the Poor Law Board (s. 5) ; it has also been applied to any regulation made by the Secretary of State under the Naturalization Act, 1870 (33 & 34 V. c. 14), s. 12 ; or the Letters Patent of the Grown. — Becords and Judgments. 107 Prison Act, 1877 (10 & 41 V. c. 21), s. 51 ; and to a bye-law made by him under the Military Land Act, 1892 (55 & 56 V. c. 43) : see sect. 17 (3) ; and to proclamations, &c, by the Lord Lieutenant of Ireland ; 45 & 46 V. c. 9, s. 4. See also the Salmon Fishery Act, 1873 (36 & 37 V. c. 71), s. 64. By the Trade Marks Act, 1905, 5 Edw. 7, c. 15, s. 52 (1), " All documents purporting to be orders made by the Board of Trade and to be sealed with the seal of the Board, or to be signed by a secretary or assistant secretary of the Board, or by any person authorized in that behalf by the President of the Board, shall be received in evidence, and shall be deemed to be such orders without further proof, unless the contrary is shown. (2) A certificate, signed by the President of the Board of Trade, that any order made or act done is the order or act of the Board, shall be conclusive evidence of the fact so certified." This section would, however, from its collocation, seem to apply only to documents relating to trade marks. Proof of Letters Patent of the Crown. Letters patent may be proved by production of them under the Great Seal ; or by an examined copy of the original enrolment of them in the public records, ante, p. 97, or a copy thereof certified by the Master of the Rolls under 1 & 2 V. c. 94, ante, p. 98 ; or by an exemplification under the Great Seal, ante, p. 96. Letters patent for inventions are now sealed with the seal of the Patent Office, impressions of which shall be judicially noticed and received in evidence. 46 & 47 V. c. 57, ss. 12, 84. Proof of Becoi'ds and Judgments. The proceedings of a court of record can be proved only by the record thereof; the record may be made up at any time when it becomes necessary to put it in evidence. Com. Dig. Record (A) (B) ; Kemp v. Neville, 10 C. B., N. S. 523 ; 31 L. J., 0. P. 158 ; Kelly v. Morray, L. R., 1 C. P. 667. In the case of a judgment prior to the J. Acts, upon an issue of mil tiel record, the proof is by the production of the original record, or by the tenor of it duly certified under a writ of certiorari. In case of variance the court may amend under Rules, 1883, O. xxviii. r. 1, post, p. 291. See Hunter v. Emanuel, 15 C. B. 290 ; 24 L. J., C. P. 16. Where the record is in the custody of the M.R. it seems that a copy certified under the seal of the Record Office is, under 1 & 2 V. c. 94, ss. 12, 13, ante, p. 98, as admissible in evidence as the original record. And now see Rules, 1883, O. xxxvii. r. 4, ante, p. 97, as to office copies and observations thereon. A criminal record may, even in civil proceedings, be proved by a certified copy under 14 & 15 V. c. 99, s. 13, ante, p. 101. Richardson v. Willis, L. R., 8 Ex. 69. Where there is not an issue of nul tiel record, but it is necessary to prove a record in support of some allegation in the pleadings, the record is to be proved either by production of the original when complete, by an exempli- fication, ante, p. 96, or by an examined or other authenticated copy; ante, pp. 97 et seq. Krcords of judgments of the Superior Courts at Westminster, &c, prior to the J. Acts, were not complete until entered on parchment and enrolled; B. N. P. 228; Glynn v. Thorpe, 1 B. & A. L53; and a copy of a judgment in paper, signed by the Master, was not evidence of the judgment, for it had not yet become permanent; B. N. P. 22s ; though such entry was sufficient to warrant execution. In Pagan v. Dawson, 4 M. & Gr. 711, the issue roll not under the seal of the court, with a nolle pros, entered thereon against a co-defendant, was held insufficient proof ol the nolle pros. It should seem that a regular entry on record was necessary. But a certified L08 Proof of Documents. copy of the entry of a judgment in the entry book of judgments in the Court of Exchequer has been admitted in bankruptcy in proof of the judgment. Ex pte. Anderson, 1 I Q. V>. D. 606, 0. A. In this case, however, the point was noj argued. Where the pleadings did not allege any matter of record, but only averred the pendency of a judicial proceeding before the record is made up,- as that a trial was had, — the fact might be proved by the production of the Nisi t'rius record, or indictment, with the official minutes; and, in some cases, perhaps, by mere oral evidence. Pitton v. Walter, Stra. L62 ; A', v. Brovme, M. & M. 815 ; B. v. Newman, 2 Den. 0. 0. 390. In tiie ease of a judgment under the -J. Acts, it is provided by the Eules, 1883, O. xli. r. 1, that "Every judgment shall be entered by the proper otlicer in the book to be kept for the purpose. The party entering the judgment shall deliver to the officer a copy of the whole of the pleadings in the cause." Forms of entering judgment are given in Id. App. F. The pleadings will be filed by the officer, and under 0. v. rr. 12, 13, a copy of the writ of summons will have previously been filed; and it is presumed by analogy to the former Chancery practice (vide post, pp. 112 et seq.) that these documents, together with the judgment, now constitute the record, and that no enrolment is necessary. This record may in every case be proved by its production under a judge's order (vide post, p. 159), or under II & 15 V. c. 99, s. 11 (ante, p. 101), by an examined or certiBed copy; or perhaps by an office copy under 0. xxxvii. r. 1. See observations thereon, ante, p. 97. Where the judgment is pleaded in a general form as an estoppel, the court will examine the pleadings and judgment to see what questions were in issue in the former action. Honstoun v. Sliyo, Marquis of, 29 Ch. I). 448. The grounds of the judgment may, it seems, be proved by a shorthand note sworn by the writer. S. C, Id. 457, 458, C. A. It has been held that the minute book of the clerk of the peace is not enough to prove that an indictment was preferred; nor is the original indictment itself, though indorsed as a true bill; B. v. Smith, 8 B. & C. 341 ; per Patteson, J., Porter v. Cooper, 1 C. M. & It. 388 ; yet in both these cases the allegation of the indictment was only introductory to the gist of the proceeding, which was a conspiracy to keep back a witness in one case, and an action on an agreement, after indictment found, in the other. Nor is the minute book in which the proceedings at sessions are entered, and from which the record is made up, evidence of the names of the justices in attendance at the trial of it. B. v. Bellamy, Ry. & M. 171. Where the record alleges an adjournment by A. and others, parol evidence may be given as to the justices actually present. S. C. The minutes of proceedings are evidence of them on a trial before the same court sitting under the same commission. B. v. Tooke, cited 8 B. & C. 343; B. v. Newman, supra. An allegation that an appeal came on to be heard at the sessions must be proved by the production of the record regularly made up in parchment; B. v. Ward, 6 C. & P. 366; Accord. Giles v. Siney, infra; but where (as is usually the case) no record but the minute book is kept by the sessions, such book was admitted in evidence. B. v. Yeoveley, 8 Ad. & E. 806. As to proof of a conviction or acquittal, now see 14 & 15 V. c. 99, s. 13, ante, p. 101. And as to proof of conviction in order to discredit a witness, see Crim. P. Act, 1865, s. 6, cited post, Proof hy tuitnesses, p. 183. It is the duty of a justice of the peace to return all convictions before him to the Quarter Sessions to be filed among the records of that court; 11 & 12 V. c. 43, s. 14 ; see Ex pte. Hay ward, 3 B. & S. 546; 32 L. J., .M. C. 89 ; and such conviction could formerly have been proved only by the production of the record thereof or an examined copy ; Hartley v. Hindmarsh, L. It., 1 C. P. 5r,:; ; Accord. Giles v. Siney, 13 W. R. 92, M. T. 1864, Q. B. Records and Judgments. — Fines and Common Recoveries. 109 Now however by 34 & 35 V. c. 112, s. 18 it may be proved by production of a copy of the conviction " purporting to he signed by any justice of the peace having jurisdiction over the offence in respect of which such conviction was made, or to be signed by the proper officer of the court by which such conviction was made, or by the clerk or other officer of any court to which such conviction has been returned." The register of the minutes or memo- randa of convictions of a court of summary jurisdiction kept under 42 & 43 V. c. 49, s. 22 by its clerk, is admissible in evidence to prove a previous conviction of the defendant, but in the same court only. Police Commr. v. Donovan, (1903) 1 K. B. 895, following L. School Board v. Harvey, 4 Q. B. D. 451. The dismissal of a complaint was proved in a similar way in R. v. Hutchins, 5 Q. B. D. 353, 356. And the dismissal of an information or com- plaint may also be proved by the certificate given under 11 & 12 V. c. 43, s. 14, vide S. C. In Watson v. Little, 5 H. & N. 472 ; 29 L. J., Ex. 267, a bastardy order, made by two deceased magistrates, was admitted iu evidence on proof of their handwriting, on the ground that it was an official minute of the proceedings made in discharge of their judicial duty ; as to the purpose for which it was so admitted, vide post, p. 207. A condemnation by any justice under the Customs Laws may be proved by production of a certificate thereof purporting to be signed by the justice, or by an examined copy of the record of such condemnation certified by his clerk. 39 & 40 V. c. 36, s. 263. Where an ancient record of a judgment has been lost, it may be proved to the jury by parol or other testimony ; as where the rolls of a court of a manor of ancient demesne bad been destroyed, an old copy of a recovery in it under the hand of the steward was admitted without other proof, the possession having long gone according to it. Green v. Proude, 1 Mod. 117; S. C, 1 Vent. 257. So the enrolment of the decree respecting London tithes under the 37 H. 8, c. 12, being lost, has been proved by user. S. C. ; Jlacdouyal v. Youuy, By. & M. 392. On a question whether a decree iu equity has been reversed by the House of Lords, a copy of the minutes of the judgment in the Journals is evidence; Jones v. Randall, Cowp. 17; and now see 8 & 9 V. c. 113, s. 3, ante, p. 104. But as a judgment of the House on error or appeal from the Superior Courts of Common Law was entered on record, it would seem that iu such case the minutes would not be sufficient. See also C. L. P. Act, 1852, ss. 156, 157. Under the Appellate Jurisdiction Act, 1876 (39 & 40 V. c. 59), this distinction, however, is now abolished, and it seems that any judgment of the House given since 1875 (see J. Act, 1875, s. 2), may now be proved by a copy of the minutes iu its Journals. As to proof of judgments, &c, of Inferior Courts, vide post, p. 117. Proof of Fines and Common Recoveries. A common recovery is proved in the same manner as the record of a judgment in an adverse suit. The chirograph or indenture of a fine, as formerly delivered by the chirographer, is the proper evidence of it. B. N. P. 229. But it has been held that the indorsement of proclamations on it is not evidence of them, because he has no official authority to deliver a copy of such indorsement. B. N. P. 230; Doc d. Batch v. Black, 6 Taunt. 485. The original entry of the proclamations was usually filed with the note of the fine, and was in the custody of the chirographer, and (his "note" is said to be the "principal erecordum," from which others are amendable. 3 Leon. 183. Be ides these records, the proceedings on a fine were formerly enrolled in the Court of C. P. under stats. 5 11. 1, c. 11, and 23 El. c. 3 ; and it should 110 Proof of Documents. seem, on principle, that examined copies of these enrolments of record when found, or office copies stamped with the seal of the Record Office (1 & 2 V. C. 94, ante, p. ( ,tS), are legitimate evidence. The foot or pes finis, is a third counterpart of the indentures made by the chirographer, and originally engrossed on the same parchment. The entry of the proclamations on this is official, and the proper custody of it was, until lately, that of the Gustos brevium. The result appears to be that there are several authentic records of lines, which show exactly the same facts, viz., the date, parties, property, concord, and proclamations. It must, however, be remembered that the practice and form of levying fines have undergone variations at different periods. See generally, on the mode of recording fines, 5 Eep. 39 a, and 2nd Report of Deputy Keeper of Public Records (1811), Appendix 1. By 5 & 6 W. 1, c. 82, other officers were substituted for the chirographer, whose copies were made as available as the old ones, and all the records of line (with a few recent exceptions) are now in the custody of the M.R., under 1 & 2 V. c. 91. The 11 & 12 V. c. 70, enacted that all fines levied in the C. P. should be conclusively deemed to have been levied with proclamations, except where, at the passing of the Act (August 31st, 1848), the land was actually enjoyed under a title inconsistent with such fine. The Act was expressly designed to save the expense of other proof of proclamations. It is remarkable, however, that it proceeded on the false supposition that " all fines" had previously been levied with proclamations. In the case of Welsh fines there is a special statute to facilitate the proof of them. See 4 V. c. 32, s. 2 ; and Doe d. Cadiualader v. Price, 16 M. & W. 603. Proof of Verdicts. When a verdict is offered as evidence of the truth of the facts found, the j)ostea alone was not sufficient, but the judgment must also have been proved to show that it had not been arrested, nor a new trial granted ; Pitton v. Walter, Stra. 162 ; B. N. P. 231 ; except in the case of an issue, when no judgment was entered up ; B. N. P. 234. But semb. the verdict should in that case have been shown to have been satisfactory by proof of the decree, or other adoption by the court. Id. See Robinson v. Duleep tiinyh, 11 Ch. D. 798, C. A. As to proof of the judgment, see ante, p. 108. The Nisi Prius record with the postea indorsed, or with minute of the verdict indorsed by the officer of the court, was sufficient where the only object is to show that the cause came on to be tried. Pitton v. Walter, supra; It. v. Browne, M. & M. 315. But without such minute, the N. P. record alone was no evidence of the trial. Per Lord Tenterden, C.J., Id. Under Rules, 1883, O. xxxvi. r. 30, two copies of the pleadings in the action are delivered to the officer when the action is entered for trial, one of which is for the use of the judge at the trial ; this delivery corresponds with the former delivery of the N. P. record (see O. xxvi. r. 1) ; and by r. 41, " the associate or master shall enter all such findings of fact as the judge may direct to be entered, and the directions, if any, of the judge as to judgment," in a book to be kept for the purpose. Under r. 42, where the judge directs any judgment to be entered for any party absolutely, judgment may be entered on a certificate given by the associate in Form 17, App. B. ; this certificate seems to correspond to the postea. Proof of Writs. A writ must be proved by a copy of the record of it after its return ; and this is said to be necessary whenever it is the gist of the action (i.e. ut semble wherever it is treated as matter of record in the pleading) ; B. N. P. 234 ; otherwise the writ itself may be produced, or secondary evidence given, Writs. — Inquisitions. — Rules of Court, &c. Ill when its non-production is accounted for. A copy of the judgment-roll containiug an award of an elegit and the return of the inquisition is evidence (and ut semb. the best evidence) of the elegit and inquisition. Ramsbottom v. Buckhurst, 2 M. & S. 565. To prove that the defendant issued a writ, it is not sufficient secondary evidence to produce the filacer's book unless it be shown that it has not been returned but is in the defendant's hands, who has had notice to produce it. Edmonstone v. Plaisted, 4 Esp. 160. Where a writ is pleaded in terms, and nul tiel record is replied, it must be proved by the production of the record, as in other cases of records ; ante, pp. 107, 108. As to proof by office copy, see Rules, 1883, 0. xxxvii. r. 4, and obser- vations thereon, ante, p. 97. A writ of summons may be proved by production of the original writ, or by the copy thereof left with and filed by the officer under Rules, 1883, 0. v. rr. 12, 13. R. v. Scott, 2 Q. B. D. 415. If the defendant has to prove the writ, it should seem that the copy served on him by the plaintiff is primary evidence ; vide ante, p. 3. Proof of Inquisitions. Where the return to an inquisition is given in evidence, it is in general necessary to show that the inquiry was made under proper authority. On this head some distinctions are observable. Inquests of office are either by commission under the Great Seal, as offices of entitling, &c. ; or by com- mission or writ under the seal of the Exchequer ; or they are taken ex-officio, as by coroners, escheators, &c. The returns made under any of the above special commissions, or writs, are generally inadmissible as evidence, unless the commission be proved, or the non-production of it accounted for. But inquisitions taken ex-ojfficio by officers acting under a general commission or appointment, as escheators, &c, seem to be admissible on principle, without further evidence of authority than that they were acting as such officers. See generally as to the nature of inquests of office, 3 Bl. Com. 258 ; 16 Vin. Ab. 79, tit. Office. In the case of an inquisition post mortem, and such private offices, the return cannot be read without also reading the commission under which it was taken ; unless, as it seems, the inquisition be old. 12 Vin. Ab. Ev. (A. b. 42). In cases of more general concern, such as the return to the commission, temp. Hen. 8, to inquire of the value of livings, the com- mission is said to require no proof. B. N. P. 228. So an ancient extent of Crown lands found in the proper office, purporting to have been taken by a steward of the king's lands, and following in its form the direction of the statute 4 E. 1, stat. 1, will be presumed to have been taken under competent authority, though the commission cannot be found. Rowe v. Brenton, 3 M. & Ry. 164 ; S. C, 8 B. & C. 747. And there are many cases to show that an old commission may be presumed : see references, S. 0., 3 M. & Ry. 171, 349. The book called Domesday is an inquest of this kind. An inquisition is admissible though it has become illegible in material parts. Auderton v. Magawleij, 3 Bro. P. C. 208. A lost inquisition postmortem may be proved by a recital of it in ancient proceedings, as on a petition of right in the Coram Rege roll, where it was incidentally certified verbatim to the Court of K. B. and set forth on the record. Rowe v. Brenton, 3 M. & Ry. 141, 142. Proof of Rules or Orders of Court, and Judges' Orders. An order (in the common law courts formerly callel a rule) of a superior court, is proved by an office copy thereof, for such a copy is the order itself. 1 11' Proof of Dorxmcnts. Per Our., Streeter v. Bwrtlett, 5 C. B. 564; Selby v. //arris, 1 Lcl. Raym. 745 : Ludlow v. Charlton, 9 C. & P. 242. Where a court (as that of ln- M'lvent Debtors) prints and circulates copies of its general rules for the guidance of its officers, one of such copies is evidence of the rules, without showing it to have been examined with the original. Dance v. Robsvn, M. & ML 294. But the rules must be shown to have been sanctioned by the court in order to support an indictment for perjury on an affidavit required by them. //. v. Koops, r of v. Day, ."> Taunt. 262; Strutt v. Bovingdon, 5 Esp. 5r authorized to be served, and the handwriting and seal of any justice of the peace or other officer or person on any warrant, summons, notice, process, or document may Ik; proved by a Bolemn declaration taken before a justice of the peace, or before a com- missioner to administer oaths in the Supreme Court of Judicature, or before a clerk of the peace, or a registrar of a county court ; and any declaration purporting to be so taken shall, until the contrary is shown, be sufficient 118 I 'roof of Documents. proof of the statements contained therein, and shall be received in evidence in any court or legal proceeding, without proof of the signature or^of the official character of the person or persons taking or signing the same." As to proof of conviction before justices forming a court of summary juris- diction. vid\ ante, pp. 108, L09. As to proof of depositions, in proceedings before a justice, vide post, p. 883. Proof of Probates and Letters of Administration. Where the title to personal property under a will is in question, the original will cannot, in general, be read in evidence; but the probate must be°produced. Pinney v. Pinney, 8 B. & C. 335 ; Pinncy v. Hunt, 6 Ch. "D. 98. And this rule is now extended to freehold estate belonging to a person dying after Dec. 31st, 1897, vide post, p. 145. Probate from a court in the United Kingdom is not necessary to establish the right to receive money payable on a policy of life assurance effected by a person who has died domiciled elsewhere. See 47 & 48 V. c. 62, s. 11, amended by 52 & 53 V. c. 42, s. 19. The probate is sealed with the seal of the court, vide infra. But the probate is not the only evidence of the will : for the probate itself, as also letters of administration cum testamento, &c, are only certificates that the will has been proved, and other evidence of equal authority can always be obtained ; thus the Act Book of the Ecclesiastical Court, containing an entry of the will having been proved and of probate granted to the executors therein named, is admissible evidence of executorship, without accounting for the non-production of the probate. Cox v. Allingham, Jacob, 514. An examined copy of the Act Book is also evidence since Act 14 & 15 V. c. 99, s. 14, ante, p. 101 ; Dorret v. Meux, 15 C. B. 142 ; 23 L. J., C. P. 221 ; and it was so before that Act. See Davis v. Williams, post, p. 119. And the original will with an indorsement or note at the foot of it by the surrogate and deputv registrar is primary evidence of probate, when no other record of it is kept" Doe d. Bassett v. Mew, 7 Ad. & E. 240. See also Gorton v. Dyson, 1 B. & B. 219, and Waite v. Gale, 2 D. & L. 925. These cases are put on the ground that the record in the Ecclesiastical Court is primary evidence of the will, and so it would seem that no secondary evidence would be admissible until both the non-production of the probate and the non-production of any other record of the Ecclesiastical Court had been accounted for. It was said by Holt, C.J., in Hoe v. Nelthrope, 3 Salk. 154; S. C. sub nom. Hoe v. Kathorp, 1 Ld. Raym. 154, that the copy (of course, examined) of a probate of a will is good evidence, because the probate is an original taken by authority ; but this view has not generally been adopted, though it is not altogether inconsistent with principle. Where the probate of a will is admis- sible in evidence under 20 & 21 V. c. 77, s. 64, post, p. 151, in proof of a devise of real estate, a copy stamped with any seal of the Probate Div. of the High Ct, vide post, p. 119, is rendered equally admissible by the section. If the probate be lost, it is not the practice of the Ecclesiastical Court to grant a second probate, but only an exemplification, which will be evidence of the proving of the will. Shepherd v. Shorthose, Stra. 412. To prove the probate revoked, an entry of the revocation in the book of the Prerogative < !ourts is good evidence where no other record is kept. PamshotlorrCs case, 1 Leach, C. C. 4th ed., 25, n. (b). As to the authority of the probate, and the manner in which it may be impeached in evidence, see Effect of Probate, &c.,post, pp. 203, 204. Administration is proved by the production of the letters of administration, or of a certificate of exemplification thereof, granted by the Ecclesiastical Court; Kempton v. Cross, Cas. t. Hardw. 108; B. N. P. 246; or, without Probate. — Court Bolls. 119 producing the letters of administration, by the original book of acts recording the grant of the letters. Id. ; Elden v. Keddell, 8 East, 187. It is said that the seal of the Ecclesiastical Court proves itself, and Kempton v. Cross, ante, p. 118, is cited in the test buoks for that purpose ; but the case only shows that the act of the Prerogative Court under its seal will be credited by the courts of law ; and not that the seal itself requires no proof. It would be a strong thin;* to require the courts to take notice of the seals of some hundreds of local and limited probate courts which existed in the kingdom. Vide ante, p. 79. An examined copy of the Act book, stating the grant of letters of administration to the defendant, is proof of his being administrator, without notice to produce the letters. Davis v. Williams, 13 East, 232. See further, Wms. Exors., 10th ed., 1532. By the Act for establishing the Court of Probate (20 & 21 V. c. 77), s. 22, seals were provided for the court : i.e. for the principal and district registries, "and all probates, letters of administration, orders, and other instruments, and exemplifications and copies thereof respectively, purporting to be sealed with any seal of the Court of Probate, shall in all parts of the United Kingdom be received in evidence without further proof thereof." See also sect. 64, post, p. 151. The court was a court of record (sect. 23) ; and its jurisdiction has been transferred to the High Court of Justice by the J. Act, 1873, s. 16, and is assigned by sect. 34 to the Probate, Divorce, and Admiralty Division. See Pinney v. Hunt, 6 Ch. D. 98. Proof of Court Rolls. In order to prove the title of a copyholder, the court rolls may be produced without producing the stamped copy ; Doe d. Bennington v. Hall, 16 East, 208 ; or they may be proved by examined copies ; Doe d. Caivthorn v. Mee, 4 B. & Ad. 617 ; Breeze v. Hawker, 14 Sim. 350 ; but by the Stamp Act, 1891, s. 65 (3), the entry on the court rolls of a surrender or grant is not available as evidence thereof, unless the surrender or grant, if made out of court, or the memorandum thereof, or the copy of court roll, if made in court, is duly stamped ; but this is sufficiently proved by a certificate of the steward on the margin of the entry. See further, sub til., Stamps, Copyhold and customary estates, post, p. 253, where the cases decided under the former Stamp Acts are collected. The title may also be proved by the stamped copy delivered and signed by the steward. Co. Litt. s. 75 ; Scriven, Copyh., 7th ed., 487 ; Peake, Evid. 94. And where an admittance is more than 30 years old, proof of the signature of the steward is unnecessary. Ely, Dean and Chapter of v. Stewart, 2 Atk. 44 ; Bowe v. Brenton, 3 M. & By. 296 ; but see Somerset, Duke of v. France, Fortescue, 43. Whether court rolls of a manor may be proved by a copy certified by the steward having them in his custody, under slat. 14 & 15 V. c. 99, s. 14, ante, p. 101, is open to question. The rolls need not be signed by the steward. Bridger v. Ifmtt, 2 P. & F. 35. A surrender and presentment may be proved by the draft of an entry, produced from the muniments of the manor, and the oral testimony of the foreman of the homage jury who maiie the presentment. Doe d. Priestley v. Calloway, 6 B. & C. 484. And such a draft is admissible though there may have been a subsequent regular enrolment. Id. 4'J5. And if the original roll be put in, it may be shown to be incorrect by producing the minute of the steward, or by other evidence. Id. 494; Scriven, Copyh., 7th ed. Ill, 112, 467, 468. Where a surrender was made in 1774, and there was no record of it on the court rolls, the books of the manor containing a record of the admission, which recited the surrender, were received as evidence of the surrender. R. v. Thruscross, 1 Ad. & 10. 126. As to proof of a recovery in a manor of ancient demesne, see Green v. Proudc, 1 Venti. 257, IL'O Proof of Documents. cited ante, p. 100. A presentment in a manor bouk will not be rejected because part of it lias been cut off, there being no ground for supposing the mutilation to be fraudulent. Evans v. Iiees, 10 Ad. & E. 151. Proof of Proceedings in Bankruptcy. The proof of proceedings in bankruptcy is provided by the Bankruptcy Act, L883, ss. 21 (4), 30 (3), 35 (3), 37 (6), 127 (2), 132, 133, 134, 136, 137, 138, 140. Id. 1890, s. 3 (13). Proof of Foreign Law. The courts cannot take cognizance of the laws of foreign states : they must be proved as facts. Mostyn v. Fabrigas, Cowp. 174; Sussex Peerage case, 11 CI. & P. 114-117. The laws of Scotland— Male v. Roberts, 3 Esp. 163 ; Wood/iam v. Edwardes, 5 Ad. & E. 771 ; II. v. Povey, post, p. 121 ; of the Channel Islands ; Prolan's case, 10 Q. B. 492, 498 ; and of the colonies ; Astley v. Fisher, C. B. 572; Wey v. Tally, 6 Mod. 194; The Peerless, Lush. 103; 29 L. J., P. M. & A. 49— fall within this rule; though in an appeal to the House of Lords, that tribunal will take judicial notice of the laws prevailing in each of the three kingdoms; Cooper v. Cooper, 13 Ap. Ca. 88, 1). P. ; Lyell v. Kennedy ', 14 Ap. Ca. 437, D. P.; and in an appeal from a colonial court, the judicial committee of privy council will- take judicial cognizance of the laws of the colonies of Great Britain. As the laws ol Ireland are substantially the same as those of England they would probably now be noticed. Sec Reynolds v. Fenton, 3 C. B. 187, 191, per Maule, J., explaining Ferguson v. Mahon, 11 Ad. & E. 179. By slat. 41 G. 3, c. 90, s. 9, the copy of the statutes of the Kingdom of Ireland, made by the parliament there, printed by the king's printer, shall be received as conclusive evidence of the statutes enacted by the parliament of Ireland, prior to the union, in any court of civil or criminal jurisdiction in Great Britain. As to the manner of proving the ancient Welsh laws, see A.-O. v. Jones, 2 H. & C. 347, 354, n.; 33 L. J. Ex. 249, 257, n. By 28 & 29 V. c. 63, s. 6, a copy certified by the clerk or other proper officer of a legislative body in any colony, of any colonial law assented to by the Governor of the colony or reserved by him for the signification of her Majesty's pleasure shall be prima facie evidence that the law has been duly passed, or the bill passed, and presented to the Governor; and the assent or dissent of htr Majesty to the bill may be proved prima facie by a proclama- tion purporting to be published by the authority of the Governor in any newspaper in the colony. It was formerly laid down that the written law of a foreign state should be proved by a copy duly authenticated. Clegg v. Levy, 3 Camp. 166 ; Picton's case, 30 How. St. Tr. 191. But this doctrine has been overruled on a trial at bar, in which oral evidence of a foreign advocate was admitted to prove a decree of the National Assembly of France, 1789. Be Bode's case, 8 Q. 1!. L'uy. And in the Sussex Peerage case, supra, it was held that the law is properly receivable only from such oral evidence, although a witness may relresh Ins own memory from the written law. If he state that any text-book, decision, code, or other legal document truly represents the foreign law, the court may regard such legal document as part of his testimony, and give effect to it accordingly. Concha v. Murrieta, 40 Ch. D. 543, 551, 554, t< '1 'owing Bremer v. Freeman, 10 Moo. P. C. 306. See Be Hart v. Campania, &c. "Aurora," (1903) 2 K. B. 505, 506, per Vaughan Williams, L.J. A French vice-consul has been admitted to prove the French written law of marriage by referring to a printed edition of the Cinq Codes, and by his Foreign Law. 121 own testimony; Lacon v. Higgins, 3 Stark. 178; Dowl. & Ey. N. P. 38 ; and a practising advocate attached to the consulate was admitted to prove the French law of bills of exchange. Trimbey v. Vignier, 1 N. C. 151. Foreign law should be proved by witnesses of competent skill ; thus a tobacconist was rejected as a witness of the law of Scotland respecting marriage, cited in B. v. Brampton, 10 East, 287. See also B. v. Povey, Dears. 32; 22 L. J. M. C. 19. But the Jewish marriage law has been allowed ex necessitate to be proved by persons in trade, and of inferior station. Lindo v. Belisario, 1 Hagg. Con. Rep. 216. And it has since been held that experience as a legal practitioner was in certain cases not necessary, and that a witness who was formerly a merchant and stockbroker in Belgium might be received as competent to inform the court on the law or custom of bills of exchange there ; this was decided on the ground that the witness, from the course of his business, had necessarily become acquainted with the Belgian law of bills of exchange. Vandcrdonckt v. Thellusson, 8 C. B. 812. So a notary public who has had experience in the law of Chili has been allowed to prove that law as to representation on death. In re Whitelegg, (1899) P. 267. But a juris-consult, attached to the Prussian consulate, who had no other qualification than having studied law at Leipsig, was held incompetent to prove the stamp law of Cologne on the ground that he had had no practical acquaintance with the law in question. Bristow v. SequeviUe, 5 Exch. 275 ; In re Turner, (1906) W. N. 27, Keke- wich, J. So the evidence of an English lawyer who has studied the foreign law here was rejected. In re Bonelli, 1 P. D. 69. An instrument purporting to be a divorce under the seal of the synagogue at Leghorn, is not admissible without previous proof of the law of the country; Ganer v. Lanesborough, Ly., Peake, 17 ; but Ld. Kenyou permitted the party divorced to give oral evidence of her divorce at Leghorn, according to the ceremony and custom of the Jews there. S. C. A Roman Catholic vicar-apostolic in England has been admitted to prove the modern marriage law of the church of Rome in Italy. Sussex Peerage case, 11 CI. & F. li-i, 117 ct seq. The competency of the witness to prove foreign law is a question for the court, and the only general rule that can be collected from the reported cases is, that the witness must from his profession or business have had peculiar means of becoming acquainted with that branch of law which he is called to prove; see Vandcr- donckt v. Tltdlusson, supra ; Wilson v. Wilson, (1903) P. 157 (Maltese marriage). The evidence of an ex-colonial governor has been admitted to prove the validity of a marriage entered into in the colony. Cooper-King v. Cooper-King, (1900) P. (15. So that of the A.-G. of the Lsle of Man as t" a, marriage there. Roberts v. Jlrennav, (1902) P. II.".. So that of'a Persian Ambassador to prove the Persian law of inheritance. In re Dost My, 6 P. D. 6. And the certificate of a foreign ambassador under the seal of the legation was held sufficient evidence of the law of the country by which he was accredited. In re Klingemann, 3 Sw. & T. 18; 32 L. J., P. M. & A. 16 ; In re Prince Oldenburg, 9 P. 1 >. 234. By 24 & 25 V. c. 11, the High Court (see J. Act, 1873, s. 16) may remit a case for the opinion of a court in any foreign state with which her Majesty may have made a convention for that purpose; it docs not, however, appear that any such convention has yet been made. By 'I'l «.v -!3 V. C. 63, a case may be stated for the opinion of the superior court of any part of her Majesty's dominions, in i nler to ascertain the law of that part. A e may lie stated thereunder for the opinion of the Court of Session in Scotland. De Thoren v. A.-U., 1 Ap. Ca. 686, D. P. L22 Proof of Documents. "Proof of Foreign Judgments. A judgment duly verified l>y a seal proved to be that of the foreign court was presumed to be regular and agreeable to the foreign law until the contrary is shown. Alivon v. Funti.ua/, 1 C. M. & R. 277. And now the stat. 1 i & L5 V. c. 99, s. 7, cited ante, p. 100, provides for the proof of a foreign or colonial judgment, &c, by means of a copy under the seal of the court, or signed by a judge thereof, with a certificate by him that the court has no seal, and proof of the seal or signature of the judge is unnecessary. See the cases decided thereon, ante, pp. 100, 101. By the Judgments Extension Act, 1868 (31 & 32 V. c. 54), s. 1, cer- tificates of Irish judgments for the payment of debt, damages, or costs may be registered in the Central Office of the High Court; see J. Act, 1873, s. L6, and J. (Officers) Act, 1879, s. 5; and the certificate "shall from the date of such registration he of the same force and effect, and all proceedings shall and may be had and taken on such certificate as if the judgment of which it is a certificate had been a judgment originally obtained or entered up ou the date of such registration " in the High Court. Sect. 3 makes a similar provision with respect to a Scotch decreet, except (sect. 8) one "pro- nounced in absence in an action proceeding on an arrestment used to found jurisdiction." See In re Low, (1894) 1 Ch. 147. The report of an Irish judge to the Irish court, to be used on an appli- cation to set aside the verdict, is evidence in an action between the same parties of what took place at the trial before him and of his decision. Houstoun v. Sligo, Mqs. of, 29 Ch. D. 448, C. A. And a shorthand note of the judgment, sworn to by the writer, is admissible to prove the grounds of the judgment. S. C. Proof of Entries in Public Boohs, Postmarks, &c. Whenever an original is of a public nature aud admissible in evidence as such, an examined copy is, on grounds of public convenience, also admis- sible. Lynch v. Gierke, 3 Salk, 151, vide ante, pp. 97, 98. Thus examined copies of the entries in the council book ; or of a licence preserved in the Secretary of State's office; Eyre v. Palsgrave, 2 Camp. 606 ; so of a record deposited in the Land Revenue Office, under 2 W. 4, c. 1, though it be only a rental of a crown grantee, and not a judicial record; Doe d. William IV. v. Roberts, 13 M. & W. 520; of entries in the bank books; Mortimer v. M'Callan, 6 M. & W. 58; of a bank-note filed at the bank; Man v. Carey, 3 Salk. 155; of entries in the books of the East India Company ; II. v. Gordon, 2 Doug. 593 ; or in the books of the commis- sioners of land-tax ; R. v. King, 2 T. R. 234; or of excise; Fuller v. Fotch, I Jar. 346 ; or in a poll-book at an election ; Mead v. Robinson, Willes, 424; Reed v. Lamb, 6 H. & N. 75 ; 29 L. J., Ex. 452 ; or the register of voters ; S. C. ; or an old book kept in the chapter-house of a dean and chapter, purporting to contain copies of leases; Goombs v. Coether, M. & M. 398; Waheman v. West, 7 C. & P. 479, are all good evidence of the originals. The rules of savings banks under 26 & 27 V. c. 87, may be proved by an examined copy, sect. 4. A copy of an old deed contained in one of the books of the Bodleian Library (which the statutes of the university forbid to be removed) was admitted in evidence under the special circumstances (but query if the original would itself have been admissible? ante, pp. 102, 103). Dowries v. Mooreman, Bunb. 189. A collection of treaties, published by the direction of the American government, is not sufficient to prove a treaty ; an examined (or authenticated) copy should be produced. Richardson Entries in Public Boohs, Postmarks, £c. — Bankers' Books. 123 v. Anderson, 1 Camp. 65, n. Early treaties were eDrolled in Chancery; more recent treaties are deposited at the State Paper Office. As to how examined copies are made, vide Proof by examined copy, ante, p. 98. The postmark on a letter is usually taken as genuine without proof; but, if disputed, it has been doubted whether the person who made it must be called; or whether it may be proved by any postmaster; or by any one in the habit of receiving letters through the same post-office. Abbey v. Lill, 5 Bing. 299 ; Kent v. Lowen, 1 Camp. 177 ; Arcangelo v. Thompson, 2 Camp. 620; Fletcher v. Braddyll, 3 Stark. 64; R. v. Plumer, R. & Ry. 264; Woodcock v. Houldsworth, 16 M. & W. 124. Probably it may be verified in any of those ways ; and the person who stamped the letter is not likely to recollect that he did so, or to be better qualified to speak of it than any one who happens to be accpuainted with the particular post-office mark. There are various provisions by Act of Parliament for proving instruments in the custody of registrars of public companies, or other public officers, by certified copies. See Proof by certified copy, ante, p. 98 et seq. Of tins kind are the registers of joint-stock and baukiug companies; as to these, vide sub tit., Action by and against companies, post, pp. 1098, 1118, 1130. Evidence of proceedings under the Bankruptcy Acts, 1883, 1890, may be given by office copies which prove themselves. Proof of Entries in Bankers' Books. The Bankers' Books Evidence Act, 1879, 42 & 43 V. c. 11, contains important special provisions relating to the means of proving entries in bankers' books and to their effect in evidence. Its provisions are mainly as follows: — By sect. 3. " Subject to the provisions of this Act, a copy of any entry in a bankers' book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transactions, and accounts therein recorded." The expression "legal proceeding" "includes an arbi- tration ; " sect. 10. Sect. 3 makes copies of entries in bankers' books evidence of the matters therein recorded even infer alios. Harding v. Williams, 14 Ch. D. 197. By sect. 4. "A copy of an entry in a banker's book shall not be received in evidence under this Act unless it be first proved that the book was at the time of the making of the entry one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody or control of the bank. Such proof may be given by a partner or officer of the bank, and may be given orally or by an affidavit sworn before any commissioner or person authorised to take affidavits." By sect. 5. " A copy of an entry in a banker's book shall not be received in evidence under this Act unless it be further proved that the copy has been examined witli the original entry and is correct. Such proof shall be given by some person who has examined the copy with the original entry, and may be given either orally or by an affidavit sworn before any commissioner or person authorised to take affidavits. ' By sect. 9. "In this Act the expressions 'bank' and 'banker' mean any person, persons, partnership, or company carrying on the business of bankers, and having duly made a return to the Commissioners of Inland Kevenue, and also any savings bank certified under tint Acts relating to savings banks, and also any post-office savings bank. "The fact of any such bank having duly made a return to the Com- missioners of Inland Revenue may be proved in any legal proceeding by production of a copy of its return verified by the affidavit of a partner or 12 1 Proof of Documents. officer of the bank, or by the production of a copy of a newspaper pur- porting to contain a copy of such ret urn published by the Commissioners of Inland Revenue; the fact that any such savings bank is certified under the Acts relating to savings banks may be proved by an office or examined copy of its certificate; the fact that any such bank is a post-office savings bank may be proved by a certificate purporting to be under the hand of Eer Majesty's Postmaster-General or one of the secretaries" [or the controller or assistant controller, 56 & 57 V. c. 69, s. (I] "of the Post Office. "Expressions in this Act relating to 'bankers' books' include ledgers, dav books, cash hooks, account books, and all other books used in the ordinary business of the hank." By 45 & 46 V. c. 72, s. 11 (2), the expressions "bank" and "bankers" in the above Act, "shall include any company carrying on the business of bankers to which the provisions of the Compauies Acts, 1862 to 1880, are applicable, and having 'luly furnished to the registrar of joint stock companies a list and summary with the addition specified by this Act, and the fact of such list and summary having been dtdy furnished may be proved in any legal proceedings by the certificate of the registrar or any assistant registrar for the time being of joint-stock companies." By sect. 11 (1), this list and summary is that specified in the Companies Act, 1862, Part II., and " the addition " is a statement of the names of the places where the company carries on its business. The Acts apply to a bank L. which has taken over the business and books of the bank H. in which books the entries have been made. Asylum for hi lots v. Handysides, 22 T. L. R. 573, C. A. So also to a bank in Scotland. Kissam v. Link, (1806) 1 Q. B. 571, C. A. Proof vf Entries in Corporation Books. The official acts of a municipal corporation, registered in books, may be proved by production of them. Thetford case, 12 Vin. Ab. 90. To make the books evidence, it must appear that they come from the proper custody ; as from a chest which has always been in the custody of the clerk of the corporation. S. C. ; Shrewsbury, Mercers of, v. Hart, 1 0. & P. 114. When the entries in the books are admissible as being of a public nature, examined copies are evidence. Brocas v. London, Mayor of, Stra. 307. And where, in order to prove the defendant a freeman, a copy upon stamped paper was produced of a loose paper upon a file, which the witness said was also on a stam p, and was kept with other similar stamped entries on a file amoDg the corporation papers, and it appeared that there was also a book in which the acts of the corporation were kept, and wherein there was an entry more at large of the freeman's admission made when he was originally admitted, but there was no stamp in the book ; it was held that the loose paper being the only effectual act, as having the proper stamp, must be looked upon as the proper and original act of the corporation, and that a copy of that was good evidence. Per Noel, J., B. v. Head, Peake, Ev. 92, n. This case seems to turn on the necessity of a stamp. Entries of a private nature, which do not relate to corporate acts, must, if admissible, be produced; and copies of them are not evidence, though long kept among the corporate muniments. R. v. Gwyn, 1 Stra. -101. Au erasure in the entry in the minute book of a corporation muht be presumed to have been made before the entry was signed. Stceven's Hospital v. Dyer, 15 Ir. Ch. R. 405. W here entries made in the books of a college were usually attested by the registrar who was a notary public, and signed by him as such, entries not so attested were held inadmissible as evidence of reputation. Fox v. Bear- Mock, 17 Ch. D. 429. Registers of Baptisms, Burials, Deaths, and Marriages. 125 Proof of Registers of Births, Baptisms, Marriages, Deaths, and Burials. Parish registers of hiptisnis, marriages, and burials may be proved by production of the register itself, or by examined copies. B. N. P. 247. If a copy be produced, it should be shown that the original was in its proper custody; this is regulated by 52 G. 3, c. 146, s. 5, infra; it is not sufficient to show that the register was in the custody of tint parish clerk. Doe d. Ld. Arundel v. Fowler, 14 Q. B. 700. In order to prove the register of a marriage it is not necessary to call the attesting witnesses; but, as the register affords no proof of the identity of the parties, some evidence of that fact must be given, as by calling minister, clerk, or attesting witnesses, or others present-^ or the handwriting of the parties may be proved. Birt v. Barloiv, 1 Doug. 172. But whatever is sufficient to satisfy the jury as to the identity is good evidence ; Id. 174 ; Hubbard v. Lees, L. R., 1 Ex. 255 ; and it seems from the last case that the mere similarity of names is sufficient evidence for the jury, and where the jury are satisfied as to the identity the court will not interfere. See also La Cloche v. La Cloche, L. R., 4 P. C. 325, 333, and R. v. Weaver, p>ost, p. 127. To prove the handwriting of the parties in the register it is not necessary to produce the original register for that purpose, but the witness may speak to the handwriting in it without producing it. Sayer v. Clossop, 2 Exch. 409. A photographic likeness may often be used for the purpose of identification; this has been con- stantly done in actions for divorce (see, however, Frith v. Frith (1896), P. 74), and even in criminal trials. Thus where a woman was tried for bigamy, a photograph of her first husband was allowed by Willes, J., to be shown to witnesses present at the first marriage, in order to prove his identity with the person mentioned in the certificate of that marriage. R. v. Tolson, 4 P. & F. 103. If a marriage be proved by a person who was present, it is not necessary to prove the registration, or licence, or banns. _ Allison's case, R. & Ry. 109. Tne register is admissible evidence, although it be shown that the incumbent was accustomed to cause the entries to be made from the informa- tion of others, and not from personal knowledge. Doe d. France v. Andrews, 15 Q. B. 756. The Act still in force for the registration of baptisms and burials by clergy of the Church of England is 52 G. 3, c. 146. It directs that the parish register shall be kept by the clergyman either at his residence or in the church (sect. 5), and provides that verified copies shall be annually sent to the registrar of the diocese (sect. 7). It seems that the latter, being public documents, are evidence as well as the former, and may be proved by examined copies. Walker v. Beauchamp, 6 C. & P. 552, per Alderson, B. ; and see A.-G. v. Oldham, cited in Burn on Parish Registers, 209. But quaere whether the bishop's transcripts, made before that Act, can be used except as secondary evidence? See Walker v. Beauchamp, supra. The registration of marriages by clergy of the Church of England is now regulated^by 6 & 7 W. 4, c. 86. By sect. 31 and schedule, the minister, after solemnizing a marriage, is to register, in two register books, in the form prescribed by the Act, the date, names, age, condition, and rank of the parties, their residence at the time of the marriage, and the names and rank of their fathers; and the entries are to be signed by the minister, the parties married, and two witnesses; by sect. 33, one of these books, when filled, is to be sent to the superintendent registrar, and the other to be kept by the minister with the registers of baptisms and burials. As to proof of these registers by copies, vide post, p. L26. By 27 & 28 V. c. 97, all burials in any burial ground in Kngland are to be registered. By sect. 5 these registers and copies thereof may be used in 126 Proof of Documents. evidence of the burials entered therein. By the Cremation Act, 1902, 2 E. 7, c. 8, s. 7, registers of burnings and copies thereof may in like manner be used in evidence. A burial under the Burial Laws Amendment Act, 1880 (43 & 44 V. c. 41), is by sect. 10 to be certified by the person in charge thereof, to the person who is bound to keep the register, and the latter is to enter the burial therein. By 3 & 4 V. c. 02, certain non-parochial registers of births, baptisms, deaths, burials, and marriages, transferred to the custody of the Registrar- General, are made admissible in evidence, either by producing them, or by certified extracts from them, after previous notice to the opposite party of the intention to use them. And by 21 & 22 V. c. 25, numerous other non- parochial registers and records of births, deaths, baptisms, burials, and marriages have been since certified to be faithful, and deposited with the Registrar-General, and have become admissible in evidence. By 42 & 43 V. c. 8, s. 3, where by lawful authority documents such as registers, muster-rolls, and pay lists have been kept, showing deaths, births, and marmges among officers and soldiers, and these or certified extracts thereof have been transmitted to the Registrar-General, they and certified copies thereof shall be admissible in evidence ; but (sects. 4, 5) in respect of births, deaths, and marriages in the United Kingdom, only as to those which occurred prior to 1st July, 1879. Tlie general registration of births, marriages, and deaths is regulated by the & 7 W. 4, c. 86, explained and amended by the 1 V. c. 22. By these Acts district registrars are appointed, whose duties are independent of those belonging to the parochial clergy. Regulations are made for the custody of the register books, and the registrars are directed to learn and register the particulars required to be registered according to the forms in the schedules to the first Act. These particulars comprise in the case of births, the time of birth, name (if any), and sex, the names of the parents, and the condition of the father, and in the case of deaths, the age, sex, and condition of the deceased; and by 1 V. c. 22, the Registrar-General may direct the place of birth or death to be added to the register of those facts, and the addition, when so made, shall be taken, to all intents, to be part of the entry in the register. The stat. 6 & 7 W. 4, c. 86, as above stated, regulates the registration of marriages by clergymen of the Church of England, and it also regulates those by Quakers and Jews. For the particulars required to be registered, vide ante, p. 125. The Act 6 & 7 W. 4, c. 85, for amending the law of marriage, provides for the registration of marriages solemnized under that Act, and is also incorpo- rated with the above Act, c. 86, and it, by sect. 44, enacts that the provisions of the Act, c. 86, ante, p. 125, relating to the register of marriages, or certified copies thereof, shall extend to marriages under the Act, c. 85. The Marriage Act, 1898, 61 & 62 V. c. 58, ss. 7, 11, provides for the registration of marriages entered into under that Act. By 6 & 7 W. 4, c. 86, s. 38, it is provided that certified copies of entries, purporting to be sealed with the seal of the Registrar-General's office, shall be " evidence of the birth, death, or marriage to which the same relates, without any further or other proof of such entry, and no certified copy purporting to be given in the said office shall be of any force or effect, which is not sealed or stamped as aforesaid." The identity of the party must of course be proved. Parkinson v. Francis, 15 Sim. 160. As to this vide ante, p. 125. By sect. 35 the registrars, as also all rectors, curates, &c, are bound to give certified copies : it is not expressly provided that these latter certifi- cates shall be evidence without further verification. It has, however, been Registers of Births, Deaths, and Marriages. 127 held that under 14 & 15 V. c. 99, s. 14, cited ante, p. 100, certified copies of parish registers, purporting to be signed by A. B., "incumbent," or "rector," or " vicar," or " curate," without specifying the parish over against the name, or adding, "of the above parish," are admissible without verification ; for it will be intended that the incumbent, &c, is incumbent of the parish named in the certificate, and is the officer intrusted with the custody of the original register. In re Hall's Estate, 22 L. J., Ch. 177, L. JJ. So, a certificate of birth purporting to be signed by the registrar having the custody of the original register is admissible on its mere production. B. v. Weaver, L. R., 2 C. C. 85, and is evidence of the date of the birth. S. C. ; B. v. Cox, 18 Cox, C. C. 675, per Ld. Russell, C.J. Ace. In re Goodrich, cor. Jeune, P. (1904) P. 138, overruling In re Wintle, L. R., 9 Eq. 373, where Romilly, M.R., had held that the certificate was evidence of the fact, i.e., that the birth was prior to the entry, but not of its date. And it would seem that these certifi- cates are evidence of all the facts which the registrar is required to enter therein ; see Huntley v. Donovan, 15 Q. B. 96, 101, 102, per cur. ; Doe d. France v. Andrews, Id., 756, 759, per Erie, J., and Wigley v. Treasury Solicitor, post, p. 218. Under this section the entries of other registrars besides the Registrar-General may be evidence under certain limitations. Thus the district registrar's certificate is evidence of death. See Traill v. Kibblewhite, 10 Jur. 107, Shadwell, V.-C, 1847. The Births and Deaths Registration Act, 1874 (37 & 38 V. c. 88), which is (by sect. 52) to be read with the earlier Acts relating thereto, by sect. 38, provides that an entry in these registers or a certified copy thereof, " shall not be evidence of such birth or death unless such entry either purports to be signed by some person professing to be the informant, and to be such a person as is required by law at the date of such entry to give to the registrar information concerning such birth or death, or purports to be made on a certificate from the coroner, or in pursuance of the provisions " for the registration of births and deaths at sea, vide post, p. 128, and the Interpreta- tion Act, 1889, 52 & 53 V. 63, s. 38 (1). The persons required to give notice under these acts are defined as to births in 37 & 38 V. c. 88, ss. 1-8 ; and as to deaths in Id. ss. 9-13. A person " required by law," here includes a person entitled to give information under 6 & 7 W. 4, c. 86, ss. 19, 20, 25. In re Goodrich, supra. , The registration of a building under 6 & 7 W. 4, c. 85, for the solemniza- tion of marriages under that Act may be proved either by a certified copy under 14 & 15 V. c. 99, s. 14, ante, p. 100, or by an examined copy of the register. R. v. Manwaring, 1 Dears. & B. 132; 26 L. J., M. C. 10. By stat. 19 & 20 V. c. 119, s. 24, every certified copy or extract sealed or stamped with the seal of the General Register Office, shall be received as evidence of the place of meeting therein mentioned having been, at the time therein stated, duly certified and registered or recorded as by law required, without any further or other proof of the same. Baptisms and marriages in Scotland and Ireland.] Scotch parochial registers of baptism are admissible in evidence. Lyell v. Kennedy, 14 Ap. Ca. 437, D. P. The Act 19 & 20 V. c. 96, s. 1, invalidates every irregular marriage in Scotland contracted after 31sl December, 1856, unless one of the parties had at the date thereof his or her usual place of residence there, or had lived in Scotland for 21 days next preceding such marriage. By sect. 2, the registrar of the parish or burgh in which an irregular marriage has been contracted after the said day, is, upon receiving a certain warrant from the sheriff, &c, granted on the joint petition of the parties, to enter the marriage in a register, and a certified copy of such entry signed by the registrar is to be 128 Proof of Documents. received in evidence of such marriage, and of such residence or of such previous living 21 days in Scotland, in all courts in the U. K. and dominions thereunto belonging. Such evidence is primd/acie only and may be rebut ted. Pheysey v. Pheysey, duly 9th, L906, cor. Barnes, P., Times, July 10tb,1906 The Irish Marriage Act (7 & cS V. c. 81), amended by and incorporated with 26 & 27 V. c. 27 ; 33 & 34 V.c. 110, Part II.; and 36 & 37 V. c. 10, provides for the registration of all marriages in Ireland. By 7 & 8 V. c. 81, s. 71, certified copies of entries are given at the register office in Dublin, and these, if purporting to be sealed or stamped with the peal of the office, are made evidence of the marriage to which they relate without any further proof of such entry or of the seal. A marriage in a church of the Protestant Episcopal Church of Ireland, may be proved by a copy of the marriage register, duly certified by the curate of the church, Whitton v. Whitton, (1900) P. 178. Births, deaths, and marriages in India and the Colonies.'] Books kept among the archives of the East India Co. before the transfer of their supreme powers to the crown, being copies of marriage registers kept at each presidency, and transmitted officially to the company, are evidence of marriages in India, when produced from the proper custody. Ratdiff v. Batcliff, 1 Sw. & Tr. 467 ; 29 L. J., P. M. & A. 171. So where copies of registers of marriages solemnized since the transfer have been deposited in the India office, an entry therein may be proved by a certified copy, Westmacott v. Westmarott, (189!)) P. 183. So similar copies of registers of baptism in India are admissible in evidence. Queen's Proctor v. Fry, 4 P. D. 230. These registers are deposited at the offices of the Secretary of State for India. By the 14 & 15 V. c. 40, s. 11, provision was made for the registration of the marriages of persons professing the Christian religion in India, solemnized under that Act before a registrar, and, by sect. 12, duplicates of the register were directed to be transmitted to the secretary to the government in the presidency or place, or place of residence of the registrar, to be kept by him ; and in certain instances these duplicates were to be transmitted to the Registrar-General of Births, &c, in England. Sect. 21 enacted, that the Act was not to affect marriages solemnized in India by persons in holy orders, nor Scotch marriages there legalized by stat. 58 G. 3, c. 84, nor other legal marriages there ; and the Governor-General was em- powered to make laws for the registration of such marriages ; and to provide for the transmission of duplicates to the Registrar-General of Births, &c, in England. Sect. 22 provided that certified copies of the certificates delivered under this Act to the Registrar-General, purporting to be sealed or stamped with the seal of the General Register Office, should be received as evidence of the marriage to which they relate, without further proof of such certificate, or of any entry therein. This Act was repealed by the Stat. Law Rev. Act, 1875, with the proviso that such repeal shall not affect " the proof of any past act or thing." These marriages are now regulated by Indian Acts. See Indian Act, No. xv., 1872, ss. 27-37, 54, 55, 59, 62, 80, 81, and Martin v. Martin, Times, Dec. 7th, 1898, P. D. cor. Barnes, J. In Australia, Canada, Nova Scotia, the West Indies, and other of the British colonies, Acts of Parliament are in force for the registration of births, marriages, and deaths, and where such is the case the registers may be used in evidence. Births, deaths, and marriages at sea.] By the Merchant Shipping Act, 1894, 57 & 58 V. c. 60, s. 254 (1), masters of ships are required to record in the log-book, or otherwise, the births and deaths taking place on board, Registers of Births, Deaths, and Marriages. 129 and, by sub-sect. 2, a return is to be made of such record to the Registrar- General of Shipping and Seamen, who (sub-sect. 4) is to send a certified copy of such return to the Registrar-General of Births and Deaths, and this copy is to be filed or copied in "a marine register-book," which is to be deemed to be a certified copy of a register-book within the meaning of the Registration Acts. By sect. 339 these provisions apply to a ship, not British, carrying passengers to or from the United Kingdom. The Births and Deaths Registration Act, 1874 (37 & 38 V. c. 88), s. 37, contains similar provisions for the record of births and deaths happening on board H.M.'s ships. By 57 & 58 V. c. 60, s. 240, the master of a ship for which an official log-book is required shall enter therein (6) " every marriage taking place on board." As to the admissibility of the eutry in evidence, vide sect. 239, post, p. 130. By the Foreign Marriage Act, 1892, 55 & 56 V. c. 23, s. 12, marriages under that Act may be solemnized on board one of H.M.'s ships on a foreign station, and with respect thereto (a) the commanding officer of the ship may be authorized to be a marriage officer, and (b) the provisions of the Act vide infra shall apply. Births, deaths, and marriages abroad.'] Foreign registers of births, baptisms, marriages, and deaths would seem to be admissible as to those matters properly and regularly recorded iri them, if proved to have been prepared under official authority. See Lyell v. Kennedy, 14 Ap. Ca. 448, 449, per Lord Selborne. Thus, in Abbott v. Abbott, 29 L. J., P. M. & A. 57, a certificate copied from a register of marriages kept by the cure of a parish in Chili, under public authority, was received. In this case the certificate was signed by the cure, whose signature and character were verified by the certificate of a notary public, whose character was further certified by the certificates of three other notaries public, their character being in turn verified by the Minister for Foreign Affairs for Chili, and this again by the British consul there. In Brinkley v. Att.-Oen., 15 P. D. 76, a certificate of a marriage in Japan given by the chief secretary, and verified by the Vice-Minister of State, was received, evidence being given that they occupied those offices, and as to the law of marriage there. Registers of births, baptisms, marriages, and burials of British subjects beyond seas, which have been transmitted from different British embassies and factories on the continent of Europe and elsewhere, are now placed in the registry of the Consistory Court of London. By stat. 42 & 43 V. c. 8, registers kept under Queen's regulations of births, deaths, and marriages occurring out of the United Kingdom, among British officers and soldiers, are to be transmitted to the Registrar-General, and filed or copied in the " Army Register Books," which is to be deemed a certified copy of the register book within the meaning of the Registration Acts. See Adams v. Adams, (1900) W. N. 32, H. S., Barnes, J. By the Foreign Marriage Act, 1892, 55 & 56 V. c. 23, s. 1, marriages between parties, of whom one at least is a British subject, may be solemnized abroad by or before a marriage officer (see sect. 11) at his official house (sect. 8 (2) ) in accordance with marriage regulations made by an Order in Council under sect. 21 (vide post, p. 130): and he is directed by sect. 9 to make entries of these marriages in duplicate in two register books, and, by sect. 10, to forward a certified copy thereof, and the duplicate register book, when filled, to the Secretary of State, to be by him forwarded to the Registrar-General. By sect. 16(1) ''Any book, notice, or document directed by this act to be kept by the marriage officer or in the archives of his office, shall be of such a public nature as to be admissible in evidence on its mere B. — VOL. I. K 130 Proof of Documents. production from the custody of the officer. (2) A certificate of a Secretary of State as to any house, office, chapel, or other place being, or being part of, the official house of a British ambassador or consul shall be conclusive." By sect. 17 all the provisions and penalties of stat. 6 & 7 W. 4, c. 86, and the Acts amending the same (vide sect. 24) " relating to any registrar, or register of marriages or certified copies thereof, shall extend to every marriage officer, and to the registers of marriages under this act, and to the certified copies thereof (so far as the same are applicable thereto), as if herein re- enacted and in terms made applicable to this act, and as if every marriage officer were a registrar under the said acts." Vide ante, p. 126. By sect. 18, " Subject to the marriage regulations" (vide ante, p. 129) "a British consul, or person authorized to act as British consul, on being satisfied by personal attendance that a marriage between parties, of whom one at least is a British subject, has been duly solemnized in a foreign country, in accordance with the local law of the country, and on payment of the proper fee, may register the marriage in accordance with the marriage regulations as having been so solemnized, and thereupon this act shall apply as if the marriage bad been registered in pursuance of this act, except that nothing in this act shall affect the validity of the marriage so solemnized." An Order in Council of Oct. 28th, 1892, has been made under sect. 21, ante, p. 129 ; see London Gazette, Nov. 4th, 1892, p. 6161. This act repeals the Consular Marriage Acts, 1849, 1868, 12 & 13 V. c. 68, 31 & 32 V. c. 61; the Marriage Act, 1890, 53 & 54 V. c. 47, and the Foreign Marriage Act, 1891, 54 & 55 V. c. 74. Proof of Merchant Shipping Documents. By the Merchant Shipping Act, 1894 (57 & 58 V. c. 60), various pro- visions are made for the easier proof of documents relating to such shipping. By sect. 64 (2), "The following documents shall be admissible in evidence in manner provided by this act, namely, (a) any register book under this part of this act on its production from the custody of the registrar or other person having the lawful custody thereof; (b) A certificate of registry under this act purporting to be signed by the registrar or other proper officer; (c) An indorsement on a certificate of registry purporting to be signed by the registrar or other proper officer; (d) Every declaration made in pursuance of this part of this act in respect of a British ship. (3) A copy or transcript of the register of British ships kept by the Registrar- General of Shipping and Seamen under the direction of the Board of Trade shall be admissible in evidence in manner provided by this act, and have the same effect to all intents as the original register of which it is a copy or transcript." Sect. 239 requires official log-books to be kept in a prescribed form, and the entries to be authenticated as therein provided, and by sub-sect. 6 " every entry made in an official log-book in manner provided in this act shall be admissible in evidence." Sect. 240 enacts what events shall be entered therein : these (sub-sect. 6) include marriages, but the record of births and deaths is provided for by sect. 254, vide ante, p. 128. By sects. 242, 256, the official log-book is to be sent "to the Registrar-General of Shipping and Seamen, and he shall record and preserve them, and they shall be admissible in evidence in manner provided by this act." Sect. 310 provides special evidence of the bond given by the master of an emigrant ship. Sect. 694 providing for the proof of documents which the Act requires to be attested, will be found post, p. 134. Sect. 695 (1) " Where a document is by this act declared to be admissible in evidence, such docu- ment shall, on its production from the proper custody, be admissible in Merchant Shipping Documents. — Corporation Deeds. 131 evidence in any court or before any person having by law or consent of parties authority to receive evidence, and, subject to all just exceptions, shall be evidence of the matters stated therein in pursuance of this act, or by any officer in pursuance of his duties as such officer. (2) A copy of any such document or extract therefrom shall also be so admissible in evidence if proved to be an examined copy or extract, or if it purports to be signed and certified as a true copy or extract by the officer to whose custody the original document was intrusted." By sect. 719, all documents purporting to be issued or written by direction of the Board of Trade, and to be sealed with the seal of the Board or signed by their secretary or one of their assistant secretaries, or, if a certificate, by one of the officers of the marine department, shall be received in evidence and deemed to be so issued or written without further proof, unless the contrary be shown. Under sect. 720 the Board issues forms of books, instruments, and papers required by the Act and sealed with its seal or some other distinguishing mark, and (sub-sect. 4) unless so made in such form " shall not be admissible in evidence in any civil proceeding on the part of any owner or master of any ship." By sub-sect. 5 a form purporting to have been so issued, and bearing the seal or mark, is to be taken prima facie as in the form required. In R. v. Castro, Q. B. trial at bar, Shorthand Notes, pp. 3033-4, 28 Nov., 1873, crew lists of vessels which had cleared from the custom-house at New York were allowed to be proved by examined copies, without accounting for the non-production of the originals, vide ante, pp. 97, 98. Proof of Corporation Deeds. Fixing the common seal is tantamount to delivery. Com. Dig. Fait (A. 3). But if the seal be affixed without the intent that the deed should take effect presently, a subsequent delivery is necessary. Derby Canal Co. v. Wilmot, 9 East, 360 ; Mowatt v. Castle Steel, &c. Co., 34 Ch. D. 58, 0. A. See Staple of England, Mayor of, v. Bank of England, 21 Q. B. D. 165, 166, per Wills, J. The seal must be proved by some one who knows it, but it is not necessary to call a witness who saw it affixed. Moises v. Thornton, 8 T. R. 307 ; Brounker v. Atkyns, Skinn. 2. Some corporation seals, as that of London, require no proof. Doe d. Woodmass v. Mason, 1 Esp. 53. Not so the seal of the Bank of England ; semb. Doe d. Bank of England v. Chambers, 4 Ad. & E. 410 ; nor the seal of any other corporation, uuless it be made to prove itself by some statute, or be made admissible by the Act 8 & 9 V. c. 113, s. 1, ante, p. 100. If the seal of a corporation be attached to an instrument, it will be pre- sumed, as against them, to have been regularly attached, and it lies on them to give strict proof to the contrary, so as to exclude such presumption. Clarke v. Imperial Gas Co., 4 B. & Ad. 315. The presumption may, how- ever, be rebutted by evidence. Anon., 12 Mod. 423; Staple of England, Mayor, &c. of, v. Bank of England, 21 Q. B. D. 160, C. A. The irregularity, when a defence, might formerly have been shown under non est factum. J I ill v. Manchester Waterworks Co., 5 B. & Ad. 866; R. British Bank v. Tur- quand, 5 E. & B. 256 ; D'Arcy v. Tamar, &c. Ry. Co., L. R., 2 Ex. 158. But it would now seem necessary to plead it specially, as the objection would be likely to take the plaintiff by surprise. See Rules, 1883, O. xix. r. 15, ante, p. 77. A person who manages the affairs of a trading corporation in ust of necessity have power to use the corporate seal for those acts he is authorized to perform. Ex pte. Contract Corporation, L. R., 3 Ch. 105, 116. As to the power of de facto directors to bind their company, see In re Count n life Assurance Co., L. R., 5 Ch. 288. See further on this subject, post, k 2 132 Proof of Documents. Pari III., Actions by and against Companies, &e. It is not settled whether such a deed proves itself alter thirty years. P. v. Bathwick, 2 B. & Ad. 639. Lapse of time docs not increase the difficulty of proviug a corporation seal, which is one, but not the only, reason for dispensing with proof. As to proof where the deed is attested, vide post, p. 132, and as to what constitutes attestation, vide pes/, p. 1 .">•!. The name of a corporation as stated in a deed must be the same in substance with the true name, but need not be the same in words or syllables. P. v. Ilaughley, 4 B. & Ad. 650, citing Lynnes (Mayor of) Case, 10 Rep. 124 ; Croydon Hospital v. Farley, 6 Taunt. 467. And where a municipal corporation which, under 21 & 22 V. c. 98, s. 24, was also the local board of health, entered into a contract under seal as such local board, the corporation was held to be bound. Andrews v. Hyde, Mayor, &c. of, L. 1!., 9 Ex. 302. Where a question arises as to the effect of two deeds relating to the same subject-matter, both executed on the same day, it must be proved which was in fact executed first; but if there is anything in the deeds themselves to show an intention either that they shall take effect pari passu, or even that the later deed shall take effect in priority to the earlier, then the court will presume that the deeds were executed in such order as to give effect to that intention. Gurtside v. Silkstone and Dodworth Coal and Iron Co., 21 Ch. D. 762. Proof of Private Deeds and Writings. Attesting witness, when to be called.] It was long a settled rule that wherever a deed or other instrument is subscribed by attesting witnesses, one of them at least must be called to prove the execution ; and it was held that such testimony could not be dispensed with, though the defendant had admitted the execution in his answer to a bill in Chancery. Call v. Dunning, 4 East, 53. Thus a notice to quit, Doe d. Sykes v. Durnford, 2 M. & S. 62, or a warrant to distrain, Higgs v. Dixon, 2 Stark. 180, if attested, could only be proved by calling the attesting witnesses. This rule was considered of indispensable obligation, and to be " so inflexible, clear, and universal, as not to be set aside by any reasoning, however cogent." Hence, although Slatterie v. Pooley, G M. & W. 664, had decided that an admission by a party was primary evidence against him of any document and its contents, and although the stat. 14 & 15 V. c. 99, s. 2, had provided that parties to a suit were competent and compellable to give evidence in it, yet it was ruled in Whyman v. Garth, 8 Exch. 803 ; 22 L. J., Ex. 316, that the plaintiff could neither prove the execution of an attested deed by the testimony in open court of the defendant who executed it, nor examine such defendant as to the contents of it. The law has now been partially amended by the Criminal Procedure Act, 1865 * (28 & 29 V. c. 18), ss. 1, 7 (replacing C. L. P. Act, 1854, s. 26), which enacts, that " it shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite ; and such instrument may be proved as if there had been no attesting witness thereto." But as there are many instruments to which attestation is essential, as wills, instruments under powers, bills of sale, &c, it is still necessary to retain many of the old decisions on the subject, although even in these cases the necessity for calling the attesting witnesses only arises where it is necessary to prove the instrument, for the parties against whom any of these instruments requiring attestation are sought to be used may waive the necessity for calling the attesting witness by admissions. Thus, if, in the course of the proceedings in the cause, the party voluntarily * Cited for brevity as Crim. P. Act, 1865. Private Deeds and Writings. 133 admit the execution, or if by his pleadings he do not require the execution to be proved, there is no necessity for calling the attesting witness. But where proof has to be given of attestation, the necessity for calling the attesting witness cannot be avoided by putting the party to the deed, against whom it is sought to be used, into the witness-box, and extracting an admission of the execution from him. Why man v. Garth, ante, p. 132. Where tbe attesting witness is dead {Anon., 12 Mod. 607), or insane (Carrie v. Child, 3 Camp. 283), or infamous (Jones v. Mason, Stra. 833), or absent in a foreign country, or not amenable to the process of the superior courts (Prince v. Blackburn, 2 East, 252), although he might have been examined on interrogatories (Glubb v. Edwards, 2 M. & Rob. 300), or where he cannot be found after diligent inquiry (Spooner v. Payne, 4 C. B. 328 ; Cunliffe v. Sefton, 2 East, 183); — evidence of the witness's handwriting has always been admissible. A subscribing witness, who has become blind, ought nevertheless to be called in order to learn from him anything material that passed at the execution. Crank v. Frith, 2 M. & Rob. 262, per Lord Abinger, C.B. Accord. Pees v. Williams, 1 De G. & Sm. 314. In Pedler v. Paige, 1 M. & Rob. 258, Park, J., admitted proof of the handwriting of a blind witness (but with some expression of doubt), on the authority of Wood v. Drury, 1 Ld. Raym. 734 ; but that case is obscurely reported, and if it be an authority for the proposition, it also shows that it would be sufficient to prove his handwriting, though there be another attesting witness who might have been called, which is not the present practice ; vide infra. It is not sufficient ground for admitting evidence of the witness's handwriting that he is unable to attend from illness, and lies without hope of recovery. Harrison v. Blades, 3 Camp. 457. The party interested in his testimony must, in such a case, get a judge's order to examine him out of court. With regard to the inquiry necessary to let in such evidence, it has been held that an inquiry after an attesting witness to a bond at the residence of the obligor and obligee is sufficient. Cunliffe v. Sefton, supra. So, diligent inquiry at the witness's usual place of residence, and information there and from tbe witness's father that he had absconded to avoid his creditors. Crosby v. Percy, 1 Taunt. 364 ; accord. Falmouth, El. of, v. Pobcrts, 9 M. & W. 469. So, inquiry after the witness at the Admiralty, where it appeared by the last report that he was serving on board a ship in the navy ; Parker v. Hoskins, 2 Taunt. 223 ; or proof that the witness went abroad twenty years ago, and has not been heard of since. Doe d. Johnson v. Johnson, 1 Phillipps' Ev., 7th ed. 474, n. A witness who was defendant's clerk, being subpoenaed, said he would not attend, and the trial was twice put off in con- sequence of his absence ; search was then made at the defendant's house, and in the neighbourhood, and upon information at the defendant's that the witness was gone to Margate, inquiry was made there without success : held that, under these circumstances, evidence of his handwriting was admissible. Burt v. Walker, 4 B. & A. 697 ; Spooner v. Payne, supjra. Where diligent inquiry had been made without success lor a witness, proof of his handwriting was admitted, although it appeared that a letter from him, concealing his retreat, had been received before the trial. Morgan v. Morgan, 9 Biug. 359. So, where an attorney's clerk was witness, and the attorney could give no account of him; although afterwards at the trial he recollected where ho might perhaps be heard of. Miller v. Miller, 2 N. C. 76. The sufficiency of the inquiry is for the determination of the judge, who will found his opinion on the nature and circumstance of each case. It therefore seems of little importance to collect all the cases that have been decided upon this point. When the court is satisfied that due diligence has been used to find tin; witness, then it is sullicient to prove his handwriting without proving the baud writing of the party, unless with a view to establish 1 ; l Proof of Documents. his identity. A 7 < Uon v. Whittall, 1 B. & A. 19; Gough v. Cecil, C. B., T. T. 2 I Gr. 3 ; M. S., cited Selw. N. P., 13th ed. 494. Where the Dame of a fictitious person is inserted as witness; Fasset v. Brown, Peake, 23; or where the subscribing witness denies aoy knowledge of the execution ; Talbot v. Hodson, 7 Taunt. 251 (overruling Phipps v. Parker, 1 Camp. 412) ; Fitzgerald v. Flsce, 2 Camp. 635 ; Boxer \. Rabeth, Gow, 175; or gives evidence that the document was not duly executed; Bowman v. Hodgson, L. 11., 1 P. & M. 362 ; or where the attesting witness subscribes his name without the knowledge or consent of the parties ; M'Craw v. Gentry, 3 Camp. 23'-! ;— in these cases it becomes necessary to prove the instrument by calling some one acquainted with the handwriting of the person executing it, or who was present at the time of execution ; or by the admission of the party. Where there are two attesting witnesses, and one of them is incompetent or his evidence cannot be obtained, the other witness must be called ; and evidence of the handwriting of the absent witness will not be sufficient. Adm. in Curiliffe v. Sefton, 2 East, 183. But where a bond is attested by two witnesses, and one of them is dead, and the other beyond the reach of the process of the court, proof of the handwriting of either seems to be sufficient. Adam v. Kerr, 1 B. & P. 360. It will not be assumed that a name subscribed to an instrument is necessarily that of an attesting witness ; thus, where a deed purported to be "sealed by order of the Governor and Company of the bank, J. Knight, Secretary" — it was held unnecessary to call J. Knight; Doe d. Bank of England v. Chambers, 4 Ad. & E. 410; and where the seal of a company was affixed to a deed, and two directors signed their names in the following form : — " Seal of the said Company affixed at the board meeting this [date], in the presence of 0., Chairman, C, Director. (Countersigned) D., Sec. pro tern." — it was held that the signatures of 0. and C. formed part of the execution of the deed, and that they were not attesting witnesses. Deffell v. White, L. K., 2 C. P. 144; following Shears v. Jacob, L. R, 1 C. P. 513 ; see also Dunn v. Dunn, L. P., 1 P. & M. 277. The attorney who attested the petition of an insolvent under 5 & 6 V. c. 116, was held not such a witness as need be called to prove it. Bailey v. Bidwell, 13 M. & W. 73. But this decision has been considered to proceed on the ground that the petition had been acted upon by the court below and authenticated by its seal, and was put iu only to prove the fact of a petition presented ; and where the schedule of the insolvent is used to show an admission by him, the attorney who attested the insolvent's signature must be called. Streetcr v. Bartett, 5 C. B. 562. In Bailey v. Bidwell, supra,, it was considered that where a mere rule of practice of the court required an attesting witness, he need not be called. Streeter v. Barlett, supra, is contra on this point. It will therefore still be a question whether, in such a case, the Crim. P. Act. 1865, s. 7 (ante, p. 132), dispenses with calling the attesting witness. Non-compliance with the rule may make the instrument irregular without making it " invalid." The witness must still be called if attestation is requisite to its " validity." AVIiere an attested agreement was indorsed with subsequent variations, and the plaintiff sued on it as altered, it was held enough to prove the execution of the indorsement, for it formed a new agreement incorporating the old one and dispensing with the necessity of any other proof of it. Fish- mongi ,-S Co. v. Dimsdale, 6 C. B. 896 ; 12 C. B. 557 ; 22 L. J., C. P. 44, Ex. Ch. The Merchant Shipping Act, 1894 (57 & 58 V. c. 60), s. 694, provides that iu the case of documents required by that Act to be attested, they " may be proved by the evidence of any person who is able to bear witness to the requisite facts without calling the attesting witness." Private Deeds and Writings — Execution, how proved. 135 Execution, how proved.'] Where attestation is necessary to the validity of a writing, the form and nature of it must depend on the provision of the law or other authority which has made it necessary. Unless it be otherwise provided, in attesting a deed, it is not necessary that the witness should see the party sign or seal ; if he see him deliver it already signed and sealed, or sealed only where signature is unnecessary, it will be sufficient. Thus proof by the witness that he was not present when the deed was executed, but was afterwards requested by one of several parties to sign the attestation, is sufficient evidence of the execution by such party ; Grelller v. Neale, Peake, 146 ; and witnesses may be called to prove the handwriting of the remaining parties, as to whom the deed must be considered as unattested ; and sealing and delivery may be presumed. S.C. A general form of attestation must be taken as affirming that all has been done in the presence of the witnesses which is stated in the body of the deed. Butter v. Birt, cor. Leach, M.R., cited 4 Ad. & E. 15. It is not necessary for the attesting witness to be able to say whether certain blanks in the deed were filled up at the time of execution, for this will be presumed ; and the wituess generally sees nothing but the delivery. England v. Roper, 1 Stark. 304. See Doe d. Tatum V. Catomore, 16 Q. B. 745 ; 20 L. J., Q. B. 364. Where a bond was executed by the defendant, and attested by a witness in one room, and was then taken into an adjoining room, and at the request of the defendant's attorney, and in the defendant's hearing, was attested by another wituess who knew the defendant's handwriting, it was held that the execution might be proved by the latter witness, the whole being considered as one transaction. Parke v. Mears, 2 B. & P. 217 ; and see Anon., Arch. PL & Ev., 1st ed. 378. In proving the execution of a deed, the attesting witness frequently states that he dees not recollect the fact of the deed being executed in his presence, but that, seeing his own signature to it, he has no doubt that he saw it executed ; this has always been received as sufficient proof of the execution. Per Bayley, J., Maugham v. Hubbard, 8 B. & C. 16 ; per Taunton, J., R. v. *S'. MarlirCs, Leicester, 2 Ad. & E. 213. See Wright v. Sanderson, 9 P. D. 149, C. A., cited post, p. 149. As to qualified execution, see Exchange Bank of Yarmouth v. Blethen, 10 A p. Ca. 293, J. C. As to the priority of two deeds executed on the same day, vide ante, p. 132. The grantee under a deed is not competent to attest the execution thereof by the grantor. Seal v. Claridge, 7 Q. B. D. 517, C. A. See Ex pte. Cullen, (1891) 2 Q. B. 151. Identity of persons signing, &c.~\ Some evidence of the identity oi the party to the instrument must be given, though very slight evidence will be sufficient. Where the proof of the acceptance of a bill was simply the hand- writing of the attesting witness on an acceptance, some evidence of the identity of the defendant and the person whose acceptance is thus proved, was held necessary; Whitelocke v. Musgrove, 1 Or. & M. 511; and it has been thought not sufficient merely to prove that a person calling himself by the same name (which was common in the neighbourhood where the witness saw the signature put) accepted the bill. Jones v. Jones, 9 M. & W. 75. Where the witness to a bond stated that lie saw it executed by a person who was introduced under the name of Hawkshaw (the name of the defendant), but could not identify him. the plaintiff was nun-suit. Parkins v. Hawkshaw, 2 Stark. 239; Middleton v. Sandford,4 Camp. 34. But where the attestation states the residence of the part}', proof that the party sued resided there would be prima facie evidence of identity. See Wldtelocke v. Musgrove, and Jones v. Jones, supra ; per Cur. Thus where the acceptor was described as " ('. 1>. Crawford, East India Bouse," proof that the signature was that of a person of the same name, a clerk of the East India House, was held to be prima L36 Proof of Documents. facie evidence of identity ; Greenshields v. Crawford, 9 M. & W. 314 ; and in Roden v. Ryde, and Seivell v. Emus, 1 ( v >. B. 026, it was held that, unless the name is so common as to neutralize the inference of identity, or other facts appear to raise a doubt, identity of name is prima facie enough to charge the defendant. Accord. Ilamber v. Roberts, 7 C. B. 861. See further, Ilirt v. Barlow, and Hubbard v. Lees, cited ante, p. 125. That the defendant had spoken of the contents of the deed is evidence of identity. Doe d. Wheeldon v. Paul, 3 C. & P. 613. Where a note was made payable to J. 11. and indorsed by a person so named, and there were two persons, lather and son, named J. EL, it will be presumed that the son was the payee, it' the son indorsed it. Stabbing v. Spicer, 8 C. B. 827. In an action by an indorsee against the acceptor of a bill, whereof S. was the payee, the plaintiff proved that a person calling himself S. came to the plaintiff's residence with the bill in question and a letter of introduction, proved to be genuine, which was expressed to be given to a person introduced to the writer as S., and also another bill drawn by the writer of that letter. The bsarer of these documents, after remaining some days at the plaintiff's residence, indorsed to him the bill in question. This was held to be prima facie evidence of the identity of this person with S. Bulkeley v. Butler, 2 B. & C. 434. Sealing and Delivery.'] The sealing of the deed need not take place in the presence of the witness; it is sufficient if the party acknowledge an impression already made. Where one party in the presence of his co-partner executed a deed for both, but there was only one seal, and it did not appear whether the seal had been put twice upon the wax, it was held sufficient ; for that no particular mode of delivery was requisite, and it was enough if a party executing a deed treated it as his own. Ball v. Dunsterville, 4 T. R. 3l3. But where a deed is executed under the authority of a power requiring it to be under the hands and seals of the parties, the parties must use separate seals. Thus, by stat. 8&9 W. 3, c. 30, certificates were required to be under the hands and seals of the overseers and churchwardens ; it was held that a certificate signed by two churchwardens and one overseer, but bearing two seals only, was not a valid certificate, B. v. Austrey, 6 M. & S. 319. The circumstance of a party writing his name opposite to the seal on an instrument which purports to be sealed and delivered by him, is evidence of a sealing and delivery to go to a jury. Talbot v. Hodson, 7 Taunt. 251. So, where the defendant delivers to the plaintiff a deed signed and sealed and expressed to be signed, sealed, and delivered, it will be taken as against the defendant that it has been also delivered. Xenos v. Wickham, L. B., 2 H. L. 296. Where a party, A., executes a deed with a blank in it, which is afterwards filled up with his assent in his presence, and he subsequently recognizes the deed as valid, the filling up of the blank will not void it; for, till the blank is duly supplied, it is incomplete and in fieri. Hudson v. R* vett, 5 Bing. 368 ; Hall v. Ohandless, 4 Biug. 123. See also Crediton, Bp. of v. Exeter, B]). of, (1905) 2 Ch. 455. It is essential, however, that the instrument, in its complete state, should have been seen by A., or that he should have known the state in which it was when he is taken to have re-delivered it. Societe Oenerale de Paris v. Tramways Union Co., 14 Q. 15. D. 424, C. A. affirm, in 1). P. sub nom. Id. v. Walker, 11 Ap. Ca. 20; Pow< II v. L. & Provincial Bank, (1893) 1 Ch. 610 ; 2 Ch. 555, C. A. For rally a deed executed in blank and left to be filled by another, who has no authority under seal, is void at law; S. C. ; Hibblewhite v. M'Morine, 6M.&W. 200; Tayler v. Gt. Indian Peninsular By. Co., 4 De G. & J. 28 L. J. Cb. 709; but if given for good consideration, it may be valid in equity. In re Queensland Land,&c, Co., (1894) 3 Ch. 181. See Marchant Private Deeds and Writings — Sealing and Delivery. 137 v. Morton Down & Co., infra. While the deed is still in the hands of the party executing it, another name may be inserted, and it may be re-executed, without avoiding it as to the first parties, or requiring a new stamp. Spicer v. Burgess, 1 C. M. & B. 129 ; and in similar circumstances a clause may be struck out ; Jones v. Jones, 1 Cr. & M. 721. A deed was executed by a son of the defendant, T. F., thus : " J. W. P. for T. F. ; " and the defendant, when subsequently shown the deed so executed, said his son had authority to execute it for him, and that he adopted his son's act ; this was held to be a re-delivery by the defendant. Tupper v. Foulkes, 9 C. B., N. S. 797 ; 30 L. J., C. P. 214. A deed executed by a marksman may be proved by a person who has seen the party make his mark, and can speak as to its peculiarities. George v. Surrey, M. & M. 516. When a subscribing witness is dead, proof of the handwriting of such witness is evidence of everything on tbe face of the paper which imports to be sealed by the party. Per Buller, J., Adam v. Kerr, 1 B. & P. 3G1. And where the "signing and sealing" are alone noticed in the attestation, yet this is evidence of the delivery also. Semb. Hall v. Bainbridge, 12 Q. B. 699. Where the party named has acted under the deed, it will be presumed as against him to have been executed by him, although the seal has no signature annexed, nor any attestation ; Cherry v. Heming, 4 Exch. 631 ; for signature is not necessary to the execution of a deed, unless it be under a power which requires it; and it also seems that neither wax nor wafer are necessary, and that if a stamped impression be made on the paper in place of a seal as commonly used, it is a sufficient sealing, even under a power which requires a seal. Spi-ange v. Barnard, 2 Bro. C. C. 585. And it has been held that " to constitute a sealing neither wax nor wafer, nor a piece of paper, nor even an impression is necessary." In re Sandilands, L. R., 6 C. P. 411. See also Sugden on Powers, 8th ed. 232. But there must in such case be circumstances from which it may be inferred that the document was in fact sealed. See National Provincial Bank of England v. Jackson, 33 Ch. D. 1, C. A. In the delivery of a deed no particular form is necessary. Throwing it upon a table with the intent that the other party shall take it up, is sufficient. Com. Dig. Fait (A. 3). See Tupper v. Foulkes, supra. If the deed after scaling be tendered to the covenantee, and he expressly reject it, and refuse to take any benefit from it, the execution is incomplete. This defence was formerly admissible in evidence under non est factum. WhelpdaWs case, 5 Rep. 119 a; Xenos v. Wickham, 13 C. B., N. S. 435 ; 33 L. J., C. P. 13 ; Ex. Ch. reversed on another ground ; L. R., 2 H. L. 296. It must not, however, be pleaded specially. 1 Jules, 1883, 0. xix. r. 15, ante, p. 77. Execution under power of attorney or order of court.] Where a deed is executed by virtue of a power of attorney, the power should be produced; Johnson v. Mason, 1 Esp. 89 ; and proved ; 1 Phillipps' Ev., 7th ed. 104, 466. See In re Airey, (1897) 1 Ch. 164. In some instances a general agent has been presumed to have such authority. Doe d. Macleod v. E. London Waterworks, M. & D. 149. See Tupper v. Foulkes, supra. But, in general, the agent must be authorized t>y deed. Berkeley v. Hardy, 8 D. Sc Ry. 102; Uihhlcwhite v. M'Morine; Powell v. L. and, Provincial Bank, aide, p. 136. So must a partner in order to bind his co-partner by deed. Man-hunt v. Morton Down & Co., (1901) 2 K. B. 829, 832. By the Cunveyanciiiu; and Law of Property Act, 1881 (I I & 45 V. c. 1 1, s. 40, a married woman, whether an infant or not, may, as if she w T ere un- married and of full age, by deed, appoint an attorney on her behalf for the purpose of executing any deed or doing any other act which she might herself execute or do. By sect. 46, the donee of a power of attorney, whenever 138 Proof of Documents. granted, may execute any instrument thereunder with his ovvu signature and seal. Sect. 47 (1) protects the attorney in respect of acts done by him under the power, notwithstanding its revocation, without his knowledge. By Beet. 48 (1, 6), an instrument creating a power of attorney (whenever executed) may, with an affidavit of verification, be deposited in the central office (vide ante, p. 97), and (4) "an office copy of an instrument so deposited shall without further proof be sufficient evidence of the contents of the instrument, and of the deposit thereof in the central office." Sufficient evidence is probably equivalent to prima facie evidence. See Barraclough v. Greenhouyh, I/. K., 2 Q. B. 612, Ex. Ch., cited ^>ost, p. 151. A power of attorney is in general revocable by the grantor, Bromley v. Holland, 7 Ves. L!8; unless executed for valuable consideration, S. C. ,* or coupled with an interest, Gaussen v. Morton, 10 B. & C. 731 ; but even in this case it is revoked by the death of the grantor. Watson v. King, 4 Camp. 272. See further Frith v. Frith, (1906), A. C. 254, J. C. Now however by the Conveyancing Act, 1882 (45 & 46 V. c. 39), s. 8, if a power of attorney given after Dec. 31st, 1882 (sect. 8), for valuable consideration is therein expressed to be irrevocable, then, in favour of a purchaser, (i.) the power shall not ever be revoked by the donor, or by his death, &c. ; (ii.) any act done by the donee of the power shall not be prejudiced by any act done by the donor, or by his death, &c. ; (iii.) neither the donee of the power nor the purchaser shall be affected by notice of anything done by the donor, or by his death, &c. By sect. 9, if such power, given for valuable consideration or not, is therein expressed to be irrevocable for a fixed period not exceeding one year, then, in favour of a purchaser, during that period, the above results shall take effect. As to a deed being binding on an agent who executed it as such, as well as on his principal, see Young v. Schuler, 11 Q. B. D. 651, C. A., cited ante, p. 18. By the J. Act, 1884, s. 14, when any person neglects or refuses to comply with a judgment or order directing him to execute any document, or to indorse a negotiable instrument, the court may order it to be executed or indorsed by a person nominated by the court, and when so executed or indorsed it " shall operate and be for all purposes available as if it had been executed or indorsed by the person originally directed to execute or indorse it." See Howarlh v. Howarth, 11 P. D. 95, C. A. In order to prove a deed so executed, it would seem necessary, in an action by or against a third party, to prove the original judgment or order (vide ante, pp. 107, 112), the neglect or refusal to comply therewith, the order authorizing execution vide ante, pp. Ill, 112, and the execution by the nominee of the court. But proof only of the last-mentioned order, and of the execution, would probably be sufficient in an action against the person who failed to execute the deed, brought by the person who obtained that order. Signature, whether necessary. — Indentured] Signature forms no part of the execution of a deed, but as the Stat, of Frauds, by sects. 1, 3, and 4, requires interests in land to be created, surrendered, or assigned by instrument in writing, and certain contracts to be evidenced by writing, signed, the question has arisen whether an unsigned deed satisfies this statute or not. The better opinion now is that the statute operates on parol contracts only, and does not affect deeds ; Shep. Touchst. by Preston, c. 4, p. 56 (24) ; Aveline v. Whisson, 4 M. & Gr. 801; Cherry v. Beming, 4 Exch. 631, and that therefore an unsigned deed will be good notwithstanding the statute. The opinion of Blackstone was the other way. 2 Bl. Com. 307. A similar question arises under the Sale of Goods Act, 1893, s. 4:,post, p. 526. By stat. 8 & 9 V. c. 106, s. 5, a deed executed after Oct. 1st, 1845, " purporting to be an in- denture, shall have the effect of an indenture, although not actually indented." Escrow. — Proof of Attested Deed by Secondary Evidence. 139 Escrow."] "Where by express declaration, or from the circumstances, it appears that the delivery of a deed was not intended to be absolute, but that the deed was not to take effect until some contemplated event should have happened, the deed is not a complete deed and perfect deed until that event has happened." Kidner v. Keith, 15 C. B., N. S. 35, 43, per Williams, J.; Bowker v. Burdekin, 11 M. & W. 128, 147, per Parke, B. A condition previously expressed, though not introduced into the act of delivery, is sufficient to make it a delivery as an escrow. Per Abbott, C.J., Johnson v. Baker, 4 B. & A. 441 ; and see Murray v. Stair, El. of, 2 B. & C. 82. Where a person delivers a deed in the presence of a witness, but retains it in his own possession, there being nothing to show that it was not intended to operate immediately, it will take effect as a deed and not as an escrow ; Doe d. Garnons v. Knight, 5 B. & C. 671 ; Xenos v. Wickham, L. R., 2 H. L. 296. The delivery of a deed to a third person for the use of the party in whose favour the deed is executed, has the same effect. Doe d. Garnons v. Knight, sap?-a. But the delivery by the grantor of a grant executed by him, to the solicitor of the grantee, may be shown to have been conditional only ; Watkins v. Nash, L. B., 20 Eq. 262 ; even although the solicitor be one of several grantees. See L. Freehold, &c, Co. v. Suffield, Ld., (1897) 2 Ch. 608, C. A. In a case where a debtor executed a mortgage to his creditor unknown to the latter, and kept it 12 years in his own custody till he died, the deed was held valid from the date, in the absence of evidence to show that it was an escrow. Exton v. Scott, 6 Sim. 31. Where A. executes an instrument and delivers it to B. as an escrow to be delivered to C. on a certain event, possession by C. is prima facie evidence against A. of the performance of the condition. Hare v. Horton, 5 B. & Ad. 715. Aud delivery to a third person is not essential to a delivery as au escrow. Gudgen v. Besset, 6 E. & B. 986. ^'here the delivery as an escrow is proved by a letter sent with the instru- ment, it is for the court to construe its effect; aliter if proved by oral evidence of extrinsic facts. Furness v. Meek, 27 L. J., Ex. 34. The defence that the alleged deed was delivered as an escrow only, on a condition which has not been performed, was formerly raised by the plea of non est factum ; Millership v. Brookes, 5 H. & N. 797 ; 29 L. J., Ex. 369 ; but it would now require to be specially pleaded. See Rules, 1883, 0. xix. r. 15, ante, p. 77. Proof of attested deed by secondary evidence.] It has been sometimes contended that, if the original document has been attested, the attesting witnesses must he called. But where the plaintiff declared on a deed which he averred to be in the possession of the defendant, who pleaded non est factum, and at the trial the deed was proved to be in the hands of the defendant, who had been served with notice to produce, it was held, that, on the non-production of the deed, the plaintiff might give oral evidence of the contents without calling the subscribing witness, although his name was known to the plaintiff, and he was actually in court. Cooke v. Tanswell, 8 Taunt. 450. So in debt by landlord for double value ; plea " no demand" ; the plaintiff, having given notice to produce, offered to prove the original demand by a copy in which an attestation had been also copied, and to show that the original was signed by him : held, that the production of the attesting witness (though known to the plaintiff) was unnecessary. Poole v. Warren, 8 Ad. & E. 583. So where notice was given to produce a deed in the defendant's possession, and the defendant at the trial refused to do so, the plaintiff was allowed to prove it by a copy without calling any attesting witness, and it was held that the defendant could not put the plaintiff to a strict proof by afterwards producing the attested original. Jackson v. Allen, 3 Stark. 7-1 ; Edmonds v. Challis, 7 C. B. 413. Where the plaintiff declared on a lost deed, and a witness stated that there were subscribing witnesses, L40 Proof of Documents. bul be did not know their names, it, was ruled by Ld. Kenyon that the plaintiff rnight recover without calling them. Keeling v. Ball, Peake, Ev., A pp. H'2. But he said that "had it appeared who they were, the plaintiff in ust certainly have called them." If in such a case the witnesses are dead, and the execution by the party to the instrument is proved, it is questionable whether proof of the handwriting of the witnesses is in any case necessary; at all events, if the attesting witness can be identified with a deceased person, this will dispense with further proof of his handwriting; for the only object of such last-mentioned proof is to establish his identity. R, v. St. Giles's, Camoerwell, 1 E. & 1',. 642; 22 L. J., M. C. 54. Proof anil comparison of handwriting.] The result of the various cases on this bead is thus stated by Patteson, J., in Doe d. Mudd v. Suckermore, 5 Ad. & E. 730, 731, where references to all the authorities will be found. "That knowledge "[i.e., of handwriting] "may have been acquired either by seeing the party write, in which case it will be stronger or weaker according to the number of times and the periods and other circumstances under which the witness has seen the party write, but it will be sufficient knowledge to admit the evidence of the witness (however little weight may be attached to it in such cases), even if he has seen him write but once, and then merely signing bis surname; or the knowledge may have been acquired by the witness having seen letters or other documents professing to be the hand- writing of the party, and having afterwards communicated personally with the party upon the contents of those letters or documents, or having other- wise acted upon them by written answers producing further correspondence or acquiescence by the party in some matter to which they relate, or by the witness transacting with the party some business to which they relate, or by any other mode of communication between the party and the witness, which, in the ordinary course of the transactions of life, induces a reasonable presumption that the letters or documents were the handwriting of the party ; evidence of the identity of the party being of course added aliunde, if the witness be not personally acquainted with him." To prove the handwriting of a member of Parliament, the opinion of a clerk employed to inspect franks, who never had occasion to verify his hand- writing, was held insufficient. Batchelor v. Honeywood, 2 Esp. 714; Cary v. Pitt, Peake, Ev., App. 84. And where an attorney acted on a written retainer, purporting to be signed by A., B., and C, being acquainted with the handwriting of A. and B. only, bis testimony to that effect is insufficient to prove the signature of C. Drew v. Prior, 5 M. & Gr. 264. A witness cannot be permitted to give his opinion of the handwriting from extrinsic circumstances, such as his knowledge of the party's character and habits. Da Costa v. Pym, Peake, Ev. App. 85. In the case of ancient documents, where it is impossible for any witness to swear that he has seen the party write, it is sufficient if the witness has acquired Ins knowledge of the handwritiug by the inspection of other ancient writings bearing the same signature, and preserved as authentic documents. B. N. P. 236 ; Taylor v. Cook, 8 Price, 652 ; and see other cases cited, /><>r d. Mudd v. Suckermore, supra; also Fitzwalter Peerage case, 10 CI. «fc Fin. 193 ; Crawford & Lindsay Peerages, 2 H. L. 0. 557. Ancient writings (as a receiver's account 100 years old) may be laid before a witness at the trial for his inspection; and upon his judgment of their character, so formed, his belief as to the handwriting of the document in question may be inquired into. Doe d. Tilman v. Tarver, Ry. & M. 143; and see Roe d. JJinue v. Rawlings, 7 East, 282. A copy of a parish register purporting to be signed by the curate eighty years ago, may be received with no other proof of handwriting than the evidence of the present parish clerk, who Proof and Comparison of Handwriting. 141 speaks from his Laving seen the same handwriting attached to other entries in the register. Doe d. Jenkins v. Bavies, 10 Q. B. 314. In these cases the question often becomes one of skill ; the character of the writing varying with the age, and the discrimination of it being assisted by antiquarian study. Per Coleridge, J., Doe d. Mudd v. Suckermore, 5 Ad. & E. 718. It has been a question how far, and under what circumstances, hand- writing in modern instruments can be proved or disproved by the testimony of a witness, founded on the mere comparison of different signatures. In the case of Doe d. Mudd v. Suckermore, ante, p. 140, the K. B. judges were equally divided on the question whether, after a witness had sworn to the genuineness of his signature, another witness (a bank inspector) could be called to prove that in his judgment the signature was not genuine, such judgment being solely founded on a comparison pending the trial with other signatures admitted to be those of the witness. It has also been doubted whether a person practised in the examination of handwriting can be called to state his opinion whether a writing is in a feigned or a genuine hand. Qurney v. Langlands, 5 B. & A. 330 ; Doe d. Mudd v. Suckermore, 5 Ad. & E. 751. It has, however, been held that, under certain circumstances, the court and jury may be permitted to institute a comparison between documents for the purpose of verifying handwriting when a witness called expressly for that purpose would be rejected. Thus, in Griffith v. Williams, 1 C. & J. 47, it was held that the rule as to the comparison of handwriting does not apply to the court or jury, who may compare two documents when they are both properly in evidence. But the documents with which the handwriting is compared must be such as are in evidence for other purposes in the cause, and not put in or selected by the party merely for comparison. Doe d. Perry v. Newton, 5 Ad. & E. 514, 534; Qriffits v. Ivery, 11 Ad. & E. 322. To put such selected documents into the hands of the witness, merely for the purpose of shaking his credit by subsequent independent evidence contra- dicting his testimony as to those documents, would tend to raise collateral issues. Hughes v. Rogers, 8 M. & W. 123. This course has, however, been held admissible where the object was to show that the plaintiff was the author of an anonymous letter, by putting in evidence other letters in which he had misspelt defendant's name in the same way as in the anonymous letter. Brookes v. Tichborne, 5 Exch. 929. Some of the questions discussed above are now disposed of by the Crim. P. Act, 1865, ss. 1, 8 (replacing the C. L. P. Act, 1854, s. 27), which provides, that "Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses ; and such writings, and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute." This section allows documents proved to be genuine, but not relevant to the issue, to be put in for the purpose of comparison. Birch v. Ridgway, 1 F. & F. 270; Cresswell v. Jackson, 2 F. & F. 24. For this purpose the disputed writing must be produced in court ; and the section does not there- fore apply to documents which are not produced, and of which it is sought to give secondary evidence. Arbon v. Fussell, 3 F. & F. 152, cor. Wilde, B. Where the question is as to the handwriting of a witness, and the witness in cross-examination was induced to write on a piece of paper, this writing may be used for comparison under the section. Cobbett v. Kilminster, 4 F. & F. 490. It may, of course, be a question how far writing so obtained is a fair test of the ordinary handwriting of the witness. If the genuineness of the document sought to be put in is disputed, a collateral question is raised which must first be decided {Cooper v. Dawson, 1 F. & F. 550), like all •other wJlaMnal issues, by the judge. Bartlett v. Smith, 11 M. & W. 483 ; 1 12 Proof of Documents. Boyle v. Wiseman, 21 L. J., Ex. 284. It seems that a person may be a witness under this section although lie has not acquired his skill in the com- parison of handwriting in the course of his business. It. y. Silverlock, (1894) 2 Q. B. 766. The evidence of a solicitor who had given study and attention to handwriting, and " had on several occasions professionally compared evidence in handwriting " w 7 as admitted. S. C. Proof of execution, when dispensed ivith.~] When a deed is thirty years old, it proves itself, and no evidence of execution is necessary. B. N. P. 255. So, with regard to a steward's books of receipts, without proof of his hand- writing, if they come from the proper custody. Wynne v. Tyrwhitt, 4 B. & A. 376 ; private letters, Doe d. Thomas v. Beynon, 12 Ad. & E. 431 ; a will produced by the officer of the Ecclesiastical Court, Doe d. Howell v. Lloyd, Peake, Ev., App. 41 ; a bond, Chelsea Waterworks Go. v. Cowper, 1 Esp. 275 ; and other old writings, Fry v. Wood, 1 Selw. N. P., 13th ed. 495, n. Even in cases in which attestation is requisite, and it appears that the attesting witness is alive and able to attend, it is unnecessary to call him where the instrument is thirty years old. Doe d. Oldham v. Wolley, 8 B. & C. 22. But where an old deed is offered in evidence without proof of execution, some account ought to be given of its custody ; B. N. P. 255 ; or it should be shown that possession has accompanied it, at least where it purports to convey something which is the subject-matter of possession. See Gilb. Ev., 6th ed. 89. See Custody of Ancient Writings, ante, pp.102, 103. Whether the custody is suspicious is a question for the judge. Doe d. Shrewsbury, El. of, v. Keeling, 11 Q. B. 884. It has, indeed, been held sufficient, on an appeal against a removal, for the respondent parish to produce a certificate thirty years old, without showing that it had been kept in the parish chest ; R. v. Ryton, 5 T. B. 259 ; and see R. v. Netherthong, 2 M. & S. 337 ; but see on this point, Evans v. Rees, 10 Ad. & E. 151, and other cases cited, ante, pp. 102, 103. It was formerly considered that if there were any rasure or interlineation in an old deed, it ought to be proved in a regular manner by the witness, if living, or by proof of his handwriting and that of the party, if dead, in order to obviate the presumption which otherwise arises against the instrument. B. N. P. 255. See the rule as to alterations and interlineations in bills of exchange, Actions on Bills of Exchange — Defence — Alteration, post, p. 395. In documents of remote antiquity it is evidently impossible to supply such proof ; and, accordingly, in such docu- ments defects of this kind are, in practice, treated only as matter of observa- tion to the jury, unless they are of sufficient importance to warrant the judge in excluding them altogether. Accord. Roe d. Ld. Kimlestoion v. Kemmis, 9 CI. & Fin. 774 ; and Evans v. Rees, supra. And the rule now is, that interlineations, &c, in a deed are presumed to have been made before execution. Doe d. Tatum v. Catomore, 16 Q. B. 745 ; 20 L. J., Q. B. 364. It is otherwise in the case of wills. S. C., 16 Q. B. 747 ; vide post, p. 145. Where a party, producing a deed upon a notice, claims a beneficial interest under it, it is not necessary for the party calling for the deed to prove the execution of it; for in such a case the defendant, by claiming under it, accredits it as against him, though not to the extent of estopping him. Pearce v. Hooper, 3 Taunt. 60. Thus proof was unnecessary where assignees produced the assignment of the bankrupt's effects. Orr v. Morice, 3 B. & B. 139. So, in an action by a lessee against the assignee of the lease for breach of a covenant in the original lease, the plaintiff having proved a counterpart of the lease and the defendant having put in the original, it was held unnecessary for the plaintiff to prove the execution of it, though the defendant had assigned over the lease before action. Burnett v. Lynch, 5 Proof of Execution, when dispensed with. 143 B. & C. 589. So in an action against the vendor of an estate to recover a deposit on a contract for the purchase, if the defendant on notice produce the contract, the plaintiff need not prove its execution. Bradshaw v. Bennett, 1 M. & Rob. 143. And where, in ejectment, the attorney for the lessor of the plaintiff obtained from one of the defendants a subsisting lease of the premises to prevent its being set up by the defendants, it was held that this was a recognition of the lease as a valid instrument ; and that, when produced in pursuance of notice from the defendants, it might be read by them without proof of execution, though the attorney had furnished them with the names of the attesting witnesses, and though the plaintiff's title was independent of the lease. Doe d. Tyndale v. Heming, 6 B. & C. 28. It is immaterial that the party calling for it denies its validity : as where the defendant produces an assignment of a bankrupt's goods which the plaintiff (trustee of the bankrupt) impugns as fraudulent. Carr v. Burdiss, 1 C. M. & R. 782. Where notice was given to defendant to produce a feoffment under which he was in possession of land, the plaintiff proved by secondary evidence (the feoffment not being produced) that it had livery indorsed, and was witnessed; held, that it was unnecessary, as against defendant, to call the witness, or to prove livery. Doe d. Rowlandson v. Wainwright, 5 Ad. & E. 520. In an action against a sheriff for taking insufficient pledges in replevin, the replevin bond, produced by the defendaut, is admissible in evidence against him, without proof of execution. Scott v. Waithman, 3 Stark. 169. So, where the sheriff has assigned it to the plaintiff. Barnes v. Lucas, Ry. & M. 264 ; Plumer v. Brisco, 11 Q. B. 46. Where the party producing the deed does not claim an interest under it, the party calling for it must prove it in the regular manner. Gordon v. Secretan, 8 East, 548 ; Doe d. Wilkins v. Cleveland, Mqs. of, 9 B. & C. 864. So, if the party producing it claim an interest in it, but an interest unconnected with the cause; as where the action is for commission for procuring an apprentice for defendant, and the instrument produced is the deed of apprenticeship; Reardeu v. Minter, 5 M. & Gr. 204, 206, per Cur. And a party producing at the trial of a cause a deed which has been some months in his possession is not excused from proving the execution, merely because he received such deed from the adverse party who formerly claimed a bene- ficial interest in it. Vacher v. Cocks, IB. & Ad. 145. As the principle of the cases is that the party who claims an estate or interest under the instru- ment in his possession impliedly affirms its due execution, the rule is inapplicable to instruments that merely testify contracts under which no permanent interest passed. Therefore, where defendant wished to show himself to be a partner with A., under whom plaintiff sued, it was held that a contract in the plaintiff's possession to do some works for the firm, produced on notice by the plaintiff, must be proved by the defendant. Collins v. Bayntun, 1 Q. B. 117 ; Rearden v. Minter, supra. It seems that when an executor showed payment of a bond under plene administravit, he must have proved the bond in the regular way, except, perhaps, in an action on a simple contract. B. N. P. 143. See Part III., Actions against Executors, post, p. 1161. A deed may be given in evidence without proof of execution, if its execution or the handwriting of the witness be one of the admissions in the cause (ante, pp. 72-4), or admitted on the pleadings (ante, pp. 74-5), or if the party be estopped to dispute it, as by recital, &c (ante, p. 75). But the estoppel is confined to the part recited; and if the party wishes to prove more, he must prove it in the usual way. Oillett v. Abbott, 7 Ad. & E. 783. Deeds enrolled or registered?^ Where a deed, to the efficacy of which enrolment is essential (as a bargain and sale under 27 H. 8, c. 16), is I I I Proof of Documents. accordingly enrolled, proof of the enrolment by an examined copy will dispense with evidence of the execution by any of the parties to the original deed. Thurh v. Madison, Styles. 462; Smartle v. Williams, 1 Salk. 280. And this is also provided in the case of deeds of bargain and sale, enrolled and pleaded, by slat. I<> An. c. 2S, s. ."». So where a deed, to which enrolment is not, essential, is enrolled on the acknowledgment of one of the parties, to is evidence of execution against thai, party. B. N. P. 255, 256. But it should seem that, unless such enrolment be rendered evidence by force of an Act of Parliament, it will not dispense with proof by a subscribing witness (where a subscribing witness is necessary), or otherwise as the case may be. Gomersall v. Serle, 2 Y. & J. 5 ; Giles v. Smith, 1 C. M. & R. 470. The enrolments in the ichancery of Crown grants and the enrolments in the duchy office of leases, &c, of the possessions of the Duchy of Cornwall (and id sc/nb. of the Duchy of Lancaster), are primary evidence of the grants, and may be proved by examined copies, or copies otherwise authenticated. See Rome v. Brenton, 3 M. & Ry. 218, ante, p. 111. An enrolment of a lease in the Land Revenue Office was indeed rejected as evidence of the lease in Jenkins v. Biddulph, Ry. & M. 339; but this seems to have turned on the wording of an Act of Parliament. Several statutes have since facilitated the proof of deeds and grants of Crown lands and those of the Royal Duchies; as 2 W. 4, c. 1, s. 26, in respect of lands in the survey of the Office of Woods, &c, which makes the memorandum indorsed on the deed to be proof of the making of it and of the due enrolment, without proof of the officer's signature ; so 11 & 12 V. c. 83, s. 6, as to the proof of enrolments in the Duchies of Lancaster and Cornwall. The official indorsement of enrolment or registration on deeds which are by statute required to be enrolled or registered, is of itself prima facie evidence of the enrolment or registration. Kinnersley v. Orpe, 1 Doug. 56 ; Doe d. Williams v. Lloyd, 1 M. & Gr. 671 ; Grindell v. Brendon, 6 C. B., N. S. 698 ; 28 L. J., C. P. 333 ; Waddington v. Roberts, L. R., 3 Q. B. 579. See Mason v. Wood, 1 C. P. D. 63, ante, p. 43. The date of enrolment indorsed by the clerk of enrolments is conclusive evidence of the date. R. v. Hopper, 3 Price, 495. The memorial of a conveyance registered in a county register is presumed to be correct against those who claim through a person who registered the deed ; Wollaston v. Eaheivill, 3 M. & Gr. 297 ; but not against other persons ; Hare v. Waring, 3 M. & W. 379 ; per Parke, B. Proof of Wills of Personality. A will relating to personalty is scarcely ever used in evidence in a court of law, and, therefore, it is rarely necessary to prove it. The probate granted by the proper court is the proper evidence of such a will. See Proof of Probate, ante, pp. 118, 119. But for the purpose of construing a will, the court will look at the original will, as well as the probate copy. In re Barrison, 30 Ch. D. 390, per Ld. Esher, M.R., and Baggallay, L.J. Proof of Wills of Land. Production of the Will.'] At common law, in order to prove a devise of lands, the will itself must be produced, for probate of the will is not even secondary evidence ; as the Spiritual Court had no power to authenticate a will quoad anything but personalty. Doe d. Ash v. Calvert, 2 Camp. 389 ; B. N. P. 246. But where the will is lost, the register or ledger-book of the Ecclesiastical Court, or an examined copy of it, has been admitted as secondary evidence. B. N. P. 246. It is presumed that in such case the will must have been of personal as well as real estate, otherwise the court would Witts of Land. — Execution. 145 then have had 110 jurisdiction to register the will. The same principle applied to the jurisdiction of the Probate Division. In re Bootle, L. E., 3 P. & M. 177. Now, however, by the Land Transfer Act, 1897 (60 & 61 V. c. 65), ss. 1, 2 (1, 2), 25, real estate (other than copyholds and customary freeholds where admission, &c, is required) in the case of a person dying after Dec. 31st, 1897, vests in his executor or administrator as if it were a chattel real ; in such case, therefore, the probate, &c, will be the only evidence admissible to prove the will, vide Proof by Probate, ante, p. 118. The remainder of this heading as to proof of wills of land applies, therefore, to ordinary freeholds, only in the case of a person dying before Jan. 1st, 1898, and to copyholds and customary freeholds. A lost will may be proved by a copy otherwise authenticated ; Sly v. Sly, 2 P. D. 91 ; or by oral evidence ; Brown v. Brown, 8 E. & B. 876 ; 27 L. J., Q. B. 173 ; see also 2 Camp. 390, n. ; even though given by an interested witness ; Sugden v. S. Leonards, Ld., 1 P. D. 154, C. A. It may also be proved by written or oral declarations of the testator made before or after the execution of his will. S. C. Effect has been given to a lost will so far as its contents were proved. S. C. See, however, the observations in Woodward v. Goulstone, 11 Ap. Ca. 469, D. P. Such declarations have been held admissible to show what papers constitute the will ; Gould v. Lakes, 6 P. D. 1. The execution of the will, whether singly or in duplicate, cannot be proved by subsequent declarations of the testator ; Atkinson v. Morris, (1897) P. 40, C. A. ; Eyre v. Eyre (1903) P. 131, 137. An interlineation or alteration in a will is presumed to have been made after the execution of it ; Cooper v. Bockett, 4 Moo. P. C. C. 419 ; Doe d. Tatum v. Catomore, 16 Q. B. 745, 747 ; Doe d. Shallcross v. Palmer, Id. 47 ; 20 L. J., Q. B. 367 ; declarations made after execution cannot be used to rebut this presumption. S. 0. Secus as to declarations made before execution, fe S. C, In re Sykes, L. R., 3 P. & M. 26 ; Dench v. Dench, 2 P. D. 60. And in the case of the interlineation of mere words required to complete the sense of the will, if they are written apparently at the same time with the same ink, the presumption that they were inserted after execution is not a necessary one. In re Cadge, L. R., 1 P. & M. 543. The declarations of the testator made before execution are admissible to support his will, if dis- puted on the ground of fraud, circumvention, or forgery. Doe d. Ellis v. Hardy, 1 M. & Rob. 525 ; Doe v. Stevens, Q. B., E. T., 1849, MS. So they are admissible to impeach the will by proving such fraud ; Doe d. Small v. Allen, cited ante, p. 20. Proof of Execution — Statutes.} The following are the statutory pro- visions severally relating to the execution of wills before Jan. 1st, 1838, and on and since that date. By the Stat, of Wills (32 II. 8, c. 1), s. 1, a will of lands was requirod to be in writing. By the Stat, of Frauds (29 C. 2, c. 3), s. 5, all devises and bequests of any lands or tenements, "shall be in writing and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect." This section is still in force as to wills made before Jan. 1st, 1838. By the Wills Act (I V. c. 26), s. 9, "no will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned (that is to say), it shall be signed at the foot or end thereof by the testator or by some other person in his presence, and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses B. — VOL. I. h 146 Proof of Documents. shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." By sect. 13, "every will executed in manner hereinbefore required shall be valid without any other publication thereof." This Act, by sects. 1, 34, applies to any will, codicil or appointment in exercise of a power made or re-executed, or re-published or revived by any codicil on or after Jan. 1st, 1838. The signing required by sect. 9 is to be "at the foot or end " of the will. As this provision gave occasion to some very inconvenient decisions upon the precise situation of the signature, it was enacted, by 15 & 16 V. c. 24, s. 1, that the will shall be valid if the signature be so placed at, or after, or following, or under, or beside, or opposite to the end of the will that it shall bo apparent that the testator intended to give assent by such signature to the writing sigued as bis will. But no signature under the Act is to give effect to any disposition which is underneath it, or follows it, or is written after the signature shall be made. By sect. 2, these provisions are in general retroactive. The following decisions under the Stat, of Frauds, s. 5, ante, p. 145, are retained, as being often applicable to the proof of wills made since the Wills Act. Most of the decisions under the Wills Act are collected post, p. 147. Signing.'] Notwithstanding some earlier cases to the contrary, it is now the better opinion that sealing, without signing, is not a sufficient execu- tion within the Stat, of Frauds. Smith v. Evans, 1 Wils. 313; Wright v. Wakeford, 17 Ves. 458. It is sufficient under that statute, if the testator sign bis name at the beginning of the will. Lemayne v. Stanley, 3 Lev. 1 ; S. C. Freem. 538. If the will be written on several sheets, and the testator sign some and intend to sign the rest, but do not, this is not a suffi- cient execution ; Eight v. Price, 1 Doug. 241 ; Swcetland v. Sweetland, 4 Sw. & Tr. 6; 34 L. J., Y. M. & A. 42; but where a will, written on three sides of a sheet of paper, concluded by stating that the testator had signed his name to the first two sides and had put his hand and seal to the last, aud in fact he bad put his hand and seal to the last, but had omitted to sign the two other sides, the execution was held good, the signing of the last sheet showing that the former intention had been abandoned. Winsor v. Pratt, 2 B. & B. 650. Where a codicil was duly executed and attested by three witnesses and written on the same paper with an unexecuted will to which it expressly referred : it was held, that such execution gave effect to the will, and that it thereby became a good will of lands. Doe d. Williams v. Evans, 1 Cr. & M. 42; S. C, 3 Tyr. 56. So, a codicil whereby the testator confirms his will, gives validity to an unattested alteration in a devise made after the execution of the will; Tyler v. Merchant Taylors' Co., 15 P. D. 216; and to a testamentary paper purporting to be a devise unattested and unannexed to the will, if distinctly referred to by such codicil. 1 Wms. Exors. 10th ed., pp. 74, 141. See hi re Smith, 45 Ch. D. 632, and In re Hay, (1904) 1 Ch. 317. The existence and identity of such paper must be proved by parol evidence. In re Ileathcote, 6 P. D. 30. But a codicil may operate as a partial republication only. Mony penny v. Bristow, 2 Russ. & Myl. 117. Where the testator is blind, it is not necessary to read over to him the will in the presence of the attesting witnesses previously to execution. Longchamp d. Goodfelloio v. Fish, 2 N. R. 415. A signature by mark or initials is sufficient. Baker v. Dening, 8 Ad. & E. 94; see In re Blewitt, 5 P. D. 116. Where a testator requested another person to sign his will for him, which the other did in bis own name, that is sufficient. In re Clark, 2 Curt. 329. Under the Wills Act (1 V. c. 26), s. 9, ante, p. 145, the will must be signed at the foot or end thereof; see also 15 & 16 V. c. 24, supra. Wills of Land. — Attestation. 147 Where the signature is in the middle of the will, it does not give effect even to the part which precedes it. Siveetland v. Sweetland, ante, p. 146; Margary v. Robinson, 12 P. D. 8. Attestation.'] The Statute of Frauds does not direct that the witnesses shall see the testator sign ; therefore, it is euough if the testator acknow- ledge to the witnesses, either separately or all together, that the will or handwriting is his. Stonehouse v. Evelyn, 3 P. Wins. 254; Johnson v. Johnson, 2 Cr. & M. 140. But where the attestation purported that the will had been signed in the presence of the three witnesses who, in his presence and that of each other, signed the attestation, it was held insufficient to call one of them, who stated that he and another saw the testator sign, but that the third, whose signature was proved, was not then present. Doe v. Lewis, 7 0. & P. 574. It is sufficient, though the witnesses do not know the paper to be the testator's will. Wright v. Wright, 7 Bing. 457. If the witnesses set their marks to the will, it is enough ; Harrison v. Harrison, 8 Ves. 185 ; Harrisony. Elvin, 3 Q. B. 117; and they may attest it at several times ; Cook v. Farsons, Prec. in Chanc. 185 ; but in that case one witness alone will not be able to prove the due execution of the will. The witnesses need not attest every page, but all the will should be in the room at the time of attestation ; whether it was so or not is a question for the jury. Bond v. Seawell, 3 Burr. 1773 ; Lea v. Libb, 3 Mod. 262. The witnesses must attest and subscribe the will in the presence of the testator ; but it is enough if the testator was in such a position that he might see the witnesses attest ; as where he was in one room and the witnesses in another, and he might have seen them through a window. Shires v. Glascock, 2 Salk. 688. So where the testator was in bed, and the witnesses retired through a short passage iuto another room, and attested the will opposite to the door, which was open, as well as the door of the testator's room. Davy v. Smith, 3 Salk. 395 ; Todd v. Winchelsea, El. of, M. & M. 12. So where the testatrix sat in her carriage opposite the window of the attorney's office in which the will was attested. Casson v. Dade, 1 Bro. Ch. C. 99. But where the will was attested in an adjoining room, and the jury found that in one part of the room in which the testator was, a person inclining forward with his head out of the door might have seen the witness, but that the testator was not in such a situation, the execution was held invalid. Doe d. Wright v. Manifold, 1 M. & S. 294. The test in these cases seems to be " whether the testator might have seen, not whether he did see, the witnesses sign their names." In re Trimnel, 11 Jur., N. S. 248, Feb., 1865, per Wilde, J.O. Making a mark is a sufficient subscription. Doe d. Davies v. Davies, 9 Q. B. 648. The attesting witnesses may subscribe their names in any part of the will, and not exclusively at the end of it; nor is any testimonium clause, or form of attestation necessary. Roberts v. Phillips, 4 E. & B. 450 ; 24 L. J., Q. B. 171. It seems, however, that where there is no such clause to show whether they sign as attesting witnesses there must be extrinsic proof of it. S. C. 'per Cur. And this decision has been applied to the Wills Act. In re Streatley, (1891) P. 172. Under the Wills Act (1 V. c. 26), s. 9, ante, p. 145, the witnesses must both be present at the same time when the signature is made or acknow- ledged by the testator. And they must attest in the presence of the testator, but not necessarily of each other. Cooper v. Docket t, '■'> < 'urt . 659, per Sir II. Jenner Fust; assumed per Cur. on appeal, I Moo. P. C. C. 119; Faulds v. Jackson, 6 Notes of Cas. Suppl. i. (14th June, 1845). In Case- ment v. Fulton, 5 Moo. P. C. C. 130 (argued June 17th — 19th ; judgment 25th July, 1845), it was held ook of Property Law, 8th ed. 244. "In the presence of " means actual visual presence. Brown v. Skirrow, (l'.K)2) P. 3. See cases cited ante, p. 147. The testator must sign or acknowledge his signature to both witnesses present together, before either of them attests. Cooper v. Bockett, supra; WyaU v. Berry, (1893) P. 5; Hindmarsh v. Charlton, 8 H. L. C. 160. If a witness sign before the testator an acknowledgment by him of his signature after execution by the testator is insufficient. S. C. ; Moore v. King, 3 Curl. 1.' 13. It is sufficient if the witnesses sign with their initials. In re Blewitt, 5 P. U. 116. As no form of attestation is necessary, the mere subscription of two names, without calling themselves witnesses, will be prima facie sufficient. Bryan v. White, 2 Rob. Ecc. Rep. 315. An acknow- ledgment by a testator of his signature previously affixed is sufficient, if the will bearing his signature, visibly apparent on the face of it, be produced to two witnesses present together, and they are asked by him, or in his presence to subscribe the same. Gaze v. Gaze, 3 Cart. 451 ; In re Ashmore, Id. 756 ; Inglesant v. Inglesant, L. R., 3 P. & M. 172 ; Daintree v. Fasulo, 15 P. D. 67, 102, C. A. But where the witnesses neither see nor have the opportunity of seeing the signature, the acknowledgment is insufficient, even although the testator declares the paper to be his will. Blake v. Blake, 7 P. D. 192, C. A. See further, generally as to the signature and attestation requisite under the Wills Act, 1 Wins. Exors., 10th cd. 63 et seq. Where after a will has been duly executed S. signed his name under those of the attesting witnesses, it may be proved that he did not sign for the purpose of attestation. In re Sharman, L. R., 1 P. & M. 661 ; In re Smith, 15 P. D. 2. What witness must be called.'] To prove a will of land it is sufficient to call one of the witnesses, if he can speak to all the requisites of attestation. B. N. P. 264; Longford v. Eyre, 1 P. Wins. 741 ; Belbin v. Skeates, 1 Sw. A; Tr. 148 ; 27 L. J., P. M. & A. 56 ; following Wright v. Doe d. Tatham, post, p. 148. It was held that on an issue of Chancery all the witnesses ought to be called. Booth v. Blundell, 19 Ves. 494. Though this was the general rule in cases where the suit was instituted by the devisee to establish the will, yet where the suit was by the heir against the devisee for the purpose of setting aside the will, the devisee was not required to produce all the witnesses. Tatham v. Wright, 2 Russ. & Myl. 1. Upon the trial of an ejectment brought by the heir for the recovery of the same lands as those mentioned in the last case, one of the attesting witnesses who proved the will on the issue out of Chancery, having died, the defendant proved bis testimony from the shorthand writer's notes, which were held to be sufficient evidence of the execution of the will, though another attesting witness was present at the trial. But the previous proceedings in the Court of Chancery upon which an issue had been found for the devisee, were held not to be in evidence of the execution. Wright v. Doe d. Tatham, 1 Ad. & E. 3, Ex. Ch. 1' roof where the witnesses are dead, or deny their attestation.'] Where the witnesses are dead, this fact and their handwriting should be proved. " Where the attestation clause recites a compliance with all the requisite ceremonies in respect of all the witnesses, it is enough, in order to make a prima facie case, to prove the death of all, and the handwriting of one of them ; because it will be presumed that everything the witness thus declared Wills of Land. — Attestation. 149 by his attestation to have been done, was really done." Andrew v. Motley, 12 C. B., N.I S. 527, 532; 32 L. J., C. P. 128, 130, per Williams, J. Though the attestation does not express that the witnesses subscribed the will in the presence of the testator, yet a jury may presume that fact in favour of the will. Croft v. Pawlttt, Stra. 1109 ; Hands v. James, 2 Comyn, 531 ; Doe d. Davies v. Davies, Vinnicombe v. Butler, infra. And it seems that a general form of attestation must be taken as affirming that all has been done in the presence of the witnesses which is stated in the body of the instrument. Buller v. Burt, coram Leach, M.R., cited 4 Ad. & E. 15. The principle of these decisions seems to be fully recognized in Doe d. Spilsbury v. Burdett, Id. 1 ; and S. C. in D. P., 6 M. & Gr. 386 ; 10 CI. & F. 340 (see this case infra). And In re Peverett, (1902) P. 205, the principle was further extended to an informal holograph will to which there was no attestation clause. See also Wright v. Sanderson, infra. Even although the witnesses to a will should swear that the will was not duly executed, evidence may be adduced in support of the will. Lowe v. Jolliffe, 1 W. Bl. 365 ; Bowman v. Hodgson, L. R., 1 P. & M. 362 ; see Wright v. Rogers, Id. 678. Where one witness gives evidence against due execution, the party supporting the will must call the other witness; Owen v. Williams, 32 L. J., P. M. & A. 159 ; Coles v. Coles, L. R., 1 P. & M. 70 ; or account for his absence. See Pilkington v. Cray, (1899) A. C. 401, J. C. A will was attested by three witnesses, one (standing second) being a marksman and the other two being dead, the handwriting of these two was proved, but the marksman being produced, recollected nothing of his signature; he was very old, and had known the testator; the will was un- contested for 16 years; held, that the jury might presume the due execution of the will under the circumstances. Doe d. Davies v. Davies, 9 Q. B. 648. So although neither of the two witnesses can remember when the testator signed, it maybe inferred from the circumstances that he signed before them. Vinnicombe v. Butler, 3 Sw. & Tr. 580 ; 34 L. J., P. M. & A. 18 ; Wright v. Sanderson, 9 P. D. 149, C. A. And in the case of a lost will acted on for 8 years, where no attestation clause was proved, but the names of C. D. and E. P. followed the signature of the testator A. B., due execution was presumed on proof of the deaths of C. D. and E. F., and the handwriting of A. B. and 0. D. Harris v. Knight, 15 P. D. 170, C. A., diss., Cotton, L.J. Where two of the witnesses are dead, and the surviving witness charges them with fraud in the attestation of the will, evidence of their good character is admissible. Doe d. Stephenson v. Walker, 4 Esp. 50; Provis v. Peed, 5 Bing. 435. Proof of wills thirty years old.] A will 30 years old, coming from the proper custody, will be presumed, in the same way as a deed, to have been duly executed, although it bear some marks of cancellation. Andrea- v. Motley, supra. As to proper custody, see Custody of ancient writings, ante, pp. 102-3. In Doe d. Spilsbury v. Burdett, supra, it was considered by the Q. B. that, where the instrument creating a power requiring it to be executed by will, to be " signed, sealed, and published in the presence of, and attested by three or more credible witnesses," the will, although 30 years old, must bear an attestation that it was regularly executed according to the power (see 4 Ad. & E. 19). But this strictness as to the attestation clause applied only to wills executed under powers; in other cases of wills, as in the case of deeds, the attestation clause was by no means conclusive as to what was done. Even the oral testimony of the attesting witnesses is not so; Lome v. Jolliffe, and Bowman v. Hodgson, supra; and the decision in Andrew v. Motley, supra, would be strong to show that the admissibility of 150 Proof of Documents. a will 30 years old without proof of execution was not affected by such a defect in the clause of attestation. See furthermost, p. 152. The execution of powers by will on and since Jan. 1st, 1838, has been much simplified by 1 V. c. 26, s. 10, post, p. 152. Under the old law it was held that 30 years were to be reckoned from the date of the will being executed. Doe d. Oldham v. Wolley, 8 B. & C. 22. The fact that under sect. 24, a will, with reference to the estate comprised therein, now speaks from the death of the testator would not seem to alter this principle. Interested attesting witness.'] Formerly if a will were attested by a person who, or whose wife, or husband took any interest thereunder, the will was void because it could not be proved ; this was remedied as to an interested witness himself, by stat. 25 G. 2, c. 6, s. 1, which made such witness competent to prove the will, but avoided the devise to him ; sect. 2 made creditors competent witnesses, although the will charged the debts on the real estate. This Act still applies to wills made before Jan. 1st, 1838. As to the competency of the husband of a devisee, see Hatfield v. Thorp, 5 B. & A. 589. By the Wills Act (1 V. c. 26), s. 14, if the attesting witness to a will be incompetent to prove it at the time of execution or afterwards, the will shall not be invalid on that account; and by sect. 15, if the attesting witness, or the wife or husband of the witness, be a beneficial devisee, &c, the devise shall be void, and the witness competent ; and by sect. 16, in the case of a will charging real or personal estate with debts, a creditor, or the wife or husband of one, may attest the will, and prove its execution ; and by sect. 17, the executor is admissible to prove the execution, or the validity or invalidity of a will. This Act, by sects. 1, 34, applies to all wills made or re-executed on or after Jau. 1st, 1838. A devise to an attesting witness is void though thei - e are three other attesting witnesses. Doe d. Taylor v. Mills, 1 M. & Bob. 2S8. Where a will attested by A. contains a devise to A. and is confirmed by a codicil not attested by A., the devise is good, for the codicil incorporates the will, and they form one instrument. Anderson v. Anderson, L. B., 13 Eq. 381. And the benefit is not lost by A. having attested a second codicil which confirmed the will and first codicil. In re Trotter, (1899) 1 Ch. 764. The marriage, after attestation, of the attesting witness to a devisee does not affect the devise. Thorpe v. Bestwick, 6 Q. B. D. 311. The Act for making interested witnesses competent (6 & 7 V. c. 85), provides that it shall not affect the new Wills Act; but the Statute of Frauds is not referred to in it. Proof by probate.] Under the Land Transfer Act, 1897, ante, p. 145, the probate is the evidence by which the will of a person dying after Dec. 31st, 1897, is proved in the case of freeholds. In the case of persons dying before .Ian. 1st, 1898, and in the case of copyhold and customary freeholds, it is also admissible in evidence under the Probate Court Act (20 & 21 V. c. 77), which after providing by sect. 61, that where a will affecting real estate is proved in solemn form, or is the subject of any contentious proceeding, the heir and persons interested in the real estate shall be cited, enacts by sect. 62, that " where probate of such will is granted after such proof in solemn form, or where the validity of the will is otherwise declared by the decree or order in such contentious cause or matter as aforesaid, the probate, e, i .r order respectively shall enure for the benefit of all persons interested in the real estate affected by such will, and the probate copy of such will, or tin- letters of administration with such will annexed, or a copy thereof Wills of Land.— Probate. 151 respectively, stamped with the seal of her Majesty's Court of Probate" (vide infra), " shall in all courts, and in all suits aud proceedings affecting real estate of whatever tenure (save proceedings by way of appeal under this Act, or for the revocation of such probate or administration), be received as conclusive evidence of the validity and contents of such will, in like manner as a probate is received in evidence in matters relating to the personal estate; and where probate is refused or revoked on the ground of the invalidity of the will, or the invalidity of the will is otherwise declared by decree or order under this Act, such decree or order shall enure for the benefit of the heir-at- law, or other persons against whose interest in real estate such will might operate, and such will shall not be received in evidence in any suit or proceeding in relation to real estate, save in any proceeding by way of appeal from such decrees or orders." Sect. 63 provides, " that the probate, decree, or order of the court shall not in any case affect the heir or any person in respect of his interest in real estate, unless such heir or person has been cited or made party to the proceedings, or derives title under or through a person so cited or made party." The heir B. is bound by the judgment in a probate action in which the will was established, though B. was a party as next-of-kin only. Beardsley v. Beardsley, (1899) 1 Q. B. 746. By sect. 6-1, in any action " where, according to the existing law, it would be necessary to produce and prove an original will in order to establish a devise or other testamentary disposition of or affecting real estate, it shall be lawful for the party intending to establish in proof such devise or other testamentary disposition, to give to the opposite party, ten days at least before the trial or other proceeding in which the said proof shall be intended to be adduced, notice that he intends at the said trial or other proceeding to give in evidence, as proof of the devise or other testamentary disposition, the probate of the said will, or the letters of administration with the will annexed, or a copy thereof stamped with any seal of the Court of Probate " (vide infra) ; " and in every such case such probate or letters of administra- tion, or copy thereof respectively, stamped as aforesaid, shall be sufficient evidence of such will, and of its validity and contents, notwithstanding the same may not have been proved in solemn form, or have been otherwise declared valid in a contentious cause or matter, as herein provided, unless the party receiving such notice shall, within four days after such receipt, give notice that he disputes the validity of such devise or other testamentary disposition." By sect. 65, "In every case in which, in any such action or suit, the original will shall be produced and proved, it shall be lawful for the court or judge before whom such evidence shall be given, to direct by which of the parties the costs thereof shall be paid." The jurisdiction of the Court of Probate is now transferred by the J. Act, 1873, s. 16, to the High Court of Justice, and is by sect. 34 assigned to the Probate, Divorce, and Admiralty Division. Probates are therefore now sealed with the seal of that division. If the party receiving the ten days' notice under the above section give the four days' counter-notice that he disputes the validity of the devise, the probate will not be admissible in evidence ; but if he do not give the counter-notice, he may nevertheless at the trial dispute the validity of the will, for "sufficient evidence" here means only prima facie evidence. Barracloufjh v. Qreenhough, L. 1!., - <). B. 612, Ex. Ufa. Semble, that the notice should be given to the solicitor of the opposite party. S. C. Where the notice has not been given under the Act the judge may adjourn the cause to allow of the notice being given or to allow proof of the will per testes. See Hilliard v. Eiffe, L. R., 7 H. L. 39, 49, per Ld. Cairns, C. 152 Proof of Document*. Proof of Execution of Powers. As a general rule, all the circumstances required by the creator of a power, however otherwise unimportant, must be observed, and cannot be satisfied but by a strict and literal performance. Per Ld. Ellenborongh, C.J., Hawkins v. Kemp, ."> East, 440. And when the power directs attesta- tion and other formalities the attestation must notice the compliance with the formalities. Thus where it was to be executed "by any deed or writing Tinder the hands and seals of the parties, to be by them duly executed in the preseuce of, and attested by two or more witnesses ; " it was held that as the attestation stated only a sealing and delivery, and omitted the signing, the power was not duly executed ; Doe d. Mansfield v. Peach, 2 M. & S. 576 ; and a subsequent correct attestation, indorsed upon the instrument after the death of one of the parties, would not remedy the defect; S. C. ; Wright v. Waheford, 2 Taunt. 214. So if the power is to be executed by an appointment to be signed and published, in the presence of, and attested by two witnesses, and the attestation omits to mention the publication. Moodie v. Beid, 7 Taunt. 355. But where the attestation mentioned "delivery," this has been held equivalent to publication. Ward v. Swift, 1 Cr. & M. 171. The cases above referred to assume, however, rather than expressly decide, that, if the attestation be deficient, the deficiency cannot be supplied by evidence aliunde that the formalities were all gone through. But this is directly contrary to the law in the analogous case of formalities required by statute ; and perhaps after the language of Ld. Lyndhurst, in Burdett v. Doe d. Spilsbury, 6 M. & Gr. 461, and of Ld. Campbell, Id., pp. 468 et seq., it will be held, if the question should arise, that the attestation clause is not conclusive. Indeed, Ld. Campbell, in Newton v. Bichetts, 9 H. L. C. 262; 31 L. J., Ch. 247, says that the ratio decidendi, in Burdett v. Doe d. Spils- burij, supra, was that such extrinsic evidence might be given. This was certainly not so. But still this expression of opinion gives to the view under discussion the full weight of Ld. Campbell's authority. On the other hand we have, in Burdett v. Doe d. Sp>Usbury, supra, Ld. Brougham's express refusal to overrule the cases which lay down the very strict rule requirino; all the formalities to be noticed in the attestation. See 6 M. & Gr. 465. When the instrument creating the power does not require attestation, an informal or imperfect one will not invalidate. Sugd. Pow. 8th ed., 235, 247. The defect of omitting to state in the attestation the signing of the instrument was cured by stat. 54 G. 3, c. 168, with regard to powers theretofore executed ; but the Act was only retrospective. Leases defectively executed under powers may now be confirmed by acceptance of rent under the circumstances provided for in statutes 12 & 13 V. c. 26, and 13 & 14 V. c. 17. The Wills Act, 1 Y. c. 26, abrogated the necessity of following the formalities prescribed by the donor of a power to be exercised by a will or appointment in the nature of a will ; for it provides (sect. 10) that " no appointment made by will, in exercise of any power, shall be valid, unless the same be executed in manner hereinbefore required ; and every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity." Hence the execution of wills in virtue of powers must hereafter conform to the regulations pointed out in sect. 9, ante, p. 145. A will executed with only the formalities pre- scribed in this section will not satisfy the condition of a power to be exercised Oral Proof by Witnesses. 153 " by any instrument in writing to be by her signed, sealed and delivered in the presence of and attested by two or more credible witnesses." Taylor v. Meads, 4 D. J. & S. 597 ; 34 L. J., Ch. 203. Such a power is, however, satisfied by a will expressed to be "signed, sealed, acknowledged, and declared" in the presence of the attesting witnesses. Smith v. Adkins, L. R., 14 Eq. 402. The stat. 22 & 23 V. c. 35, provides a like remedy for the relief of donees of powers to be exercised otherwise than by will ; for by sect. 12, a deed executed after Aug. 13th, 1859, in the presence of and attested by two or more witnesses in the ordinary manner, shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed or instrument in writing not testamentary, although some other execution, attestation, or solemnity may have been prescribed by the donor ; provided that this shall not dispense with any requirement prescribed by him other than the manner of execution or attestation, nor prevent the donee from executing the power in the manner prescribed by the donor. There is, however, a notable difference between this and the Act relating to wills under powers, viz., that a will under a power must conform to the provisions of 1 V. c. 26, whereas an appointment made since 22 & 23 V. c. 35, may be executed in the manner prescribed either by that Act or by the donor of the power. The last Act is retrospective so far as regards the instrument creating the power. Proof of Awards. As to proof of awards generally, vide Action on an award, post, p. 498. As to proof of awards made by commissioners under Inclosure Acts, &c., it is provided by 3 & 4 W. 4, c. 87, s. 2, that the original award, or a copy of the enrolment signed by the proper officer of the court or the clerk of the peace or his deputy, and purporting to be a true copy, shall be admitted in all courts as legal evidence ; see also sect. 4, as to the production of the award in evidence. In a collateral proceeding in which it may be necessary to give it in evidence, it will be presumed that the award has been regularly made, and that the commissioners were duly qualified, and had given the proper notices, &c. : but this presumption may be rebutted : P. v. Hasliin/- field, 2 M. & S. 559; Doe d. Nanny v. Gore, 2 M. & W. 320; ace. Williams v. Eyton, 2 H. & N. 771; 27 L. J., Ex. 176; 4 H. & N. 357; 28 L. J., Ex. 146, Ex. Ch. ; and excess of authority may be shown; Wingfield v. TJiarp, 10 B. & C. 785. Awards made under 6 & 7 W. 4, c. 115, or 3 & 4 V. c. 31, are, by sect. 1 of the last Act, made conclusive evidence of a compliance with all the provisions of those Acts, and of all necessary consents, and no other evidence of title under the inclosure shall be requisite. ORAL PROOF BY WITNESSES. The J. Act, 1875, s. 20, provides that "nothing in this Act or in the first schedule hereto, or in any rules of court to be made under this Act, save as far as relates to the power of the court fur special reasons to allow depositions or affidavits to be read, shall affect the mode of giving evidence; by the oral examination of witnesses in trials by jury or the rules of evidence, or the law relating to jurymen or juries." By Rules, 1883, O. xxxvii. r. 1, "In the absence of any agreement in writing between the solicitors of all 154 Attendance of Witnesses. I unties, and subject to these rules, the witnesses at the trial of any action or at any assessment of damages shall be examined viva voce and in open court ; " but the court or a judge may in certain cases allow depositions or affidavits to be used, vide post, pp. 185 et seq. The J. (Procedure) Act, 1894 (57 & 58 V. c. 16), s. 3, "declared that the power to make rules conferred by the Judicature Acts, 1873 to 1891, includes power to make rules for regulating the means by which particular facts may be proved, and the mode in which evidence thereof may be given":— (b) "on any application upon summons for directions pursuant to such rules." Under this power the following rule was made August, 1894, 0. xxx. r. 7 : " On the hearing of the summons, the court or a judge may order that evidence of any particular fact, to be specified in the order, shall be given by statement on oath of information and belief, or by production <>f documents or entries in books, or by copies of documents or entries or otherwise, as the court or judge may direct." Attendance of Witnesses. Subpoena, service of — Expenses.] The process to compel the attendance of witnesses is the writ of subpoena ad testificandum. Edqell v. Curling, 7 M. & Gr. 958. This writ will now, by stat. 17 & 18 V. c. 34, s. 1, issue out of the superior courts into any part of the United Kingdom on the special order of the court or judge. It is, however, provided by sects. 5 and 6, that this provision is not to affect the power of the court to issue commissions to examine, or to affect the admissibility of evidence heretofore admissible by reason of a witness being beyond the jurisdiction : — in other words, Scotland and Ireland are still, for these last-mentioned purposes, to be regarded as out of the jurisdiction of the superior courts of England. By 52 & 53 V. c. 49, s. 18, the power is extended to subpoena a witness to appear before a referee or arbitrator. Either the writ, or a copy of it, must be personally served on the witness ; and where a copy only is delivered, the original must be shown whether the witness require it or not; otherwise he cannot be attached. Wadsworth v. Marshall, 1 Cr. & M. 87. It must be served so as to give witnesses " reasouable time to put their own affairs in such order that their attendance may be with as little prejudice to themselves as possible." Hammond v. Stewart, Stra. 510. But urgent domestic business is no excuse for disobedience. Qoff v. Mills, 2 D. & L. 23. Notice to a witness in London at two in the afternoon, requiring him to attend the sittings at Westminister in the course of the same evening is too short. S. 0. But where a person is present in or attending near the court, service on the day of trial may be sufficient under the circum- stances. Maunsell v. Ainsioorth, 8 Dowl. 869. Whether the service be sufficient is for the judge, not the jury. Barber v. Wood, 2 M. & Rob. 172. If the cause be made a remanet, the subpoena must be re-sealed and re-served. Sydenham v. Band, 3 Doug. 429. Though the writ only requires attendance on the commission day, the witness must attend for the whole assizes till the cause comes on. Scholes v. Hilton, 10 M. & W. 15. A witness in a civil suit is not bound to attend unless the reasonable expenses of going to and returning from the place of trial, and of his stay there, are tendered to him at the time of serving the subpoena ; nor, if he appears, is he bound to give evidence before such expenses are paid or tendered. Chapman v. Baynton, 13 East, 16, n. The reasonableness depends on the situation and circumstances of the witness ; Dixon v. Lee, 1 C. M. & R. 645 ; Vice v. Anson, Ly., M. & M. 96 ; and where a witness has already been paid by one side, this may be taken into account when he is subpoenaed by the other side. Betteley v. M'Leod, 3 N. C. 405. Within the bills of mortality the usual tender is one shilling in a town Subpoenal — Habeas Corpus. — Protection from Arrest. 155 cause. Tidd. Prac. 9th ed. 80G. Where a witness lias come to and stayed at the assizes on subpoena without requiring payment, he may refuse to appear till payment of the expense of returning. Newton v. Harland, 1 M. & Gr. 956. A witness subpoenaed to give evidence on a matter of personal opinion or professional skill, and not to depose to the facts of the case, may insist on being paid compensation for loss of time before he is examined. Webb v. Page, 1 Car. & K. 23, cor. Maule, B. And it seems that any witness is now entitled to be paid for his expenses and loss of time before giving exidence. In re Working Men's Mutual Society, 21 Ch. D. 831. Sed quaere, whether he had not waived his right in that case, by allowing himseif to be sworn before payment ? A party who is a necessary or (ut semb.) a material witness in his own cause, and who attends the trial only for that reason, may be entitled to his expenses like any other witness ; Howes v. Barber, 18 Q. B. 588 ; 21 L. J., Q. B. 254 ; Dowdell v. Australian Mail Co., 3 E. & B. 902 ; 23 L. J., Q. B. 369 ; but if about to attend on his own account, he is not entitled to conduct money when subpoenaed by the other side. Reed v. Fairless, 3 F. & F. 958. Before the jury was sworn, the counsel of the party may have an absent witness called on his subpoena; Bopper v. Smith, M. & M. 115. This course, when adopted by the plaintiff, avoids the additional expenses of an adverse verdict and judgment, and of an application for a new trial, if the judge will allow the plaintiff to withdraw the record (vide post, pp. 156, 291) ; Mullett v. Hunt, 1 Cr. & M. 752. But it is not absolutely necessary to call a witness on his subpoena in order to entitle the party to proceed against him. Lamont v. Crook, 6 M. & W. 615 ; Goff v. Mills, 2 D. & L. 23. By the Bankers' Books Evidence Act, 1879 (42 & 43 V. c. 11), s. 6, a banker or officer of a bank is not, in any legal proceedings to which the bank is not a party, compellable to appear as a witness to prove the matters and accounts recorded in the banker's books, unless by order of a judge made for special cause. For definitions, see sect. 9, ante, p. 123. Habeas corpus.'] If the witness be in custody, his attendance must be produced by a writ of habeas corpus ad testificandum ; or by warrant or order under 16 & 17 V. c. 30, or 61 & 62 V. c. 41, infra. A judge may award a writ of habeas corpus to bring up a prisoner from any gaol or prison in which he is confined under civil process for the purpose of giving evidence at the trial. Tidd. Prac. 9th ed. 809. A habeas corpus also lies to bring a witness from a lunatic asylum, on an affidavit that he is fit for examination and not dangerous. Fennell v. Tait, 1 C. M. & R. 581. By 16 & 17 V. c. 30, s. 9, a judge may issue a warrant or order to bring up any prisoner, not confined on civil process, to be examined as a witness, and this shall have the same effect as a hah. corp. ad test. By 52 Sc 53 V. c. 49, s. 18 (2), the court or a judge may issue a hab. corp. ad test, to bring up a prisoner for examination before a referee or arbitrator. By 61 & 62 V. c. 41, s. 11, a secretary of state may, by writing under his hand, order a prisoner to be taken to any place required in the interest of justice, or for the purpose of any public inquiry. Protection from arrest.] During the time consumed by a witness in going to the place of trial, in his attendance there, and in his return, he is protected from arrest on civil process; even though he has consented to attend without a subpoena. Arding v. Flower, 8 T. K. 536. As to what is civil process against a solicitor, see In re Freston, 11 Q. B. D. 545, C. A., and In re Dudley, 12 Q. B. D. 44, C. A. Absence of material witness.] In some cases an application on affidavit 156 Attendance of Witnesses. may be made to put off the trial on account of the absence of a material witness. An application to put off the trial beyond the existing sittings, or from sittings to sittings, was not generally allowed on the part of the plaintiff; because he might at any time withdraw the record if he was not prepared to try. Per Ld. Ellenborough, Ansley v. Birch, 3 Camp. 333. As now, however, by Rules, 1883, 0. xxvi. r. 1, post, p. 291, a plaintiff cauuot withdraw the record without the leave of the court or a judge, this reason fails, and these applications on the part of plaintiffs are more frequent than they were prior to that rule. And where, from the sudden indisposition of a witness who might be able to attend in the course of a day or two, or for other temporary reason, the plaintiff was prevented from trying his cause in its order in the paper, yet had ground to believe he should be able to try it before the sittings were over, a judge at N. P. would make an order for the trial to stand over till the witness was likely to attend. And a similar order was made if it appeared that the absence of the witness was owing to the conduct of the defendant's attorney. Turquand v. Dawson, 1 0. M. & R. 709. Wheu a motion is about to be made to a judge at N. P. for putting off the trial on account of the absence of a witness, notice should first be given to the opposite solicitor, with a copy of the affidavit intended to be used in support thereof. Where expenses have been incurred by the other party in bringing up witnesses, the application will only be granted on the terms of paying them. No affidavit of merit is required. Att.-Oen. v. Hull, 2 Dowl. Ill ; Hill v. Prosser, 3 Dowl. 704. The affidavit may be made by the party, or by his solicitor ; Duberly v. Gunning, Peake, 97 ; or by the solicitor's clerk, if he have the management of the cause. Srdlivan v. Magill, 1 H. Bl. 637. A common form of affidavit for this purpose will be found in the Appendix, post, p. 1228. Production of documents under subpoena duces tecum..'] Documents brought into court by a witness served with a writ of subpoena duces tecum are produced by him to the court only, and he may insist that they should not be handed to the parties ; the court may order the document to be read if it be relevant. Burchard v. Macfarlane, (1891) 2 Q. B. 241, 247, 248, per Ld. Esher, M.R. The witness is bound to bring into court any document proved to be in his possession, though he may have a valid excuse for not showing it in evidence; and the validity of the excuse is matter for the judgment of the court, and not of the witness. Amey v. Long, 9 East, 473. The court will excuse production if the disclosure would subject the party to a criminal charge or penalty ; Whitaker v. Jzod, 2 Taunt. 115 ; but not unless the party from whom disclosure is sought will pledge his oath that to the best of his belief the production would tend to criminate him. Webb v. Past, 5 Ex. D. 108, C. A. It seems, however, that production will not be enforced in an action for penalties. Hunnings v. Williamson, 10 Q. B. 459, 462. An action for liquidated sums, recoverable for infringement of dramatic copyright, is not within this exception. See Adams v. Batley ; Cole v. Francis, 18 Q. B. D. 625, C. A. With the above exceptions, no document relevant to the issue, not being a title deed (as to which vide post, p. 157), is privileged from disclosure, unless it be a confidential communication professionally made between counsel or solicitor and client, or information obtained by the solicitor, or an agent employed by him, or by the client on his recommendation. Bustros v. White, 1 Q.'B. D. 423, C. A. ; Anderson v. Bank of British Columbia, 2 Ch. D. 664, C. A. ; W-Corquodcde v. Bell, 1 C. P. D. 471. ; Friend v. L. Chatham & Dover By. Co., 2 Ex. D. 437, C. A. ; Lyell v. Kennedy, 27 Ch. D. 1,0. A. Information voluntarily given by a third person to the solicitor is privileged. Young v. Holloway, 12 "D. P. 167, C. A. So it seems is the prcof of a Production of Documents. 157 witness's evidence which the solicitor has prepared for insertion in counsel's brief. Per Bovill, C.J., Tichborne v. Lushington, 28 Feb., 1872, shorthand notes, pp. 5101, 5102, cited 1 Taylor Evid. 10th ed. § 032, p. 662, n. So, information obtained by the client for the purpose of obtaining the opinion of the solicitor thereon, and although the purpose was not carried out. South- wark & Vauxhall Water Co. v. Quick, 3 Q. B. D. 315, C. A. See also Bristol, Mayor, &c. of, v. Cox, 26 Ch. D. 678, and Learoyd v. Halifax, &c. Banking Co., (1893) 1 Ch. 686. The privilege is not confined to the action in respect of which the communication was made. Pearce v. Foster, 15 Q. B. D. 114; Calcraft v. Guest, (1898) 1 Q. B. 759, C. A. Professional communications of a confidential character between solicitor and client for the purpose of getting legal advice are privileged ; CShea v. Wood, (1891) P. 286, 0. A. ; even though made before any litigation was in contemplation ; Minet v. Morgan, L. K., 8 Ch. 361 ; Lowden v. Blakey, 23 Q. B. D. 332 ; but communications obtained by the solicitor from third persons are not privileged unless prepared confidentially after a dispute had arisen for the purpose of obtaining information, evidence, or legal advice with reference to litigation existing or contemplated between the parties. Wheeler v. Le Marchant, 17 Ch. D. 675, C. A. The transcript of a shorthand note of evidence and arguments taken at a reference (Bawstone v. Preston Cor., 30 Ch. D. 116) or of proceedings in open court (Nicholls v. Jones, 2 H. & M. 588 : In re Fletcher, 38 Ch. D. 370) is not privileged, even although the note be taken by the party's solicitor. Id. 373, per North, J. In Nordon v. Defries, 8 Q. B. D. 508, where such transcript was held privileged, Nicholls v. Jones, supra, was not cited. Vide 38 Ch. D. 372, 373. The privilege as to documents is not lost by their being referred to in depositions which are not privileged. Ooldstone v. Williams, (1899) 1 Ch. 47. See further, post, pp. 169 et seq. A party will not be compelled to produce his title deeds. Pickering v. Noyes, 1 B. & C. 263. But he must pledge his oath that, to the best of his belief (Minet v. Morgan, supra), they relate solely to his own title and not to the case of the other party, nor do they tend to support it, or the deeds will not be privileged. See Budden v. Wilkinson, (1893) 2 Q. B. 432, C. A., following lnd v. Emmerson, 12 Ap. Ca. 300, 307, per Ld. Selborne; Morris v. Edwards, 15 Ap. Ca. 309, D. P. It is not however necessary to state further, that the deeds do not tend to impeach his own title. S. CO.; A.-G. v. Newcastle-upon- Tyne Cor. (1899) 2 Q. B. 378, C. A. A solicitor will not be compelled to produce his client's title deed. Harris v. Hill, 3 Stark. 140. So a defendant cannot compel the production of deeds of the plaintiff by serving a subpeena on his steward in whose possession they are ; for his possession is that of his employer; Falmouth, El. of v. Moss, 11 Price, 455; and see Croivthcr v. Appleby, L. R., 9 C. P. 23 ; nor can a clerk in a public office be compelled to bring official papers without leave of the principal ; Austin v. Evans, 2 M. & Gr. 430. An attorney was not obliged by subpeena to disclose a deed of the defendant, his client, though he had been improperly compelled by commissioners of bankrupt (under whom the plaintiff claimed) to undertake to produce it. Nixon v. Mayoh, 1 M & Rob. 76. The solicitor must produce the documents of a client in his possession which the client would himself be bound to produce. Doe d. Courtail v. Thomas, 9 B. & C. 288 ; Bursill v. Tanner, 16 Q. B. D. 1, C. A. So in an action by a cestui que I rust against her trustee, a communication made by the defendant to an attorney relating to the matter of the trust was, on the ground that the real interest was in the plaintiff, held to he not privileged. Si, r ail v. Philips, 1 h\ & P. I 19, Brie, J. See also In re Mason, 22 Ch. D. 609; In re Postlethwaite, 35 Ch. D. 722. Where an attorney had received 158 Attendance of Witnesses. from his client, a former rector (who was also patron), a book to collect tithes by and also a map of the glebe, with a view to a sale of the advowson : in an action by the succeeding incumbent (who was presentee of the purchaser of the advowson) for land claimed as glebe, it was held that the attorney might be called upon to produce both, as evidence against him. Doe d. Marriott v. Hertford, Mqs. of, 19 L. J., Q. B. 526. Where an attorney, employed by a client, B., to negotiate an exchange of land with A., which went off, obtained an abstract of title from A., he might produce it in a suit by A., for recovery of the land from a defendant claiming under A.'s ancestor, as secondary evidence against the plaintiff of the original deeds, although he had not had B.'s permission. Doe d. Ld. Egremont v. Langdon, 12 Q. B. 711. The attorney and steward of the lord of a borough was held bound to produce certain presentments and precepts touching the appointment of officers in the borough, as being of a public nature. E. v. Woodley, 1 M. & Bob. 390. In an action by a reversioner to recover the land, the executor of the previous tenant for life is bound to produce a steward's book of his testator showing receipt of rent for the land, in order to prove the plaintiff's title ; and it is immaterial that the witness is interested in defeating the action. Doe d. El. of Egremont v. Date, 3 Q. B. 009. A mortgagor could not, after the mortgage had become absolute, compel the production, by the mortgagee, of the title deeds of the mortgaged property, without payment of principal, interest, and costs. Chichester, El. of, v. Donegall, Mqs. of, L. K., 5 Ch. 497. But this rule is now altered as to mortgages made after Dec. 31st, 1881, by the Conveyancing, &c, Act, 1881 (44 & 45 V. c. 41), s. 16, which entitles a mortgagor to inspect and make copies of the deeds, so long as his right to redeem exists. Where the witness declines to produce an instrument on the ground of professional confidence, the judge should not inspect it to see whether it was one which he ought to withhold ; Doe d. Carter v. James, 2 M. & Bob. 47 ; Volant v. Soger, 13 0. B. 231; 22 L. J., C. P. 83; and it seems that the mere assertion on oath by the solicitor that it is a title deed or other privileged document, is conclusive. S. C. And if the document be brought into court by a witness, who says that he is instructed by the owner to object to the production of it, this is enough to justify secondary proof without subpoenaing the owner himself to make the objection in person. Phelps v. Drew, 3 E. & B. 430 ; 23 L. J., Q. B. 140. It seems to be sufficient if one only of several interested parties object. Per Maule, J., Neivton v. Chaplin, 19 L. J., C. P. 374. See also Eearsley v. Philips, 10 Q. B. D. 465, er Alderson, B., and Pollock, C.B. A Christian witness has from time immemorial been sworn by "a corporall oath," so called " because he toucheth with his hand some part of Holy Scripture; " 3 Inst. 165. The usual ceremony is now as follows : he takes a copy of the Holy Gospels or of the whole of the New Testament into his naked right hand, and the oilicer of the court whose duty it is to administer the oath addresses him thus : " The evidence which you shall give between the parties shall be the truth, the whole truth, and nothing but the truth, so help you God ; " and the witness then kisses the book. Strong objection has of late years been made to this modern addition of kissing the book, not mentioned by Coke, vide supra, on sanitary grounds. See Best Ev., 10th ed. § L62. Now, by the ( >aths Act, 1888 (51 & 52 V. c. 46), b. 5, "If any person to whom an oath is administered desires to swear with uplifted hand, in the 160 Era in ination. of Witnesses. form ami manner in which an oath is usually administered in Scotland, he shall be permitted so to do, and the oath shall be administered to him in such form and manner without further question." ■ A witness who stated that he believed both the Old and New Testament to be the word of God, yet, as the latter prohibited, and the former countenanced, swearing, he wished to be sworn on the former, was permitted to be so sworn. Edmonds v. Rowe, Ry. & M. 77. In Ireland it is the practice to swear a Roman Catholic witness upon a copy of the Douay Version of the New Testament, if he so request. A Jew is sworn upon the Pentateuch, with his head covered; 2 Hale, P. C. 279; Omichund v. Barker, Willes, 543; the wording of the oath being changed from "God" to "Jehovah." But a Jew who stated that he professed Christianity, but had never been baptized, nor had even formally renounced Judaism, was allowed to be sworn on the New Testament. R. v. Gilliam, 1 Esp. 285. A Mahomedan is sworn on the Koran. The form in R. v. Morgan, 1 Leach, C. C. 54, was as follows : the witness first placed his right hand flat upon the book, put the other hand to his forehead, and brought the top of his forehead down to the book, and touched it with his head. He then looked for some time upon it, and being asked what effect that ceremony was to produce, he answered that he was bound by it to speak the truth. The deposition of a Gentoo (i.e., Hindoo) has been received, who touched with his hand the foot of a Brahmin. Omichund v. Barker, 1 Atk. 21. By stat. 1 & 2 V. c. 105, s. 1, " in all cases in which an oath may lawfully be and shall have been administered to any person, either as a juryman or a witness, or a deponent in any proceeding, civil or criminal, in any court of law or equity in the United Kingdom, ... or on any occasion whatever, such person is bound by the oath administered, provided the same shall have been administered in such form and with such ceremonies as such person may declare to be binding." Under this Act, Buddhists have been sworn by " the three Holy Existences — Buddha, Dhamma and Pro Sangha, and the Devotees of the twenty-two firmaments ; " and a Parsee on the Zend-Avesta, or by binding a " Holy Cord " round his body. Encycl. of the Laws of England, title, Oath 251. A Chinaman is thus sworn : ou entering the box the witness immediately kneels down, and a china saucer having been placed in his hand, he breaks it ; the officer of the court then addresses him thus : " You shall tell the truth, and the whole truth ; the saucer is cracked, and if you do not tell the truth, your soul will be cracked like the saucer." R. v. Entrehman, 1 Car. & M. 248. If the witness do not understand the English language he must of course be addressed through an interpreter. A witness may be asked whether he considers the form of administering the oath to be such as will be binding on his conscience. The proper time fur asking him this question is before the oath is administered ; but as it may happen that the oath may be administered in the usual form, by the officer, before the attention of the court, or party, or counsel, is directed to it, the objection is not, in such a case, to be precluded ; but the witness may nevertheless be afterwards asked whether he considers the oath he has taken as binding upon his conscience. If ho answer in the affirmative, he cannot then be further asked whether there be any other mode of swearing more binding upon his conscience. TJie Queen's case, 2 B. & B. 284. So, where a Jew was sworn on the Gospels as a Christian, it was held that the oath, as taken, was binding on the witness, both as a religious and moral obligation. Sells v. JJoare, 3 B. & B. 232 ; S. C, 7 B. Moore, 36. By the Oaths Act, 1888, s. 3, " where an oath has been duly administered and taken, the fact that the person to whom the same was administered had, at the time of taking such oath, no religious belief, shall not for any purpose effect the validity of such oath," vide post, p. 161. Oath of Witness. — Incompetency. 161 Affirmation in lieu of oath.'] Formerly it was considered necessary, in all cases, that an oath, that is, a direct appeal to a divine power, should be made by the witness. Numerous sects have, however, arisen, the members of which allege conscientious objections to take an oath. In order to prevent the difficulty which arose from certain classes of the community being thus rendered unavailable as witnesses, various statutes have, from time to time, been passed, exempting such persons from the necessity of taking an oath, and allowing them to substitute a solemn affirmation in its stead. Thus, by the 3 & 4 W. 4, c. 49, s. 1 (extending the provisions of 9 G. 4, c. 32, s. 1), Quakers and Moravians are permitted, whenever an oath is required, instead of taking an oath, to make an affirmation or declaration in the words following: — "I, A. B., being one of the people called Quakers (or one of the persuasion of the people called Quakers, or of the united brethren called Moravians, as the case may be), do solemnly, sincerely, and truly declare and affirm." And by 1 & 2 V. c. 77, any person who has been a Quaker or a Moravian may affirm in lieu of taking an oath, as fully as if he still remained such, in the following form : — " ' I, A. B., having been one of the people called Quakers (or one of the persuasion of the people called Quakers, or of the united brethren called Moravians, as the case may be), and entertaining conscientious objec- tions to the taking of an oath, do solemnly, sincerely, and truly declare and affirm.'" It is now provided generally by the Oaths Act, 1888 (51 & 52 V. c. 46), s. 1 (replacing the C. L. P. Act, 1854, s. 20), that " Every person upon objecting to being sworn, and stating as the ground of such objection, either that he has no religious belief, or that the taking of an oath is contrary to his religious belief, shall be permitted to make his solemn affirmation instead of taking an oath in all places and for all purposes where an oath is or shall be required by law, which affirmation shall be of the same force and effect as if he had taken the oath." Sect. 2. " Every such affirmation shall be as follows : — ' I, A. B., do solemnly, sincerely, and truly declare and affirm,' and then proceed with the words of the oath prescribed by law, omitting any words of imprecation or calling to witness." The judge must before allowing a witness D. to affirm under these sections, ascertain whether D. objects to take the oath because he has no religious belief, or because the taking of an oath is contrary to his religious belief. B. v. Moore, 17 Cox, 458; 61 L. J., M. C. 80. So, again, formerly persons who, from defective education, did not under- stand the religious obligation of an oath, and also persons who did not acknowledge an absolute divine power, or, acknowledging such a power, did not believe it would punish perjury, were equally incapable of giving evidence ; but all objections on these grounds have been removed by the last-cited sections which replace the stats. 32 & 33 V. c. 68, and 33 & 34 V. c. -lit (repealed by sect. 6), and for the old law on this head it suffices to refer to the leading case of Omichund v. Barker, Willes, 538, and the notes thereto in 1 Smith's Lead. Cases. The Oaths Act, 11S88, s. 3, ante, p. 160, seems to apply equally, whether the alleged absence of religious belief arise from defect of education or per- version of intellect. Incompetency.'] The objection to witnesses on the ground of incompetency has been very much narrowed by recent enactments, and now all persons whose mental power of distinguishing and relating the truth can be relied on are competent, though not always compellable, witnesses. As to the former objection to witnesses who were ignorant of or did k, — vol. i. M 16- Examination of Witnesses. not acknowledge the religious obligation of an oath, vide ante, p. 161, and supra. As to the objection on the ground of interest, vide post, pp. 163 et seq. The objection on the ground of defective understanding still remains, and this objection, and how and when it is to be decided, we will now consider. Incompetency from defective understanding.'] A person whose under- standing is manifestly and cgregiously defective will not be allowed to give evidence. This delict may arise from immaturity of intellect, or some species of insanity. Such a witness would not be competent, because his mental power of distinguishing and relating the truth could not be relied on. As a general rule insane persons, idiots, and lunatics during their lunacy, are incompetent witnesses. But lunatics in their lucid intervals are com- petent. Com. Dig. Testm. — Witness (A. 1). It may be observed that here the question of competency will always turn solely on whether or no the witness will be likely to give truthful evidence, and if he is likely to do this he may be received, notwithstanding considerable defects of intellect, or even aberration of mind on certain subjects, B. v. Hill, 2 Den. C. C. 254 ; 20 L. J., M. C. 222. It makes no difference, whether the defect of under- standing arises from imperfect education, from natural imbecility, or from failure of the mental powers. It is for the judge by examination of the lunatic on the voir dire, and of witnesses called for that purpose, to ascertain and decide on his competency, and if the judge allow him to give evidence the jury must decide on the credit to be attached to his testimony. S. C. Id., following B. v. Anon., cited per Parke, B., in A.-Q. v. Hitchcock, 1 Exch. 95. Deaf and dumb persons were formerly presumed to have understandings so defective as to be in all cases incompetent; a presumption entirely contrary to experience, and one not likely now to be made. See Harrod v. Harrvd, 1 K. & J. 9. The state of the intellect of such a witness might, of course, be reasonably inquired into before taking his testimony, as, the usual channels of information being cut off, the education of such persons is more than usually difficult. See 2 Taylor, Evid., 10th ed. § 1376. A deaf and dumb person may give evidence through an interpreter by signs ; Huston's case, 1 Leach, C. C, 4th ed. 408 : or by writing. Per Best, C. J., Morrison v. Lennard, 3 C. & P. 127. Where such a person has been examined on the voir dire, and pronounced to be a competent witness, and it afterwards appears during the examination in chief that the witness is incompetent, his evidence may be withdrawn from the jury. B. v. White- head, L. R., 1 C. C. 33. Children not able to apprehend the obligation of an oath or promise cannot be examined; Com. Dig., supra; B. N. P. 293; but tender age alone is no objection. Brazier's case, 1 East, P. C. 443. And a child who was wholly destitute of religious education has been allowed to be made a competent witness by being taught the nature of an oath before the trial, with a view to qualify him. B. v. Murphy, 1 Leach, 4th ed. 430, n. The ruliDg of Patteson, J., in B. v. Williams, 7 C. & P. 320, is too broadly expressed, though in that case the child was rightly rejected. Although the objection of the absence of religious knowledge as to the binding effect of an oath seems to be removed by stat. 51 & 52 V. c. 46, s. 1, ante, p. 161, yet this would hardly make a child, who has no idea of the moral obligation to speak the truth, a competent witness. Where a child is tendered as a witness, the practice in criminal cases is for the judge to examine him with a view to ascertain his competency ; vide supra. Incompetency from Defective Understanding. 163 Where the child cannot be admitted to give evidence, an account of the transaction which it has given to others is, of course, inadmissible. R. v. Tucker, 1 Phill. & Am. Ev., 10th ed. 10. It is evident that in any of the above cases, if a witness who has been examined by the judge on the voir dire, and pronounced competent, should afterwards manifestly appear to him to be in such a mental condition as to be incompetent to give evidence, the evidence must be withdrawn from the jury : vide R. v. Whitehead, ante, p. 162. The earlier cases on the question of when counsel must take the objection of the incompetency of a witness were almost all cases where the objection was founded on interest in the subject-matter of the action, and hardly apply to the case of defect of intellect. Incompetency on the ground of interest.'] Formerly all persons having an interest in the suit were on that ground disqualified, as were also their husbands and wives ; but these qualifications have been entirely abolished, although with regard to certain matters the witness may refuse to give evidence, and in one case the uncorroborated evidence of the plaintiff will not suffice to obtain a verdict. The following are the statutory provisions on this subject: — By the 6 & 7 V. c. 85, s. 1, it is provided, " that no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence either in person or by deposition, according to the practice of the court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or pro- ceeding, civil or criminal, in any court, or before any judge, jury, sheriff, coroner, magistrate, officer, or person having by law, or by consent of parties, authority to hear, receive, and examine evidence ; but that every person so offered may and shall be admitted to give evidence on oath or solemn affirmation in those cases wherein affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question, or injury" (sic; qy. inquiry?), "or of the suit, action, or pro- ceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of auy crime or offence." This section contained a provision that it should not render the actual parties to the suit, or any person for whose immediate benefit the action was brought or defended, or the husband or wife of any such person, competent as witnesses. This exception was, as regards the parties themselves, and those for whose immediate benefit the action was Drought or defended, repealed by the 14 & 15 V. c. 99, s. 1, and by sect. 2 the parties are rendered competent ; except in any proceeding " instituted in consequence of adultery, or to any action for hreach of promise of marriage," sect. 4. Sect. 3 provides that nothing therein contained " shall render any person compellable to answer any question tending to criminate himself or herself." It was held under sect. 4, that a co-respondent in a divorce suit was not a competent witness so long as he remained a party to the record. Robinson v. Robinson, 1 Sw. & Tr. 382 ; 27 L. J., P. M. & A. 91. See Blackborne v. Blackborne, p>ost, p. 164. It was also decided that sects. 1. 2, did not have the effect of making a husband or wife competent or compellable to give evidence for or against the wife or husband in civil cases, except where the wife was a party to the record. Barbat v. Allen, 7 Exch. 609; 21 L. J., Ex. 155 ; Sta/.hloi, v. Cmft, is (». I*,. 367; 21 L. J., Q. B. 247. But now, by the Evidence Amendment Act, 1853 (16 & 17 V. c. 83), s. 1, on the trial of any issue joined, or of any matter, &c, arising in any m 2 164 Examination of Witnesses. suit, action, &c, "the husbands and wives of the. parties thereto, and ot the persons in whose behalf any such suit," fee, may be brought or opposed, " shall, except as hereinafter excepted, be competent and compellable to give evidence." By sect. 2, " Nothing herein shall render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband," . . . "in any proceeding instituted in consequence of adultery." By sec. ■">, "No husband shall be compellable to disclose any com- munication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her hushand during the marriage." See cases hereon, post, p. 109. Under this Act the wife may prove her own adultery in an action against her husband for goods supplied to her. Cooper v. Lloyd, 6 C. B., N. S. 519. As to proof of non-access, see tit. Action for recovery of possession of land by heir. — Proof of Illegitimacy, post, p. 1047. As in a suit instituted by the wile for the dissolution of her marriage by reason of her husband's adultery coupled with wilful desertion, she was not, by reason of the exceptions in the above Acts, a competent witness to prove the desertion (Pyne v. Pyne, 1 Sw. & Tr. 178 ; 27 L. J., P. M. & A. 54), it was enacted by the 22 & 23 V. c. 61, s. 6, that on any petition presented by a wife in the Divorce Court for dissolution of marriage " by reason of her hushand having been guilty of adultery coupled with cruelty, or of adultery coupled with desertion, the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion." Where the suit was by the husband against his wife on the ground of her adultery, and the wife in her answer alleged the cruelty and desertion of the petitioner, the evidence of the parties was excluded ; Whittal v. Wldttal, 30 L. J., P. M. & A. 43; even though the wife in her answer prayed relief under 29 & 30 V. c. 32, s. 2. Bland v. Bland, L. B. 1 P. & M. 513. If, however, the suit were instituted by the husband for the restitution of conjugal rights, and the wife in her answer alleged the husband's adultery, and prayed for a judicial separation, she was a competent witness. Blackborne v. Blackborne, Id. 5G3. The Evidence Further Amendment Act, 1869 (32 & 33 V. c. 68), s. 1, repeals the 14 & 15 V. c. 99, s. 4, and so much of 16 & 17 V. c. 83, s. 2, as is contained in the words "or in any proceeding instituted in conse- quence of adultery ; " vide supra ; and by sect. 3, " the parties to any proceeding instituted in consequence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in such pro- ceeding : provided that no witness in any proceeding, whether a party to the suit or not, shall be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless such witness shall have already given evidence in the same proceeding in disproof of his or her alleged adultery." By sect. 2, "The parties to any action for breach of promise of marriage shall be competent to give evidence in such action ; provided always, that no plaintiff in any action for breach of promise of marriage shall recover a verdict unless his or her testimony shall be corroborated by some other material evidence in support of such promise." It seems that "any proceeding instituted in consequence of adultery" in sect. 3, includes only proceedings for divorce or judicial separation; Nottingham, Guardians of, v. Tomkinson, 4 C. P. D. 343 ; Burnaby v. Baillie, 42 Ch. D. 282 ; the section does not allow parents to prove non- access for the purpose of bastardizing their issue. S. CC. The proviso in sect. 3 seems to apply to such proceedings only. M. v. D., 10 P. D. 175 ; Evans v. Evans, (1904) P. 378. See however post, p. 168. Incompetency from Infamy. — Inference from not calling the Party. 165 Sect. 3 enables a person when called as a witness in such a cause, whether a party thereto or not, to refrain altogether from giving any evidence that may tend to show that he or she has been guilty of adultery; but does not exclude the evidence of the witness if he be willing to give it. Hebble- thwaite v. Hebblethwaite, L. R., 2 P. & M. 29. The exemption extends to adultery of the witness committed at any time, and is not confined to the adultery in respect of which the proceedings were instituted. Babbage v. Babbage, Id. 222. If, however, the party deny the truth of some of the charges of adultery contained in the pleadings, and is asked no questions as to others, he is bound to answer questions in cross-examination respecting all the charges in the pleadings. Brown v. Brown, L. R., 3 P. & M. 198. As to what is sufficient material evidence under sect. 2, see Bessela v. Stern ; and Wiedemann v. Walpole, cited post, p. 495. Incompetency from infamy .] This head of disqualification has been reduced within very narrow limits if not entirely abolished by 6 & 7 V. c. 85, s. 1, ante, p. 163. Before the passing of that Act conviction and judgment for felony, or any species of crimen falsi, rendered the party incompetent as a witness unless the competency were restored by a pardon, or by having undergone the punishment assigned to the offence. Whether the Act extends to the case of outlawry for felony is, perhaps, open to question. See 3 Inst. 212. The offence and conviction may still be proved by the admission of the witness or otherwise, as before, for the purpose of impugning his credit. R. v. Castell Careinion, 8 East, 78. Vide post, 183. Judges, jurors, arbitrators, counsel, &c.~\ A person, whose name is in the commission of assize, may be examined as a witness; so may a juror. Bac. Abr. Evid. A. 2. In an action to enforce his award, the arbitrator may be called as a witness to prove what passed before him, what matters were presented for his consideration, and what claims admitted ; but he cannot be asked as to what passed in his own mind when exercising his discretionary power on the matters submitted to him, nor can he be asked questions to explain, aid, or contradict his award. Buccleugh, Dk. of, v. Metropolitan Board of Works, L. R., 5 H. L. 418; CRourke v. Commissioner for Railways, 15 Ap. ( a. 371, J. C. Counsel and solicitors in the cause may also be witnesses in it (subject to the rule respecting privileged communications, mentioned post, pp. 169 et seq.); but the practice is open to objection, and such evidence should, if possible, be dispensed with. Bac. Abr. Evid. (A. 3). See also Best, Evid., 10th ed. § 184. Inference from not calling the parly.'] Since parties have been made competent witnesses, it has been a common practice to comment on their absence as witnesses, and to make observations on it as a suspicious suppression of unfavourable testimony. There seems to be no legitimate objection to such comments; and where a party is present in court, and testimony lias been given which he must be able, if untrue, to contradict, and is interested in doing so, great weight will naturally be given to such comments. But the mere fact of his not being offered as a witness is not, per v, evidence against him, though it. may turn the scale if his absence is unexplained and there is other slight evidence or some ambiguous admission by him out of court. See APKewen v. Catching, 27 L. J., Kx. 41, and Barker v. Furlong, (1891) 2 Ch. L72, 182. The case bears some resemblance to that of admissions implied from a tacit acquiescence in statements made in the party's presence. See ante, p. 61. 166 E.i'UHi 'tuition of Witnesses. Examination in chief.] On almost every trial a great deal of discussion arises as to putting leading questions. Leading questions are those which, from the form in which they are put, are likely to communicate to the witness a knowledge of what answer would be favourable to the person putting it; which would of course he dangerous with a dishonest witness. In some cases of critical inquiries also, it is very desirable to get the witness's own impression, winch the most veracious witness might not, after another view had been once suggested to him, be able to recall. The objections, therefore, to leading questions apply by no means with equal force to all witnesses and to all parts of an inquiry. Some witnesses will adopt anything that is put to them, whilst others scrupulously weigh every answer. Moreover, innumerable questions are put for a mere formal purpose, the facts not really being in dispute, or simjjly in order to lead the mind of the witness to the real point of inquiry. As a great saving of time is effected by leading a witness, it would be extremely undesirable to stop it, where it is otherwise unobjectionable. There is no distinction recognized by the law between questions which are and questions which are not leading. To object to a question as leading is only a mode of saying that the examination is being conducted unfairly. It is entirely a question for the presiding judge to say, in his discretion, whether or not the examination is being conducted fairly. It is sometimes said that all questions capable of being answered by merely yes or no, are objectionable as leading. But this is a very fallacious test, even in the most critical parts of an inquiry. On the other hand, it is sometimes said that the objection that the question is leading may be got over by putting it in the alternative; but it is obvious that nothing would be easier than to suggest in this way a whole conversation to a dishonest witness. A witness, produced to read or explain a series of ancient records brought into court, may be asked to state the result of them ; and this is permitted for saving of time, and because the witness can be interrogated as to the particular entries on which he founds his general statement of their purport and effect, and may be called upon to point them out to the court. Rowe v. Brenton, 3 M. & Ry. 212. It has been already shown (ante, pp. 1, 4, et seq.) that oral proof of a written document cannot be admitted on examination in chief, unless a proper foundation for it be laid by accounting for the non-production of the writing itself; and that where any agreement, communication or statement is the subject of inquiry, the opposite party may interpose the question — whether it was in writing? The circumstances and conditions under which oral evidence of written documents may be admitted are also explained, pp. 4 et seq., Secondary Evidence. Where a witness for the plaintiff, cross-examined as to the contents of a lost letter, swore that it did not contain a certain passage, and a witness was called by the defendant to contradict this statement, Ld. Ellenborough ruled that he might be asked if it contained a particular passage recited to him, which had been sworn to on the other side; for otherwise it would be impossible ever to come to a direct contradiction. Courteen v. Touse, 1 Camp. 43. And where, in cross-examination, a witness, being asked as to some expressions which he had used, denied them, and the counsel on the other side called a person to prove that the witness had used such expres- sions, and read to him the particular words from his brief, Abbott, C.J., held that he was entitled to do so ; Edmonds v. Walter, 3 Stark. 7 ; and this is now the common practice. But where a witness denied, on cross-examina- tion, the use of certain expressions by him in a conversation at which both plaintiff and defendant were present, it was held that a witness, called to Examination in Chief. — Privilege of Witnesses. 167 prove that such expressions were used, could not have the very words suggested to him ; the conversation being evidence in itself, and not proved for the mere purpose of discrediting the witness. Hallett v. Cousens, 2 M. & Rob. 238. Where a witness, on his examination in chief, shows himself decidedly- adverse to the party calling him, the judge may allow the party calling him to conduct the examination with the same latitude as we shall hereafter see a cross-examination may be conducted (post, pp. 178, 179); see Coles v. Coles, L. R., 1 P. & M. 70; but he must confine himself to matters material to the issue. The party calling a witness cannot cross-examine him merely to test his credit, as his opponent may. Vide post, p. 181. If a witness stand in a situation which of necessity makes him adverse to the party calling him, the presiding judge has a discretion as to the mode of examina- tion in order best to answer the purposes of justice. Per Abbott, C.J., Bastin v. Carew, Ry. & M. 127 ; Ace. Price v. Manning, 42 Ch. D. 372, C. A. The party's counsel cannot cross-examine him without the leave of the judge, however hostile he may be. S. C, overruling Clarke v. Saffery, Ry. & M. 126. For the definition of a hostile witness, see Coles v. Coles, post, p. 175. When a question is propounded, the opposite party may object that it is one which transgresses the rules of evidence. If not objected to, or if the objection be overruled, the witness must answer it, unless he can show that he has some privilege which enables him to refuse to do so. If he refuse to answer the question, and can show no privilege, he will be liable to be fined and imprisoned by the court. Ex parte Eernandez, 10 C. B., N. S. 11 ; 30 L. J., C. P. 321. Privilege.] There are some questions which a witness is not compellable to answer, though, if he choose to answer them, his evidence is to be received. The following are such cases: — When a witness is privileged on the ground of injurious consequences of a civil kind.] A witness is privileged from answering any question, the answer to which might directly subject him to forfeiture of estate. See Pye v. Butterfield, 5 B. & S. 829 ; 34 L. J., Q. B. 17. But it seems that where property is granted to a person subject to a conditional limitation over, that person may be compelled to state whether the condition on which the estate goes over has not been fulfilled. Per Cur., Id. And by stat. 46 G. 3, c. 37, "a witness cannot by law refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to accuse himself or to expose him to penalty or forfeiture of any nature whatsoever, by reason only, or on the sole ground that the answering of such question may establish, or tend to establish, that he owes a debt, or is otherwise subject to a civil suit, either at the instance of his majesty or of any other person or persons." It will be seen that this statute recognizes the privilege when the witness is exposed to a penalty or forfeiture. "For- feiture" in this statute does not apply to a person in possession of property and become liable to forfeit it by reason of a breach of covenant. Per Cockburn, C.J., in Pye v. Btetterfield, supra. As to privilege in an action for a penalty, or for statutory liquidated damages, see Runnings v. Wit'iamson, and Adams v. Battey, cited ante, p. 156. When a witness is privileged on the ground of injurious consequences of an ecclesiastical kind.] It has generally been considered that a witness may decline answering questions, the answering of which would expose him to L68 Examination of Witnesses. ecclesiastical penalties: as on a proceeding under the 2 & 3 E. 6, c. 13, s. 2, for not setting out tithes ; Jackson v. Benson, 1 Y. & J. 32 ; or for simony, Brownsword v. Edwards, 2 Ves. sen. 245 ; or incest, Chetwynd v. Lindon, Id. 150. But a judge, in deciding whether or no the witness is entitled to the privilege, would no doubt consider how far the danger suggested by the witness was real : B. v. /!<<>/< s, infra, and post, p. 169; and the mere chance of an obsolete jurisdiction being set in motion would probably not be con- sidered a sufficient ground for refusing to answer. With regard to questions tending to show that a witness called in proceedings instituted in consequence of adultery has been guilty of adultery, see 32 & 33 V. c. 68, s. 3, ante, p. 164. It seems that in other cases a witness is not privileged from answering as to whether he has com- mit ted adultery. Evans v. Evans, (1904) P. 378. See however Bedfern v. Bedfern, (1891) P. 147-9, per Bowen, L.J. When a witness is privileged on the ground of injurious consequences of a criminal kindJ] That the witness may by answering be subjected to a criminal charge, however that charge may be capable of being prosecuted, is clearly a sufficient ground for refusing to answer. Thus a person could not be compelled to confess himself the father of a bastard child, so long as he was thereby subjected to the punishment inflicted by the 18 El. c. 3, s. 2. B. v. St. Mary, Nottingham, 13 East, 57, n. So a witness could not be compelled to answer a question which subjected him to the criminal charge of usury. Cates v. Hardacre, 3 Taunt. 424. But if the time for the recovery of the penalty bad expired, the witness might be compelled to answer. Boberts v. Allatt, M. & M. 192. The witness is compellable to answer when he has received, before or at the trial, a pardon under the Great Seal for the offence of which he fears to criminate himself. B. v. Boijes, 1 B. & S. 311 ; 30 L. J., Q. B. 301. In this case the court overruled the objection that the pardon was not, by reason of stat. 12 & 13 W. 3, c. 2, s. 3, pleadable to an impeachment by the House of Commons, because the danger to be apprehended must be real and appreciable, and an impeachment was, under the circumstances, too im- probable a contingency to justify the witness in still refusing to answer on that ground. Although the witness be not bound to answer questions of this riature, yet the question may be put, at least such appears on the whole to be the weight of authority. The Queen's case, 2 B. & B. 311 ; B. v. Watson, 2 Stark. 153. See contra, Cundell v. Bratt, M. & M. 108. With regard to questions tending only to criminate, it was said by Ld. Eldon that it was the strong inclination of his mind to protect the party, not only against any question that has a direct tendency to criminate him, but against one that forms a step towards it. Baxton v. Douglas, 19 Ves. 227 ; Claridge v. Hore, 14 Ves. 59 ; Swift v. Swift, 4 Hagg. Ecc. 154. The objection is sometimes obviated by the express provision of the statute creating the offence, e.g., 24 & 25 V. c. 96, s. 85, as to fraudulent bailees, &c; 38 & 39 V. c. 87, s. 103, as to fraudulent statements, &c, to obtain entry of land on register. Bight to decline answering — how decided.] It is now settled, after some- what conflicting expressions of opinion, " that to entitle a party called as a witness to the privilege of silence, the court must see from the circumstances of the case, and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. If the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for Privilege of Witnesses. 169 himself the effect of any particular question." B. v. Boyes, 1 B. & S. 311 ; 30 L. J., Q. B. 301. Accord., Ex pte. Beynolds, 20 Ch. D. 294, C. A., where the earlier cases are collected and considered. Thus the judge is to use his discretion, whether he will grant the privilege upon the bare claim of the witness, or whether he will investigate the claim by further inquiry. Of course, the witness must always pledge his oath that he believes the answer to the question will tend to criminate him, and if he assigns a reason which in the opinion of the court will not criminate him, he is not privileged. See Scott v. Miller, John. 220; 28 L. J., Ch. 584; Ex pte. Aston, 4 De G. & J. 320; 28 L. J., Ch. 631. Counsel interested in excluding the evidence will not be allowed to argue in support of the objection. B. v. Adey, 1 M. & Eob. 94. A witness is not compellable to answer questions put for the mere purpose of degrading his character; Cook's case, 13 How. St. Tr. 334; Freind's case, Id. 17; Layer's case, 16 How. St. Tr. 161 ; though such questions may legally be asked. B. v. Edwards, 4 T. Pi. 440 ; /?. v. Holding, Arch. Cr. Law, 102 ; Cundell v. Pratt, M. & M. 108. See the cases collected, 1 Phillipps' Ev., 7th ed. 278 et seq. If the witness choose to answer, his answer is generally conclusive. B. v. Watson, 2 Stark. 149. Vide Evidence of character, post, p. 183, for those cases in which it is not conclusive. Privilege of husband and wife.'] In civil proceedings when the answer to a question put to a husband, H., would tend to criminate his wife, W., H. is competent to answer it. So when the answer to a question put to W. might incriminate H. B. v. All Saints, Worcester, 6 M. & S. 194; B. v. Bathwick, 2 B. & Ad. 647 ; B. v. Williams, 8 0. & P. 284. But though the husband and wife are, iu such a case, competent, it seeni8 to accord with principles of law anil of humanity that they should not be compelled to give evidence which tends to criminate each other; and in B. v. All Saints, Worcester, supra, Bay ley, J., said that, if in that case the witness had thrown herself upon the protection of the court, on the ground that her answer might tend to criminate her husband, he thought she would have been entitled to it. See 1 Phill. & Arn. Ev., 10th ed. 73 ; accord. Communications made by the husband to the wife, or by the wife to the husband, during marriage, are expressly privileged by the 16 & 17 V. c. 83, s. 3, ante, p. 164. The communication must have been made durante matrimonii!. It seems that the privilege lasts after dissolution of the marriage, Monroe v. Twistleton, Peake, Add. Ca. 221 ; or the death of one of the parties, O'Connor v. Majoribanks, I M. & Grr. 435, which decisions were prior to the statute. See, however, the remarks in 1 Taylor, Ev., 10th ed. § 910 A. I!'//-// a witness is privileged on the ground of confidence.] Counsel, Curry v. Walter, 1 Esp. 456 ; and solicitor, R. v. Kingston, Ds. of, 20 How. St. Tr. M".; cannot be compelled to reveal communications made to them in confidence, as such. A person who acts as interpreter, l>u Jlnrrev. Livette, Peake, 78; S. C, 4 T. K. 756 : or as agent, Parkins v. Hawkshaw, 2 Stark. 239; see also Goodall v. Little, 20 L. .1., Ch. 1 •">!'; between tin; solicitor and his client; or the solicitor's clerk, Taylor v. Forster, 2 C. & P. 195; It. v. Upper Boddimjl dii, S ]). ,V- 1,'v. 73'2 ; cannot lie railed upon to reveal such communications. So a. barrister', rink cannot lie called to prove his retainer. Iu tote v. Haync, Ry. & M. 165. But Parke, B., is said to have held, in Forshaw v. Lewis, 1 Jurist, N. S. 263, II. T. L855, Ex., that the mere fact of retainer is not privileged from disclosure. See also Levy v. Pope, M. & M. 410, cited post, p. 171. Cases and the opinions of counsel thereon are 170 Examination of Witnesses. privileged. Reece v. Tn/<\ '• IVav. 316; Penruddock v. Hammond, 11 Beav. 59; and see /,'. v. Woodley, 1 M. & Rob. 390. A solicitor will not be allowed to prove the contents of deeds or abstracts deposited with him as solicitor. R. v. Upper Boddington, 8 D. & Ry. 726. Where a solicitor is employed both by vendor and vendee to draw a convey- ance, the draft of which is perused by another solicitor on behalf of the vendee, the former solicitor will not be allowed to produce the draft of the conveyance against the wishes of the party claiming under the vendee. Doe d. Strode v. Seaton, 2 Ad. & E. 171. And generally where two parties employ one and the same solicitor he cannot disclose the title of either. Thus, where a borrower applies for a loan to the solicitor of the lender, and delivers him an abstract of title, the solicitor cannot afterwards be called against the borrower to prove the abstract. Doe d. Peter v. Watkins, 3 N. C. 421. Nor can admissions in conversation between the solicitors of the two parties relating to the cause be disclosed, unless made expressly for dispensing with proof in court of the facts stated. Fetch v. Lyon, 9 Q. B. 117. Where a private account book delivered by the defendant to the plaintiff as his solicitor, to prepare a case for counsel, was tendered to fix the defendant with an admission of liability on a note made by defendant to plaintiff, the court held it inadmissible. Cleave V. Jones, 7 Exch. 421 ; 20 L. J., Ex. 239, Ex. Ch. Professional communications of a confidential character made by the client to his counsel, or solicitor, with a view to legal advice or assistance, even though not made with reference to legal proceedings either existing or in contemplation, are privileged from disclosure ; Clark v. Clark, 1 M. & Rob. 3 ; Walker v. Wildman, Madd. & Geld. 47 ; Greenough v. Gaskell, 1 Myl. & K. 98; and see 4 B. & Ad. 876 ; Carpmael v. Powis, 1 Ph. 687 ; Robson v. Kemp, 5 Esp. 52 ; Turton v. Barber, L. R., 17 Eq. 329, following the principle laid down in Minet v. Morgan, L. R., 8 Ch. 361 ; see also O'Shea v. Wood, (1891) P. 286, and other cases collected ante, pp. 156 et seq. The privilege or obligation of a legal adviser to withhold ihe communications between himself and client does not rest simply on the ground of confidence, for such a ground would extend the rule to many other cases where no privilege exists, but on a regard to the interests of justice, which require unreserved information from clients to those who are necessarily employed by them in the conduct of legal business. Greenough v. Gaskell, Minet v. Morgan, supra. On this principle a solicitor cannot be called to prove that a lease shown to him by his client at a professional interview was then unstamped. Wheatley v. Williams, 1 M. & W. 533. And where the assignees of a bankrupt brought trover for a lease, they were not permitted to call the solicitor of the bankrupt to show that it had been deposited with the defendant as a security after the act of bankruptcy. Turquand v. Knight, 2 M. & W. 98. And it seems that where the solicitor is so employed as to give the court a summary jurisdiction over him, his character is confidential within the rule. Per Alderson, B., S. C. It is said, too, that a scrivener is on the same footing; at least where he is a solicitor also. S. C, Id. 100; Anon., Skinner, 404; Lill. Pr. Reg. 556. The same rule applies in an action for divorce, even when the Queen's Proctor has intervened. Branford V. Branford, 4 P. D. 72. The privilege continues in favour of the executors of their deceased testator who employed the solicitor. Bullivant v. A.-G. for Victoria, (1901) A. C. 196, D. P., except as against another person also claiming under the testator. Russell v. Jackson, post, p. 172. The privilege is that of the client, and not of the solicitor; and formerly the court prevented the solicitor, though he were willing, from making the disclosure; B. N. P. 284; Wilson v. Rastall, 4 T. R. 759 ; unless the client waived the privilege, which, of course, he might do, at least in cases where Privilege of Witnesses. — What may he Disclosed. 171 the privilege was for his benefit only. Merle v. More, Ry. & M. 390 ; and see Id. 391, n. It seems that the evidence of the solicitor, in relation to a privileged matter, will be received, if the solicitor be willing to give it. Eibberd v. Knight, 2 Exch. 11. The judge is the proper person to decide whether the communication is privileged, subject to revision by the Court. Cleave v. Jones, 7 Exch. 421 ; 20 L. J., Ex. 238, Ex. Ch. And he may hear witnesses to satisfy himself on this point. S.C. It seems that no adverse presumption is to be drawn against a person refusing to allow his former solicitor to disclose statements he has made professionally to the solicitor. Wentworth v. Lloyd, 10 H. L. C. 589; 33 L. J., Ch. 688 ; per Ld. Chelmsford. If the solicitor of one of the parties be called by his own client, and examined as to a matter which has been the subject of confidential com- munication, he may be cross-examined as to that matter, though not as to others. Vaillant v. Dodemead, 2 Atk. 524. A party himself is not bound to disclose matters as to which his informa- tion is derived from privileged communications, the matters not being merely statements of fact patent to the senses. Kennedy v. Lyell, 23 Ch. D. 387, C. A.; 9 Ap. Ca. 81, D. P. What matters may be disclosed] A solicitor must state the name of his client in respect of whom he claims privilege. Bursill v. Tanner, 16 Q. B. D. 1, C. A. Matters not communicated to a solicitor in his professional capacity, as where he acts as under-sheriff at the time, must be disclosed. Wilson v. Bastall, 4 T. R. 753 ; Cobden v. Kendrick, Id. 431. So, matters communicated before the retainer. Cuts v. Pickering, 1 Vent. 197. All matters not confidential!}' communicated must be disclosed, as well as all matters which the solicitor would have known without being intrusted as solicitor in the cause ; B. N. P. 284 ; provided the information was obtained by him independently, and not in the course of his professional employment. See observations in Wheatley v. Williams, 1 M. & W. 540, 541 ; and in Magrath v. Hardy, 4 N. C. 782, 795. So where counsel has given an opinion otherwise than in a professional capacity it must be disclosed. Smith v. Daniell, L. R., 18 Eq. 649. And a person who is not a solicitor may be compelled to disclose communications which have been made to him under a mistaken idea that he was one. Fountain v. Young, 6 Esp. 113. This case was strongly commented on by Romilly, M.R., in Galley v. Richards, 19 Beav. 401, where it was held that communications made by A. to B., who had been A.'s solicitor, but who had then, without A.'s knowledge, ceased to practise, were privileged. A solicitor may be called to prove a deed executed by his client, which he has attested; Doe d. Jupp v. Andrews, Cowp. 846; and when so called, he may be cross-examined as to what passed between him and his client at the time. Cleve v. Powel, 1 M. & Rob. 228. So, to prove the contents of a notice to produce ; or an erasure in a deed belonging to his client ; B. N. P. 284 ; or the delivery of a particular paper by his client ; Eicke. V. Nokes, M. & M. 301; or to prove who employed him to defend the cause; Levy v. Pope, Id. 410; or that he is in possession of a particular document belonging to his client, so as to let in secondary evidence of its contents after proof of notice to produce it. JJevan v. Waters, Id. 235 \ Coates V. Madge, 1 Dowl. N. S. 540. And the solicitor may be called upon to state whether he has not the document in court. Dwyer v. Collins, 7 Exch. 639. S<>, a com- munication between a solicitor and his client relative to a matter of fact only, where the character or office of solicitor is not called into action, is not privileged. BramweU v. Lucas, 2 B. & C. 745. The defendant's solicitor may be called by the plaintiff to prove admissions made by his client, the 17'-' Examination of Witnesses. defendant, in a conversation between plaintiff and defendant in his presence ; though he cannot be allowed to prove such admissions in a conversation between himself and his client. Griffith v. Davies, 5 B. & Ad. 502. Accord. Short v. Bedford, 5 ML & Gr. 271 : Weeks v. Argent, 16 M. & W. 817. And where two parties employ the same solicitor, a letter by one of them to the solicitor, containing an oiler to be made to the other, may be given in evidence against the writer of it. Baugh v. Cradocke, 1 M. & Eob. 182. So an application by hid for time to pay money to the other. Perry v. Smith, 9 M. ».V W. 681. In an action for work done as solicitor of the defendant, the defendant, in order to show the plaintiff was retained by B. and not by defendant, may prove admissions made by the plaintiff to the professional agent employed by him to sue out process in an action by B., which action was the work alleged to be done by the plaintiff for the defendant. Oillard v. Bates, 6 M. & W. 547. In the ease of testamentary instructions to the testator's solicitor for drawiDg bis will, what passed on the subject of that will as to any secret trust will he admissible in a suit between executors and next of kin. In such a case, indeed, both claim under the testator, and it would seem arbitrary to hold that the privilege belongs to one of the claimants more than to the other. Turner, V.-C, Basse// v. Jackson, 9 Hare, 387; 21 L. J., Ch. 146. It is now settled that when an illegal purpose or a fraud is contemplated, a communication to a solicitor in furtherance thereof will not be privileged from disclosure ; for it is no part of professional duty to be assisting in such cases. B. v. Cox, 14 Q. B. D. 153 ; Williams v. Quebrada By., &c, Co., (1895) 2 Ch. 751. Thus, where A. applied to an attorney to advance money on a forged will, which the attorney refused to do, and he made no charge to A. for the interview, the communication was held not privileged. B. V. Farley, 1 Den. 0. C. 197; B. v. Jones, lb. 166. A counsel engaged for A. on a former inquiry on a criminal charge, may be called at a subsequent trial of an action wherein A. is a party, to prove as against him the state of a document produced and shown in evidence by A. on the former trial. Broion v. Foster, 1 H. & N. 736; 26 L. J., Ex. 249. The inquiry was, whether a certain entry was in a book when produced on the first occasion, which A. was suspected of having fraudulently made afterwards; and the counsel was called to negative the existence of it on the previous hearing. But the privilege prevails unless there be a definite charge or proof of illegality or fraud. Bull i raid v. A.-G.for Victoria, (1901) A. C. 196, D. P. Where the client is a wituess he is liable to be cross-examined as to the instructions he had given his solicitor in another proceeding. Maccann v. Maccann, 3 Sw. & Tr. 142 ; 32 L. J., P. M. & A. 29. The client must answer as to matters communicated to him by his solicitor, as to which the solicitor himself could not claim privilege. Foakes v. Webb, 28 Ch. D. 287. Communications made to a herald or pursuivant of Heralds' College employed in the conduct and support of a protest against the enrolment of a pedigree therein are not privileged. Slade v. Tucker, 14 Ch. D. 824. So physicians, surgeons, and divines are not privileged from compulsive dis- closures of communications, however confidential. B. v. Kingston, Ds. of, 20 How. St. Tr. 573 ; Gilham's case, 1 Moo. C. C. 186. See also Oarnefs case, Jardine's Gunpowder Plot, pp. 282 et seq., ed. 1857, as to auricular confession, and Best, Evid., 10th ed. §§ 583-585. When a witness is privileged on the ground of public policy — disclosures by informers.] Questions on this branch of privilege arise generally in criminal and revenue cases. Such communications are undoubtedly to some extent privileged. B. v. JIan/y, 24 How. St. Tr. 811 ; B. v. Watson, 2 Stark. 136 ; Privilege of Witnesses. — Public Policy. 173 A.-G. v. B riant, 15 M. & W. 169; II. v. Richardson, 3 F. & F. 693. Information given to the director of public prosecutions falls within this principle. Marls v. Bey/us, 25 Q. B. D. 494, C. A. See further Eosc. Gr. Ev., 12th ed. 136, 157. When a ivitness is privileged on the ground of public policy — official com- munications.'] There are some official communications relating to matters which affect the interests of the community at large, which may bo withheld ; such as communications between the governor and the law officers of a colony, Wyatt v. Gore, Holt, N. P. 299 ; between the governor of a colony and a secretary of state, Anderson v. Hamilton, 2 B. & B. 156, n. ; between the governor, of a colony and a military officer, Cooke v. Maxwell, 2 Stark. 183 ; between a military officer and a secretary of war, Beatson v. Skene, 5 H. & N. 838 ; 29 L. J., Ex. 430 ; the report of a military court of inquiry on the conduct of an officer, Home v. Bentinch, 2 B. & B. 130, Ex. Ob. ; Dawkins v. Roheby, Ld., L. R., 8 Q. B. 255, Ex. Ch. And where a minister of state appears and objects to the production of documents on the ground that it would be injurious to the public interests, he will not be compelled to pro- duce them. Beatson v. Skene, supra. So on a trial for high treason, Ld. Grenville was called to produce a letter intercepted on its way through the post-office, but it was held that he was not bound to do so; per Ld. Ellen- borough in Anderson v. Hamilton, supra. And the document may appear to be of such a public nature that the judge is bound to exclude it, without objection to its production having been taken. Home v. Bentiuck, supra; Ghattertoh v. India, Secretary of State for, (1895) 2 Q. B. 189, 194, 195, per C. A. See also Hennessy v. Wright, 21 Q. B. D. 509, and In re JosepJt, Hargreaves, (1900) 1 Ch. 347, C. A. It seems that the objection to the evidence may be taken by the party interested in excluding it, although not taken by the witness himself. Home v. Bentinch, supra. The rule as to excluding evidence on the above ground is confined to communica- tions made by and between ministers and officers of the government in the discharge of their public duty; and therefore a letter written by a private individual to the secretary of the postmaster-general complaining of the conduct of the guard of the mail is not privileged from disclosure. Blake v. Pilfold, 1 M. & Hob. 198. The speaker of the Irish House of Commons was held not to be bound to disclose what a member had there spoken ; though he might be asked whether that member had spoken on a particular occasion. Plunkett v. Cobbett, 5 Esp. 136 ; 29 How. St. Tr. 71, per Ld. Ellenborough. A member of parliament cannot, without leave of the House, be compelled to answer questions respecting the votes of the members. Chubb v. Salomons, 3 Car. & K. 75 ; per Pollock, C.B. Confidential proceedings of the privy •council caunot be divulged. Lager s case, 16 How. St. Tr. 224. In B. v. Watson, 2 Stark. 148, an officer of the Tower of London was allowed to refuse to say whether a plan of the Tower which was produced was accurate or not. Where a document is privileged from production on the ground of public policy, secondary evidence of its contents is inadmissible. Home v. Ilentinck, supra ; Stace v. Griffith, L. R., 2 P. C. 420. Where for revenue or other similar purposes an oath of office has been taken by a person not to divulge matters which have come to his knowledge in his official capacity, he will not be allowed, if the interests of justice are concerned, to withhold his testimony. Thus, where the clerk to the com- missioners of the property tax, being called to produce the books containing the appointment of a person as collector, objected on account of his oath, Ld. Ellenborough said that it did not protect him from giving evidence in a court of justice upon a writ of subpoena. Lee v. Birrell, 3 Camp. 337. As 174 Examination of Witnesses. to the obligation of a tax surveyor to produce income tax returns, see Shaw v. Kay, 5 Tax Cases, 7 1 ; 12 Sc. L. T. B. 495. A grand juror is also compellable in furtherance of justice to prove what passed before him. Anon., 4 Bl. Comm. L26, note by Christian; Sykes v. Dunbar,2 Selw. N. P., 13th ed. 1015; but this lias been questioned. Starkie on Slander, 3rd ed. -175, c. As to the production of private telegrams by the postmaster-general, see 31 & 32 V. c. 110, s. 20 ; 32 & 33 V. c. 73, s. 23. In Taunton, 2 O'M. & H. 72, cor. Grove, J.; and Stroud, Id. 110, cor. Bramwell, B., an order for pro- duction was refused, on the officer who attended the trial with them declining to produce them, and semble such documents are in the custody of the Crown, and their production cannot be enforced without the consent of the Crown. S. C, per Id. Privilege — how claimed.] It is for the witness himself to claim or to waive the privilege, as he sees fit ; the counsel in the cause cannot argue the question in favour of the witness. Tliomas v. Newton, M. & M. 48, n. ; R. v. Adey, 1 M. & Bob. 94. Except, perhaps, in the case of official com- munications, as to which vide ante, p. 173. See as to a solicitor waiving his privilege, ante, p. 171. The witness may claim his privilege at any part of the inquiry, and he does not waive it altogether by omitting to claim it as soon as he might have done so. R. v. Garbett, 1 Den. C. C. 258, overruling East v. Chapman, M. & M. 46 ; S. C, 2 C. & P. 573. The time for the witness to make the objection is after he is sworn. Boyle v. Wiseman, 10 Exch. 647 ; 24 L. J., Ex. 160. Contradicting party's oivn witness.] If a witness give evidence contrary to that which the party calling him expects, that party cannot give general evidence to show that the witness is not to be believed on his oath. Ewer v. Ambrose, 3 B. & C. 749. And though it was always considered that a party might contradict the evidence of his own witness upon facts material to the issue, yet it was long a question whether it was competent to him to prove that the witness had previously given a different account of the trans- action. S. C, Id. ; Wright v. Beckett, 1 M. & Bob. 414 ; R. v. Oldroyd, B. & By. 88 ; Dunn v. Aslett, 2 M. & Hob. 122 ; Holdsworth v. Dartmouth, Mayor of, Id. 153 ; Winter v. Butt, Id. 357 ; Allay v. Hatchings, Id. 358, n. ; Melhuish v. Collier, 15 Q. B. 878 ; 19 L. J., Q. B. 493. In the last case it was held that the wituess may, at all events, be examined as to his former statements, and contradicted as to any facts that are relevant, although the direct effect may be to discredit him ; and it has been the eoustant practice to call evidence to contradict the statements of other witnesses already called by the same party ; as where attesting witnesses deny their own signature. See also Friecllander v. London Assur. Co., 4 B. & Ad. 193. And now it is provided by the Crim. P. Act, 1865, ss. 1, 3 (replacing the C. L. P. Act, 1854, s. 22), that a "party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony ; but before such last- mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement." It will be seen that leave of the judge is made a condition precedent to the proof of former inconsistent statements, and also premonition and pre- •examinaiion as to such statements. In one particular the Act seems to Contradicting Party's own Witness. 175 limit the former admitted liberty of calling witnesses to contradict another witness called by the same party ; for in such cases it had been the practice for counsel to consult only their own judgment in calling other witnesses to prove all relevant facts, although their testimony may incidentally contradict the testimony of one already called on the same side. This difficulty has been noticed by the court in Greenough v. Eccles, 5 C. B., N. S. 786 ; 28 L. J., C. P. 160 ; but it seems to have been the opinion of the court in that case, that the Act is not to be construed as limiting the former liberty to call other witnesses to contradict the testimony of the adverse witness. It was there decided also that "adverse" means hostile, and not merely unfavour- able, and that the inconsistent statements of the witness are only admissible where the judge considers his animus to be hostile. " A hostile witness is a witness who, from the manner in which he gives his evidence, shows that he is not desirous of telling the truth to the court." Coles v. Coles, L. E., 1 P. & M. 71, per Wilde, J.O. Where a witness gave evidence quite different from the proof in the brief which had been prepared iu the usual way from the previous statements of the witness to the attorney, Bramwell, B., allowed him to be examined under this section as to his previous oral statements to the attorney ; and also allowed the attorney to be called to contradict him. Amstell v. Alexander, 16 L. T. 830. But in a similar case it was held that the section was not meant to apply to the loose statements made by the witness to the attorney with a view to prepare the evidence, and granted a rule nisi for a new trial, on the ground that witnesses had been called at the trial to prove such state- ments. Reed v. King, 30 L. T. 290, H. T. 1858, Ex. Where a witness had given contrary evidence on his examination in bankruptcy, it seems that evidence was allowed to be used to contradict him. Pound v. Wilson, 4 F. & F. 301. See also Dear v. Knight, 1 F. & F. 433. A series of letters may be used for the purpose of contradicting the witness, although one only be indirectly inconsistent. Jackson v. Thomason, 1 B. & S. 745; 31 L. J., Q. B. 11. The opinion of the judge at the trial as to whether the witness is hostile is conclusive. Rice v. Howard, 16 Q. B. D. 681. It has been held that where a party calls other witnesses to contradict his own witness as to a particular fact, the whole of the testimony of the contradicted witness is not therefore to be necessarily repudiated. Bradley v. Richardo, 8 Bing. 57. But in Faulkner v. Brine, I F. & F. 255, Ld. Campbell, C.J., intimated that the effect of such contradiction was to throw over the evidence of the witness altogether. It was held that under the C. L. P. Act, 1854, s. 23 post, p. 182, it was not competent to a party to contradict his own witness by the witness's previous statements in writing. Ryberg v. Ryberg, 32 L. J., P. M. & A. 112. In this case, however, reference does not appear to have been made to Id. s. 22, ante, p. 174, which would, it seems, have led to au opposite conclusion. Opinion of witness, when admissible.'] In general the mere opinion of a witness as to any of the facts in issue is not admissible as evidence. See Payton n and that supposed to be false. Id. per Lord Mansfield, O.J. So a physician, who has not seen the particular patient, may, alter hearing the evidence of others at the trial, be called to testify as to the general effects of 17<; Examination of Witnesses. the symptoms described by them and their probable consequences in the particular case; Peake, Evid. 208 ; or he may be asked whether the facts proved are symptoms of insanity; B. v. M'Naghten, 10 01. & Fin. 200; but he cannot be asked, generally, whether, upon tbe evidence of the cause, he is of opinion that the party is insane or incapable of distinguishing between right and wrong; for this would leave him at liberty to find facts as well as to form an opinion on those facts, and in effect put him in the place of the jury. //. v. Frances, 1 Cox, C. C. 57; B. v. Layton, Id. 149. The opinion of a person conversant with the business of insurance, as to whether the communication of particular facts would have varied the terms of insurance, has been admitted in evidence on several occasions both in actions on the policy and against insurance brokers for negligence. Berthon v. Loughman, 2 Stark. 258; Bickards v. Murdoch, 10 B. & C. 527; Chapman v. Walton, 10 Bing. 57. But in other cases the admission of this kind of evidence has been discountenanced. Carter v. Boehni, 1 W. Bl. 594 ; and in Campbell v. Bickards, 5 B. & Ad. 840, a new trial was granted because such evidence had been admitted, and it was held that the materiality of a fact concealed was a question for the jury alone, and that " witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced if the parties had acted in one way rather than another ; " see also Lindenau v. Desborouqh, 8 B. & C. 586 ; Westbury v. Aberdein, 2 M. & W. 267. The evidence of a shipbuilder has been admitted on a question of seaworthiness, though he was not present at the survey ; Beckwith v. Sydebotham, 1 Camp. 117 ; Thornton v. B. Exchange Assur. Co., Peake, 25 ; and the opinion of a nautical witness on a question of skilful navigation, assuming the facts to be true; Feu trick v. Bell, 1 Car. & K. 312. The opinions of persons versed in the laws of a foreign country are also admissible ; Chaurand v. Angerstein, Peake, 44 ; and see the cases on this point, ante, pp. 120-1. Persons conversant with old MSS. may be called to speak to the date of an old writing. Tracy Feerage case, 10 01. & F. 154. Where the question is, as to the correct judgment of a captain in abandoning his ship, a witness may be asked the result of his personal observation of the "general habits" of the captain as to sobriety. Alcock v. B. Exchange Assur. Co., 13 Q. B. 292. To ascertain the value of a life annuity, an accountant, who stated he was conversant with the business of life assurance offices, was allowed to refer to the Carlisle Tables used by those offices, showing the expectation of life, and then state the sum required to purchase the annuity. Bowley v. L. & N. W. By. Co., L. R. 8 Ex. 221, Ex. Oh. As to calling persons skilled in handwriting to prove forgery or to establish the genuineness of ancient documents, see ante, pp. 140-1 et seq. On the slight value to be attached to the evidence of expert witnesses, see Abinger, Ld. v. Ashton, L. R., 17 Eq. 373 et seq., per Jessel, M.R., and Baily v. Clark, (1902) 1 Ch. 670, per Stirling, L.J. Memorandum to refresh witness's memory.'] A witness will be allowed to refer to an entry, or memorandum, made by himself at the time of, or shortly after the occurrence of the fact to which it relates, in order to refresh his memory ; although the entry or memorandum would not of itself be evideuce. Kensington v. Inglis, 8 East, 289. Even a receipt on unstamped paper may be used for this purpose. Maugham v. Hubbard, 8 B. & C. 14. Nor does the use of such a memorandum by a witness make it evidence in itself. Alcock v. B. Exchange Assurance Co., supra. But he cannot refresh his memory by extracts from a book, though made by himself; Doe d. Church v. Berkins, 3 T. R. 749 ; nor speak from having refreshed it out of court; at least unless he produces the memorandum in court; Beech v. Jones, Right to inspect Memorandum. 177 5 C. B. 696 ; nor by a copy of a book, unless the witness himself saw the copy made and checked it at the time by personal examination while the subject was fresh in his recollection ; for then the copy is, in effect, an original entry by himself. Burton v. Plummer, 2 Ad. & E. 341 ; Talbot de Malahide, Ld. v. Cusack, 17 Ir. C. L. R. 213, Q. B. In Burton v. Plummer, supra, a sale was proved by a clerk who refreshed his memory from a ledger entered from a waste book, the waste book being kept by the clerk and the ledger copied by another person under the eye of the clerk. A surveyor may refer to a printed copy of a report made by himself to his employers, and compiled from his rough notes made on the spot. Home v. Mackenzie, 6 CI. & Fin. 628. So a witness may refresh his memory by reference to entries in a log-book, which he did not write with his own hand, but which he examined from time to time shortly after the events recorded. Burrough v. Martin, 2 Camp. 112. Where a witness, on seeing his initials affixed to an entry of payment, said, " I have no recollection that I received the ruoney ; 1 know nothing but by the book, but seeing my initials, I have no doubt that I received the money : " this was held sufficient evidence. Maugham v. Hubbard, supra ; B. v. S. Martin's, 2 Ad. & E. 210. A printed form of lease, read over to a tenant as the terms of his tenancy, but not signed according to Statute of Frauds, may be used to refresh the memory of the witness who read it to him. Bolton, Ld. v. Tomlin, 5 Ad. & E. 856. If the witness be blind, the papers or memorandum may be read over to him in court. Catt v. Howard, 3 Stark. 4. A witness was permitted to refresh his memory from a deposition made and signed by him, shortly after the fact to be proved, on examination before commissioners of bankrupts. Smith v. Morgan, 2 M. & Rob. 257. In this case, Tindal, C.J., permitted it to be only so far used as to refresh the memory of the witness as to the date of a single transaction, on the authority of Vaughan v. Martin, 1 Esp. 440 ; but it is observable that in Vaughan v. Martin, the whole account of the act of bankruptcy seems to have been read to the witness, a very aged person, who was then asked "whether the matters there stated were true?" Such an examination was also allowed to be used by a witness in a like manner by Pollock, C.B., in Wood v. Cooper, 1 Car. & K. 645. The examination in both cases was taken recently after the facts, and this seems essential to the use of any memorandum or paper for refreshing memory. Whitfield v. Aland, 2 Car. & K. 1015. Bight to inspect memorandum.] Where the witness gives his evidence after having referred to a book or other document, it must be produced; Howard v. Canfield, 5 Dovvl. 417 ; Beech v. Jones, 5 C. B. 696 ; and the counsel on the other side has a right to inspect it, without being bound to read it in evidence ; Sinclair v. Stevenson, 1 C. & P. 582 ; B. v. Bamsden, 2 C. & P. 603. He may cross-examine upon the entries referred to by the witness, without making the book evidence per se for the party who produces the witness; but if he c ross-examines as to other entries in the same book, J ie m akes them part ot his ow~rr~evidence. Gregory v. Tavernor, 6 C. & P. 28TTper Gurriey, B. ; Whitfield v." Aland, 2 Car. & K. 1015, Wilde, C.J. Where a paper is put into a witness's hand only to prove the handwriting, and not to refresh his memory, the opposite party is not entitled to see it. Sinclair v. Stevenson, supra; see further, post, p. 181. And where the question founded on a document handed to witness to refresh his memory wholly fails in its object, it has been considered that the opposite party is not entitled to inspection. B. v. Buncombe, 8 C. & P. 369. The reason for permitting adverse inspection seems to be to check the use of improper documents ; — to secure the benefit of the witness's recollection as to the whole facts; — and to compare bis oral testimony with the written statement. R. — VOL. i. N li^ Examination of Witnesses. If it fail to refresh his memory, or is not used for that purpose, the right of inspection fails. Cross-examination.] "The evidence of one party 'cannot' be received as evidence against another party without the latter having an opportunity of testing its truthfulness by cross-examination." Allen v. Allen, (1894) P. 248, 253,, per C. A. One defendant has a right to cross-examine another co-defendant called as a witness. S. C. Id. 254. So a defendant may cross-examine a co-defendant's witnesses. Lord v. Oolvin, 3 Drew, 222 ; 24 L. J. Ch. 517 ; cited, (1894) P. 253. Upon cross-examination, counsel may lead a witness so as to bring him directly to the point in his answer ; but he cannot, if the witness shows an obvious leaning in his favour, go the length of putting into the witness's mouth the very words which he is to echo back again. Hardy's case, 24 How. St. Tr. 755. Indeed, in such a case, the usual latitude of cross-examination would perhaps not be allowed. It is not allowable for counsel, on cross-exami- nation, to mislead the witness by assuming facts to be evidence which have not been proved, or to try to entrap him by misstatement. See cases before Abbott, C. J., Hill v. Coonibe, Exeter Sp. Ass., 1818 ; Handley v. Ward, Lancaster Sp. Ass. 1818 (qy. 1819), cited in Stark. Ev., 4th ed. 197 (s). This is sometimes attempted in practice by handing wrong papers to a witness, in order to test his judgment in the proof of handwriting. It is not competent to counsel to question a witness concerning a fact irrelevant to the matter in issue for the mere purpose of discrediting him by calling other witnesses to disprove what he says; Spenceley v. De Willett, 7 East, 109; and should the witness answer such a question, evidence cannot be given to contradict ; Harris v. Tippett, 2 Camp. 637 ; or to confirm his evidence. Tolman v. Johnstone, 2 F. & F. 66. See further, post, pp. 181-2. By Kules, 1883, 0. xxxvi. r. 38, " The judge may in all cases disallow any questions put in cross-examination of any party or other witness which may appear to him to be vexatious and not relevant to any matter proper to be inquired into in the cause or matter." It would seem, however, that this ride is either in accordance with the common law rule, or is ultra vires as infringing J. Act, 1875, s. 20, ante, p. 153. Where a witness, not a party, produces on cross-examination a mass of correspondence not shown to be relevant to the issue between the parties, the judge may refuse to allow the documeuts to be put in and read seriatim, and the witness to be examined on each one, ou the ground of the time this course would occupy: the proper course is to apply for an adjournment to examine the documents, and afterwards to examine the witness on such as are relevant. In re Maplin Sands, 71 L. T. 594, M. Sit. 1894, C. A. In consequence of the general rule that the contents of a written document ought to be proved by the production of it, and not by oral testimony, it was held in Hie Queen's case, 2 B. & B. 287 et seq., that it was not compe- tent to ask a witness, even on cross-examination, respecting a statement formerly made by him in writing without showing to him the writiug referred to, and putting it in evidence as part of the case of the cross- examining party either immediately or in the ordinary course of the cause ; and tins opinion of the judges has been since constantly acted upon, whether the question be put merely to discredit the witness by contradicting him, or as conducive to proof of the matter in issue. Macdonnell v. Evans, 11 C. B. 930; 21 L. J., C. P. 141. It seems, however, that when the statement in writing is an affidavit or deposition filed in some court, the rule in The Queen's case, supra, is satisfied by the production of an examined or office copy at the trial, for in many Cross-examination. 179 cases witnesses have been allowed to be cross-examined on examined or office copies of their previous depositions, and such copies have been allowed to be u.sed to contradict them. Thus, on an issue out of Chaucery, an examined copy of the deposition of one of the witnesses was allowed to be read for the purpose of contradicting the evidence of the same witness on the trial of the issue. Highfield v. Peake, M. & M. 109; Burnand v. Nerot, 1 C. & P. 578. So an examined copy of an answer, made by a defendant in Chancery, was admitted to contradict the evidence givea by him in a subsequent action. Ewer v. Ambrose, 4 B. & C. L'5. So au attested copy of an affidavit, made by the witness and filed in another cause, was held sufficient to contradict him, on proof being given of his identity ; Garvin v. Carroll, 10 Ir. L. E. 323 ; and in Davies v. Davies, 9 C. & P. 252, Gurney, B., allowed a witness to be cross-examintd on an office copy of his affidavit filed in the cause, a judge's order having, under the old practice, been obtained to admit it. As to the use of an office copy now, see Rules, 1883, 0. xxxvii. r. 4, and observa- tions thereon, ante, p. 97. The only case which is cited in support of the proposition that the original must be shown to the witness is that of Bastard v. Smith, 10 Ad. & E. 213, 214, in which Tmdal, C.J., is said, at N. P., not to have permitted a witness to be cross-examined as to the contents of his former deposition, without first refreshing his memory with the original; as, however, the original was in court, it seems clear that no attempt was made to use an office copy, and all that appears from the report of the case on the motion is, that the court would not interfere with the master's allowance of the costs of bringing down the original deposition. This case can therefore hardly be considered as overruling the numerous cases that have been above cited where the contrary rule was followed. In Henman v. Lester, 12 C. B., N. S. 781; 31 L. J., C. P. 366, it was held by Willes and Keating, JJ., diss. Byles, J., that a plaintiff could be asked, on cross-examination, in order to test his credit, as to proceedings taken against him in the county court, without producing the record of the court ; at the trial, Pollock, C.B., had admitted the question on the broad ground that the contents of a written document might be proved by the admission of a party to the cause, whether in or out of the witness-box ; he did not, however, hold that the witness was compelled to answer the question ; and the court said he could not be so compelled. In Macdonnell v. Evans, ante, p. 178, Cresswell, J., said that a witness could not be asked on cross- examination, in order to test his credit, whether he had been convicted of a crime, as that would appear by the record. This was denied by Willes and Keating, JJ. in Henman v. J tester, supra; contra, Byles, J. By the Crim. P. Act, 1865, ss. 1, 5 (replacing the 0. L. P. Act, 1854, s. 24), "a witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject-matter of the indictment or proceeding, without such writing being shown to him ; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him ; provided always, that it shall be competent for the judge, at any time during the trial, to recpuire the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he shall think fit." The effect is this. The witness, in the first instance, may bo asked, whether he has made such and such a statement, without its being shown to him. Sladden v. Seryeant, 1 P. & P. 322, cor. Willes, J. If he deny that he has made it, the opposite party cannot put in the statement without first calling his attention to it (showing it, or at least reading it, to him), and to any paits ol it relied upon as a contradiction. If the witmss, n2 ISO Examination of Witnesses. instead of denying that he has made the statement, admit it, although the object of the cross-examining counsel has been attained, it may be very important for the party calling the witness to have the whole statement, which may net be in his possession, before the court and jury. If he be aware of the contents, he will, it would seem, in such case, be at liberty to re-examine the witness, as to the residue of the statement, without its being produced, on the general rule that if part of any connected conversation or statement be given, the whole may be used (vide post, p. 184); or he may ask the judge, under the latter part of the section, to require the production of the writing, for the last provision of the above section was probably introduced for the purpose of guarding against an unfair use of the power of cross-examining upon a document which either has no existence in fact, or may have been only partially brought before the jury and imperfectly understood. This provision would seem, however, not intended in any way to narrow the old practice (vide ante, pp. 178-9) as to the production of original documents filed in court, and would be substantially satisfied by the production of any copy on which a witness previously to this enactment could have been cross-examined. See 2 Taylor Evid., 10th ed., § 1448. If the statement be used to contradict the witness, the whole must be put in. N. Australian Territory Co. v. Goldsborough, Mort & Co., (1893) 2 Ch. 381. We have seen, sub tit. Admissions, ante, p. 78, that if a conversation be given in evidence to prove an admission, the whole of it must generally be laid before the jury, and tins if omitted may be got out by cross-examination, subject, however, to the limitation laid down hereafter under the head of Re- examination, post, p. 184 ; 1 Taylor, Evid., 10th ed., § 725. So if any letter, written statement, or single document be given in evidence, the opposite party may insist on having the whole read and given in evidence as part of the case of the party adducing such evidence. But this rule will not generally justify a party in insisting that separate letters or documents, or even distinct and separate parts or entries in one entire collection of documents, as letter-books, court-rolls, &c, shall all be put in evidence by the party producing and reading any one of them, unless they are on the face of them connected with the one already in evidence ; and this seems to be the rule whether the documents be of a public or a private nature. Where any such separate entries or distinct parts are favourable to the opposite party, he must put them in evidence as part of his own case. Thus, though the defendant is entitled to have the whole of a particular entry in an account-book read, he cannot insist upon reading distinct entries in different parts of the book unconnected with the one read. Catt v. Howard, 3 Stark. 6. See also liemmie v. Hall, Manning's N. P. Index, 376. Where the plaintiff called for the production of defendant's letter-book, and read letters of the defendant from it, the defendant was not therefore permitted to read from it, on his own behalf, other letters not referred to in the letters read by the plaintiff. Sturge v. Buchanan, 10 Ad. & E. 598. And where a book of bankruptcy proceedings was put in to prove certain depositions for the plaintiff, the defendant's counsel was not allowed to use other parts of the book to refresh the memory of a witness, unless he put it in as part of his own evidence. Whitfield v. Aland, 2 Car. & K. 1015, per Wilde, C. J. ; Gregory v. Tavernor, 6 C. & P. 281, per Gurney, B. But the plaintiff could not read the examination of a defendant by commissioners of bankrupt taken on one day without also reading his continued examination on another day ; Smith v. Biggs, 5 Sim. 391 ; nor the cross-examination of defendant without his examination in chief; S. C. ; nor the examination in chief without the cross-examination. Goss v. Quinton, 3 M. & Gr. 825. Where an answer in Chancery by a witness was put in only to prove his Cross-examination. — Contradicting Opponent's Witness. 181 incompetency on the ground of interest, the adverse party could not there- upon read the whole in order to prove the issue. B. N. P. 238. When a document is put into the hands of a witness under cross- examination merely to prove the signature, or identity, or general nature of it, the opposite party is not entitled to immediate inspection of it, except sufficiently to enable him to re-examine about the writing, and also to identify the document in case it should afterwards be put in evidence ; he may not read the document through, or comment upon its contents, until it is put in on the other side, nor does it till then become evidence in the cause ; but if any question be put as to its contents, or any further question be founded on it, there will be a right to inspect it. Semb. Cope v. Thames Haven Dock, 2 Car. & K. 757 ; Collier v. Nokes, Id. 1012 ; Peck v. Peck, 21 L. T., 670 ; H. T. 1870, C. P. See 2 Taylor Evid., 10th ed., § 1413. And, in general, mere proof of handwriting by a witness, whether on examination in chief or cross-examination, does not oblige the party to put it in evidence or entitle his opponent to use it as evidence, although its absence may, of course, be legitimate ground of comment by him. But the handwriting may of course be disputed if afterwards put in. Vide ante, p. 178. A witness may be cross-examined as to his having omitted to mention a fact on a former examination, though that examination was in writing and not produced. Ridley v. Cyde, 1 M. & Rob. 197. As to discrediting witnesses on cross-examination, vide infra. As to cross-examination of deponent where evidence is given by affidavit, vide post, p. 186. Where a witness is brought into court merely for the purpose of pro- ducing a written instrument, which is to be proved by another witness, he need not be sworn ; Perry v. Gibson, 1 Ad. & E. 48 ; and, unless sworn, the other party will not be entitled to cross-examine him. And where a person called to produce a document was sworn by mistake and was asked a question which he did not answer, it was held that the opposite party was not entitled to cross-examine him. Rush v. Smith, 1 0. M. & R. 94. So, if a wrong witness is called in consequence of a mistake in his name, and is dismissed on the discovery of the mistake, the other side has no right to cross-examine him. Clifford v. Hunter, 3 C. & P. 16. So, if he is called by error of the counsel and actually sworn, yet if dismissed before examination, he is not liable to be cross-examined. Wood v. Mackinson, 2 M. & Kob. 273. Where a fresh witness is called and examined by the judge, it lies in his discretion whether he will allow either party to cross-examine the witness. Coidson v. Bisborough, (1894) 2 Q. B. 316. Semble he should give such leave to the party to whom the evidence is adverse, so far as relates to that evidence, but he should not allow a general cross- examination. S. 0. Contradicting opponent's vntness.~] In order to impeach the credit of a witness, evidence may be given of statements made by him at variance with his testimony on the trial ; but to lay a foundation for the evidence of such contradictory declaration or conversation, the witness must be asked, on cross-examination, whether he has made such declaration or held such conversation. The Queen's case, 2 B. & B. 301. Before he can be contradicted he must be asked as to the time, place, and person involved in the supposed contradiction. It is not enough to ask him the general question whether lie lias ever said so-and-su. Per Tindal, C.J., Angus v. Smith, M. & M. 471. Where the witness merely says that he does not recollect making the statement, the practice was not uniform as to whether the statement might be proved by the cross-examining party. L82 Examination of Witnesses. But the point is now settled; fur the (Vim. P. Act, 18G5, ss. 1, 4 (replacing the C. L. P. Act, 1854, s. 23), provides that, "if a witness upon cross-examination as to a former statement made by him relative to the subject-matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such state- ment, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and lie must be asked whether or not he has made such statement." See Ryhery v. Ryhery, 32 L. J., P. M. & A. 112, cited ante, p. 175. As to contradiction of witness by his previous statements in writing, vide sect. 5, and observations thereon, ante, pp. 17'.', 180. Where the object in proving the statements of a witness is not merely to contradict him, but to impeach his moral character by proof of loose and unbecoming language, the evidence seems admissible without previous inquiry of himself. Carpenter v. Wall, 11 Ad. & E. 803. Where a docu- ment is offered in evidence to contradict the statement of a witness as to a material fact denied by him, it is admissible, though it also tends to prove the issue in the cause for which purpose alone it would have been inadmissible. Watson v. Little, 5 H. & N. 472; 20 L. J., Ex. 267. It lias been doubted whether to corroborate the testimony of the witness whose credit has been impeached, evidence contra is admissible that the witness affirmed the same thing before, on other occasions; Gilb. Ev., 6th ed., 135; B. N. P. 294; Lutterell v. Reynell, 1 Mod. 283; but the better opinion is that such evidence is generally inadmissible. R. v. Parker, 3 Doug. 242. Ace. per Ld. Redesdale in Berkeley Pceraye case, as cited in •J Phill. & Am. Ev., 10th ed. 523, n. It has been observed, however, that the rule is subject to this exception, that where counsel on the other side impute a design to misrepresent, from some motive of interest or friendship, it may, in order to repel such an imputation, be proper to show that the witness made a similar statement at a time when the supposed motive did not exist, or when motives of interest would have prompted him to make a different statement of the facts. Id., 523, 524. "If a witness speaks to facts negativing the existence of a contract, and insinuations are thrown out that he has a near connection with the party on whose behalf he appears, that a change of market or any other alteration of circumstances has excited an inducement to recede from a deliberate engagement; the proof by un- suspicious testimony that a similar account was given when the contract alleged had every prospect of advantage, removes the imputation resulting from the opposite circumstance." Notes to Pothier on Oblig., by Sir W. D. Evans, vol. 2, p. 289. An opponent's witness may be contradicted on all points material to the issue ; but he cannot be contradicted upon any point not material to the issue, with a view of showing that his evidence, generally, is not worthy of credit. The case of Palmer v. Trower, 8 Exch. 247, is a strong illus- tration df the rule. There the plaintiff sued the executor of A. on a joint and several note of A. and B. ; the defence being that the note was forged by the plaintiff: the defendant being called as a witness denied, on cross- examination, that he had ever heard B. admit that he had signed the note; it was held, that the plaintiff could not call a witness to prove that B. had made such an admission in the defendant's hearing. It should seem that if the admission of B. had been in A.'s presence, and the note had been sued upon in A.'s lifetime as a joint note, the question would have been material and relevant. A witness, being asked on cross-examination whether he had not said that a bribe had been offered to him to give particular evidence in the case, denied that he had said so: it was held, that no Contradicting Opponent's Witness. — Evidence of Character. 183 evidence could be adduced to show that he did say so. A.-G. v. Hitchcock, 1 Exch. 91. The rule seems to be, that if the witness's answer to a question would, if truly made, tend to qualify, or contradict, or discredit some other relevant part of his testimony, then other evidence may be received to con- tradict him ; and a fact may be considered as " relevant," though not part of the transaction in issue, if the truth or falsehood of it may fairly influence the belief of the jury as to the whole case ; Semb. Melhuish v. Collier, 15 Q. B. 878 ; 19 L. J., Q. B. -±93 ; but a merely irrelevant inquiry cannot be allowed. It is true that by showing the levity or falsehood of a witness even on irrelevant matters, his testimony would in some degree be discredited, yet the expediency of confining the field of inquiry at N. P. within a reason- able compass has made it necessary to assign a limit to such collateral issues. Without such restraint the examination of each witness might give rise to different issues remote from the immediate issue on the record, which the parties have not come prepared to try, and by which both witnesses and parties might be unfairly prejudiced. On this sort of evidence the observa- tions of the court in A.-G. v. Hitchcock, supra, are very instructive aud important. See also Hollingham v. Head, 4 C. B., N. S. 388; 27 L. J., C. P. 241, cited ante, p. 79. Evidence of character^ We have seen (ante, p. 86) that in actions unconnected with character, evidence of the character of the parties is inadmissible, as irrelevant to the issue. As, however, the veracity of the witness is always a point in issue, his character for veracity may be impugned by the party interested in discrediting him, by showing that he is unworthy of credit. If a witness's character for veracity be impeached, witnesses may be called in support of it. Although evidence is admissible to show that a witness bears such a character and reputation that he is unworthy of credit, yet it is not allowed (with the exception of facts which go to prove that the witness is not an impartial one, vide post, p. 184) to prove particular facts in order to discredit him. R. v. Watson, 2 Stark. 152 ; R. v. Layer, 14 How. St. Tr. 285. The question as to the witness's character for credibility must be put in a general form. Mawson v. Hartsink, 4 Esp. 102. The usual form of the question is as follows: — "From your knowledge of the witness do you believe him to be a person whose testimony is worthy of credit?" See R. v. Roivton, Leigh & Cave, C. C. 520; 34 L. J., M. C. 57; and R. v. Brown, L. R. 1 C. C. 70. And although a witness's answer upon a collateral fact is usually conclusive; R. v. Watson, supra; yet where the object of the inquiry is to prove that the witness has endeavoured to corrupt another to give false testimony in the cause, his denial of the fact or refusal to answer will not prevent the party from proving it by other evidence. The Queen's case, 2 B. & B. 311. But this can only be done by the opposite party ; the person calling a witness, having once put him forward as a person worthy of belief, though he may contradict him, cannot afterwards discredit him, if the testimony of the witness should turn nut unfavourable, or even should the witness assume a position of hostility towards the party calling him. Ewer v. Ambrose, 3 B. & C. 749. This is the rule at common law, and is affirmed by the Grim. L. P. Act, 1865, ss. 1, ."., ante, p. 174. By the dim. P. Act, 1865, ss. 1, 6 (replacing the C. L. P. Act, 1854, s. 25), " a witness may be questioned as to whether he has been convicted of any felony or misdemeanor, and, upon being so questioned, if he either denies or does not admit the fact or refuses to answer, it shall be lawful for the cross-examining party to |>rovc such conviction; and a certificate containing tin; substance and effect only (omitting the formal part) of the indictment 184 Examination of 11 7/ //esses. and conviction for such offence, purporting to be signed by the clerk of the court, or other officer having the custody of the records of the court where the offender was convicted, or by the deputy of such clerk or officer," . . . "shall, upon proof of the identity of the person, be sufficient evidence of the said conviction, without proof of the signature or official character of the person appearing to have signed the same." As to the signature to the cer- tificate, see B. v. Parsons, L. R., 1 C. C. 24. As to a party contradicting his own witness, see ante, p. 174. As to cross-examining him, see ante, p. 167. Evidence that a tvitness is not impartial."] What has been said as to not giving evidence of particular facts merely for the purpose of impeaching the credit of a witness, does not apply where the facts sought to be proved go to show that the witness does not stand indifferent between the contending parties. Best Ev., 10th ed., § 644 (3). Thus, in B. v. Yewing, 2 Camp. 638, the witness was asked whether he had not said that he would be avenged upon the prisoner, and would soon fix him in gaol. This he denied, and Lawrence, J., allowed him to be contradicted. So also it may be proved that a witness has been bribed ; B. v. Langhorn, 7 How. St. Tr. 446 ; or that he has endeavoured to suborn others ; B. v. Strafford, Ld., Id. 400 ; both which cases were recognized in A.-G. v. Hitchcock, 1 Exch. 93; ante, p. 183. Becalling witness.'] It is in the discretion of the judge whether he will permit a witness to be recalled. Adams v. Bankart, 1 C. M. & E. 681 ; The Queen's case, 2 B. & B. 284 ; Cattlin v. Barker, 5 C. B. 201. Be-examination.] A re-examination, which is allowed only for the purpose of explaining any facts which may come out on cross-examination must be confined to the subject-matter of the cross-examination. The rule with regard to re-examination is thus laid down by Abbott, C.J., in The Queen's case, 2 B. & B. 297 : " I think the counsel has a right, upon re- examination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on crop s-examination, if they be in themselves doubtful ; and also the motive by which the witness was induced to use those expressions : but I think he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness. ... I distinguish between a conversation which a witness may have had with a party to the suit, whether criminal or civil, and a conversa- tion with a third person. The conversations of a party to the suit, relative to the subject-matter of the suit, are in themselves evidence against him in the suit ; and if a counsel chooses to ask a witness as to anything which may have been said by an adverse party, the counsel of that party has a right to lay before the court the whole which was said by his client in the same conversation, not only so much as may explain or cmalify the matter introduced by the previous examination, but even matter not properly con- nected with the part introduced upon the previous examination, provided only that it relate to the subject-matter of the suit ; because it would not be just to take part of a conversation as evidence against a party, without giving to the party at the same time the benefit of the entire residue of what he said on the same occasion." This statement of the rule was, however, qualified in Prince v. Samo, 7 Ad. & E. 627, where it was held that a witness of the plaintiff cross-examined as to the assertions of the plaintiff in a particular conversation, could not be examined as to other unconnected assertions of the plaintiff in the same conversation, although connected with Proof by Affidavits or Depositions. 185 the subject of the suit. Iu that case the other part of the conversation was attempted to be shown for the plaintiff in order to prove plaintiff's case by his own assertion ; and it was observed by the court that, if such proof were admitted, it ought to go to the jury, and might thus obtain a verdict for the plaintiff on his own unsupported assertion out of the court. It must not therefore be assumed that cross-examination on part of a conversation necessarily lets in proof of the whole of it. As to re-examination of a witness after cross-examination under Grim. P. Act, 1865, s. 5, as to his previous statements in writing, vide ante, p. 179. Where a witness of the plaintiff stated, on cross-examination, facts which were not strictly evidence, but might prejudice the plaintiff, it was held that, unless the defendant applied to strike them out of the judge's notes, the plaintiff was entitled to re-examine upon them. Blewett v. Tregonning, 3 Ad. & E. 554. Evidence in reply.] When a party is taken by surprise he should be allowed to produce fresh evidence to meet the case against him. Bigsby v. Dickinson, 4 Ch. D. 24, C. A. PROOF BY AFFIDAVITS OR DEPOSITIONS. As has been already stated, proofs are usually, except by agreement between the parties, to be given at the trial by the oral evidence of witnesses, ante, pp. 153, 154; in certain cases, however, affidavits or deposi- tions are allowed to be substituted for such oral evidence. The following are the rules relating to the subject. By Rules, 1883, 0. xxxvii. r. 1, " . . . the court or a judge may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial on such con- ditions as the court or judge may think reasonable, or that any witness, whose attendance in court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before a commissioner or examiner; provided that where it appears to the court or judge that the other party bond fide desires the production of a witness for cross-examina- tion, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit." By rule 3, "An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving all just exceptions, be read on" other than ex parte applications, " upon the party desiring to use such evidence giving two days' previous notice to the other parties of his intention to read such evidence." By rule 4, " Office copies of all writs, records, pleadings, and documents filed in the High Court of Justice shall be admis- sible in evidence in all causes and matters, and between all persons or parties, to the same extent as the original would be admissible." See obser- vations on this rule, ante, p. 97. By rule 5, "The court or a judge may, in any cause or matter where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before the court or judge, or any officer of the court, or any other person, aud at any place, of any witness or person, and may empower any pari y to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the court or a judge may direct." Rule G provides the form of order for a commission to examine witnesses, and of the writ of commission, and rule 6a for letters of request. By rule 16, the depositions authenticated by the 186 Proof by Affidavits or Depositions. signature of the examiner are to be transmitted by hi in to the central office and there filed. By rule 18, "except where by this order otherwise provided, or directed by the court or a judge, no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party againsl whom the same may be offered, unless the court or judge is satisfied that the deponent is dead, or beyond the jurisdiction of the court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence, saving all just exceptions, without proof of the signature to such certificate." By rule 24, " No affidavit or deposition filed or made before issue joined in any cause or matter shall without special leave of the court or a judge be received at the hearing or trial thereof, unless within one month after issue joined, or within such longer time as may be allowed by special leave of the court or a judge, notice iu writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf." By O. xxxviii. r. 3, " Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which state- ments as to his belief, with the grounds thereof, may be admitted." By rule 16, " No affidavit shall be sufficient, if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent or correspondent of such solicitor, or before the party himself." By rule 17, "Any affidavit which would be insufficient if sworn before the solicitor himself shall be insufficient if sworn before his clerk or partner." Affidavits or depositions so taken will, under 0. xxxvii. r. 4, ante, p. 186, be proved at the trial by production of office copies ; see also Duncan v. Scott, 1 Camp. 101; Fleet v. Perrins, L. R., 3 Q. B. 536; but the order so to take evidence must.it seems, be previously proved. See Bayley v. Wylie, 6 Esp. 85, ]>ost, p. 187. The judge cannot, under rule 1, at the trial, order an affidavit to be read, when the opposite party bond fide desires the witness to be produced for cross-examination ; Blackburn Union v. Broohs, 7 Ch. D. 68 ; unless the witness cannot be found. See Gornall v. Mason, 12 P. D. 142. As to the admission in evidence of the depositions under rule 18, supra, cf. stat. 1 W. 4, c. 22, s. 10, and cases decided thereon pout, p. 187. By Eules 1883, O. xxxviii. r. 25, " Within 14 days after a consent for taking evidence by affidavit as between the parties has been given, or within such time as the parties may agree upon or the court or a judge may allow, the plaintiff shall file his affidavits and deliver to the defendant or his solicitor a list thereof." Rule 26: "The defendaut within 14 days after delivery of such list, or within such time as the parties may agree upon, or the court or a judge may allow, shall file his affidavits and deliver to the plaintiff or Ids solicitor a list thereof." Rule 27 : " Within 7 days after the expiration of the last-mentioned 14 days, or such other time as aforesaid, the plaintiff shall file his affidavits in reply, which affidavits shall be confined to matters strictly in reply, and shall deliver to the defendant or his solicitor a list thereof." Rule 28 : " When the evidence is taken by affidavit, any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party, may serve upon the party by whom such affidavit has been filed a notice in writing, requiring the production of the deponent for cross-examination at the trial, such notice to he served at any time before the expiration of 14 days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the court or a judge may specially appoint ; and unless such deponent is produced accord- ingly, his affidavit shall not be used as evidence unless by the special leave of the court or a judge." Proof by Affidavits or Depositions. 187 The consent under rule 25 must be a formal consent in writing. New Westminster Brewery Co. v. Hannah, 1 Ch. D. 278. It may be given by the guardian ad litem ol an infant. KnatchbuU v. Fowlc, Id. 604. The plaintiff may use affidavits in reply which are confirmatory only of his evidence in chief, notwithstanding rule 27. Peacock v. Harper, 7 Ch. D. 649. Unless the agreement has been that evidence should be given by affidavit only, the affidavits may be supplemented by the oral evidence of the deponents. Olossop v. Heston, &c., Local Board, 47 L. J., Ch. 536. Where the defendant's evidence is given by affidavit, supplemented by the oral testimony of the depouent, the plaintiff is not entitled to cross-examine those deponents whose affidavits had not been read. Massam v. Thorley's Cattle Food Co., W. N., 1879, p. 181, Mnlins, V.-C. As to the power of the judge to order a trial by witnesses, and to exclude the affidavits filed, see Lovell v. Wallis, W. N., 1883, p. 231, Mich. S., Kay, J. The power of authorizing the examination of witnesses out of court was formerly given to the courts of common law by stat. 1 W. 4. c. 22. These provisions of the statute are no longer in force, but it is necessary shortly to state them, and the decisions thereon, as they may afford some guide to the practice under 0. xxxvii. rr. 5, 18, ante, pp. 185, 186. Sect. 4 empowered a judge to order any witness within the jurisdiction to be examined orally before an officer of the court or other person named in the order, or to order a commission to issue to examine in places out of the jurisdiction; the same or a subsequent order was to give "directions touching the time, place, and manner of such examination." Sects. 5 et seq., contained provisions for examination of witnesses on oath and for the production of documents. By sect. 10, the examination so taken could not be used " without the consent of the party against whom the same may be offered, unless it shall appear, to the satisfaction of the judge, that the examinant or deponent is beyond the jurisdiction of the court, or dead, or unable, from permanent sickness or other permanent infirmity, to attend the trial." Except in the case of lost commissions of ancient date, the commission must have been proved at the trial, in order to make the examination evidence. Bayley v. Wylie, 6 Esp. 85; Rowe v. Brenton, 8 B. & C. 765. And on the same principle it seems that where the examination is taken by order, the order should be produced, though the certified examinations themselves require no proof, being made evidence by the 8 & 9 V. c. 113, s. 1, ante, p. 100, and may he proved by office copies under 0. xxxvii. r. 4, ante, p. 185. The inability of the witness to attend must have been proved by a witness who knew it otherwise than by hearsay. Robinson v. Markis, 2 M. & Rob. 375. The court would not interfere with the discretion of the judge exercised under this section, unless he had been misled by false evidence. Beaufort, Bk. of v. Crawshay, L. R., 1 C. P. 699. It appears that the affidavit of the witness's ordinary medical attendance was suffi- cient evidence. Id. Under 0. xxxvii. r. li->, ante, p. 1HH, the sickness or infirmity of the examinant need not be fcrmanent. Where the witness had actually sailed, the depositions were allowed to be read, though the vessel was, at the time of trial, driven back into prnt by contrary winds. Fonsich v. Agar, 6 Esp. 92. ft was held not sufficient that the witness was a seafaring man, and that In; lately belonged to a vessel lying at a certain place, without proving some effort had been recently made to procure his attendance. Falconer v. Hanson, 1 Camp. 172. Where depositions on interrogatories are rend on the part of the plaintiff, the whole, including the answers to the cross-interrogatories, must be read as part of his case. Temperley v. Scott, 5 C. & I'. 311. The answers 188 Proof by Affidavits or Depositions. to illegal questions put under the authority of a commission, might be objected to, and struck out at N. 1'. ; but not by the party who put the question. Hutchinson v. Bernard, 2 M. & Rob. 1. The deposition might l>e read, though it appeared on the i'ace of it that the deponent referred to papers not shown 1" the commissioners. Steinkeller v. Newton, Id. 372. So, where copies of documents and oral evidence relating to their contents wen! received by the commissioners without objection from the other party who joined in the commission, it was held that the latter could not, at the trial, object to the non-production of the originals. Robinson v. Davies, 5 Q. B. D. 20. Where the commission was issued irregularly, or the execution was against good faith, yet it seems the judge must have received the depositions at N. P., if there was due notice of execution to the other side; though the court might, under such circumstances, set aside the verdict and grant a new commission. Steinkeller v. Newton, as reported (variously) in 1 Scott, N. R. 148; 8 Dowl. 579; and 9 C. & P. 313. See White v. Hallett, 28 L. J., Ex. 208, where it seems to have been doubted whether notice of the execution was necessary, if there were notice of the commission. Where the commission directed the depositions to be returned, certified copies returned were inadmissible. Clay v. Stephenson, 7 Ad. & E. 185. The depositions could not be read if the order, on which the com- mission issued, did not pursue the statute ; thus, if it omitted to name a place of examination, though one be inserted in the commission. Greville v. Stulz, 11 Q. B. 997. But if the order were not produced, it was presumed that it was iu conformity with the commission. S. C. And the omission made the commission irregular only, and not void, and might therefore be waived by the conduct of parties ; as by acting under it, or using the documents obtained under it and returned with it. Hawkins v. Baldwin, 16 Q. B. 375 ; 20 L. J., Q. B. 198. Where the order contained a clause as to the signature of the depositions which was omitted in the commission, and the depositions were not signed in this particular way, it was held that the clause was merely directory, and as the commission had been executed in conformity with the statute, "as to the time, place, and manner of examination," the depositions were receivable in evidence ; Hodges v. Cobb, L. R., 2 Q. B. 652 : and it appears that a mere irregularity in the execution of the commission could only be taken advantage of by an application to set aside the depositions, and if this had not been done they were admissible in evidence. S. C. ; Grill v. General Screw Collier Co., L. R., 1 C. P. 600. The commission was sufficient though the order did not name the com- missioners. Nicol v. Alison, 11 Q. B. 1006. If the order and commission required witnesses to be examined apart, this was presumed to have been done, unless the contrary appeared by the depositions returned. Simms v. Henderson, Id. 1015. Where the return was ordered to be made to the master's office, and a clerk of the office produced a commission, return, and examinations, delivered at the office by an. unknown party, and it was proved that it was the same commission that issued, and the signatures of the commissioners to the return were identified, that was held enough to make the examinations admissible without proof that they were the identical examinations sent forth by the commissioners. S. C. Where the deponent refers in his deposition to a former deposition of his, thus: — "I hand you a legalized copy of a deposition D. which I made at the English consulate, and which I now confirm," and the paper D. was annexed and purported to have been produ ced to the witness, yet the paper D. was held inadmissible. Alcock v. R. Exchange Assurance Co., 14 Q. B. 292. As to the jurisdiction of a court in India to examine witnesses, to which court had been transferred the jurisdiction of the court to which the commission was directed, see Wilson v. Wilson, 9 P. D. 8, C. A. Effect of Documentary Evidence. 189 As to evidence of particular facts specified in an order made under Eules (Aug. 1894), 0. xxx. r. 7, vide ante, p. 154. As to the use in evidence of depositions taken by a British Consul abroad, vide 2>ost, p. 202. As to proof under the Bankers' Books Evidence Act, 1879, ss. 4, 5, by affidavit that a book is a banker's book and verification of a copy thereof, vide ante, p. 123. EFFECT OF DOCUMENTARY EVIDENCE. We have already seen in what manner various written instruments of a public or private nature are to be proved. Ante, pp. 96 et seq. Under the present head will be collected some of the principal cases relating to the effect and authority of such instruments when duly proved, and the circumstances under which they are admissible evidence of the facts which they purport to show. Where a document, inadmissible as evidence, has been in part read at the instance of counsel, he cannot afterwards object to the admissibility of the whole of it. Laybourn v. Crisp, 4 M. & W. 320. Effect of Acts of Parliament. The preamble of a public general Act of Parliament, reciting the existence of certain outrages, is evidence to prove that fact; because in judgment of law, every subject is privy to the making of it. P. v. Sutton, 4 M. & S. 532. But it seems that allegations of fact in a public statute are not conclusive ; therefore, a place named as a borough or corporation in the Municipal Reform Act, may be proved not to be one. R. v. Greene, 6 Ad. & E. 548. Indeed, recitals in a private Act are not conclusive either of fact or law. P. v. Haughton, 1 E. & B. 501 ; 22 L. J., M. C. 89 ; Merttens v. Hill, (1901) 1 Ch. 842, 852. And a private statute, though it contain a clause recpiiring it to be judicially noticed as a public one, is not evidence at all against strangers, either of notice or of any of the facts recited. Ballard v. Way, 1 M. & W. 520; Brett v. Beales, M. & M. 421 ; Taylor v. Parry, 1 M. & Gr. 604. But it may be evidence of reputation respecting a franchise as between lords and tenants of a manor. Carnarvon, El. of v. Villebois, 13 M. & W. 313. In Beaufort, Die. of v. Smith, 4 Exch. 450, a general saving in certain Acts of the plaintiffs rights, including a right of toll on all coal exported within his manor, was considered to bo inadmissible evidence of such claim in favour of the plaintiff. It is observable that in both the last cases, the rights saved were of a public nature; the Acts were local and personal, public Acts; and the savings were in the usual form in such Acts. In Carnarvon, El. of v. Villebois, supra, the Act was an inclosure Act, to which the lords and copyholders were, as it were, parties, and the claim was a free- warren over copyholds. In Beaufort, Die. of v. Smith, supra, the Acts were harbour and canal Acts. As to the effect of the marginal notes, and title, vide ante, pp. 104, 105. Effect of Proclamations, Gazette, State Papers, Sec. The King's proclamation, being an act of state of which all ought to take notice (jjer Treby, C.J., Wells v. Williams, 1 Ld. Hay in. 283), is evidence to prove a fact of a public nature recited in it, viz., that certain 190 Effect of Documentary Evidence. outrages had been committed in different parts of certain counties. R. v. Sutton, 1 M. & S. 532. The Gazette is evidence of all acts of state published therein; as where it slates that certain addresae* have been presented to the King, it is evidence to prove that fact. B. v. Holt, 5 T. R. 436. So proclamations may be proved by production of the Gazette. Ibid. 443; A.-O. v. Theakstone, 8 Price, 89; and see the Documentary Evidence Act, 1868, ante, p. 105. But the Gazette is not evidence (unless made so by statute) of matters therein contained which have no reference to acts of state, as a grant by the King to a subject of a tract of laud or of a presentation ; R. v. Holt, 5 T. R. 443 ; or of the appointment of an officer to a commission in the army ; Kirwan v. Oockbum, 5 Esp. 233; R. v. Gardner, 2 Camp. 513. The statutory effect of the Gazette 1ms been much extended by the Documentary Evidence Act, L868 (31 & 32 V. c. 37), and subsequent statutes: vide ante, pp. L05 et seq. A paper from the Secretary of State's office, transmitted by the British ambassador at a foreign court, and purporting to be a declaration of war by the government of that country against another foreign state, is evidence of the precise period of the commencement of that war. Thelluson v. Costing, 4 Esp. 266. The existence of a war between this country and another requires no proof. Fost. Cr. L. 219 ; R. v. De Berenger, 3 M. & S. 67. The articles of war, printed by the King's printer, are evidence of such articles ; It. v. Withers, cited 5 T. R. 416; of which, it stems, the court will take judicial notice. Per Abbott, C.J., Bradley v. Arthur, 4 B. & C. 304; vide ante, p. 83. By the Bankruptcy Act, 1883, s. 132, the Gazette is evidence, in some cases conclusive, of certain proceedings in bankruptcy stated therein. A certificate from the Foreign or Colonial Office, as the case may be, is conclusive as to the status of an independent foreign sovereign. Mighell v. Sid fan of Johore, (1894) 1 Q. B. 149, C. A. See also Foster v. Globe Venture Syndicate, cited, ante, p. 79. Effe<:t of Parliamentary Journals. The Journal of the House of Lords, containing an address of the Lords to the King, and tbe King's answer, in which certain differences were stated to exist between the Kings of England and Spain, was admitted to prove the fact of such differences. R. v. Francklin, 17 How. St. Tr. 627 ; R. v. Holt, 5 T. R. 445. But the resolutions of either Houses of Parliament are not evidence of extrinsic facts therein stated ; thus the resolution of the House of Commons, stating the existence of the Popish Plot, was held to be no evidence of that fact. 0« AnswerJ] An answer in Chancery is good evidence against the defendant as an admission on oath, and must all be taken together. Therefore, if upon exceptions taken a second answer has been put in, that also must be read. B. N. P. 237. But it has been said that where one party reads pari of the answer of the other party in evidence, he makes the whole admissible only so far as to waive any objection to the competency of the testimony of the party making the andwer, and he does not thereby admit, as evidence, facts which may happen to be stated in it by way of hearsay only. (Mter per Chambrc, J., Roe d. Pcllalt v. Ferrars, 2 B. & 1*. 518 ; but see note, Id. ; and ante, p. 78. The answer of a guardian is no evidence against an infant. B. N. 1'. 237. As to the answer of a trustee as against a cestui que trust, and con- versely, see ante, pp. 66-7. But an answer will he evidence against privies; thus, an answer in a suit tor tithes instituted by a \ icar against the owners of lauds in the p:uish, in which answer the defendants declared the tithes to belong to the rector, will be evidence in an action for tithes by a succeeding rector against owners of the same lands. Dartmouth, Ly. v. Robei Is, Hi East, 334. An answer by one who has sold an advowson, filed -00 Effect of Documentary Evidence. after the conveyance, is nut admissible against a party claiming under the grant. Gully v. I\.nh r, Bp. of, 5 Biug. 17J. See cases, ante, p. 59. The answer of one defendant is nut evidence against a co-defendant ; Wych v. Jim/, :\ 1\ Wins. .".11 ; but after evidence has been given to connect two persons as partners, the answer of one will be evidence against the other. Grant v. Jackson, Peake, 203. In Booth v. Qain, 7 Price, 193, 198, the Court held the answer to be inadmissible on the grounds of the practice in equity. See 53 & 54 V. c. 39, s. 15, and further tit. Admissions, ante, p. 70. Decree or decretal order J] A decree in equity may be given in evidence between the same parties or any claiming under them. B. N. P. 243. It is evidence, but not conclusive, against the defendant of every fact stated, whether by way of assertion or denial. Percival v. Caney, 4 De G. & S. 610. Where the parties to an action respectively sue and defend on behalf of themselves and a multitude of others in the same interest on each side, a decision in the action binds them all as to the general right claimed in the action, e.g., a right of common. Servers, Commissioners of v. Gellatly, 3 Ch. D. 610. A decree is even evidence as against parties not privy to it for tome purposes ; thus, on a trial touching the title to 'land, decrees between former litigants were admitted for the defendant to show how, and in what character, he came into possession under them, although the plaintiff did not claim under any party to the suits. Davies v. Lovmdes, 1 N. C. 606; S. C. on error, 6 M. & Gr. 471. So it is evidence where hearsay is inadmissible : thus, a decree in favour of a public officer, founded on an issue, is evidence of the right to exercise the office; and by such evidence the deputy oyster-meters of London established their exclusive rights within the port of London. Laybourn v. Crisp, 4 M. & W. 320. And a decree for payment of tithe in kind in a suit by the incumbent against the occupiers of land who set up a district modus, is evidence, but not con- clusive evidence, for him in an issue (under 6 & 7 W. 4 c. 71) between him and the landowners to try a manorial modus. Croughton v. Blake, 12 M. & AV. 205. In a suit for tithe by ecclesiastical impropriators, in which the defendant set up a district modus, the answer of the predecessors of the plaintiff in a suit to establish a farm modus, in which answer the defendants set up a district modus, was held evidence against them, although the suit was inter alios. Wlieipdale v. Milburn, 5 Price, 485. A decree against the lord of a manor establishing customs, is evidence agaiost a succeeding lord. Price v. Woodhouse, 3 Exch. 616. Where a decree in a possessory suit brought by C. was inconsistent with a public right of fishing, the proceedings were, in an action brought by C.'s successor in title, against strangers, held to be evidence to negative such right. Neill v. Duke of Devonshire, 8 Ap. Ca. 135, D. P. But an interlocutory order, made to quit possession pendente lite, is not evidence of reputation. Pirn v. Curell, 6 M. & W. 'J.'!4. The decree of an unauthorized court of equity is inadmis- sible either as an award (for want of submission) or as reputation. Bogers v. Wood, 2 B. & Ad. 245. See ante, p. 50. An order for an attach- ment for non-payment of the costs in a suit in equity is in itself prima facie evidence that a suit has been pending there. Blower v. Hollis, 1 Or. & M. 393. As to the effect of issues out of Chancery, see Bdbinson v. Dhuleep Singh, 11 Ch. D. 7!)8, C. A. As to the effect of a vesting order, vide ante, p. 199. The jurisdiction of the Court of Chancery was transferred by the J. Act, 1873, s. 16, to the High Court of Justice. Depositions and Examinations in other Suits. 201 Effect of Depositions and Examinations in other Suits. Though evidence must generally be given viva voce on oath and in the very cause in which the witnesses are sworn, yet the testimony of witnesses so taken in another cause between the same parties, upon the same issue, is admitted where their personal attendance cannot be procured. Thus, where a witness was examined in a former action on the same point between the same parties, his testimony may be proved, if he be since dead; B. N. P. 242; or if he appear to be kept away by contrivance. Green v. Gatewick, B. N. P. 243. It seems to be enough if the parties to the two actions be substantially though not nominally the same; as where the lessor of the plaintiff in the second was joined with other lessors in the first action. Wriyht v. Doe d. Tatham, 1 Ad. & E. 18,19; A.-G. v. Davison, M'Cl. & Y. GO, Ex. Ch. So it the parties and the title in issue be the same, the evidence is admissible, though the land sought to be recovered is different. Doe d. Foster v. Derby, EL of, 1 Ad. & E. 791, n. But where the parties are neither the same, nor in privity with each other, such testimony is not admissible, though the title and one of the parties may be the same. S. C. Id. 783 ; Morgan v. Nicholl, L. Pi., 2 C. P. 117. And this rule is not altered by 0. xxxvii., r. 3, ante, p. 185, which only substitutes a notice for an order to read such depositions as ate admissible in evidence. Printing Telegraph, &c, Co. v. Drucker, (1894) 2 Q. B. 801, C. A. The ad- missibility of this evidence seems to turn rather on the right to cross-examine than upon the precise identity, either of the parties or the points in issue in the two proceedings. See 1 Taylor, Evid., 10th ed. § 467, and cases there cited. Of. Allen v. Allen, (1894) P. 248, C. A., ante, p. 178. As to the proof of the former testimony, vide ante, p. 116. So, depositions in Chancery may be given in evidence in an action at law on the same matter between the same parties or their privies, where the witness is dead or cannot be found. B. N. P. 239; Hanover, Ly. v. Homfray, 19 Ch. D. 224, C. A. But tbey are not evidence of the facts contained in them against a person who does not claim under a party in the suit. B. N. P. 239. Where depositions were taken under a commission issued on a bill to perpetuate filed against the Att.-Gen. on a petition of right, they were admitted as evidence against the Crown on the trial of a traverse of the inquisition taken on such petition. De Bode's case, 8 Q. B. 208. In some cases such depositions are evidence even inter alios. Thus, depositions relating to a question upon which hearsay would be good evidence, may be read against a person who was no party to the former suit. B. N. P. 239, ante, pp. 47, 51. So a deposition, taken in a cause between other parties, will be admitted to be read, to contradict what the same witness swears at a trial; B. N. P. 'J40 ; and it will, of course, be evidence in any cause against the deponent himself. The deposition oi a witness, taken to perpetuate memory, was not admissible merely because he had since become interested ; for it is taken only to prevent the loss of his testimony by death. Tillcy's case, 1 Salk. 286. See further as to depositions taken on bills to perpetuate testimony and examinations, de bene esse, ante, p. 114; and Evans v. Merthyr Tydfil Council, post, p. 202. In Johnson v. Ward, <> Esp. 47, where the defendant moved to put off the trial upon an affidavit made by 1)., wherein D. swore that he had subscribed a policy for and on account of the defendant, this affidavit was received as evidence of the agency of 1). In Brickell v. Jlnlse, 7 A'l. & E. 454, an action of trover against the sheriff, the affidavit of one W., used by the sheriff in order to obtain an interpleader rule, in which W. swore that he was the officer of the sheriff, was received. In Gardner v. Moult, 202 Effect "l /''"'""" ■iitti.ru Evidence. 10 Ad. & E. liJI, an action l»y the assignees of a bankrupt, the plaintiffs, in order to prove the act of bankruptcy, were allowed to put in evidence a deposition made by one 11., whom the defendant had sent to prove the act of bankruptcy at the opening of the fiat. In Pritchard v. Bagshaw, 11 C. B. 159; 20 I*. J., C. P. 161, an action of trover was brought against a company, who had previously riled a bill for specific performance of a con- tract of sale, and upon the suit being referred to the master the company had made use before him of the affidavit of one I)., iu which he stated that he was the manager of the company at certain works: the affidavit was received in the action as an admission of the agency of D. So depositions used by the vendee of an estate in a suit iu Chancery commenced against him for the purpose of setting aside the sale, aud containing statements as to the extent of the land, were received iu a subsequent action as admissions of the extent of the estate in question. Richards v. Morgan, 4 B. & S. ti41 ; 33 L. J., Q. B. 114. So in Fleet v. Perrins, L. R., 3 Q. B. 536, the answers to interrogatories made in a former action by one of the parties was held to be admissible as evidence agaiost him. A deposi- tion in an action by A. to perpetuate testimouy cannot be used as an admission by A. unless it is proved to have been used or adopted by A. Evans v. Merthyr Tydfil Council, (1899) 1 Ch. 241, C. A. In trespass q. c.f. defendant denied the possession of the plaintiff, and put in evidence the examination of A. B., then living, but abroad, who had been called by the plaintiff to prove possession in a previous summary proceeding for malicious trespass by plaintiff against defendant, but who on such examination had denied the plaintiff's possession : it was held that the deposition was admissible. Cole v. Hadley, 11 Ad. & E. 807. This unsatis- factory case is shortly reported, and the grounds of the judgment do not distinctly appear. It has been suggested that the evidence " was received as the deposition of a witness on a prior inquiry between the same parties on the same question"; Boileau v. Rutlin, 2 Exch. 680, per cur.; but, even if this were the reason, a proceeding for conviction of an offence cau hardly be considered as a cause between the same parties as a subsequent action of trespass; vide piost, p. 207. See further R. v. Latchford, 6 Q. B. 567, and the judgment in Boileau v. Rutlin, supra. Where the plaintiff in an action for goods sold had used an affidavit in another proceeding, erroneously alleging payment of the debt by the defendant to the plaintiff's agent, it was held that he was not estopped from suing the defendant, if the debt were not really paid. Morgan v. Couchman, 14 C. B. 100; 23 L. J., C. P. 36. Even a voluntary deposition may be evidence as an admission of the party making it, on mere proof of signature. B. N. P. 238. With regard to depositions taken under the Bankruptcy Act, 1883 I 16 A: 47 V. c. 52), see sect. 136. The answers of a bankrupt A. on his public examinations are not admissible in evidence against other parties in proceedings against them by A.'s trustee. In re Brunner, 19 Q. B. D. 573. Depositions previously made before any justice or magistrate in H.M.'s dominions out of the U. K., or before any British Consular officer abroad, in relation to the same subject-matter, are admissible in evidence, on proof that the witness cannot be found in the U. K. 57 & 58 V. c. 60, s. 691. Effirt of Sentences in the Ecclesiastical and Divorce Courts. While the Ecclesiastical Courts had the exclusive right of deciding directly upon the legality of marriage, the temporal courts received their sentences upon such questions as conclusive evidence of the fact {Bunting v. Sentences in Ecclesiastical and Divorce Courts. — Probate, &c. 203 Lepingwell, 4 Rep. 29 a), upon the principle that the judgment of a court, of exclusive jurisdiction, directly upon the point, is conclusive upon the same matter coming incidentally in question in another court for a different purpose, unless impeached for fraud. Kingston's (Ds. of) case, 20 How. St. Tr. 538, 540. See the cases cited arguendo, in Stockdale v. Hansard, 9 Ad. & E. 62. The jurisdiction of the Ecclesiastical Courts in these matters was transferred to the Court for Matrimonial Causes, and has been again trans- ferred by the J. Act, 1873, s. 16, to the High Court of Justice, and assigned by sect. 31 to the Probate, Divorce, and Admiralty Division. The verdict of a jury in a divorce suit is not evidence inter alios, where there has been no decree. Needham v. Bremner, L. R., 1 C. P. 583. But where the jury have found the petitioner guilty of adultery, and ou that ground his petition was dismissed, the verdict is conclusive evidence against him in a subsequent divorce suit, brought by him against a different co-respondent. Conradi v. Conradi, L. R., 1 P. & M. 511. So where the respondent husband was found guilty of adultery and cruelty, and a decree nisi made against him, the proceedings were held to be conclusive evidence against him on a petition brought by him against his wife, although the decree nisi had been set aside on the intervention of the Queen's Proctor on grounds not affecting the propriety of the findings. Butler v. Butler, (1893) P. 185 ; (1894), P. 25, C. A. A sentence in a suit of jactitation of marriage is evidence iu an action at common law to disprove the marriage. Jones v. Boiu, Carth. 225. In the last-mentioned case such sentence was held to be conclusive evidence ; but on this point the authority of the decision has been overruled ; for a sentence in a suit of jactitation has only a negatitive effect, viz., it shows that the party has failed in his proof, leaving it open to new proofs of the same marriage in the same cause, and it does not conclude even the court which pronounces it. King- ston's (Ds. of) case, 20 How. St. Tr. 543. See Blackham's case, 1 Salk. 290, and Hargr. Law Tr. 451. A sentence of nullity of marriage may be impeached by proving that it was procured by fraud and collusion. Harrison v. Southampton Cor., 4 D. M. & G. 137 ; 22 L. J., Ch. 722. A personal answer in a suit for tithes by a 'former rector is admissible against his successor in support of a modus. Taylor v. Cook, 8 Price, 668. As to the effect of the sentence of consecration of ground, sec 11. v. Tiuiss, L. R., 4 Q. B. 407, 412 ; Campbell v. Liverpool Cor., L. R., 9 Ecp 579 ; and In re Bideford, (1900) P. 314. Effect of Probate and Letters of Administration. The Ecclesiastical Courts had formerly the exclusive right of deciding directly on the validity of wills oi personalty, and on the granting of administration. Noell v. Wells, 1 Lev. 235. This jusisdiction was trans- ferred to the Court of Probate, and has, by the J. Act, 1873, s. 16, been again transferred to the High Court of .Justice, and is by sect. 34 assigned to tiie Probate, Divorce, and Admiralty Division. See Finney v. Hunt, li Ch. D. 98. A probate, therefore, granted by a competent court, is conclusive of the validity and contents of such a will and the appointment of executors till it is revoked, and no evidence can be admitted to impeach it, except in proceedings in the Probate Division for its revocation. Allen v. />uih/. 27, C. A. See Pinney v. Hunt, supra. Un this ground the payment of money to an executor, who has obtained a probate of a forged will, is a discharge to the debtor of the intestate, though the probate be afterwards declared null. Allen v. Ihmdas, supra. See Hargr. Law. Tracts, 459. As to impeaching administration by proof that the value required a higher stamp, see Slumps — Probate,post, p. 270. Letters of administration are not evidence of any fact which is matter of 204 Effect of Documentary Evidence. inference and not of adjudication, as the intestate's death, for the grant assumes the fact of death. Thompson v. Donaldson, 3 Esp. 63; accord. Hoons v. De Bernales, 1 Russ. 301, 306. Though it could not be shown in a court of common law that the Ecclesiastical Court had erred in granting probate, yet evidence might be given to show that the court had no jurisdiction; us that the testator was alive. Allen v. Dundas, 3 T. K. 130. So the letters of administration might be proved to have been revoked. B. N. F. 247. And the books of the Prerogative Office are evidence of the revocation. It. v. Bamsbottom, 1 Leach, C. C. 25, n. So, it may be shown that the seal of the ordinary has been forged ; but it cannot be shown that the will was forged, or that the testator was non compos mentis, <>r that another person was appointed executor ; B. N. P. 247; Noell v. Wells, 2 Lev. 236; for those questions are settled by the judgment of the court. As to the effect of a judgment granting probate, see Concha v. Concha, 1 1 Ap. Ca. 541, D. P. A probate, we have seen, is not, except under special circumstances, • \ idence of a will of real property where the testator died before Jan. 1st, 1S9S, ante, pp. 144, 150 et seq. ; nor is it generally evidence that an instru- ment is a will so as to pass copyhold or customary estates ; Hume v. Rundell, Madd. & Geld. 331 ; or to operate as an execution of a power to charge land. S. C. We have seen, ante, p. 46, that it is not primary evidence in cases of pedigree to prove relationship. As to the effect of probate in the case of a will of land, under the provisions of 20 & 21 V. c. 77, vide ante, pp. 150 et seq. ; and under the Land Transfer Act, 1897, in the case of a person dying after Dec. 31st, 1897, vide ante, p. 145, and post, pp. 1060-1. The other provisions of 20 & 21 V. c. 77, relating to the effect of probate generally, will be found post, pp. 1147-8, sub tit. Actions by executors. Effect of Sentences in Admiralty Courts. Upon questions of prize the Court of Admiralty has exclusive jurisdiction ; therefore a sentence of condemnation in that court is conclusive, and being a proceeding in rem, it binds all the world. Kindersley v. Chase, Park, Ins. 8th ed. 743. The jurisdiction of the Court of Admiralty has been transferred by the J. Act, 1873, s. 16, to the High Court of Justice, and is assigned by sect. 34 to the Probate, Divorce, and Admiralty Division. And the sentence of a foreign Court of Admiralty is also, by the comity of nations, held to be conclusive upon the same question arising in this country. Hughes v. Cornelius, 2 Show. 232 ; Bolton v. Gladstone, 5 East, 155. But the sentence of a Court of Admiralty, sitting in contraveutiou of the law of nations, will not be recognized in our courts. Havelock v. Rockwood, 8 T. R. 268. If the property be condemned on the ground of its not being neutral, the sentence is conclusive evidence of that fact. Barzillay v. Lewis, Park, Ins. 8th ed. 725. So, where no special ground is stated, but the ship is condemned generally as good and lawful prize, it is to be presumed that the sentence proceeded ou the ground of property belonging to an enemy, and the sentence will be conclusive evidence of that fact. Saloucci v. Woodmas, Park, Ins. 8th ed., 727 ; S. C, 3 Doug. 345. But where there is some ambiguity in the .sentence of a foreign Court of Admiralty, so that the precise ground of the determination cannot be collected, the courts here may examine the ground on which it proceeded. Bemadi v. Motteux, 2 Doug. 574 ; Lothian v. Hi uderson, 3 B. & P. 499. And if the condemnation do not plainly proceed upon the ground of enemies' property, or of non-compliance with subsisting treaties, but on the ground of regulations arbitrarily imposed by the captor, to which neither the government of the captured ship nor the other powers Judgments of Admiralty Courts — of Inferior Courts. 205 of Europe have been made parties, such a condemnation will not he admitted as conclusive of a breach of neutrality. Pollard v. Bell, 8 T. E. 444, and cases collected in Park, Ins. 8th ed. 730 et seq. In order to conclude the parties from contesting the ground of condemnation, such ground must appear clearly upon the face of the sentence ; it must not be collected by inference only, or left in uncertainty whether the ship was condemned upon one ground which would be a just one by the laws of nations, or upon another ground which would amount only to a breach of the muncipal regulations of the condemning country. Per Tindal, C.J., Dalgleish v. Hodgson, 7 Bing. 504 ; Hobbs v. Henning, 18 C. B., N. S. 791 ; 34 L. J., C. P. 117. A salvage award against a ship does not conclude the insurers thereon from setting up the defence that the loss was not occasioned by sea perils. Ballantyne v. Mackinnon, (189G) 2 Q. B. 455, C. A. Proceedings in rem in the Admiralty Court, in a collision cause, followed by an order for the sale of the ship and payment of the amount to the plaintiffs, are no bar to an action of damages against the owners personally, if the proceeds of the sale are less than the damage sustained by the collision. Nelson v. Couch, 15 C. B., N. S. 99 ; 33 L. J., C. P. 46 ; and see The Sylph, L. R., 2 Adm. 24. Effect of Judgments of Inferior Courts. It would seem, upon principle, that the final judgment of a competent inferior court, whether of record or not, acting within its jurisdiction, will be conclusive between the same parties upon the same subject-matter where properly relied on. Moses v. Macferlan, 2 Burr. 1009 ; Galbraith v. Neville, 1 Doug. 6, n.; Routledge v. Eislop, 2 E. & E. 549; 29 L. J., M. C. 90; Gibbs v. Gruikshank, L. R., 8 C. P. 454 ; Flitters v. Allfrey, infra. And see the observations in 1 Stark. Ev., 4th ed., 346 et seq. So it has been held that a certificate from commissioners under an Act for settling the debts of the Army, stating the sum due from the defendant to the plaintiff, is conclusive in an action brought to recover the money. Moody v. Thurston, Stra. 481 ; see A.-G. v. Davison, M'CI. & Y. 160. The judgment in a County Court action is conclusive as to any facts decided thereby; the judgment will appear by the record, but from the form of proceedings it is necessary to explain by parol what points were raised in the County Court and decided by the judgment. Flitters v. Allfrey, L. R., 10 C. P. 29. But where title incidentally comes in question, and the parties consent in writing to the judge deciding the claim, the judgment shall not be evidence of title in any other action. County Courts Act, 1888, 51 & 52 V. c. 43, s. 61. An action will not lie on a County Court judgment, Berkeley v. Elderkin, 1 E. & B. 805; 22 L. J., Q. B. 281. See R. v. County Court Judge of Essex, 18 Q. B. D. 704, C. A. A County Court order under Id. sect. 138, for giving up possession of premises made against a person holding under the tenant and complied with by him, is not conclusive evidence of title in a subsequent action against such person for mesne profits. Campbell v. Loader, 3 H. & C. 520; 34 L. J., Ex. 50. And such order would seem not to be conclusive against him, even as to the right to possession ; Bodson v. Walker, L. R., 7 Ex. 55 ; in which case it was held (diss. Martin, B.), that the order did not affect the rights of a person not a party to the proceedings. A judgment in an action of ejectment under Id. sect. 59, would however be conclusive. See Flitters v. Allfrey, supra. In order to be a bar, the proceedings in a court of limited jurisdiction must show on the face of them, expressly or by necessary intendment, that the court had jurisdiction in the matter. Taylor v. Clemson, 2 Q. B. 978, 206 Effect "I Documentary Evidence. L031 ; 11 CI. & V. 610; Cox v. Lo«rfon, Mayor of\\>. R., 2 H. L. 239. So also the judgment of an inferior court of local jurisdiction may be avoided by proof that the cause of action * 1 1*1 not arise within its jurisdiction ; Herbert v. Cook, 3 Doug. 101 ; S. 0. Willes, 36, n ; Briscoe v. Stephens, 2 Bing. 213 ; or that defendant, the debtor against whom the inferior court awarded process, did not reside within the district; Carratt v. Morley, 1 Q. B. 18 ; it not appearing that any proof of residence had been, in fact, given to the court below. See also Huxham v. Smith, 2 Camp. 19. The above cases related to district courts having no statutable or other power, except over causes arising within the territorial limits. Where the court is limited only as to certain persons or causes, and not as to locality; or where the juris- diction of the court, though established for a limited district, can lawfully exercise powers out of it; or where the practice of the inferior court requires, and is warranted by law in requiring, that the defect of jurisdiction should be pointed out by plea or otherwise, and the defendant has waived the objection ; — in such cases it would seem that the inquiry will be, not simply where the cause of action arose, or where the parties reside, but whether the court had jurisdiction. See Moore v. Gamgee, 25 Q. B. D. 2-14. As to the jurisdiction of the Mayor's Court, London, see Cox v. London, Mayor of, 'supra ; L. Joint Stock Bank v. Id., 1 C. P. D. 1 ; 5 C. P. D. 494, C. A. ; 6 A p. Ca. 393, D. P. ; and Cooke v. Gill, L. P., 8 C. P. 107. It has heen held that a judgment of the old County Court is examinable, and the existence of the facts necessary to the regularity of such judgment is a question for the jury, although a motion made in the County Court to set aside the proceedings for irregularity had been dismissed. Thompson v. Blackhurst, 1 N. & M. 266. But in such case there must be a proper defence to let in the inquiry. Williams v. Jones, 13 M. & W. 628. Where trespass was brought for executing a warrant to levy a poor-rate, the plaintiff was not permitted to impugn the appointment of the overseers on the ground of irregularity or miscalculation of votes at the meeting of justices at which the appointment was made; the jury having expressly negatived fraud. Penney v. S/ade, 5 N. C. 319. Where a cause was removed by habeas from an inferior court after a judgment by default, that judgment was not evidence against the defendant in the superior court. Boltings v. Firby, 9 B. & C. 762. Where an affiliation order obtained by A. has been quashed by Quarter Sessions on the ground that C was not the father of A.'s child, there is no estoppel to an action by A.'s master against C. for seduction, it being res inter alios acta. Anderson v. Collinson, (1901) 2 K. B. 107. Effect of Convictions. It is a general rule that the judgments of all courts of competent judicature are conclusive for the purpose of protecting their judicial officers acting within the scope of their authority. Thus, where the justices of the peace have an authority given to them by Act of Parliament, and they appear to have acted within the jurisdiction so given, and to have done all that they are required by the Act to do in order to originate their jurisdiction, a conviction drawn up in due form, and remaining in force, is a protection in any action brought against them for the act so done. Per Abbott, C.J., Basten v. Carew, 3 B. & C. 653. Therefore where, in trespass against two magistrates for giving the plaintiff's landlord possession of a farm as deserted, the defendants produced in evidence a record of their proceedings under the statute 11 G. 2, c. 19, s. 16, which set forth all the circumstances necessary to give them jurisdiction, and by which it appeared that they had pursued the directions of the statute, it was held that this record was not traversable. Convictions.— Effect of Sentences of Visitors, dc. 207 and was a conclusive answer to the action. S. C. So, in trespass against magistrates for taking and detaining a vessel, a conviction by them under the Bum-boat Act (2 G. 3, c. 28), was conclusive evidence that the vessel in question was a " boat " within the meaning of the Act. Brittain v. Kinnaird, 1 B. & B. 432. See further Kemp v. Neville, 10 C. B., N. S. 523 ; 31 L. J., C. P. 158, post, p. 919, and cases cited, sub tit., Actions against justices, post, pp. 1137 et seq. The recital of an information on oath in a warrant of commitment in the nature of a conviction (as for refusal to give sureties of the peace) is evidence for the justice of such information; llayloch v. Sparke, 1 E. & B. 471; though it was held otherwise in the case of a warrant to apprehend on a charge. Stevens v. Clark, 2 M. & Rob. 435. See R. v. Richards, 5 Q. B. 926. la like manner a conviction for a contempt by commissioners of a court of requests is conclusive for them in an action of trespass against them ; and the plaintiff cannot controvert the fact of contempt, though unnecessarily alleged in the plea. Ahlridge v. Haines, 2 B. & Ad. 395. But a want of jurisdiction in the commissioners may be shown. Andrews v. Marris, 1 Q. B. 3. An affiliation order obtained by E. W. may be used to contradict E. W., who, when called to prove her marriage and the legitimacy of the plaintiff her son, denied, on cross-examination, that she had ever applied to the magistrates for an affiliation order. Watson v. Little, 5 H. & N. 472 ; 29 L. J., Ex. 267. Notwithstanding some authorities to the contrary (B. N. P. 245 ; Gilb. Ev. 6th ed., 26), it is now settled that a record of a conviction is inadmissible as evidence of the same fact coming into controversy in a civil suit. Qibson v. M'Carty, Cas. temp. Hardw. 311 ; March v. March, 28 L. J., P. & M. 30; Castrique v. Imrie, L. R., 4 H. L. 434, per Blackburn, J. In many of the earlier cases the conviction was held inadmissible by reason of the evidence on which it was procured. See Blahernore v. Glamorgan Canal Co., 2 C. M. & R. 139; Brook v. Carpenter, 3 Bing. 297; Smith v. Runt mens, 1 Camp. 9, 151. But the conviction was also inadmissible, on the ground that it was res inter alios acta, and this objection is still in force. See Qibson v. M'Carty, supra ; and Peake, Ev. 41 et seq. Yet, a plea of guilty on an indictment for assault is evidence by way of admission against the defendant in an acti Svv. & Tr. 96 ; 32 L. J., Pi M. & A. 169 ; L. K. 1 H. L. 301 ; /> in the colony; and, generally, that a foreign judgment was only primdfacie evidence of a debt here. The mere pendency of a suit in a foreign court is no bar to a suit in this country for the same cause. Ostell v. Lepage, 5 De G. & Sm. 95 ; 21 L. J., Ch. 501. A judgment against the defendant in the Consular Court in Constantinople, and payment to the plaintiff under the judgment, is a con- clusive bar to another action in this country by the plaintiff against the defendant tor the same cause of action. Barber v. Lamb, 8 C. B., N. S. 95 ; 29 L. J., C. P. 234. See Taylor v. Hollard, (1902) L K. B. 676. A notarial attestation, purporting to contain the substance, but. not the tenor, of a judgment of the Court of the Inquisition at Rome, stating the offences for which the defendant had been sentenced, and sealed with the seal of that court, is inadmissible as evidence of the offences alleged therein to have been committed. A', v. Newman, Dearsly, (!. C. 85. The document was there admitted as proof that a judgment had been pro- nounced, but not of the grounds of it; and it seems questionable how far it was admissible even for this purpose; for it was a mere certificate of what the notary considered to be the result of a selected portion only of the original proceedings. As to judgments in rem of foreign courts, vide ante, p. 195. R. — VOL. I. P 210 Effect of Documentary Evidence. Effect of Court Rolls and Manor Boohs. Court Rolls, whether of a court baron or customary court, are evidence as well between the lord of the manor and his tenants or copyholders (B. N. P. 247), as against them ; A. 0. v. Jfotham, Turn. & Russ. 217; and for many purposes, as against strangers. Copies of court rolls, purporting to be a surrender by a person shown to have been in possession of the land, and an admittance of the surrenderee accordingly, are evidence against the defendant both of the copyhold tenure and of the title of surrenderee, in an action by him for use and occupation. Standen v. Chrismas, 10 Q. B. 135. They will be admitted as evidence of reputation within the manor; and even an ancient custumal, not properly a court roll, nor signed by any of the tenants, but found among the rolls, and delivered down from steward to steward, purporting to have been made assensu omnium tenentium, has been admitted as evidence to prove the course of descent within a manor. Denn d. Goodwin v. Spray, 1 T. li. 466; Johnstone v. Spencer, EI., 30 Ch. D. 581. So, a presentment by the homage on the court rolls of a manor, stating the mode of descent of lands in the manor, is evidence of such mode, though no instance of any person having taken according to it be proved. Roe d. Beehee v. Parker, 5 T. R. 26. Entries of admissions durante casta, viduitate are evidence of a custom to hold on that condition, though there may be no instance of a forfeiture for incontinence. Doe d. Askew v. Askew, 10 East, 520. Proof of the admission of the youngest among the collaterals of a certain degree of consanguinity is not evidence per se of the custom of descent to the youngest of a more remote degree; thus the entry of an admission of the youngest son of an uncle is no evidence that the custom extends to youngest son of the youngest brother of a great-grandfather. Muqyleton v. Barnett, 1 H. & N. 282 ; 26 L. J., Ex. 47 ; 2 H. & N. 653 ; 27 L. J., Ex. 125, Ex. Ch. An entry of an admission reciting a previous surrender to the use of a will, is evidence of the surrender (the latter being lost) in proof of a settlement by estate. B. v. Thruscross, 1 Ad. & E. 126. In an action by a copyholder against a freeholder of a manor, an ancient parchment writing, preserved among the muniments of a manor, purporting to be signed by certain copyholders of the manor, was held to be evidence, as against the plaintiff, of the reputation of the manor as to a customary right of common set up to him. Chapman v. Cowlan, 13 East, 10. The court rolls are evidence of a custom for the copyholds and freehold tenants of a manor to get stone from a quarry thereon to repair their tenements. Heath v. Deane, (1905) 2 Ch. 86. So of proclamations before seizure of a forfeited copyhold, though tendered on behalf of a party claiming under the lord after seizure. Doe d. Tarrant v. Hellier, 3 T. R. 164. A presentment of a jury at a manor court, setting forth the bounds of the manor, is admissible evidence of the bounds, though mutilated in part, such part not being apparently connected with the subject of boundary. Evans v. Bees, 10 Ad. & E. 151. The existence of a customary compiled within the period of legal memory is conclusive evidence against the existence of a custom not mentioned therein. Portland, Dk. of v. Hill, L. R., 2 Eq. 765. See also Anglesey, Mqs. of v. Hatherton, Ld., 10 M. & W. 218. Entries of amercements on court rolls for acts of waste, offered in proof of the nature of a customary tenure, were said not to be admissible for that purpose without proof of payment. Bowe v. Brenton, 3 M. & Ry. 302. Yet it is not common to find in aucient court rolls anything to indicate such payments. AVhether made voluntarily or upon process, the entry of pay- ment is more likely to appear in the bailiff's accounts, or in the estreat rolls. Public Boohs and Public Documents. 211 Presentments by the leet jury of unlawful fishing in a stream belonging to the lord of the manor are not evidence for the lord of his right to the stream ; for they are made in the exercise of a criminal jurisdiction, aud are res inter alios ; per Erie, J., in Mildmay v. Newton, Winton Sum. Ass. 1846; dubitante Coleridge, J., iu Waddington v. Newton, Winton Sum. Ass. 1850, who was disposed to admit them, on the same presentments being tendered at a subsequent trial on the same question between other parties. See ante, p. 207. In Galmady v. Eowe, 6 C. B. 861, 877, 878, presentments of purprestures were rejected by Patteson, J., because no fine appeared to have been imposed; and it should seem that a bare presentment, without more, is only evidence where reputation within the manor is admissible. Entries of fines assessed in the books of a deceased steward are r.ot evidence of a custom to take sucli fines unless there be some proof of payment. Ely, Dean of v. Caldecott, 7 Biug. 433. Presentments are not evidence of matters not within the jurisdiction of the homage ; as a presentment by the freeholders of a right of common enjoyed by the owner of a certain farm. Pichards v. Bassett, 10 B. & C. 657. Effect of Public Books and Public Documents. Public books and documents of an official character are iu many instances evidence, even as between strangers, of the facts therein recorded. Thus where a duty is cast by common law or statute upon a person to register or certify that certain facts existed ivithin his knowledge, the register or certificate would, it seems, be evidence of those facts ; and in some cases the statute requiring the registration to be made provides that the register shall be evidence although the facts are not within his knowledge, e.g., registers of births and deaths, ante, pp. 126-7. In all other cases, how- ever, the register would be admissible in proof of the fact of registration only. Thus a report made by public officers is admissible only in proof that they have made a report, but not of the facts therein stated. Sttirla v. Freccia, 5 Ap. Ca. 623, D. P. The term "public document" is used in the sense of one made by a public officer, for the purpose of the public using it and being able to refer to it : the public having access thereto are not necessarily all the world, but may be limited, e.g., the tenants of a manor, or the members of a corporation. Id. 643, per Ld. Blackburn. Such pub- licity must be contemporaneous, and such "as would afford the opportunity of correcting anything that was wrong." Mercer v. Denne, (1904) 2 Ch. 534, 544. The official indorsement or certificate, or entry in the officer's book, of the registration of a deed required by statute to be registered, is prima facie evidence of its registration ; Qrindell v. Brendon, 6 C. B., N. S. 698 ; 28 L. J., C. P. 333, and see ante, p. 144; and also where the statute requires the observance of certain formalities at the time of such registration, that those formrdities have been complied with. S. C. See further, ante, p. 43. The registration does not, however, afford evidence that other requisites necessary to the validity of the deed registered have been complied with ; as that a composition deed has been assented to by the requisite majority of creditors. Bramble v. Moss, L. R., 3 0. P. 458. And particular farts supplied by private persons do not necessarily become evidence against third persons merely because they are entered in a public register. Huntley v. Donovan, post, p. 213. See also, as to the effect of the entry of a memorial of a conveyance on a county register, ante, p. 144. The stats. 8 & 9 V. c 113, s. 1 (ante, p. 100), and 14 & 15 V. c. 99, s. 14 (ante, p. 101), will assist in the proof of public documents. p2 212 Effect of Documentary Evidence. The following are some of the cases in which evidence of this kind has been received. Lists of registers which have been treated as authentic will be found in most of the books on evidence, but sufficient care has not been taken to distinguish between proof of a document, and its effect when proved. The register of the Navy Office, with proof of the usage to return all persons dead with the mark Dd., has been admitted to prove the death of a sailor. B. N. P. 249. So, the books of the Sick and Hurt Office, made up from returns of the King's ships, and kept by a public officer under the Admiralty, are evidence of the death of a sailor. Wallace v. Cook, 5 E:ip. 117. As to similar registers in the army, see 42 & 43 V. c. 8, s. 3, ante, p. 129. An Army "Medical History Sheet" was admitted in evidence in Oleen v. Qleen, (1900) W. N. 258, Mich. S., Jeune, P. Books in the First Fruits Office are evidence of collations. Irish Society v. Derry, Bp. of, 12 CI. & F. 641. The book at Lloyd's, stating the capture of a ship, was held evidence of such capture in an action on a policy, and also of notice of the loss, as against a subscriber to Lloyd's in the habit of examining the books there. Abel v. Potts, 3 Esp. 242. It is also evidence against an underwriter of the time of sailing ; for he is presumed to have knowledge of its contents. Macintosh v. Marshall, 11 M. & W. 11G. But a certificate by an agent of Lloyd's is not evidence of the amount of damage even against a subscriber. Drake v. Maryatt, 1 B. & C. 473. The log-book of a man-of-war is evidence to prove the time of a vessel sailing under its convoy, in an action on a policy upon such vessel. D'lsraeli v. Jowett, 1 Esp. 427. Such log-book, however, is only evidence when produced as an official public book from the Admiralty ; Rundle v. Beaumont, 4 Bing. 537 ; otherwise it can only be used to refresh the memory of the person who made the entries. Burrough v. Martin, 2 Camp. 112. As to merchant-logs, see the Merchant Shipping Act, 1894, s. 239, cited ante, p. 130. An official letter written at the end of a voyage by the captain of a convoy, and produced by the Admiralty, seems to hava been held evidence of the facts stated in it in a suit inter alios. Watson v. Kiny, 4 Camp. 275. Muster rolls of the King's ships, produced from the Admiralty, are evidence of the fact that persons therein named were then on board. Semb. Barber v. Holmes, 3 Esp. 190, and the cases cited and recognised arguendo, 15 Q. B. 100. A copy of the searcher's report at the Custom House is evidence of the cargo on board, beiug an official paper made under the statute. Johnson v. Ward, 6 Esp. 48. In the Court of Admiralty, entries in the journals of the lighthouses, The Maria das Dores, Brown. & L. 27 ; 32 L. J., P. M. & A. 163, and of coastguard stations, The Catherina Maria, L. E., 1 Ad. & Ec. 53, were admitted in evidence to show the state of wind and weather at a given time without further proof, although not admissible at common law. Per Lusbington, J., Brown. & L. 28 ; 32 L. J., P. M. & A. 164. The bank books are the best evidence to prove a transfer of stock ; the testimony of the broker is not enough. Breton v. Cope, Peake, 30. The book from the master's office will prove a person to be a solicitor of a superior court, without production of the roll. R. v. Crossley, 2 Esp. 526. The poll-books at an election were evidence. Mead v. Robinson, Willes, 424. So, the polling papers, handed in at a municipal election and produced by the town clerk, were, it seems, evidence of the vote given ; but the custody of them must be traced so as to identify them as original papers; and the mere production of papers, purporting to be such, by a succeeding town clerk was not enough. R. v. Ledgard, 8 Ad. & E. 535. So, the books of the Old King's Bench and Fleet prisons were admitted to prove the dates of the commitment and discharge of prisoners; R. v. Aickles, 1 Leach, C. C. 239; although not then kept by any public authority; but they are Public Boohs and Public Documents. 213 uot evidence of the cause of commitment, of which the commitment itself is the best evidence. Salte v. Thomas, 3 B. & P. 188. The copy of an official paper containing the number of passengers on board a vessel, made by the master in pursuance of an Act of Parliament, and deposited at the India House, is admissible to show the number and description of the persons on board the vessel. Richardson v. Mellish, Ry. & M. 66; S. C, 2 Bing. 229. Excise books, transcribed from the maltster's specimen paper, are evidence against him, without calling the officers who have transcribed them. B. v. Orimwood, 1 Price, 369. Shipping entries at the Custom House have been disallowed as evidence to fix a party with fraud, unless the original note, from which the entry was made, were produced and traced to him or his agent. Hughes v. Wilson, 1 Stark. 179. So, formerly, an entry of the sale of a ship in the register of the Custom House was thought not to be evidence of ownership without connecting the party with it, though made under an Act of Parliament. Fraser v. Hopkins, 2 Taunt. 5 ; but now see Effect of ship's register, post, p. 218. So, the certificates or reports which are required to be made by masters of foreign vessels at the Custom House for the purpose of landing, and filed there, are not evidence of the particulars certified (except as against the master and those in privity with him). Huntley v. Donovan, 15 Q. B. 96. The books of the clerk of the market, made up under stat. 47 G. 3, sess. 2, c. 68, s. 29, were not, per se, evidence of the contract of sale as between the buyer and seller of coals in London, though the Act made such entries evidence "in all actions touching anv thing done in pur- suance of it." Brown v. Capel, M. & M. 374. Entries in the books of the clerk of the peace of deputations granted many years since to gamekeepers by the owner of a manor are evidence, without production of the deputations themselves, to show that the party therein mentioned, exercised the right of appointing gamekeepers. Hunt v. Andrews, 3 B. & A. 341; and see Bushworth v. Graven, M'Cl. & Y. 417. A book of claims, kept by the clerk (deceased) of an enclosure commission, signed by the commissioners, is evidence of such claims, the originals being lost. Doe d. Welsh v. Langfield, 16 M. & W. 497. A manuscript bo.>k of the date of Eliz., purporting to be written by an officer of the Duchy of Lancaster, and describing the duties of the office, is not evidence in behalf of his successor claiming to exercise the same rights and duties under an appointment from the Duchy. Jewison v. Dyson, 2 M. & Rob. 377. Surveys made for a Department of the Government for a temporary purpose and not affecting Crown property revenues or grants, are not evidence of facts therein stated or appearing. Mercer v. Denne, (1904) 2 Ch. 534; (1905) 2 Ch. 538, C. A. So as to maps and plans. S. C. "Where the plaintiff, the surgeon of a workhouse, was desirous of disproving neglect of a pauper, he was not permitted to put in evidence a journal kept by liim and stating his attendances, though it was kept by order of the Poor Law Commissioners under 4 & 5 W. I, c. 76. Merrick v. Wakley, 8 Ad. & E. 170. Returns of sales of corn under I & 2 G. 4, c. 87, were not conclusive, if evidence at all, to show the parties to whom the corn was delivered; for it was no part of the duty of the corn factor to mention this in the return. Woodley v. Brown, 2 Bing. 527. An entry in a vestry- book, stating that A. was duly elected treasurer of the parish at a vestry duly held in pursuance of notice, is eviderce of such election, and of its regularity. B. v. Martin, 2 Camp. 100; Hartley v. Cook, 5 C. & P. 441. But it must appear by the entry, or aliunde, that the meeting was duly convened alter proper notice. Ileysham v. Forster, 5 M. & Ry. 277. So, a ward-mote book proves the election of a constable in the City of London. Underhill v. Wiils,3 Esp. 5'!. In an action for disturbing the plaintiff in the enjoyment I'll Effect <>f Doru mi iilnri/ /•.'/•/•/( -))<;■. of a pew claimed in right uf his messuage, an old entry in the vestry- book signed by the churchwardens, stating repairs of the pew by a former owner of the messuage (under whom the plaintiff claims), in consideration of his using it, is evidence to prove the plaintiff's title; for it is made by the churchwardens on a subject within the scope of their official authority. Prict v. Littlewood, 3 Camp. 288. But see Cooke v. Banks, 2 C. & P. 478. Books, &c. of public companies.] The transfer book of a railway company is not evidence of the title of the transferee, though an act of Parliament makes the entry necessary to complete the title. Hare v. Waring, 3 M. & W. 862. Where a water company was sued on a bond, their books were rejected, as proof for them that the bond was executed at an irregular meeting, although the plaintiff was a proprietor, and the private Art required such books to be kept, and to be open for inspection to pro- prietors. Sill v. Manchester, &c. Water Works Co., 5 B. & Ad. 866. In the Act in the last case there was no provision to make the books evidence, and the plaintiff, though a proprietor, was considered as a stranger quoad hoc, the books being those of the corporate body, and not of the proprietors generally. But in the acts now in force which regulate the incorporation of companies, provision is made for the entry of proceedings, &c, in books aud those books are receivable in evidence ; vide sub tit. Actions by and against companies, post, pp. 1097 et sea. As to the effect of the issue of the share certificates by a company and the registration of shares, vide post, pp. 1100, 1118 et seq. Banker's account books.~] As to effect in evidence of banker's account books under the Bankers' Books Evidence Act, 1879, vide ante, pp. 123-4. Land-tax books.'] Land-tax assessment books are evidence of the occupa- tion of land by the parties named in them. Doe d. Strode v. Seaton, 2 Ad. & E. 171. But where it was proved to be usual to make no alteration in the name as long as the land was in the same family, they were rejected. Doe d. Stansbury v. Arkwright, Id. 182, n. The proof of redeemed land-tax is the certificate of the commissioner, or copy of the register. Buchanan v. Poppleton, 4 C. B., N. S. 20; 27 L. J., C. P. 210. I u de-books.] Parish rate-books are admissible to prove who are the owners and occupiers of the property rated, Smith v. Andrews, (1891) 2 Ch. 678, 682; so are receipts for the rates. Blount v. Layard, Id. 681, 691, n. cor. Field, J. Heralds' books.] The heralds' visitation-books, made under commissions regularly issued till the close of the 17th century (2 Jac. 2), are evidence of the facts therein recorded in matters of pedigree. B. N. P. 248 ; Report on Public Becords, 1800, p. 82. It is usual, and safer, to be. prepared with evidence of the commissions ; though, as they were general ones and not merely issued pro hue vice, such evidence is, perhaps, not strictly necessary. See Proof of Inquisitions, &c, ante, p. 111. It is doubtful, however, whether these visitation-bonks are admissible in evidence, inter alios, of the facts therein recorded. See Polini v. Gray, 12 Ch. D. 428, 433, 435, per C. A. A certificate taken from the register of .the funerals of Peers at the Heralds' College is admissible in evidence as an official document taken by persons whose duty it was to make it up, Vaux Peerage, 5 CI. & F. 526. But a igree deduced from these books and drawn up by a herald, is not admis- sible. King v. Foster, T. Jones, 224; 2 Kol. Ab. 686. So, a written pedigree, purporting to be made by one of the family, and entered in the Bishop's Registers. — Notarial and Consular Certificates. 215 heralds' books, is not evidence. Per Fortescue, J., 12 Vin. Abr. Evid. p. 119. An affidavit stating the members of deponent's family found in the Heralds' office, may be good evidence as a declaration ; and where the original was lost, an entry of it in their books has been allowed as secondary evidence. Per Littledale, J., Doe d. Hungate v. Gascoigne, 2 Stark. Ev. 2nd ed., App. 1087. Bishops 1 registers.'] The official register-book of a bishop, containing entries of the transactions at visitations, has been admitted as evidence of the right of nomination to a curacy. Arnold v. Bath and Wells, Bp. of, 5 Biug. 316. So, episcopal registers have been admitted as evidence of vicarial endowments ; Tucker v. Wilkins, 4 Sim. 262 ; Leonard v. Franklyn, 1 Daniel, 31 ; or of collations ; Irish Society v. Berry, Bp. of, 12 CI. & Fin. tj41 ; or of the foundation of a deanery in the 13th century ; R. v. S. Peter's Exeter, 12 Ad. & E. 512. An enrolment-book of leases, granted by the Bishop of Durham, was allowed as secondary evidence of a lease on behalf of one claiming under the bishop; being a public muniment; Humble v. Hunt, Holt, N. P. 601 ; and a similar register of chapter leases, from the Chapter House of Salisbury, was admitted as evidence of reputation respecting the limits of a parish. Per Tindal, C. J., in Coombs v. Coether, M. & M. 398. It seems to be on this footing that old copies of the foundation charters and grants, registered and preserved among the muniments of dissolved monas- teries, are admitted in evidence on behalf of the successors to their estates at least where the originals cannot be found ; ante, pp. 14, 15. See also ante, p. 143, as to Enrolled deeds. Reports of Charity Commissioners.'] By the Charitable Trusts Recovery Act, 1891 (54 & 55 V. c. 17), s. 5 (1), for the purpose of any action or other proceeding instituted by them under that Act, the printed reports of the Charity Commissioners appointed under stat. 58 G. 3. c. 91, " shall be admissible as prima facie evidence of the documents and facts therein stated, provided that either party intending to use any such report as evidence shall give notice of such intention in the prescribed manner to the other party." By Rules S. C. (Charitable Trusts Recovery), 1892 (made under sect. 6), r. 4, the notice " shall be a two days' notice in writing, and shall be served on the opposite party or his solicitor; but the Court or a judge may give leave for shorter or substituted or other notice, and the notice may be given before appearance." See In re Alms Com Charity, (1901) 2 Ch. 750. Notarial and consular certificates.] A notarial certificate of the protest abroad of a foreign bill of exchange is evidence of that fact. Bay ley on Bills, 90 ; Anon., 12 Mod. 345 ; and see further Oeralopulo v. Wielcr, 10 C. B. 690; 20 L. J., C. P. 105, cited, post, p. 387. So, a certificate, which purported to be given by a notary public, verifying the signature of a person abroad before whom an affidavit is sworn, and stating that that person is competent to administer oaths, is evidence of these facts. E.r parte Worsley, 2 H. Bl. 275; Omealey v. Newell, 8 East. 364; Cole v. Sherard, 11 Exch. 482. See Abbott v. Abbott, 29 L. J., P. M. & A. 57 ; ante, p. 1 29. As to the admissibility of an affidavit sworn before a notary abroad, see In re Bernard, 2 Sw. & Tr. 489; 31 L. J., P. M. & A. 89; In re Lambert, r>. I!., 1 P. & M. 138, contra ; and In re Davis' Trust*, L. I!., 8 Eq. 98. See also the Com- missioners for Oaths Act, 1889 (52 & 53 V.c. 10), ss. 3, 6, 11, ante, pp. 80,81, which replaces Rules, 1883, < >. xxxviii. r. 6, ante, p. 81. But, in other cases, notarial and consular certificates arc not evidence of the facts certified ; thus the presentment in England of a foreign bill cannot 216 Effect of- Documentary Evidence. be so proved. Okesmer v. Noyes, 1 Camp. L29. So, a notarial certificate of the execution of a power of attorney abroad was held to be insufficient evidence. Ex pte. Church, 1 D. & Ry. 324. In Waldron v. Coombe, 3 Taunt. I(!l2, il was held, in an action ou a policy of insurance on goods to recover a loss by sea damage, that the amount of the loss could not be proved by a certificate from the British vice-consul at Rio Janeiro, although it was the duty of the vice-consul to superintend the sale. In Batavia, charter-parties are entered into by the instrument being written in a book l>v a notary (he being a public officer by the Dutch law, which prevails in Batavia), aud there signed by the parties. The notary makes copies, which he signs and seals, and which the principal officer of the Government of Java signs, upon proof of their being executed by the notary. Then one copy is delivered to each party. In the courts of Java, in order to prove the charter-party, it is requisite to produce the notary's book ; but this book is never allowed to be taken out of Java; and in Dutch courts, out of Java, faith is given to the above copies as to an original. It was held that the copies were not receivable in evidence in this country. The chief contention was that they had been made originals by the authority given to the notary by the parties themselves, which failed. The court also thought that, though secondary evidence of the contents of the notary's book might, under the circumstances, be admissible, still these copies were not sufficiently authenticated to be used for that purpose. Brown v. Thornton, 6 Ad. & E. 185. See Boyle v. Wiseman, 11 Exch. 360; 24 L. J., Ex. 160, ante, p. 5 ; and R. v. Castro, ante, pp. 98, 131. A certificate of ordination, under the seal of the bishop, is evidence of holy orders. B. v. Bathivick, 2 B. & B. 639. Post-niarlc.~\ The post-mark on a letter has been admitted as evidence of the date of its being sent. Abbey v. Lill, 5 Bing. 299 ; B. v. Plainer, R. & Ry. 261 ; Kent v. Lowen, 1 Camp. 177. But a post-mark may be contra- dicted by oral evidence of the real date of posting. Stocken v. Collin, 7 M. & W. 515. The post-mark is no proof of a publication of the contents of the letter at the place of posting. B. v. Watson, 1 Camp. 215. Where it was required to prove that A. effected an insurance by order of B., the production by B. of an order in a letter, with the post-mark, addressed to A., was received as evidence that a policy effected in A.'s name of the date of the letter was effected under that order. Arcanyelo v. Thompson, 2 Camp. 260. In B. v. Plumer, supra, it was held that the double postage office- mark on a letter was not, per se, proof that it contained an inclosure. See further, ante, p. 123. Books of history, (fee] A general history may be given in evidence to prove a matter relating to the kingdom in general. B. N. B. 248 ; Vin. Ab. Av. (A. b. 40); Bead v. Lincoln, Bp. of, (1892) A. C. 644, J. C. Thus, Speed's Chronicle was admitted to prove the death of Isabel, Queen Dowager to Ed. II. Brounker v. Atkyns, Skin. 15. So chronicles are said to have been admitted to prove that at a certain period Charles V. of Spain had not surrendered the crown to Philip. Neale v. Fry, cited 1 Salk. 281 ; S. C. sub nom. Neal v. Joy, cited, 12 Mod. 86; S. C. sub nom. Joy (Lady) & Xciilt's rase, cited Skin. 623. But see, however, S. C, sub nom. Mossam v. Ivy, 10 How. St. Tr. 625, where it is reported that the evidence was rejected, and observations in Peake, Ev. 82, 83, and 2 Taylor, Evid., 10th cd., § 1785, n. (1). Historical evidence of this kind is only to be used in proof of a matter concerning the government, and was therefore rejected as proof that Corporation Books. — Parish Registers, &c. 217 King Alfred was the founder of a college. Cockman v. Mather, 1 Barnardist. 14. Nor can it be admitted in proof of a local custom : thus Camden's "Britannia" was held to be no evidence on an issue whether, by the custom of Droitwich, salt-pits could be sunk in any part of the town. Stainer v. Droitwich, 1 Salk. 281. Nor is it evidence of the creation of a peerage. Vaux Peerage, 5 CI. & F. 526. It seems indeed only to be used to refresh the memory of the jury on notorious facts, which require no evidence at all. Thus, it has been held that counsel may, in addressing a jury, refer generally to matters of history, whether ecclesiastical or political, and cite the language of writers or statesmen by way of illustration or explanation ; but they are not at liberty to cite specific canons or foreign treaties, or the printed works in use among certain communities, and purporting to represent their doctrines, so as to fix a party to the suit with those doctrines, and to persuade the jury to act upon such imputation, unless such documents be proved by regular evidence, and brought home to the party by proof of his personal adoption of them. Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J., Ex. 227. Effect of Corporation Books. The public official acts of a municipal corporation, registered in their books, regularly kept and entered by the proper officer, may be [and ought to be] proved by the books themselves, which are evidence of them even as between strangers. Thetford, Case of, 12 Vin. Ab. 90: R. v. Mothersell, Stra. 93; Lauderdale Peerage, 10 Ap. Ca. 692, 700. Thus, an entry of the disfranchisement of a corporator is evidence to prove it ; and it cannot be collaterally examined on the merits. Brown v. London, Corporation of, 11 Mod. 225. Bat the books of a corporation, whether public or private, are not admissible in their own favour as to matters of a private nature ; as to establish a claim of toll ; Brett v. Beales, M. & M. 419, cited ante, p. 53 ; Marriage v. Lav:rence, 3 B. & A. 142 ; London v. Lynn, 1 H. Bl. 214, n. ; or a right to appoint a curate as against the vicar; A.-G. v. Warwick Cor., 4 Kuss. 222; or an exclusive right of trading. Davies v. Morgan, 1 C. & J. 590-3. Where plaintiff sued a corporation (of which he was an alderman) on a bond, and defendants pleaded, 1. Fraud ; 2. That the bond was irregularly executed contrary to a bye-law, Parke, B., admitted the books of the corporation to prove the bye-law, but rejected them as evidence for the defendants of a private transaction between the plaintiff and the corporation in proof of the fraud. Holdsworth v. Dartmouth, Mayor of, Exeter Sum. Ass. 1838, MS. Effect of Parish Registers, <£c. The registers of baptisms, marriages, and burials, preserved in churches, are good evidence of the facts which it is the duty of the officiating minister to record in them. B. N. P. 217 ; Doe d. Warren v. Bray, 8 B. & C. 816. Where it appeared that the practice was to make entries in the general parish register, once in three months, out of a day-book in which the entries were made immediately after the baptism or on the same morning; and in the day-hook after a particular entry, the letters B.B. (signifying base-born) were inserted, which were omitted in the register, it was held that evidence of the day-book could not be received, for there could not be two parish registers. May v. May, '_' Stra. 1073. An entry by the minister of a baptism which took place before he became minister, and of which he received information from the parish clerk, is not admissible ; nor is the private memorandum of the fact made by the clerk, who was present at the baptism. Doe d. Warren v. Bray, 8 B. & C. 813. 218 Effect of Docu mi it fur// Evidence. But see Doe d. France v. Andrews, 15 Q. B. 7G6, omi!e, p. 125. As to registers of burnings under the Cremation Act, i'JOli, vide ante, p. 120. As to proof of the identity of the parties, vide ante, p. 125. The books of Fleet, King's Bench, May Fair, and Mint marriages are not evidence to prove a marriage, for they were not made by public authority. They were, in fact, only private memoranda kept by ministers who officiated at clandestine marriages contrary to the canons of the church. See Burn on Fleet Registers, ch. 0, and 3 & 1 V. c. 92, ss. 6, 20. Such a register, however, may, if signed by a party, be equivalent to a declaration by such party, and, as such, admissible where hearsay is admissible. Lloyd v. Passingham, 10 Ves. 50. A register of ceremonies performed at a dissenters' meeting-house seems admissible in evidence to the same extent; Newham v. Raithby, 1 Phillim. 315; Ex pte. Taylor, 1 J. & W. 483 ; but cannot be proved by an examined copy, for it is not a public document; S. C. ; WhittucJc v. Waters, 4 C. & P. 375; and the stat. & 7 W. 4,c. 86, ante, pp. 120, 127, would appear not to have made any dillerence in this respect, for the register appointed by that Act is to be kept, by the registrar. Such of these registers, however, as have been deposited with the Registrar-General under 3 & 4 V. c. 92, and 21 & 22 V. c. 25, ante, p. 120, are admissible in evidence after notice. See 3 & 4 V. c. 92, ss. 19 et seq. And in the case of marriages entered into under 01 & 02 V. c. 58, post, p. 1042, the register kept thereunder is a public document. An attempt is sometimes made to use the register for the purpose of proving facts stated therein in addition to the main fact of baptism, marriage, or burial, as the case may be. There has been a good deal of discussion as to how far this can be done. In a criminal proceeding against a person for falsely swearing that he was 21 years of age, Ld. Tenter- den refused to allow that part of a register of baptisms which stated the day upon which the defendant was born to be read ; R. v. Clapham, 4 C. & P. 39 ; and in Wihen v. Law, 3 Stark. 03, and Burghart v. Angerstein, C. & P. 090, the entry in a register of baptisms of the day of the defendant's birth was i ejected as a proof of a plea of infancy. But such an entry has been admitted where the inquiry is as to the legitimacy of the person to whom the entry relates. In re Turner, 29 Ch. D. 985, following Cope v. Cope, 1 M. & Rob. 209, in which case, upon an issue as to the legitimacy of a child, a baptismal register which described it as the illegitimate son of E. C. was admitted by Alderson, J., though with the observation that it was entitled to little weight. In II. v. N. Petherton, 5 B. & C. 508, a copy of a register of baptism was put in to show that an infant was born in a certain parish, but B.iyley, J., rejected the evidence, saying, however, that if it could 1 > 3 shown that the child was very young at the time of baptism, the register would afford presumptive evidence of its having been born in the parish where it was baptised. See R. v. S. Katharine, 5 B. & Ad. 970, n. A register of marriage is evidence of the time of the marriage. Doe d. Wollaston v. Barnes, Id. 380. In Wigley v. Treasury Solicitor, (1902) P. 233, the entries in the Scotch register of a son's marriage were admitted as prima facie evidence of the marriage of his parents. As to the effect of the registers of births, marriages, and deaths under & 7 W. 4. cc. 85, 80, and 37 & 38 V. c. 88, see ante, p. 127. As to the effect of registers of births, marriages, and deaths in Scotland, Ireland, the colonies, at sea and abroad, vide ante, pp. 127 et seq. Effect of Ship's Register. A ship's register, describing her to be British built, was held to he no evidence of that fact as against third persons. Reusse v. Meyers, 3 Camp. 475. Awards. 219 Nor was it admitted as evidence of ownership or interest, except as against the persons who made the affidavit or declaration. Fraser v. Hopkins, 2 Taunt. 5; Pirie v. Anderson, 4 Taunt. 652; Cooper v. South, Id. 803. But under the Merchant Shipping Act, 1894, ss. 64, (2) (b), 695 (1), cited ante, p. 130, the certificate of registry given under sect. 14 is prima, facie evidence of all the matters contained in it or certified by the registrar in his certificate, as, for instance, that the ship is British ; R. v. Bjomsen, Leigh & Cave, 515; 34 L. J., M. C. 180; or that the defendant is owner ; Hibbs v. Ross, L. R., 1 Q. B. 534. See also sect. 64 (3), cited ante, p. 130. Effect of Awards. An award, regularly made by an arbitrator to whom matters in difference are referred, is c inclusive in an action at law between the parties to the reference upon all matters inquired iuto within the submission. 1 Phillipps Ev., 7th ed., 380; Campbell v. Twenlow, 1 Price, 81. Thus, where a cove- nantor and a covenantee submitted the amount of damages of a breach of covenant to arbitration, the award was held conclusive of the amount in an action on the covenant to which defendants pleaded non est factum. Whitehead v. Tatlersall, 1 Ad. & E. 491. See also Cummings v. Heard, L. R., 4 Q. B. 669. So, where in an action of ejectment it appeared that the lessor of the plaintiff and the defendant had before referred their right to the land to an arbitrator, who had awarded in favour of the lessor, it was held that the award precluded the defendant from disputing the lessor's title. Doe d. Morris v. Rosser, 3 East, 11. But wherp, on a reference by landlord and tenant, the arbitrator awarded that a stack of hay, left upon the premises by the tenant, should be delivered up by him to the landlord upon the tenant being paid a certain sum, it was held that the property in the hay did not pass to the landlord on his tender of the money by mere force of the award. Hunter v. Rice, 15 East, 100. Where the commis- sioners under an inclosure Act were directed to make an award respecting the boundaries of a parish, and to advertise a description of the boundaries so fixed, and the boundaries so fixed were to be inserted in their award, and to be binding, final, and conclusive, but the boundaries mentioned in the award varied from thuse which had been advertised ; it was held that the commissioners, not having pursued their authority, their award was not binding as to the boundaries. R. v. Washorook, -I B. & C. 732; but see the remedial Acts, ante, p. 153. It has been repeatedly decided that corruption ur misconduct of the arbitrators, including the case of an award made ex parte, does not invali- date the award, in any case, at least, in which an application might have been successfully made to the court to set it aside; ride post, Action on award, Defence. An award made on a reference of all matters in difference between the parties will not be a bar with regard to any demand which was not in difference between them at the time of the submission, nor referred l>y them to the arbitrators. Eavee v. Farmer, I '1'. It. 116; Smith v. Johnson, L5 East, 213. And awards under inclosure Acts are so far on the same footing as private submissions, that if the award go beyond the powers of the commissioners, it is void pro tanto ; and if it omit to decide on any- thing within the scope of the submission, the interest of parties remains in statu >/7 ; 32 L. J., Ex. 120. The judgment of an usurped jurisdiction between parties is not admis- sible as an award without proof of mutual submission. Rogers v. Wood, 2 B. & Ad. 215. An award made on ejectment, brought by A. against a mortgagor after mortgage, is not evidence for A. on an ejectment brought by the mortgagee against him. Doe d. Smith v. Webber, 1 Ad. & E. 119. In a suit for injury to A.'s reversionary interest iu a close whereof F. was tenant, in which the defendant set up the right of G., and denied that of A., it was held that the plaintiff could not put in, as evidence of such right, an award made in a former action between F. as plaintiff and G. as defendant, in which the same right was in question, and in which G. had pleaded not guilty only, and atterwards paid damages awarded against him ; for as it was not shown that A. was substantially the plaintiff in the first action, or that F. brought it by A.'s authority, a verdict or award against F. could not have prejudiced A., and therefore could not be available as evidence for A. Wenman Ly. v. Mackenzie, 5 E. & B. 447 ; 25 L. J., Q. B. 44. But where the right as a watercourse and a question of boundary were referred by a submission between A. and his tenant B. on the one side, and C, a neighbouring land- owner, on the other, the award was held admissible evidence for C. on both points in a subsequent action by him against B. ; although B. had, in the meantime, become tenant of the same land to another landlord, under whom he now justified, and who was not shown to be in privity with A. Breton v. Knight, Winton Sum. Ass. 1837, per Tindal, C.J., confirmed in Banc on motion for a new trial ; MS. On an issue between plaintiff and an execution creditor of B., whether growing crops belonged to B., an award made between plaintiff and B. touching the crops, just before the execution, was held admissible as against the defendant. Thorpe v. Eyre, 1 Ad. & E. 226. In an action on a policy Ld. Kenyon admitted evidence that the defendant had agreed to be bound by an award to which other persons were parties, and that the award was in favour of the plaintiff. Kingston v. Phelps, Peake, 228. That an award is not evidence, as between strangers, even in a matter in which hearsay is admissible, see Evans v. Bees, 10 Ad. & E. 151, cited ante, p. 50 ; Wenman, Ly. v. Mackenzie, supra. So an award against a principal debtor is not evidence in an action against his surety. Ex pte. Young, 17 Ch D. 668, C. A. The award ot arbitrators or an umpire upon a claim for compensation under the Lands Clauses Consolidation Act, 1845, has the same effect as the verdict of a jury in an inquisition before the sheriff under that Act (ante, p. 198), and is conclusive as to the amount, but not as to the right to com- pensation. In re Newbold & Metropolitan By. Co., 14 C. B., N. S. 405 ; Beckett v. Midland By. Co., L. R., 1 C. P. 241 ; B. v. Cambrian By. Co., L. R., 4 Q. B. 320. So in the case of an award under the Public Health Act, 1875 (38 & 39 V. c. 55) ; Pearsall v. Brierley Hill Local Board, 11 Q. B. D. 735 ; 9 Ap. Ca. 595, D. P. ; or under the Artizans' and Labourers' Dwellings and Improvement Act, 1875 (Id. c. 36). Wilkins v. Mayor of Birmingham, 25 Ch. D. 78. Where the award is given for one entire sum, if any part of the sum be given contrary to law the whole is invalidated, and this objection may be taken in an action on the award. Beckett v. Midland By. Co., supra. Stamps. 221 Of the effect of awards under inclosure Acts, see further ante, p. 153. Where an award under seal directs the payment of money, the award does not create a specialty debt, although the submission was also under seal. Talbot v. Shrewsbury, EL of, L. R., 16 Eq. 26. STAMPS. The subject of stamps, though important and useful at Nisi Prius, is one that cannot be treated of at length in a work of this kind. The following summary only contains some of the principal heads, and a selection of the most useful decisions on the Acts. The prior Stamp Acts were repealed by the Stamp Act, 1891 (51 & 55 V. c. 39), and their provisions therein embodied, with some modifications, in a consolidated form.* By 61 & 62 V. c. 46, s. 7 (2), any document referring to any enactment so repealed shall, unless the context otherwise require, be construed to refer to the Stamp Act, 1891, or to the corresponding enactment therein. The Stamp duties cited in the following pages are all, unless otherwise stated, those specified in the schedule to the Stamp Act, 1891. These duties are, by sect. 1, imposed on and after 1st January, 1892, on the instru- ments specified in the schedule, in lieu of all other duties thereon, and are subject to the exemptions contained in the schedule, and in any other Acts for the time being in force, and by sect. 2, they are charged in accordance with the regulations of that Act. Sect. 119 provides that " except where express provision to the contrary is made by this or any other Act," the same duties are to be charged on instruments relating to the property of the Crown, or the private property of the sovereign, as on instruments relating to the property of subjects; such express provision is made in the stat. 10 G. 4, c. 50, s. 77, with reference to instruments entered into with H. M.'s Commissioners of Woods and Forests, under the provisions of that Act ; and that Act is incorporated with subsequent Acts, e.g., 5 V. c. 1, s. 7. The most important change introduced by the Act was the abolition of schedule duty, which had been retained by the Stamp Act, 1870, although that Act abolished progressive duty. The general reduction of the 35s. stamp chargeable on deeds and other instruments to 10s. effected by the Stamp Act, 1870, s. 4, is continued. See sect. 120 (post, p. 256), and schedule. And by the Revenue Act, 1906, 6 E. 7, c. 20, s. 9, awards now also bear a uniform duty of 10s., vide post, p. 237. Stamp duty is chargeable on an instrument in accordance with its legal effect. R. v. Bidgwell, 6 B. & C. 665, 669, per Bayley, J. ; Hut ton v. Lip-pet, 8 Ap. Ca. 309, J. C. It is immaterial by what title the parties thereto may designate the transactions therein recorded. S. C. See also Wale v. Inl. Iiev. Corns., 4 Ex. D. 270, and Limmer Asphalte Paving Go. v. Id., cited ■post, \). 226. Where an instrument falls under two classes in the schedules the Commissioners may require it to be stamped as of that carrying the higher duty. Speyer v. Inl. Rev. Comrs., post, p. 262. By sect. 117, "Every condition of sale framed with the view of precluding objection or requisition upon the ground of absence or insufficiency of stamp upon any instrument executed after ' May Kith, 1888,' and every contract, arrangement, or undertaking for assuming the liability on account of absence or insufficiency of stamp upon any such instrument or indemnifying against such liability, absence or insufficiency, shall be void." [51 & 52 V. c. 8, s. 20.] * The corresponding provisions of the previous Act are, throughout this chapter, cited in brackets; "S. Act, 1870," representing the Stamp Act, 1870. 9,99. Stamp*. Kffect of leant ,,/ stamp -stamp wh n presumed.] By the Stamp Act, 1891, a. 11 (I ), unless the duty and penalty lie paid at the trial under sect. 14 (1), (post, p. 230), " an instrument executed in any part of the United Kingdom, or relating, wheresoever executed, to any property situate, or to any matter or thing done or to he done, in any part of the United Kingdom, shall not, except in criminal proceedings, be given in evidence, or be available, for any purpose whatever, unless it is duly stamped in accordance with the law in force at the time when it was first executed." [S. Act, 1870, s. 17.] The words in italics occur in the analogous provisions of the earliest Stamp Acts (5 & 6 W. & M. c. 21, s. 11 ; 9 & 10 W. 3, c. 25, s. 59), with the exception that those were limited in their operation to evidence given in any court. Those provisions were incorporated in succeeding Stamp Acts, e.g., 55 G. 3, c. 184, s. 8 ; 13 & 14 V. c. 97, s. 2, &c. — until their repeal by 33 & 34 V. c. 99. The enactment in Id. c. 97, s. 17, was very similar to the present one. The cases cited below, decided under the earlier Acts, are consequently applicable to the Stamp Act, 1891, s. 14 (4), ante, p. 222. Sect. 17 imposes a penalty on the person who, in the course of his office, enrols, registers, or enters, in or upon any rolls, books or records any instru- ment not duly stamped. See also sect. 41, post, p. 246, Where the instrument appears on its face to be duly stamped, it does not seem to be duty of such person to enquire aliunde whether all the circumstances material to the amount of duty are correctly stated. If, however, he know that this is not the case, and that the amount is insufficient, he may (and semble must) refuse registration. Maynard v. Consolidated Kent Collieries Co., (1903) 2 K. B. 121, C. A. These sections do not, however, invalidate the registration, &c, otherwise regular, of an instrument not duly stamped. Bellamy v. SaulL 4 B. & S. 265 ; 32 L. J., Q. B. 366. The effect of sect. 14 (4), supra, is that an instrument requiring a stamp, cannot, in general, be admitted in evidence without being stamped; and consequently the objection of the want of a proper stamp is raised by any pleading that renders it necessary to put the document in evidence. Thus, in an action on a bill, the objection will arise on a traverse of the drawing or acceptance. Dawson v. Maedonald, 2 M. & W. 26 ; M'Doivell v. Lyster, Id. 52. If parties agree orally or by implication to be hound by the same terms as those contained in another written instrument, the latter cannot be given in evidence unless properly stamped. Tamer v. Power, 7 B. & C. 625 ; Walliss v. Broadbent, 4 Ad. & E. 877 ; Alcock v. Delay, 4 E. & B. 660. Where a bond, required to be given by a judge's order, had been inadvertently filed by an officer of the court, although unstamped, and immediately the defect was discovered, the party filing the bond procured it to be stamped, the original defect was cured as regards third parties who had no notice of the defect ; and it would seem also for all purposes. Darby v. Waterlow L. R., 3 C. P. 453. When an unstamped instrument in writing has been lost; B. v. Castle Morton, 3 B. & A. 588 ; or destroyed even by the party who objects to the want of the stamp ; Bippener v. Wright, 2 B. & A. 478 ; oral evidence of the contents is inadmissible. But where an instrument has been lost or is not produced upon notice, and there is no evidence given respecting it one way or the other, the presumption is that it was properly stamped ; but if it be shown to be at one time unstamped, the presumption is that it continued unstamped, until the presumption is rebutted by some evidence contra, so as cither to prove the stamping, or to leave it altogether uncertain. Closmadeuc v. Carrel, 18 C. B. 36; Marine Investment Co. v. Haviside, L. R., 5 H. L. 624. See also Arbon v. Fussell, 7 L. T. 283, Ex. M. T. 1862 ; Blair v. Ormond, 1 De Gr. & Sm. 428. Thus, where an indenture of apprenticeship, executed 30 years before, was lost, it was presumed to have been properly Want of Stamp. — When presumed. 223 stamped, though an officer from the Stamp Office stated that it did not appear that any such indenture had heen stamped. B. v. Long Bucl-hy, 7 East, 45. So, an order for payment given by the defendant to the plaintiff, and lost by the latter, will be presumed, as against the defendant, to have been duly stamped. Pooley v. Goodwin, 4 Ad. & E. 94. An unstamped copy under the hand of the party against whom it is offered as secondary evidence is admissible, and the due stamping of the original is presumed, unless disproved. Smith v. May aire, 1 P. & F. 199. Where a party refuses to produce au agreement after notice, it will be presumed, as against him, to be properly stamped ; Crisp v. Anderson, 1 Stark. 3~> ; unless evidence be given that it was not stamped. Orowther v. Solomons, 6 C. B. 758. In the cases in which & personal penalty is imposed by sect. 15 (2), post, p. 229, for not stamping a document within a certain time, it would seem, on the principle of the presumption of innocence, vide ante, p. 94, that unless the document be shown to be unstamped after the lapse of that time, it must be presumed to have been duly stamped within that time. In L. & County Banking Co. v. Batcliffe (see 6 Ap. Ca. 730), the C. A. received a copy, stamped as an original, as evidence of an unstamped document which had been destroyed ; but it is difficult to see on what principle this copy could have been admitted. See also Marine Investment Co. v. Haviside, L. E., 5 H. L. 630. If an instru- ment be produced at the trial bearing adhesive stamps property cancelled, it will be presumed that they were affixed at the proper time. Bradlaugh v. Be Bin, L. R., 3 C. P. 286. When the transaction is capable of being legally proved by other evidence than that of the instrument which ought to bear a stamp, such evidence, if allowed by the pleadings, may be resorted to; thus, where a promissory note appears to be improperly stamped, the plaintiff may resort to the original consideration. Farr v. Price, 1 East, 58 ; Tyte v. Jones, Id. n. In Vincent v. Cole, M. & M. 257, where a witness called by the plaintiff stated that the work, the payment for which formed the subject of the claim, was commenced under a written agreement, but that the items relied on by the plaintiff were extras, and not contained in it, Ld. Tenterden ordered the agreement to be produced, and as it was unstamped the plaintiff was nonsuit. But, in Beid v. Batte, Id. 413, a distinct order by the defendant having been proved, Ld. Tenterden thought that, though it was shown that the work was commenced under a written contract, the contract need not be produced. And a verbal admission of a debt, and promise to pay it, may be proved, though the party at the same time gave an unstamped admission and promise to pay. Singleton v. Barrett, 2 C. & J. 368. So, though an unstamped receipt is no evidence of payment, the fact of payment may be proved by a witness who was present, and he may be allowed to use the unstamped receipt for the purpose of refreshing his memory. Bambert v. Cohen, 4 Esp. 213. So, an unstamped promissory note may be used in an action for money lent, to refresli the defendant's memory and to obtain an admission of the loan. Birchall v. Bullough, (1896) 1 Q. B. 325. Sen, as to use of unstamped copies and counterparts as secondary evidence of the originals, 'post, pp. 253, 255. In the case of the payment of legacies special evidence is required, vide post, p. 272. Where an action is brought upon an instrument which ought to be stamped, and the form of the pleading is such that at the trial it is not necessary to produce it, the court will not examine whether it is legally available with reference to the stamp laws. Per Ld. Eldon, «'., Euddleston v. Briscoe, 11 Ves. 596; Thynne v Protheroe, 2 IU. & S. 553. When a bill of exchange on a wrong stamp has been given for goods sold, the vendor, in suing for the price, need not prove notice of dis- honour. Candy v. Marriott, 1 B. & Ad. 696. If a plaintiff sitfceed in making out a case of implied or oral contract, and 22 1 Stamps. it does not appear on the cross-examination of his witnesses that there was any contract in writing, the defendant will not be allowed to give an unstamped written contract in evidence for the purpose of nonsuiting the plaintiff. Fielder v. Bay, 6 Bing. 332; B. v. Padstow, 4 B. & Ad. 208; Magnay v. Knight, 1 M. & Gr. 944. But where the defendant, being called as a witness for the plaintiff, proved that there was a written agreement, and on his being called on to produce it, it appeared to be unstamped, it was held that the plaintiff must be nonsuit ; Alcoch v. Delay, A E. & B. GGO; for an unstamped agreement is not a nullity. S. C. ; B, v. Watts, Dears. & Bell, 326. A party who executes the counterpart of a deed, properly stamped, cannot object to its admissibility in evidence on the ground that the original is not properly stamped. Paul v. Meek, 2 Y. & J. 116. Now, however, by sect. 72, post, p. 255, in every case, except a lease not executed by the lessor, the counterpart must bear a denoting stamp, unless it be stamped as an original. The stamp must be such as was applicable to the instrument at the time of its execution. Clarke v. Boche, 3 Q. B. D. 170. Unstamped instrument, ivhen evidence for collateral purposes.] In many cases, an instrument, not properly stamped, is admissible to prove a collateral fact. And the fact seems to be collateral, if the instrument be offered, not for the purpose of giving effect to it, but iu order to prove some- thing independent of, and unconnected with, the purpose for which the stamp is required to be impressed. Thus, in an action of debt for bribery at an election, an unstamped promissory note payable to the defendant, which a witness said he had given for the repayment of money received by him, as a voter, from the defendant, is evidence to corroborate the testimony of the witness. Dover v. Maestaer, 5 Esp. 92. So, an unstamped agreement has been admitted between the parties to prove usury. Nash v. Duncomb, 1 M. & Rob. 104. Or, to show the illegal consideration of the plaintiff's debt. Coppock v. Bower, 4 M. & W. 361. Or, to refresh the memory of a witness, ante, pp. 176, 177, 223. Or, to show fraud: thus an unstamped promissory note may be given in evidence to establish fraud, by showing that it was written by the maker in a state of intoxication. Gregory v. Fraser, 3 Camp. 454; Keable v. Payne, 8 Ad. & E. 555; B. v. Gompertz, 9 Q. B. 824. So, an unstamped agreement may be used to show fraud. Ashcombe v. Ellam, 2 F. & F. 306. And see Holmes v. Sixsmith, 7 Exch. 802; 21 L. J., Ex. 312. And an allegation that plaintiff delivered up a guarantee may be proved by delivery of an unstamped guarantee. Haigh v. Brooks, 10 Ad. & E. 309. An unstamped deed of assignment is admissible in proof of an act of bankruptcy. Ponsford v. Walton, L. R., 3 C. P. 167 ; Ex pte. Squire, L. R., 4 Ch. 47. It has been held that the court cannot inspect an unstamped contract even for the purpose of ascertaining whether its contents preclude the admission of oral evidence of extras. Buxton v. Cornish, 12 M. & W. 426. But the dictum of Bayley, J., B. v. Pendleton, 15 East, 449, an 1 the decision in Beed v. Deere, 7 B. & C. 261, seem at variance with this ruling; however, the cases may perhaps be reconciled by holding that where the work, the pi ice of which is claimed, cannot be proved without disclosing the existence of a written and unstamped contract, the court cannot inspect that contract lor the purpose of ascertaining whether the work actually in question does or does not come within its terms; but it is otherwise where such work can he proved by independent evidence which does not require the contract to be produced ; see infra. Such an instrument cannot be read to the jury as evidence of the contract, or any part of it, in respect of which the plaintiff sues. Jardine v. Payne, 1 B, & Ad. 670. Yet, in an action for goods sold, How applied. — Number required. 225 a bill of parcels, on which the seller has written an unstamped receipt when he made out the bill, may be put in by the defendant as evidence ihat another person, and not he, was debited by the plaintiff as buyer : (or it is not used as a receipt, nor need that part be read. Millen v. Dent, 10 Q. B. 846. A statement of account is admissible against the party vvho^e un- stamped receipt for the balance is signed at the foot. Matheson v. Boss, 2 H. L. C. 286. But if the payment had been in di.-pute in the cause, < r h d been material in the issue between the parties, so that it woula have been necessary to instruct the jury to discharge the receipt from their minds, it is questionable whether the statement could then have been admitted, even for the collateral purpose of proving the account. S. C. Id. 307, per Ld. Campbell, C.J. On trial of issues out of Chancery upon a suit for specific performance of a sale, a writing in the following form was put in by the vendee : — " Received of A. B. the sum of , being the amount of three tenements sold by me adjoining, &c. Signed, C. D." (the vendor). The two questions were, 1. Whether there was a contract of sale? 2. Whether there was any pay- ment? The writing was stamped as an agreement only. Upon an appeal in Chancery, Ld. Cottenham considered the paper inadmissible on the first issue, being an attempt to prove an agreement by proving the fact of payment. On a further trial and appeal, Ld. St. Leonards, O, held it admissible evidence of the contract of sale. It was not contended to be admissible as proof of payment, and it contained all the terms of the contract, with the signature of the vendor subscribed. Evans v. Prothero, 2 Mac. & G. 319 ; 20 L. J., Ch. 448 ; S. C, 1 D. M. & G. 572 ; 21 L. J., Ch. 772. But where a memorandum stamped as a receipt only, amounts to a promissory note, it is not admissible to prove an advance of money claimed to be due under an equitable mortgage ; Ashling v. Boon, (1891) 1 Ch. 568 ; or on an account stated ; Green v. Davies, 4 B. & C. 235. A party declared upon two written agreements, by the second of which variations were made in the first : there were counts upon each separately, and it appeared, when the instruments where produced in evidence by the plaintiff, that the first only was stamped : it was held that the second could not be read in evidence to support the plaintiff's case, but might be looked at by the court in order to ascertain whether the first was altered by it ; and that, if it were, the plaintiff could not exclude the second agreement, and proceed upon the first only. Beed v. Deere, 7 B. & C. 261. Where, in an action against an acceptor, it appeared that, on the bill becoming due, his name had been erased and another bill (unstamped) drawn on the back of the first, it was held that the unstamped bill could not be submitted to the jury for the purpose of drawing the conclusion that the first bill had been cancelled. Sweeting v. Halse, 9 B. & C. 365. But where the plaintiff proved a deposit of money on certain terms contained in a promissory note duly stamped, and the note was afterwards altered by consent so as to become invalid for want of a fresh stamp, it was held to be still admissible evidence of the terms of the deposit. Sutton v. 'J'oomer, 7 B. & C. 416. On a plea of payment to an action on a bill, where some proof appeared on the plaintiff's evidence that payment was made by another bill, he may put in the bill to show that it was unavailable for waut of a stamp. Smart v. Nokes, 6 M. & Gr. 911. stamps how applied — Number required.'] By the Stamp Act, 1891, s. 3, "(1.) Every instrument written upon stamped material is to be written in such manner, and every instrument partly or wholly written before being stamped is to be so stamped, that the stamp may appear on the face of the instrument, and cannot be used for or applied to any other instrument k. — vol. i. y 226 Stamps. written upon the same piece of material. (2.) If more than one instrument be written upon the same piece of material every one of the instruments is to be separately and distinctly stamped with the duty with which it is chargeable." [S. Act, 1870, s. 7.] Sect. 4. " Except where express provision to the contrary is made by this or any other Act, — (a) An instrument containing or relating to several distinct matters is to be separately aud distinctly charged, as if it were a si parate instrument, with duty in respect of each of the matters. (b) An instrument made for any consideration iu respect whereof it is chargeable with ad valorem duty, and also for any further or other valuable consideration or considerations, is to be separately and distinctly charged as if it were a separate instrument with duty in respect of each of the considerations." [S. Act, 1870, s. 8.] The stamp required depends on the true character of the instrument, notwithstanding what it purports to be, and it is to be stamped for its leading and principal object, and this stamp covers everything accessory to this object. Dimmer Asphalte Paving Co. v. Inl. Rev. Corns., L. K., 7 Ex. 211, 215, 217 ; and vide ante, p. 221. But where one instrument operates as two independent ones, each of which would be liable to duty, it must be stamped in respect of each. Hadgett v. Id., 3 Ex. D. 46, post, p. 250. Where the subject-matter of the instrument is joint, though several persons are interested in it, only one stamp is requisite. Thus an assign- ment of the prize-money of several seamen on board a privateer, payable out of one fund, requires only one stamp. Baker v. Jardine, 13 East, 'J35, n. So, an agreement by several for a subscription to one common fund. Davis v. Williams, 13 East, 232. So an agreement of reference by all the underwriters on one policy. Ooodson v. Forbes, 6 Taunt. 171. So, a bond by several obligors in a penalty conditioned for the performance of certain acts by each and every of them. Boiven v. Ashley, 1 N. R. 274 ; and see Stead v. Liddard, 1 Bing. 196. So an agreement by three persons, in consideration that A. would pay a certain debt and costs, to indemnify A. to the extent of 501., to be paid separately by each with one-fourth of the costs, requires only one stamp. Ramsbottom v. Davis, 4 M. & W. 584. A release by several commoners of their respective rights, to make them com- petent witnesses, required only one stamp. Carpenter v. Butler, 2 M. & Rob. 298. And a single release of all encroachments by persons who had severally encroached on a common, made to the trustees of the commoners in general, was held to require only one stamp. Doe d. Croft v. Tidbury, 14 C. B. 304. See also Thomas v. Bird, 9 M. & W. 68. So, where the members of a mutual insurance club all executed the same power of attorney, severally authorizing the persons therein named to sign the club policies for them. Allen v. Morrison, 8 B. & C. 565. So, where several shareholders convey their interests by one deed, only one ad valorem stamp for the total amount is necessary. Wills v. Bridge, 4 Exch. 193. See also Freeman v. Inl. Rev. Corns., L. R., 6 Ex. 101. When an agreement refers to another document, and the two papers form, in fact, but one agreement, it is sufficient if one of them only bear a stamp. Rente v. Dicken, 1 C. M. & R. 422. But where a paper contains several contracts, and consequently requires several stamps, and only one is impressed upon it, that stamp applies to the contract only on which the stamp is impressed. Poivell v. Edmunds, 12 East, 6. Where a paper contains a number of independent contracts with different tenants, though under the same general terms of holding, and there is but one stamp upon it, it is matter of evidence to which contract the stamp applies, and the juxtaposition of the stamp is to be regarded. Doe d. Copley v. Day, Foreign Instruments. — Adjudication Stamp. 227 13 East, 241 ; and now see sect. 3, ante, p. 225. And if it be uncertain to which the stamp applies, the paper is inadmissible. Shipton v. Thornton, 9 Ad. & E. 331. The several admissions of live corporators, as freemen, were written on the same paper with only one stamp; such stamp was held to apply to the first admission only, and the others could not be read. B. v. Reeks, 2 Ld. Raym. 1445 ; and see Perry v. Bouchier, 4 Camp. 80 ; Waddington v. Francis, 5 Esp. 1S2. To a stamped agreement to refer a question to A., the parties some days afterwards added a memorandum appointing B. instead of A. : held that one stamp was sufficient. Taylor v. Parry, 1 M. & Gr. 601. Where the defendant made in his own name a single agreement as to goods of his own and also goods of himself aud partners, the whole of the goods forming part of the cargo of one ship, and signed in the name of the firm ; held iu an action on it against him alone, that only one stamp was necessary. Shipton v. Thornton, 9 Ad. & E. 314. Number of words.] As the Stamp Acts, 1870, 1891, contain no provision charging progressive duty, the number of words in any instrument chargeable under the Acts is immaterial. Foreign instruments.'] Under sect. 14 (4) (ante, p. 222), no instrument, wherever executed, relating to auy property situate, or to any matter or tiling done or to be done, iu the United Kingdom, shall be giveu in evidence unless stamped. If a stamp be necessary to render an instrument valid in one of the British colonies, it has been held that it cannot be received in evidence without that stamp here. Cleyy v. Levy, 3 Camp. 167 ; Aloes v. Hodgson, 7 T. R. 241. So where a foreign contract is void for want of a foreign stamp, it will also be void in this country. Bristow v. Sequeuille, 5 Exch. 275. But as a general rule our courts do not take notice of foreigu revenue laws; therefore an unstamped receipt, given in France, will be evidence here, though the French law requires that it should be stamped. James v. Catherwood, 3 D. & By. 190. Under sect. 15 (3 a), an iustrumeut first executed abroad may be stamped within thirty days after its first arrival in the United Kingdom, without the payment of any penalty. See In re English, &c, Bank, (1893) 3 Ch. 385, 0. A. A contract made in a British ship at sea is in the same position with regard to a stamp as one made abroad; see Ximenes v. Jaques, 1 Esp. .'111. As to the stamps required by foreigu bills, promissory notes, charter- parties, aud policies of insurance, see under those respective heads. Value, how ascertained. — Statement of.] By sect. 6 (1), foreigu or colonial currency is to be valued according to the rate of exchange, aud stock, &c, is to bo valued at the average price at the date of the instru- ment ; and by sect. 6 (2), an instrument stating the value so estimated ami stamped accordingly is, prima facie, duly stamped. [S. Act, 1870, ss. 11-13.] By 62 & 63 V. c. 'J, s. 12 (1), in the case of foreign or colonial currency lor which a rate of exchange is specilied in the Schedule to the Act, that rate is to be taken for the valuation, and (2) the Commissioners of Inland Keveuuc may add to or alter the Schedule so as to take effect after advertisement iu the London Gazette for two successive weeks. Denoting stamp.] This is used, under sect. 11, to indicate that an instru- ment which would, prima fade, be liable to higher duty is, in fact, correctly stamped, by reason of the higher duty having been paid on some other instrument. See Duplicate, jiost, p. 255. Adjudication stamp.] Under sect. 12 (1), (3), (4), the Commissioners of Q2 228 Stamps. Inland Revenue ma)- be required, without the payment of any fee, to affix a stamp on any executed instrument, denoting that it is not liable to any duty, or to assess the duty thereon, and on payment thereof, to affix thereto a stamp denoting that the full amount of duty has been paid. (5.) "Every instrument stamped with the particular stamp denoting either that it is not chargeable with any duty, or is duly stamped, shall be admissible in evidence and available for all purposes, notwithstanding any objection relating to duty." [S. Act, L870, S. L8.] The section does not, however (G b), apply tu an instrument chargeable with duty, and made as security without limit, nor to an instrument which may not be stamped after execution. See Prudential Assurance, &c. Co. v. Gurzon, 8 Exch. 97; 22 L. J., Ex. 85; Morgan v. Pike, 14 C. B. 473; 23 L. J., C. P. 64. It may be observed that by sect. 13 an appeal is given from the decision of the Commissioners to the High Court, whence it lies further to the C. A. and D. P. Proper denomination.'] Sect. 10. "(1.) A stamp which by any word or words on the face of it is appropriated to any particular description of instrument is not to be used, or, if used, is not to be available for an instrument of any other description. (2.) An instrument falling under the particular description to which any stamp is so appropriated as aforesaid is not to be deemed duly stamped, unless it is stamped with the stamp so appropriated." [S. Act, 1870, s. 9.] As to bills of exchange bearing a stamp of a wrong denomination, see post, p. 240. Impressed and adhesive stamps.] Sect. 2. "All stamp duties" . . . " except where express provision is made to the contrary, are to be denoted by impressed stamps only." [S. Act, 1870, s. 23.] Adhesive stamps are allowed in the cases of the following instruments : agreements bearing 6d. stamp; agreements or leases bearing Id., or for furnished houses, &c, bearing 2s. 6d. stamp; cheques and other bills of exchange payable on demand; foreign bills of exchange; charter-parties; contract notes ; copies of registers of baptism, &c. ; cost-book mine transfers ; delivery orders and warrants for goods ; letters of renunciation ; policies of insurance (except sea and life policies) ; protests on bills, and notarial acts ; receipts. Adhesive postage stamps " to a proper amount may be used to denote any stamp duties of an amount not exceeding 2s. Gd., which may legally be denoted by adhesive stamps, not appropriated by any word or words on the face of them to any particular description of instrument." [45 & 46 V. c. 72, s. 13 (2).] Adhesive stamps, how cancelled.'] Sect. 8. (1.) " An instrument, the duty upon which is required, or permitted by law, to be denoted by an adhesive stamp is not to be deemed duly stamped with an adhesive stamp unless the person required by law to cancel the adhesive stamp cancels the same by writing on or across the stamp his name or initials, or the name or initials of his firm, together with the true date of his so writing, or otherwise effectively cancels the stamp and renders the same incapable of being used for any other instrument, or for any postal purpose, or unless it is otherwise proved that the stamp appearing on the instrument was affixed thereto at the proper time." [S. Act, 1870, s. 24 (1).] Where two or more adhesive stamps are used to denote the stamp duty, each or every stamp is to be cancelled in the manner aforesaid. [45 & 46 V. c. 72, s. 14 (1).] It will be seen that under these sections cancellation is not imperative; Time of Stamping. — Penalty for Stamping. 229 it merely obviates the necessity of adducing evidence that the stamp was affixed at the proper time. Marc v. Rouy, 31 L. T. 372 ; M. T. 1874, Q. B. See further provision in the case of foreign bills, sect. 35, and decisions thereon, post, p. 240. The several sections allowing the use of adhesive stamps enact by whom the same are to be respectively cancelled. la general the persou first signing the instrument is the proper person to cancel the stamp ; in the case, however, of charter-parties the last person executing is to cancel the stamp. See sect. 49 (2), post, p. 217. Time of stamping.'] By sect. 15, an instrument may in general be stamped by the Commissioners of Stamps with an impressed stamp, after execution, on payment of the duty and a penalty, as to which vide infra ; and instru- ments first executed abroad may be stamped within 30 days after their first arrival in the United Kingdom without the payment of any penalty. [S. Act, 1870, s. 15 ; 51 & 52 V. c. 8, s. 18 (2).] If an instrument bear a proper impressed stamp when produced at the trial it is sufficient, though it was not stamped when executed, provided the commissioners are not expressly pro- hibited from subsequently affixing a stamp. 7?. v. Chester, Bp. of, Stra. 624 ; and see Rogers v. James, 7 Taunt. 147. The court will not inquire whether the penalty has been paid, or whether the stamp has been affixed in proper time, but will receive the instrument in evidence, when the stamp is not required by statute to be affixed within a certain time. R. v. Preston, 5 B. & Ad. 1028 ; Rose v. Tomlinson, 3 Dowl. 49 ; Lacy v. Rhys, 4 B. & S. 873, Ex. Ch. post, p. 270. But with regard to an instrument to which a stamp cannot by law be subsequently affixed, an inquiry as to the time of affixing is admissible. Green v. Davies, 4 B. & C. 235. And as an adhesive stamp cannot in general be applied to an instrument after its execution, it would seem that in this case an inquiry as to when the stamp was affixed is admis- sible. Express evidence as to the time of the affixing of the stamp is required by sect. 8 (1), ante, p. 228, unless it has been cancelled as required by that section. But where, as in the case of foreign bills of exchange, an adhesive stamp is to be affixed before negotiation in this country, if the stamp appear on the bill at the trial, this is, prima facie, sufficient evidence. Bradlaugh v. De Pan, L. R., 3 C. P. 286. By sect. 15 (2), in the case of the following instruments liable to ad valorem duty, viz. : — bond, covenant, or instrument of any kind whatsoever, conveyance on sale, lease, mortgage, bond, debenture, covenant and warrant of attorney, and settlement executed after May 16th, 1888, (a) the instru- ment must be stamped before the expiration of 30 days after it is first executed or first received in the United Kingdom if executed abroad, unless the opinion of the Commissioners of Iuland Revenue as to the amount of stamp duty chargeable has been required under sect. 12, ante, p. 227, in which case (b) the instrument must be stamped within fourteen days of the notice of the assessment. [5 1 & 52 V. c. 8, s. 18 (1).] Penalty for stamping.] By sect. 15 (I), in general, the penalty for stamp- ing after execution is L07., and where the duly to be paid exceeds 10^., interest is chargeable on the duty at the rate! of 51. per cent, per annum from the day on which the instrument was first executed to the time when the interest is equal to the amount of unpaid duty. But (•"> l> and 6, and 58 A 59 V. c. 16, s. 15) the Commissioners of Inland Revenue may, if they think tit, mitigate or remit any penalty payable on stamping. [S. Act, 1870, s. L5, 51 >V 52 V. c. 8, s. 18 (2).] As to instruments first executed abroad, vide ante, p. 227. Sorne instruments may be stamped within a certain time of their execution 230 Stamps without penalty; and in the case of others t lie amount of the penalty differs from thai above stated. The special enactments relating to these instru- ments will be found under their respective heads, post, pp. 231 et seq. By sect. 15 (2), in the ease of instruments falling within this sub-section, and rot duly stamped under the provisions in Id. (a) (b), vide ante, p. 229, the obligee, covenantee, or other person taking the security, vendee, or transferee, lessee, mortgagee, or obligee, or settlor, as the case may be, shall forfeit 10?., "and in addition to the penalty payable on stamping the instrument, there shall be paid a further penalty equivalent to the stamp duty therein], unless a reasonable excuse for the delay in stamping, or the omission to stamp, or the insufficiency of stamp, be afforded to the satis- faction of the" . . . " court, judge, arbitrator, or referee before whom it is produced." [51 & 52 V. c. 8, s. 1 (<■).] Stamping at the, trial.'] By sect. 14. (1.) "Upon the production of an instrument chargeable with any duty as evidence in any court of civil judicature in any part of the United Kingdom, or before any arbitrator or referee, notice shall be taken by the judge, arbitrator or referee of any omission or insufficiency of the stamp thereon, and if the instrument is one which may legally be stamped after the execution thereof, it may, on pay- ment to the officer of the court whose duty it is to read the instrument or to the arbitrator or referee, of the amount of the unpaid duty, and the penalty payable on stamping the same, and of a further sum of 11., be received in evidence, saving all just exceptions on other grounds. (2.) The officer, arbitrator or referee, receiving the said duty and penalty shall give a receipt for the same." . . . (3.) " On production to the Commissioners of any instru- ment iu respect of which any duty or penalty has been paid, together with the receipt the payment of the duty and penalty shall be denoted on the instrument." [S. Act, 1870, s. 16.] This section has been held not to apply to a trial in the Ch. Div. because there is there no such officer of the court as is named in the section. Jennings v. Christopher, cor. Romilly, M. R. cited (1900) 1 Ch., 478. The court will, however, in such case, admit an unstamped document in evidence, on the undertaking of the solicitor of the party tendering it, that it shall be duly stamped. S. C. ; accord. In re Coolgardie Goldfields, Id. 475. Time and mode of objecting to the stamp.'] After proof of the due execution of an instrument, the rule is that it lies on the opponent to point out any objection to the stamp. If indications of an effaced stamp appear, it is for the judge to decide whether he is satisfied of its admissibility. Doe d. Fryer v. (foombs, 3 Q. B. 687 ; Wilson v. Smith, 12 M. & W. 401. And the objection must lie made before the paper is read in evidence, Foss v. Wagner, 7 Ad. & E. 116, n. But where the objection does not appear except on extrinsic evidence, the objection may be made after it has been read. Field v. Woods, Id. 114. In that case the objection was that a cheque was post-dated. Interlocutory proof in support of the objection must be received instanter, and the question be decided by the judge. Bartlett v. Smith, 11 M. & \Y. 483. The court will grant a new trial where the evidence is left to the jury as part of the defendant's case. Id. If, however, the objection is not a mere stamp objection, as where the existence of the original stamped policy of insurance, a copy of which is tendered in evidence, is disputed, the whole question must be left to the jury. Stowe v. Querner, L. R., 5 Ex. 155, cited ante, p. 10. A stamp objection must be taken at the earliest possible moment. Robinson v. Vernon, Ld., 7 C. B., N. S. 235 ; 29 L. J., C. P. 310. Where a probate was read without objection, its evidence could not be excluded by afterwards showing that the amount of personality passing Affidavit. 231 under the will exceeded the amount covered by the stamp. S. C. Where an instrument hearing an agreement stamp only was put in as such, and the defendant's counsel afterwards relied on it as a lease, it was held that the objection ought then to be taken to the stamp, and was too late on a motion for a new trial. Doe d. Philip v. Benjamin, 9 Ad. & E. 644. The fact that the defendant was a party to the fraud on the revenue will not estop him from objecting. Steadman v. Duhamel, 1 C. B. 888. It should be observed, that it is not usual for counsel to take a stamp objection to a document where the objection can be cured by stamping at the trial under sect. 14 (1), ante, p. 230. It was formerly competent for the parties to overlook the want of a stamp or of a proper stamp ; but by sect. 14 (1), ante, p. 230, the objection is now to be taken by the judge, &c. at the trial. By Rules, 1883, 0. xxxix. r. 8, " A new trial shall not be granted by reason of the ruling of any judge that the stamp upon any document is sufficient, or that the document does not require a stamp." The C. L. P. Act, 1854, s. 31, which was in like terms, is repealed by 46 & 47 V. c. 49. Where a judge trying an action without a jury rules that a document is sufficiently stamped or does not require a stamp, his decision is final. Blewitt v. Tritton, (1892) 2 Q. B. 327, 0. A. Where, however, he rejects it on account of the insufficiency of the stamp, the ruling is, of course, still open to review. Sharpies v. RicJcard, 2 H. & N. 57 ; 26 L. J., Ex. 302. After the expression of the judge's opinion adverse to the reception of the document, counsel must formally tender it in evidence and require a note to be taken of the tender, otherwise the point will be of no avail on a motion for a new trial. Campbell v. Loader, 34 L. J., Ex. 50. Stamp objections by the officer of the court are sometimes avoided by the consent of the parties to the use of copies of unstamped originals, for the officer of the court can only take such objections as the parties might have taken if sect. 14 (1), ante, p. 230, had not been enacted. If an admitted copy of a document be put in evidence, and it afterwards appears that the original was not duly stamped, the unstamped copy is still admissible. Traviss v. Hargreave, 4 F. & F. 1078 ; cor. Keating, J. Whore, however, the objection appeared on the face of a special case, the court refused to allow the case to be argued. Nixon v. Albion Marine Insur. Co., L. R., 2 Ex. 338. The stamp duties chargeable on those instruments which are most frequently used in evidence at Nisi Prius will be found below, the instru- ments being arranged in alphabetical order. Affidavit. Affidavit and Statutory Declaration : — 2s. Cxi. Exemptions.'] These include affidavit (1) made for the immediate purpose of being filed, read, or used in any court, t vc. ; (2) required by commissioners, &Ci, of revenue or by law and made before a justice of the peace ; (3) required at the Bank of England or Ireland to prove the death of, or to identify, any proprietor of stock transferable there, or to remove any other impediment to the transfer of any such stock ; (A) relating to the hiss, mutilation, or deface- ment of any bank-note or bank post-bill; (5) declaration required to be made pursuant to any Act relating to marriages in order to a marriage without licence; (6) declaration forming part of an application for a patent. 232 Stamps. Agreement. Agreement or Contract, accompanied with a deposit. See Mortgage, &c, an' i sects. 23, 86, post, pp. 262 et seq. Agreement for a lease or for any letting. See Lease, and sect. 75, post, pp. 255, 256. Agreement for sale of property. See Conveyance on Sale, and sect. 59, post, pp. 249, 250. " Agreement or Contract made or entered into pursuant to the Highway Acts for or relating to the making, maintaining, or repairing of high- ways: — Qd." " Agreement, or any Memorandum of an agreement, made in England or Ireland under hand only, or made in Scotland without any clause of registra- tion, and nut otherwise specifically charged with any duty, whether the sane be only evidence of a contract, or obligatory upon the parties from its being a written instrument : — Qd." Sect. 22. "The duty of Qd. upon an agreement may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the agree- ment is first executed." [8. Act, 1870, s. 36.] The exemptions contained in the schedule are treated at length, post, pp. 234 et seq. What are agreements within the meaning of the Stamp Act.~] Many documents, although they may be assistance in the proof of an original or substituted contract, do not require to be stamped as agreements. Of this kind are directions and licences, which excuse what would otherwise be a trespass or a breach of contract. So also, memoranda of agreements, the term of which do not appear to have been mutually and finally approved of by the contracting parties, before or at the time when these memoranda were committed to writing, are regarded as mere proposals, and may be admitted in evidence without a stamp. In Ingram v. Lea, 2 Camp. 521, where a customer wrote down upon a slip of paper a description of the goods which he had ordered, which paper he signed and delivered to the shop- keeper, it was admitted in evidence without a stamp. In Parker v. Dubois, 1 M. & W. 31, where the defendant, in answer to an application to that effect, wrote back authorizing the plaintiff to pay a call upon shares which the defendant had agreed to purchase from him, it was held that the latter required no stamp. In Bethell v. Blencowe, 3 M. & Gr. 119, a memorandum allowing the defendant, a projected lodger, to leave lodgings without any notice if he saw reason to suspect embarrassment in the landlord, and signed by the landlord, was, though unstamped, admitted. In Walker v. JRostron, 9 M. & W. 411, a letter written by the buyer of goods to his factors, direct- ing them to appropriate the proceeds of the sale of the goods to the payment of bills accepted by the buyer, if these bills had not previously been honoured, was held not to require a stamp. But it would seem under the present Act to require a stamp under sect. 32 (post, p. 239), as a bill payable on demand, vide post, pp. 241, 242. A memorandum signed by a tenant authorizing his landlord, upon condition of withdrawing a distress, to re-enter and distrain in case of default in payment of the rent by a certain day, was held not to be an agreement requiring a stamp. Sill v. Bamm, 5 M. & Gr. 789. So a document signed by a tenant, by which he requested a bailiff to forbear selling his goods, and consented that they should remain on the premises in his possession for a period of three months, when he, the tenant, would give them up, and pay all costs and charges attending the distress. Fishvnck v. Milnes, 4 Exch. 825. So a prospectus containing the terms Agreement. 233 upon which the plaintiff undertook to introduce applicants to partnerships or situations, though these terms were adopted iu the agreement upon which the action was brought. Edgar v. Blick, 1 Stark. 464. A prospectus of the terms of a school which had been shown to the father of two boys, upon which he agreed to place them in the school, subject to a slight reduction iu the terms of payment, was held admissible in evidence without a stamp. Clay v. Crofts, 20 L. J., Ex. 361. So where a lease of premises was sold by auction, and the auctioneer handed to the buyer an unsigned written paper specifying the term, the rent, and the extent of the premises, this paper was received in evidence unstamped. Bamsbottom v. Tunbridge, 2 M. & S. 434. But where a similar paper was signed by the auctioneer, it was held that it must be stamped, even although the memorandum did not satisfy the Statute of Frauds. Bamsbottom v. Mortley, Id. 445. Accord. Glover v. Halkett, 2 H. & N. 487 ; 26 L. J., Ex. 416. In Vollans v. Fletcher, 1 Exch. 21, where a shareholder proved his title to shares by his letter of application and the letter of allotment in reply, in which was contained a power for the company, in default of payment of the deposit, to cancel the allotment, a term not alluded to in the first letter, an objection, that the letters required a stamp, was overruled. See Duke v. Andrews, 2 Exch. 290; Willey v. Parratt, 3 Exch. 211. In Chaplin v. Clarke, 4 Exch. 403, a letter of allotment of shaves, the letter of applications having been lost, was admitted without a stamp. See also Moore v. Garwood, Id. 681, Ex. Cli. See now, however, Letter of Allotment, post, p. 258. Where the plaintiff made a memorandum in writing of an offer on his part to let to the defendant a piece of land upon the same conditions as those which had been agreed to by the defendant and a third person, to which offer the defendant afterwards verbally assented, the memorandum was admitted without a stamp. Brant v. Brown, 3 B. & C. 665 ; Hawkins v. Warre, Id. 690 ; Hudspeth v. Tarnold, 9 C. B. 625. A resolution, signed by the provisional committee of a company, to employ the plaintiff as secretary was received in evidence unstamped, as not amounting to an agreement. Vaughton v. Brine, 1 M. & Gr. 359. But where a minute was made at a meeting, of a resolution, by the defendants and others, to make an alteration in the terms of a previous contract between them and the plaintiff, and to allow him an additional sum for extra trouble, and this minute was read over to the plaintiff, and assented to by him, Holfe, B., held, at N. P., that the resolution required a stamp. Lucas v. Beach, Id. ill. The defendant, after having given the plaintiff a verbal order for 50 shares in a railway company, signed a memorandum that he had bought of the plaintiff 50 shares in the company at 10/. a share, which memorandum was handed to the plaintiff. This was held to require an agreement stamp. Knight v. Barber, 1''. M. & \Y. 67. "A written instru- ment, to come within the terms of this clause of the Stamp Act, must have been made with the intention of containing within itself the terms of an agreement between the parlies." Id. 70, per Parke, B. A draft agreement forwarded by the plaintiff to the defendant's solicitor, and sent back by him en the same day with certain alterations, to which the plaintiff did not object, was held inadmissible (although it had no signature) for wanl of an agree- ment stamp. Ohadwick v. Clarke, 1 C. B. 7<>t). The words "under hand only " in this part of the Stamp Act, merely refer to instruments not under seal. S. i'., per Cur. But see 6 C. B. 700, n. An agreement to enlarge the time for performing another agreement requires a new stamp, where the former one required to be stamped. Bacon v. Simpson, 3 M. & W. 78. An instrument operating as an attornment only, requires no stamp. Doe d. Linsey v. Edward, 5 Ad. & E. 95; Doe d. Wright v. Smith, 8 Ad. & E. 255. So, a mere acknowledgment. Thus, in an action against an attorney, 234 Stumps. the plaintiff gave in evidence the following unstamped letter: — "I have this day received a bill of exchange for .'500?., drawn, &c, which I hold as your attorney to recover the value of from the respective parties, or to make such other arrangemenl for your benefit as may appear to me in my professional capacity reasonable and proper." Held, that this letter was a mere acknow- ledgment of the duty which the party took upon himself to perform, and that it therefore required no stamp. Langdon v. Wilson, 7 B. &C. 640, n; Midlett v. Euchison, 7 B. & 0. 639; Be Parquet v. Page, 15 Q. B. 1073 ; 20 L. J., Q. B. 28. So, a memorandum, " I acknowledge that you have for my accommodation accepted a bill for, &c, and I will provide for the same when due." Notley v. Webb, 5 C. B. 834. So a memorandum put in to show the assent of a party to an act done under a previous agreement by him, already in proof, in which the terms of the agreement are recapitulated. Marshall v. Powell, 9 Q. B. 779. So, an acknowledgment by the defendant of the deposit of goods with him requires no stamp though given in evidence in an action against him for not redelivering them. Blackwell v. M'Nanghtan, 1 Q. B. 127. But it may now require a stamp as a warrant for goods, vide post, p. 276. " Borrowed of A. 100/. for one or two months. Cheque for 1007. on — bank: " Held an acknowledgment only, and not an agreement or promissory note. Hyne v. Dewdney, 21 L. J., Q. B. 278. But an acknow- ledgment signed by the defendant, that he holds the land as tenant to the plaintiff on certain terms, cannot be put in evidence by the defendant to show that a notice to quit was irregular, without an agreement stamp. Doe d. Franhis \. Franhis, 11 Ad. & E. 792. And such an agreement may now require a lease stamp, vide post, p. 256. A broker's note of the purchase of shares, sent to his principal, does not require an agreement stamp; Tomkins v. Savory, 9 B. & (J. 701 ; it is now, however, liable to a duty of Id. or Is. Vide Contract Note,p>ost, p. 248. The 9 Gr. 4, c. 14, s. 8, exempts from agreement, duty any memorandum or other writing made necessary hy that Act; thus a qualified promise to pay, put in evidence not to prove the debt but to rebut the Statute of Limitations, is exempt. Morris v. Dixon, 4 Ad. & E. 845. See also cases jiost, pp. 243, 244. This exemption is continued by sect. 1 of the present Act, vide ante, p. 221. First Exemption.'] u Agreement or memorandum the matter whereof is not of the value of 51." Under 55 G. 3, c. 184, sched. 1, the amount was 20Z., and under that Act many of the cases cited below were decided. The statute only applies when the value of the contract is measurable. Thus a contract of marriage may be proved by unstamped letters. Oxford v. Cole, 2 Stark. 351. The value must appear on the instrument, or be capable of being ascertained at the time of making. Parke, B., Tat/lor v. Steele, 16 M. & W. 665 ; Lloyd v. Jlfan.se/, 1 L. M. & P. 130; 19 L. J.', Q. B. 192. Where the agreement was to give up a shop and goodwill for 11., and not to open a shop of the same description under a forfeiture of 20/., it was held not to require a stamp; for the forfeiture is not of the value of the matter. Pemberton v. Vauglian, 10 Q. B. 87. So, an agreement to pay interest at Is. per 1/. per month, if a bill for 100/., to be discounted, should not be paid at maturity. Semple v. Steinau, 8 Exch. 622 ; 22 L. J., Ex. 224. The general regulations of a free school under which the master is appointed, signed by him and the trustees, may be proved against him, though unstamped. Browne v. Dawson, 12 Ad. & E. 624. A memorandum by a carrier of the receipt of goods worth 20/. might be given in evidence, to show the terms upon which they were received, without a stamp ; the carriage being of less amount. LatJiam v. Butley, Ky. & M. 13. So in the Agreement. — Exemption*. 235 case of a wharfinger. Chadvrick v. Sills, Id. 15 ; but in this latter case a 3d. stamp would now generally^ be required, vide Warrant fur Qoods,p>ost, p. 27G. A memorandum relating to the warehousing of goods worth more than 20?. was admissible if the warehouse rent were less. Baldwin v. Alsager, 13 M. & W. 365. An agreement to indemnify a bailiff who distrained for 1?. 4s. rent, was held to require no stamp ; for the value is uncertain. Cox v. Bailey, 6 M. & Gr. 193. So, an agreement to do work of uncertain quautity at 11. 14s. per rod. Liddiard v. Gale, 4 Exch. 816. But an agreement to indemnify A. from all costs, charges, damages, or other expenses, which he might incur as bail for B., required an agreement stamp, the arrest of B. being for more than 201., though the costs, &c, incurred did not amount to that sum. Williams v. Jarrett, 5 B. it Ad. 32. Where the agreement relates to granting a lease, the rent is the matter on which the value is to be calculated. Mayfield v. Robinson, 7 Q. B. 486 ; Barton v. Reevell, 16 M. & W. 307. But if the period of tenancy 7 be fixed, the rent multiplied by the time is the test of value. Doe d. Marlow v. Wiggins, 4 Q. B. 366, 372, 377. As, however (by sect. 75 (1), post, p. 256), agreements for leases for terms not exceeding 35 years now require lease stamps, these decisions will not frequently be applicable. See further, post, pp. 257, 258. Second Exemption.'] "Agreement or memorandum for the hire of any labourer, artificer, manufacturer, or menial servant." An assignment of an apprentice is not within this exemption. B. v. S. Bald's, Bedford, 6 T. R. 452. Firemen and stokers on board foreign steamers are within it. Wilson v. Zulueta, 14 Q. B. 405 ; Cornforth v. Danube & Black Sea By. Co., 2 F. & F. 197. So, a person hired to take charge of glebe, dairy, &c, at a salary and share of clear profit. B. v. Worthy, 2 Den. C. C. 333 ; 21 L. J., M. C. 44. By the general exemption (3), at the end of the schedule, " bonds, con- tracts, and agreements entered into in the United Kingdom for or relating to the service in any of Her Majesty's colonies or possessions abroad of any person as an artificer, clerk, domestic servant, handicraftsman, mechanic, gardener, servant in husbandry, or labourer," are exempt from all duty. T/iird Exemption.'] " Agreement, letter, or memorandum made for or relating to the sale of any goods, wares, or merchandise." Cases within the third Exemption.] An undertaking to guarantee the payment of goods to be furnished to third persons. Warrington v. Furbor, 8 East, 242; accord. Sadler v. Johnson, 16 M. & W. 775; Chatfield v. Cox, 18 Q. B. 321 ; 21 L. J., Q. B. 279. An agreement by A. to take half of certain goods bought by 15. on their joint account, and to furnish B. with half the amount in time for payment. Venning v. Lechie, 13 East, 7. A\[ agreement to cancel a former agreement relative to the sale of goods, and for the future sale of goods upon different terms. Whi/ivorlh v. Crockett, li Stark. 431. An agreement for the sale of rape oil, not yet expressed from the seed. Wills v. Atkinson, 6 Taunt. 11. An agreement to make a chattel and deliver it within a certain time; Pinner v. Arnold, '_' ( '.. M. & R. 613; Zee v. Griffin, 1 B. & S. 272; 30 I-. J., Q. B. 252; though it was formerly hell that a contract to make goods for sale was not within the exemption. Buxton v. Bedall, 3 Bast, 303. An agreement for the sale of chimney-pieces, the vendor "to finish them in a tradesmanliko manner." lliK/hes v. Breeds, 2 C. & P. 159. A receipt for the price of a horse con- taining a warranty of soundness. Shrine v. Elmore, 2 Camp. 207. An agreement for a crop growing in a close, and conferring no interest in the 236 Stamps. land. Parker v. Staniland, 11 East, 362; Warwick v. Bruce, 2 M. & S. 205 ; .Etoams v. 2Jo&erte, 5 B. & 0. 829 ; TFatts v. JFWewd, 10 B. & C. 446 ; Jones v. Flint, 10 Ad. & E. 753. An agreement for the purchase of timber, though the trees arc growing. Smith v. Surman, 9 B. & C. 561. An agree- ment to supply a house with water. W. Middlesex Waterworks v. Suwer- kropp,M. & M. 409. Some of the above cases were decided on the Stat, of Frauds, ss. 4 and 17; but they are authorities on the Stamp Act also. A memorandum by the defendant of an advance made to him by the plaintiff, an auctioneer, on receipt of books for sale by the plaintiff by auction, requires no stamp. Southgate v. Bohn, 16 M. & W. 34. Cases not within the third Exemption.] An agreement by a principal to provide for certain bills drawn upon his factor, if certain goods, then either in the factor's possession or about to be placed there, should remain unsold at the time of the bills falling due ; for the exemption is confined to instru- ments whereof the sale of goods is the primary object. Smith v. Cator, 2 B. & A. 778. An agreement for the sale of goods and goodwill. South v. Finch, 3 N. C. 506. And now see sect. 59, -post, p. 250. A contract for the erection of fixtures ; semb. per Parke, B., Pinner v. Arnold, 2 0. M. & R. 613 ; or the sale of railway shares, Knight v. Barber, 16 M. & W. 66. So, an agreement for the sale of growing crops, conferring an interest in the land ; Crosby v. Wadsworth, 6 East, 602 ; Waddington v. Bristoiv, 2 B. & P. 453 ; Emmerson v. Eeelis, 2 Taunt. 38 ; or a sale of growing underwood, to be cut by the purchaser ; Scorell v. Boxall, 1 Y. & J. 396 ; or an agree- ment to print a book, and supply the paper ; Clay v. Yates, 1 H. & N. 73 ; 25 L. J., Ex. 237 (decided on the Statute of Frauds, ss. 4 and 17). So, a contract under seal for the sale of goods. Per Bayley, J., Clayton v. Burtenshaiv, 5 B. & 0. 45. Fourth Exemption.'] " Agreement or memorandum made between the master and mariners of any ship or vessel for wages on any voyage coastwise from port to port in the United Kingdom." See also the exemptions given by the Merchant Shipping Act, 1S94 (57 & 58 V. c. 60), s. 721 ; and by sect. 320 (4) passengers' contract tickets entered into under that section are free from duty. Appraisement. "Appraisement or valuation of any property, or any interest therein, or of the annual value thereof, or of any dilapidations, or of any repairs wanted, or of the materials and labour used or to be used in any building, or of any artificer's work whatsoever," must be stamped as follows: where the amount of appraisement does not exceed 5Z., — -3cZ. ; where it exceeds 51. and does not exceed 101., — 6d. ; 101. and not 20?., — Is. ; 20/. and not 30Z.,— Is. 6d. ; 30/. and not 40/.,— 2s. ; 40/. and not 50/.,— 2s. 6c/. ; 50/. and not 100/.,— 5s. ; 100/. and not 200/.,— 10s. ; 200/. and not 500/.,— 15s. ; exceeds 500/., — 1/. Exemptions.] Appraisement or valuation (1) made for the information of one party only, and not being in any manner obligatory as between parties, either by agreement or operation of law ; (2) made under order of Admiralty Court; (3) of the property of a deceased person made for the information of an executor or other person required to deliver an affidavit of the estate of such deceased person ; (4) made for ascertaining legacy or succession duty. Award. — Bank Note, Bill of Exchange, Cheque, &c. 237 Where nothing is referred to but the mere value of goods and the repairs of a farm, an appraisement stamp is proper, and not an award stamp. Leeds v. Burrows, 12 East, 1. Award. An Award " in any case in which an amount or value " was the matter in dispute, executed before Oct. 1st, 1906, was to be stamped as follows : where no amount is awarded or the amount or value awarded does not exceed 5?., — 3d. ; where it exceeds 5?. and does not exceed 10?., — 6c?. ; 10?. and not 20?.,— Is. ; 20?. and not 30?.,— Is. 6c?. ; 30?. and not 40?.,— 2s. ; 40?. and not 50?.,— 2s. 6c?. ; 50?. and not 100?.,— 5s. ; 100?., and not 200?.,— 10s. ; 200?. and not 500?.,— 15s. ; 500?. and not 750?.,— 1?.; 750?. and not 1,000?.,— 1?. 5s. ; exceeds 1000?., — 1?. 15s. ; in any other case, — 1?. 15s. But by stat. 6 E. 7, c. 20, s. 9, in the case of awards executed on or after Oct. 1st., 1906, a uniform duty of 10s. is substituted for the above scale. It seems that an award ordering something to be done, other than, or as well as, the payment of money, formerly bore the duty of 1?. 15s. The appointment of an umpire, made in writing by two arbitrators, requires no stamp. Routledge v. Thornton, 4 Taunt. 704. An agreement stamp is not necessary to an arbitration bond which, besides the usual covenants, contains an agreement as to the payment of costs. Re Wans- borough, 2 Cliitty, 40. A paper drawn up by a person appointed by two parties to ascertain the amount of an account requires an award stamp. Jebb v. M'Keirna?i, M. & M. 340. But not if the account is not intended to bind them. Goodyear v. Simpson, 15 M. & W. 16. The opinion of counsel, by which parties agree to abide, does not require an award stamp. Semb. Boyd v. Emmerson, 2 Ad. & E. 184. Nor does a certificate by a referee, agreed on at the trial, as to the amount at which a verdict, taken at the trial, is to stand. Salter v. Yeates, 5 Dowl. 291 ; and see Tomes v. Eawkes, 10 Ad. & E. 32. An award of land by commissioners of inclosure only requires an award stamp and not an ad valorem stamp, as on a sale. Doe d. Ld. Suffield v. Preston, 7 B. & O. 392. By the C. L. P. Act, 1854, s. 30, no document made or required under the provisions of that Act shall be liable to any stamp duty. Sects. 3 — 17, which related to arbitration, are repealed by the Arbitration Act, 1889 (52 & 53 V. c. 49), s. 26 (1) ; but as by Id. (2), " any enactment or instrument referring to any enactment repealed by this Act, shall be construed as referring to this Act," sect. 30 will, it would seem, apply to the analogous provisions of 52 & 53 V. c. 49, notwithstanding the repeal of sect. 30, in terms, by 55 & 56 V. c. 19. Bank Note, Bill of Exchange, CJieque, and Promissory Note. Bank Note. — For money not exceeding 1?., — 5c?.; exceeding 1?. and not 2?.,— 10c?. ; 2?. and not 5?.,— Is. 3c?. ; 5?. and not 10?.,— Is. 9c?. ; 10?. and not liO?.,— 2s. ; 20?. and not 30?.,— 3s.; 30?. and not 50?.,— 5s.; 50?. and not L00Z.,— 8s. 6-/. ex in Banker — Bank Nulc.~] Sect. 29. " For the purposes of tliis Act the pression 'banker' means any person carrying on the business of banking .. the United Kingdom, and the expression 'bank note' includes — (a) Any bill of exchange or promissory note issued by any bunker, other than the Bank of England, for the payment of money not exceeding 100?. to the bearer on demand; and (/») any bill of exchange or promissory note so issued which entitles or is intended to entitle the bearer or holder thereof, without endorsement, or without any further or other indorsement than may Stamps. be thereon at the time of the issuing thereof, to the payment of money not exceeding LOO?, od demand, whether the same be so expressed or not, and in whatever form, and by whomsoever the bill or note is drawn or made." |S. An, L870, s. 15.] Sect. 30. "A hank note issued duly stamped, or issued unstamped by a banker duly licensed or otherwise authorized to issue unstamped bank notes, may be from time to time re-issued without being liable to any stamp duty by reason of the re-issuing." [S. Act, 1870, s. 46.] The provisions relating to notes issued by private banks will be found in 7 & 8 V. .'. 32 ; 8 & 9 Vict. cc. 37, 38 ; and 17 & 18 V. c. 83, ss. 11, 12. Their issue is now restricted by 7 & 8 V. c. 32, ss. 10, 28. " Bill of Exchange. — Payable on demand, or at sight, or on presentation, or within '•> days after date <ost, p. 241), be allixed and cancelled by the person to whom it is presented. 240 Stamps. Fort ign bills, adhesive stump on.'] Sect. 34. "(2.) The ad valorem duties upon bills of exchange and promissory notes drawn or made out of the Uuited Kingdom arc to be denoted by adhesive stamps. Sect. 35. (1.) Every person into whose hands any bill of exchange ur promissory note "comes in the United Kingdom before it is stamped shall, before lie presents for payment, or indorses, transfers, or in any manner negotiates, or pays the bill or note, affix thereto a proper adhesive stamp or" . . . "stamps of sufficient amount, and cancel every stamp so affixed thereto. " (2.) Provided as follows : — («) If at the time when any such bill or note comes into the hands of any bond fide holder there is affixed thereto an adhesive stamp efieotually cancelled, the stamp shall, so far as relates to the holder, be deemed to be duly cancelled, although it may not appear to have been affixed or cancelled by the proper person ; (b) If at the time when any such bill or note comes into the hands of any bond fide holder there is affixed thereto an adhesive stamp not duly cancelled, it shall be competent for the holder to cancel the stamp as if he were the person by whom it was affixed, and upon his so doing the bill or note shall be deemed duly stamped, and as valid and available as if the stamp had been cancelled by the person by whom it was affixed." [S. Act, 1870, s. 51.] Sect. 35 (1) includes a foreign bill payable on demand. In re Boyse, 33 Ch. D. 612. On the transferor is imposed the duty of cancelling the stamp affixed to a foreign bill, and on the transferee of seeing that it is done. Pooley v. Brown, 11 C. B., N. S. 566 ; 38 L. J., C. P. 134. If a foreign bill be produced at the trial bearing the proper stamp, it will be presumed that the stamp was affixed at the time required by this section ; Bradlaugh v. Be Bin, L. R., 3 C. P. 286 ; even though it is not properly cancelled; Marc v. Bowj, 31 L. T. 372, M. T. 1874, Q. B. The party objecting to the admission of the instrument on the ground that the stamp was not affixed at the proper time must plead the objection specially. S. (J., per Blackburn, J. It seems that cancellation may be made at any time in court before verdict. Viale v. Michael, 30 L. T. 463, E. T. 1874, Q. B. per Id. Sect. 36. "A bill of exchange or promissory note which purports to be drawn or made out of the United Kingdom is, for the purpose of determining the mode in which the stamp duty thereon is to be denoted, to be deemed to have been so drawn or made, although it may in fact have been drawn or made within the United Kingdom." This section obviates the objection held to be fatal in Steadman v. Buhamel, 1 C. B. 888. Wrong denomination of stamp.'} Sect. 37. " (1.) Where a bill of exchange or promissory note has been written on material hearing an impressed stamp of sufficient amount but of improper denomination, it may be stamped with the proper stamp on payment of the duty and a penalty of 40s. if the bill or note be not then payable according to its tenor, or of 101. if the same be so payable." [S. Act, 1870, s. 53.] It is sufficient if a bill so re-stamped be produced at the trial. Heiser v. Grout, 5 H. & N. 35 ; S. C, sub nom. Kaiser v. Gtrout, 29 L. J., Ex. 20. Effect of want of stamp.'] Sect. 37. " (2.) Except as provided in (1), supra, no bill of exchauge or promissory note shall be stamped with an impressed stamp after the execution thereof." [S. Act, 1870, s. 53.] Sect. 38. "(1.) Every person who issues, indorses, transfers, negotiates, presents for payment, or pays any bill of exchauge or promissory note Bill of Exchange, &c. — Inland or Foreign. — What are Bills, &c. 241 liable to duty and not being duly stamped sball incur a fine of 10?., and the person who takes or receives from any other person any such bill or note either in payment or as a security, or by purchase or otherwise, shall not be entitled to recover thereon, or to make the same available for any purpose whatever. "(2.) Provided that if any bill of exchange payable on demand, or at sight or on presentation, is presented for payment unstamped, the person to whom it is presented may affix thereto an adhesive stamp of Id., and cancel the same, as if he had been the drawer of the bill, and may, there- upon, pay the sum in the bill mentioned, and charge the duty in account against the person by whom the bill was drawn, or deduct the duty from the said sum, and the bill is, so far as respects the duty, to be deemed valid and available." [S. Act, 1870, s. 54.] Bill in set."] Sect. 39. " When a bill of exchange is drawn iu a set according to the custom of merchants, and one of the set is duly stamped, the other or others of the set shall, unless issued or in some manner negotiated apart from the stamped bill, be exempt from duty; and upon proof of the loss or destruction of a duly stamped bill forming one of a set, any other bill of the set which has not been issued or in any manner negotiated apart from the lost or destroyed bill may, although unstamped, be admitted in evidence to prove the contents of the lost or destroyed bill." [S. Act, 1S70, s. 55.] Bill, whether inland or foreign.'] A bill drawn in England on a person abroad, and accepted by him payable in England, is an inland bill, and must bear an impressed stamp. Amner v. Clark, 2 C. M. & R. 468. So, conversely, a bill sketched out and accepted here, and transmitted to a person abroad for his signature as drawer, is a foreign bill, and does not require an impressed stamp. Boehm v. Campbell, Gow, 56. A foreign bill drawn and indorsed abroad, may be presented in this country by the indorsee for acceptance without being stamped, and he may sue the drawer on it for non-acceptance. Sharpies v. Richard, 2 H. & N. 57 ; 26 L. J., Ex. 302. A foreign bill may be given in evidence for a collateral purpose without a stamp, before it has been presented for payment, indorsed, transferred, or otherwise negotiated. Griffin v. Weatherbg, L. E., 3 Q. B. 753. The Bills of Exchange Act, 1882 (45 & 46 V. c. 61), s. 97 (3), provides that nothing therein, " or in any repeal effected thereby shall affect (a.) the provisions of the Stamp Act, 1870, or Acts amending it, or any law or enactment for the time being in force relating to the revenue." »e What are bills, &c, within the Stamp Act, 1891.] The 1st part of sect. 32 applies to bills of exchange generally, and any document mentioned in it, if payable on demand, falls also within the 2nd part. L. Clearing Bankers, Committee of, v. Inl. Rev. Comrs., (1896) 1 Q. B. 222, 542, C. A. The object of the legislature, in framing sects. 32, 33, ante, p. 239, was " to treat as promissory notes and bills of exchange, and to subject to stamp duty such instruments as, being payable on a contingency or out of a particular fund, could not, in strictness, fall under that denomination." Per Ld. Mllcnborough, (J. J., on 55 G. 3, c. L84; Firbank v. Bell, 1 B. & A. 36; and sec: Jones v. Simpson, '-! B. & C. 321. In considering the cases decided under that Act, with a view of ascertaining whether an instrument is now chargeable with duty or not, it must be borne in mind that the provisions of the present Act are considerably wider than those of the former one (vide ante, p. 239), and the cases decided on 55 G. 3, c. 184, cited below, R. — VOL. I. R 242 Stamps. where instruments were held to be entitled to exemption, must be applied subjecl to such modifications. Where the instrument operates as an equitable assignment it is not within the Act, Tims, where T. contracted with J. to build a steam launch for J. for SO/., and after receiving 10/. on account, addressed the following letter to ,1. : -"] hereby assign to R. the sum of 40?., or any other sum now dim or that may hereafter become due in respect of the steam launch I am building for you," this was held not to be an order for the payment of money, but the assignment of a debt. Buck v. Bobson, 3 Q. B. D. 686, following Bricc v. Bannister, hi. 569, C. A. So, a document addressed to C, the trustee of a will, and given to F., " I hereby authorize and direct you to pay to F. or his order the sum of 140Z. out of moneys now due, or hereafter to become due to me under the will of my late father, and before making any payment to me thereout." Fisher v. Calvert, 27 W. R. 301, M. R., H. S. 1879. But unless the order specifies the fund or debt out of which the payment is to liu made, it is not an equitable assignment. Percival v. Dunn, 29 Ch. J i. L28. So an ordinary bill of exchange drawn on H. by C. for the exact amount of C.'s funds in H.'s hands does not operate as an equitable assign- ment of such funds. Shand v. Du Buisson, L. R., 18 Eq. 283. And the Bills of Exchange Act, 1882 (45 & 46 V. c. 61), s. 53, expressly provides that "a bill of itself does not operate as an assignment of funds in the hands of the drawee available for payment thereof," but this section has no effect on the stamp duty payable on such an instrument, vide sect. 97 (3, a), ante, p. 241. In order to come within 55 G. 3, c. 184, it was held that the instrument must be for the payment of a specified sum ; and therefore where A., having consigned goods to B., sent him the following order,— "Pay to C. the proceeds of a shipment of 12 bales of goods, value about 2,000?., consigned by me to you : " and B., by writing, consented to pay over the full amount of the net proceeds of the goods ; it was held that neither of these instruments came within the above clause. Jones v. Simpson, 2 B. & C. 318 ; and see Roscoe, Dig. Bills of Exchange, p. 31. It seems that an order for the payment of money sent or delivered to the person by whom it is to be paid, and not to the person to whom the paymeut is to be made, or any person on his behalf, is not liable to any stamp duty, unless payable after the date thereof, ia which case it must bear a Id. stamp. See Hutchinson v. Heyworth, 9 Ad. & E. 375. A written authority by A. to defendant to pay certain sums to plaintiff out of debts from time to time accruing due from defendant to A., and a written promise by defendant to pay accordingly, were held to constitute together an agreement, and not to require a bill or note stamp. Hamilton v. Spottisivoode, 4 Exch. 200. See Thompson v. C'ondy, post, p. 243. See also Walker v. Bostron, 9 M. & W. ! 1 , cited ante, p. 232. So, where the creditor sends an account to his debtor, requesting him, at the foot of it, to pay the amount to A. B., and hands the account to A. B. to collect it on his (the creditor's) behalf, this is nut a bill of exchange within the Act. Norris v. Solomon, 2 M. & Rob. 266. Wliat are promissory notes within the Stamp Act, 1891.] The terms of tiie present Act are so much wider than those of 55 G. 3, c. 184 (vide ante, P. 239), that many of the eases decided thereon are now clearly inapplicable ; it lias been decided, however, that notwithstanding the wideness of the terms of sect. 33 (ante, p. 239), the section is " meant to include documents, tlie contents of which consist substantially of a promise to pay a definite sum of money and of nothing else." Mortgage Insur. Cor. v. Inl. Rev. Corns., 21 Q. B. D. 352, 358, 0. A. If the promise to pay be coupled with Bill of Exchange, (fee. — Promissory Notes. 243 stipulations other than those provided for by sect. 33 (2), it is not a promis- sory note. S. C. Thus, a policy of insurance guaranteeing the payment of 100?. in 1976, for a present payment of 9?. 17s. 4d., with a proviso that the assured might at any time claim the surrender value, fixed according to tables of the corporation for the time being in force, was held by reason of the proviso to require an agreement stamp only. S. C. See also Yeo v. Daiue, 53 L. T. 125, E. S. 1885, C. A. ; and British India Steam Nav. Co. v Inl. Bev. Corns., 7 Q. B. D. 165, cited post, p. 265. The following letter, signed by the defendant, and addressed by him to the plaintiff, " G. T. M. Co. — I hereby undertake to pay you on the first allotment of shares in the above-named Co., the sum of 105?. out of commis- sion I shall have to pay E. M. in accordance with his letter to you on the other side," does not require a note stamp under s. 33, ante, p. 239. Thompson v. Condy, Sittings in London, 27th June, 1874 ; cor. Pollock, B., after con- sulting with Kelly, C.B., Ex rel. editoris. The ground of this decision appears to have been that sect. 33 (1) applies only where the promise is to pay absolutely and at all events; and that (2) is limited in its application to instruments purporting to be notes though not legally such because payable on a contingency, &c, and is not to be extended in its construction by reference to (1). See also Hamilton v. Spottiswoode, ante, p. 242. The following cases were all decided on 55 G-. 3, c. 184, and some of them upon the special provisions of that Act with reference to agreements in the form of promissory notes, which were to be charged with agreement but not note duty, vide ante, p. 239. The Stamp Act, 1891, contains no similar pro- vision, and the cases must therefore be read subject to sect. 33 (1), ante, p. 239, of that Act. An instrument in this form : " Received of A. B. 100?. which I promise tu pay on demand," is a promissory note, and requires a stamp as such. Green v. Davies, 4 B. & C. 235. "IOU 20/., to be paid on the 22nd inBt.," dated and signed, is an instrument requiring to be stamped either as a note or an agreement. Brooks v. Elkins, 2 M. & W. 74. But the words "value received," will not render an I U liable to a stamp. Gould v. Coombs, 1 C. B. 543. "IOU 40Z., which I borrowed of M., and to pay 5?. per cent, till paid,— B. T.," is neither an agreement nor a note. Melanotte v. Teasdale, 13 M. & W. 216. Sec also Sihree v. Tripp, 15 M. & W. 23. "I have received the sum of 20?. borrowed of you, and am accountable for it with interest," was held to be an agreement and not a note. Home v. Bed/earn, 4 N. & C. 133. So, "lionowed of J. W. 200?. to account for at . . . months' notice if required," &c. White v. North, 3 Exch. 689. So, an instrument in the form of a receipt for money which had been advanced long before, con- taining a promise to pay interest thereon, is not a promissory note. Taylor v. Steele, 16 M. & W. 665. But a note for money payable on demand to H., "and I have lodged with II. the counterpart leases signed, &c, as a collateral security for the sum," is a note and not an agreement. Fancourt v. Thome, 9 Q. B. 312. The reservation of interest is not to be considered an addition to the sum advanced so as to require a larger stamp ; thus a stamp, applicable to a note nit exceeding 30?., is applicable to a note for the payment of 30?. at three months after date with interest from the date. Pruessing v. Ing, 4 B. & A. 204. Where a joint and several note for securing the repayment of a loan was signed fust by one, and some days afterwards by the other party, it was held nut to require an additional stamp if the last signature was put before the money was advanced; or if the party last signing had promised to sign the note before the advance, notwithstanding it may not have been signed till afterwards. Ex pte. White, 3 Deac. & Chit. 366. A memorandum in the form of a promissory note, offered in evidence for H2 •_'4l Stamps. the purpose of taking a case out of the Statute of Limitations, is inadmis- sible, unless stamped ; although 9 G. 4, c. 14, s. 8, exempts memoranda made for that purpose from the stamp duty on agreements. Jones v. Ryder, I M. & W. 32. So, it was held that a promissory note for 1,110Z., with 4 per cent, interest, made on a receipt stamp, was not admissible to take a debt out of the Statute of Limitations. Parmiter v. Parmiter, 1 J. & H. 135 ; 30 L. J., Oh. 508. It is to be observed that the schedule of 55 G. 3, c. 184, ante, p. 239, exempting instruments in the form of notes) from the note stamp, if deemed to be agreements, was not cited in either of the two cases last cited. Stamp on re-issued bill.'] A bill payable to the drawer's order, and taken up by him, may be re-issued without a fresh stamp, unless this would have (lie effect of rendering any of the indorsers liable to an action. Callow v. Lawrence, 3 M. & S. 97 ; Hubbard v. Jackson, 4 Bing. 390. Where the bill is an accommodation bill, it would seem that it can only be re-issued with the consent of the acceptor, and therefore would require a fresh stamp. Jewell v. Parr, 13 C. B. 909 ; 22 L. J., C. P. 253. But a bill payable to the order of a third person, indorsed by him and taken up by the drawer, cannot be re-issued by him, for it would wrongfully charge the payee. Beck v. Robleij, 1 H. Bl. 89, n. What alteration of a bill requires a new stamp.] If a bill or note is altered in a material part, though by the consent of all parties, after it has once been issued it requires a new stamp ; Bayl. on Bills, 6th ed. 118 ; Bowman v. Nichol, 5 T. R. 537 ; Wilson v. Justice, Peake, Add. Ca. 96 ; for it is, in effect, substituting a new bill, and using a stamp already used for the old one. An alteration in the date of a bill payable after date, S. CO. ; Outhwaite v. Luntley, 4 Camp. 179 ; or in the consideration, Knill v. Williams, 10 East, 431 ; or by inserting words rendering a bill or note negotiable, which was not so originally ; Id. 437, explaining Kershaw v. Cox, 3 Esp. 246 ; — are material alterations, and require restamping. So, where the drawer, without the consent of the acceptor, added the words " payable at Mr. B.'s, C. Street," to the acceptance, this alteration was held to be material. Cowie v. Ealsall, 4 B. & A. 197. And a similar alteration was held to be material since the statute 1 & 2 G. 4, c. 78 ; for the right of an indorsee to sue his indorser would, according to the altered bill, be complete upon default made at a banker's and notice thereof ; whereas, in truth, the acceptor, not having in reality undertaken to pay there, would have committed no default by such non-payment. Macintosh v. Eaydon, Ry. & M. 362 ; see Marson v. Petit, 1 Camp. 82, n. The Bills of Exchange Act, 1882, s. 64 (2), enumerates some material alterations, but this, by reason of sect. 97 (3, a), post, p. 245, has no bearing on the present question. If the alteration be merely the correction of a mistake in furtherance of the original intent of the parties, as inserting the words " or order " in a bill intended to be negotiable, it will not require a new stamp. Byrom v. Thompson, 11 Ad. & E. 31. So, a mistake in the date may be corrected. Bruit v. Picard, Ry. & M. 37. See Jhitchins v. Scott, 2 M. & W. 809. At common law, a stranger to a bill, by indorsing it, rendered himself liable to a subsequent indorsee, as a new drawer of the bill ; but it remained tlie same instrument as before, and did not require a fresh stamp. Penny v. Tnnes, 1 C. M. & R. 439 ; Matthews v. Bloxsome, 33 L. J., Q. B. 209. This doctrine was inapplicable to promissory notes (Gwinnett v. Herbert, 5 Ad. & E. 436) by reason of the Stamp Act. M'Call v. Taylor, 34 L. J., C. P. 365, 360, per Willes, J. By the Bills of Exchange Act, 1882, s. 56, where a Bill of Exchange, &c. — Alteration, 245 person signs a bill otherwise than as drawer or acceptor, he thereby incurs the liabilities " of an indorser, to a holder in due course," i.e., to a bond fide holder for value without notice ; see sect. 29. By sect. 89 (1), the provisions of the Act are in general to extend to promissory notes ; the maker being deemed to correspond with the acceptor of a bill, and the first indorsee with the drawer of an accepted bill payable to the drawer's order. As, however, sect. 97 (3, a), post, p. 351, provides that nothing in the Act is to affect the Stamp Acts, it would appear that sect. 56 does not apply to promissory notes, and that Qwinncll v. Herbert, ante, p. 244, is still good law. The subject of altering bills and notes is treated of under the head of Defences to actions on bills, post, pp. 395, 396, to which it more properly belongs : for the alteration of such an instrument, without consent, even by a stranger, affects its validity without reference to the Stamp Acts. Master v. Miller, 2 H. Bl. 141 ; 1 Smith's L. C. If made after issue or negotiation, even with consent, the bill is, as above stated, vitiated for wantof a new stamp. What is such an issuing as to render an alter at ion fatal.'] A bill is prima, facie considered as issued as soon as it is passed away by the drawer or accepted by the drawee, and not before. Bay ley on Bills, 6th ed. 123. An exchange of acceptances is an issuing; Cardivell v. Martin, 9 East, 190; but a bill is not issued so as to make an alteration fatal, until it is in the hands of a person entitled to make a claim thereon. Dowries v. Richardson, 5 B. & A. 674 ; Tarleton v. Shingler, 7 C. B. 812 ; Scholfield v. Londesborough, El. of, (1894) 2 Q. B. 660 : affirm., (1895) 1 Q. B, 536, C. A., and (1896) A. 0. 5i4, D. P. on other grounds. The onus of proving that the alteration was made before negotiation lies upon the party suing on it. Johnson v. Marlborough, Dk. of, 2 Stark. 313 ; Henman v. Dickinson, 5 Bing. 183. And, where the alteration is visible, it cannot be left to the jury to say, on the mere inspection without further evidence, whether it was made at or after the original making of the bill. Knight v. Clements, 8 Ad. & E. 215 ; and Bishop v. Ohambre, M. & M. 116, there explained ; Clifford v. Parker, 2 M. & Gr. 909. Where there was an alteration by consent in a bill drawn abroad to which no stamp was necessary, it was held to lie on the party who objected to the want of a stamp to show that it was altered in England. Ilamelin v. Brack, 9 Q. B. 306. Bankrupt's Estates — Instruments relating thereto. By the Bankruptcy Act, 1883 (46 & 47 V. c. 52), s. 144, every deed, con- veyance, &c, relating solely to freehold, &c, property, or to any mortgage, &c, on, or any estate, right or interest in any real or personal property which is part of the estate of any bankrupt, and which after the execution of such deed, &c., " either at law or in equity, is or remains the estate of the bank- rupt or of the trustee under the bankruptcy, and every power of attorney, proxy, paper, writ, order, certificate, affidavit, bond or other instrument or writing relating solely to the property of any bankrupt, or to any proceeding under any bankruptcy, shall be exempt from stamp duty, except in respect of fees under this act." By 58 & 59 V. c. 16, s. 16, this exemption is extended to the estates of companies wound up by order of the Court under the < 'ompanies Winding-up Act, 1S90. ' 246 Stamps. Bill of Lading. " Bill of lading of or for any goods, merchandise, or effects, to be exported or carried coastwise: — Qd." Sect. -10. (1.) "A bill of lading is not to be stamped after the execution thereof." [S. Act, 1870, s. 56 (1).] Bill of Sale. Absolute. See Conveyance of sale, pout, p. 249. By way of security. See Mortgage, &c, post, p. 262. Sect. 41. "A bill of sale is not to be registered under any act" . . . " unless the original, duly stamped, is produced to the proper officer." [S. Act, 1870, s. 57.] This section, however, does not invalidate the registration, otherwise regular, of a bill of sale not duly stamped. Bellamy v. Saull, 4 B. & S. 265 ; '32 L. J., Q. B. 366. Bond. "Bond for securing the payment or repayment of money or the transfer or re-transfer of stock. See Mortgage, &e." post, p. 264. " Bond in relation to any annuity upon the original creation and sale thereof. See Conveyance on Sale," post, p. 249. " Bond, covenant, or instrument of any kind whatsoever. (1.) Being the only or principal or primary security for any annuity (except upon the original creation thereof by nay of sale or security, and except a superannuation annuity) or for any sum or sums of money at stated periods, not being interest for any principal sum secured by a duly stamped instrument, nor rent reserved by a lease or tack. For a definite and certain period, so that the total amount to be ultimately payable can be ascertained : — The same ad valorem duty as a bond or covenant for such total amount. For the term of life or any other indefinite period : — For every 51. and also for any fractional part of bl., of the annuity or sum periodically payable : — 2s. 6c?. (2.) Being a collateral or auxiliary or additional or substituted security for any of the above-mentioned purposes where the principal or primary instru- ment is duly stamped. Where the total amount to be ultimately payable can be ascertained: — The same ad valorem duty as a bond or covenant of the same kind for such total amount. In any other case : — For every 5?., and also for any fractional part of 51., of the annuity or sum periodically payable : — Gd. (3.) Being a grant or contract for payment of a superannuation annuity, that is to say, a deferred life annuity granted or secured to Hny person in consideration of annual premiums payable until he attains a specified age, and so as to commence on his attaining that age. For every 51., and also for any fractional part of 51. of the annuity : — Qd. As to the bonds of colonial and foreign governments, &c, and of public companies, see Loan Capital and Marketable Security, post, pp. 260 et seq. The term security in this schedule is to be construed in the same way as in the mortgage clause, post, p. 262, and means any obligation created by any instrument; Jones v. Inl. Rev. Corns., (1895) 1 Q. B. 484, 492, 494; though not under seal. National Telephone Co. v. Jul. Rev. Corns., (L900) A. 0. 1, l>. P. Tims an agreement for the use of telephone wires and apparatus is Bond. — Charter-party. 247 chargeable on the amount of the rent payable. S. CO. Where the deed reserves a sum weekly, the instrument is to be stamped in respect of such sum ; Clifford v. Int. Rev. Corns., (1896) 2 Q. B. 187 : but where the covenant was for the payment of 625?. every three months by quarterly payments on the usual quarter days, it was held to be security for an annuity of 625Z. ; Lewis v. Id., (1S98) 2 Q. B. 290. See further, Conservators of R. Thames v. Inl.llev. Coras., 18 Q. B. D. 279, cited post, p. 258. By sect. 105, in a settlement of reversionary property, a covenant by the tenant for life to pay an annuity is in some cases exempt from duty. " Bond on obtaining letters of administration in England or Ireland," 5s., from which there are certain exemptions. 11 Bond of any kind whatsoever not specifically charged with any duty. Where the amount limited to be recoverable does not exceed 300?. :— the same ad valorem duty as a bond for the amount limited. In any other case : — 10s." Exemptions.'] As to bonds relating to service in the colonies, see the general exemption (3) at the end of the schedule, cited ante, p. 235. Exemp- tion (5) applies only to replevin bonds given in Ireland. By the Merchant Shipping Act, 1894 (57 & 58 V. c. 60), s. 309, a bond given thereunder by the master and owner or charterer of an emigrant ship is exempt from Stamp duty, and by sect. 619 (ii) so is the bond given by a Trinity House pilot. Charter-party. Charter-party : — 6d. Sect. 49. (1.) " For the purposes of this Act the expression charter-party includes any agreement or contract for the charter of any ship or vessel, or any memorandum, letter, or other writing between the captain, master, or owner of any ship or vessel, and any other person, for or relating to the freight or conveyance of any money, goods, or effects on board of the ship or vessel." (2.) " The duty upon a charter-party may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the instrument is last executed, or by whose execution it is completed as a binding contract." [S. Act, 1870, s. 66.] Sect. 50. "Where a charter-party is first executed out of the United Kingdom, without being duly stamped, any party thereto may, within ten days after it has been first received in the United Kingdom, and before it has been executed by any person in the United Kingdom, affix thereto an adhesive stamp denoting the duty chargeable thereon, and at the same time cancel such adhesive stamp, and the instrument when so stamped shall be deemed duly stamped." [S. Act, 1870, s. 67.] Sect. 51. " A charter-party may be stamped with an impressed stamp after execution upon the following terms ; that is to say — (1.) Within seven days alter the first execution thereof, on payment of the duty and a penalty of Is. i\d. (2.) After seven days, but within one month after the first execution thereof, on payment of the duty and a penalty of 10/.; and shall not in any <.l her case be stamped with an impressed stamp." [S. Act, 1870, s. 68.] Sect. 50, supra, enables any party to a charter-party, first signed abroad, to stamp the document in the special manner and within the time above mentioned; but sect. 51, supra, does not prohibit the document from being stamped by the Commissioners of Inland Revenue, within 30 days of its arrival in this country, under the general provisions of sect. L5 (3 a), ante, p. 227. See The Bel/ort, 9 P. D. 215. 248 Stumps. A guarantee for the due performance of a charter-party does not require to be stamped as a charter-party. Rein v. Lane, L. J!., 2 Q. B. 144. < 'III i J tic. Sec Bill of Exchange, ante, pp. 238, 239. Cognovit. A cognovit requires no stamp, for it is a mere acknowledgment of an account, unless matter of agreement be contained in it; as if it contains an agreement to take the debt by instalments. Ames v. Hill, 2 B. & P. 150; Reardon v. Swaby, 4 East, 188. An agreement to grant time, entered into at the same time on a separate paper, .) In other cases of copyhold or customary estates, the surrender or grant, if made out of court, or the memorandum thereof, and the copy of court roll of the surrender or grant, if made in court, is to be deemed the principal instrument." (2.) " In any other case the parties may determine for themselves which of several instruments is to be deemed the principal instrument, and may pay the ad valorem duty thereon accordingly." [S. Act, 1870, s. 77.] " Conveyance or transfer by way of security of any property " . . . " or of any security. See Mortgage" post, p. 262. " Conveyance or transfer of any kind not hereinbefore described, 10s." Sect. 62. " Every instrument, and every decree or order of any court or of any commissioners, whereby any property on any occasion, except a sale or mortgage, is transferred to or vested in any person, is to be charged with duty as a conveyance or transfer of property. Provided that a conveyance or transfer made fur effectuating the appointment of a new trustee," or the retirement of a trustee although no new trustee is appointed (2 E. 7, c. 7, B. 9), " is not to be charged with any higher duty than 10s." [S. Act, 1870, s. 7S.] This proviso overrides the specific duties oil transfers imposed by 250 Stamps. the schedule. See Foley, Id. v. Tnl. R< v. Corns., L. II., 3 Ex. 263. Where, however, an order appoints new trustees and also vests the trust property in them, it is liable to duly both as an appointment and also as a convey- ance; 10s. in each case. Hadgett v. /. 16. A written assent, not under seal, given under (JO & 61 V. c. 65, s. 3 (1), post, pp. 1053, 1061, by an executor to a devise, is not liable under sect. 62. Kemp v. Tnl. Bev. Corns., (1905) 1 K. B. 581. The stat. 63 & 64 V. c. 7, s. 10, makes in respect of conveyances a provision similar to S. Act, 1891, s. 77 (2), post, p. 256 relating to leases. Stat. 58 & 59 V. c. 16, s. 12, provides for the payment of ad valorem duty where "by virtue of any Act . . . (a) any property is vested by sale in any person, or (b) any person is authorized to purchase property." "Property" includes chattels. A.-G. v. Eastbourne Cor., (1902) 1 K. B. 403, ( !. A. ; (1904) A. C. 155. As to the stamp on the conveyance of an appropriated part of the residuary estate of a deceased person by his personal representatives, in satisfaction of a legacy or share of such estate, see 60 & 61 V. c. 65, s. 4 (2), and In re Beverly", (VMl) 1 Ch. 681. Contract for sale of equitable estates, goodwill, and annuities, &c.~\ By sect. 59 (1), any contract or agreement, made in the United Kingdom, for the sale of any equitable estate or interest in any property, or of any equitable estate or interest in any property, except lands, tenements, &c, or property, locally situate out of the U. K., or of goods, &c, or stock or marketable securities, or any ship, or share in any ship, is charged with the same ad valorem duty as if it were an actual conveyance on sale (vide ante, p. 249). (2.) On a re-sale, when the ad valorem duty has been paid before conveyance, ad valorem duty is to be paid on the excess, if any, ot the consideration on the re-sale beyond that on the original sale, and in any other case a fixed duty of 10s. or 6d. as the case may require. (3.) The conveyance is to be then stamped free of duty, and the payment of the nil valorem duty duly denoted (vide ante, p. 227). (4.) Provides that where any such contract is stamped with the fixed duty of lO.s. or 6c?. (vide supra), it " shall be regarded as duly stamped for the mere purpose of proceedings to enforce specific performance or recover damages for the breach thereof." Hence the question of ad valorem duty in this case will not often arise at N. P. See also sub-sect. 5. [52 & 53 V. c. 42, s. 15.] For the object of sect. 59, see Int. Rev. Coins, v. Angus, post, ]>. 251, and W. L. Syndicate v. Tnl. Ilev. Corns., post, p. 252. By sect. 60, when on the sale of any annuity or other right not before in existence such annuity, &c, is not created by actual grant or conveyance, but is only secured by bond, warrant of attorney, covenant, contract or otherwise, the bond or other instrument is to be charged with the same duty as an actual grant or conveyance. See Mersey Docks, &c. Board v. HI. Bev. Corns., (1897} 2 Q. B. 316, C. A., post, p. 251; and Ot. N. By. Co. v. ////. Rev. Corns., (1901) 1 K. B. 416, C. A., post, p. 273. Exemptions."] By the general exemptions (1), (2), at the end of the schedule, transfers of shares in the government stocks or funds, and instru- ments for the sale, transfer, or other disposition, either absolutely or by way of mortgage or otherwise, of any ship or vessel, or any share therein, are free from all stamp duty. So by the Merchant Shipping Act, 1894 (57 & 58 V. c. 60), s. 721, are any instruments used for carrying into effect Part I. of that Act relating to the registry of ships. i iertain conveyances relating to the estate of a bankrupt are exempt from a conveyance stamp, vide >m/r, p. 245. Conveyance. 251 An assignment of copyright by entry in. the book of registry, kept at Stationers' Hall, is nut liable to stamp duty; 5 & 6 V. c. 45, s. 13. As to the liability to duty of a conveyance relating to crown property, vide ante, p. 221. Decisions on conveyances.] The following decisions (partly under the former Acts) seem still applicable. A mere agreement for sale, inoperative at law as a conveyance, is not chargeable under this head; Wilmot v. Wilkinson, 6 B. & C. 506; Inl. Rev. Corns. V.Angus, 23 Q. B. D. 579; unless it fall within sects. 59, 60, ante, p. 250. So, an agreement for the sale of a bed of coals, without any legal transfer of the freehold, requires no conveyance stamp. Phillips v. Morrison, 12 M. & W. 740. Nor a deed purporting to be a grant by an asphalte company of an exclusive licence to sell the asphalte of the company in certain counties, as it conveys no property. Limmer Asphalte Paving Co. v. Inl. Rev. Corns., L. B., 7 Ex. 211. See also Conservators of R. Thames v. Inl. Rev. Corns., 18 Q. B. D. 279, cited post, p. 258. There must be a sale for money [or for stock or securities, public or private]. Coates v. Perry, 3 B. & B. 48. If for stock, &c, the mode of valuation is pointed out by sect. 55 (1). The sale of a per- petual annuity is "a conveyance on sale" although the grantor may have an option of re-purchase. Mersey Docks, &c. Board v. Inl. Rev. Corns., (1897) 2 Q. B. 316, C. A. On the sale of part of the land comprised in a lease at an apportioned rent, the payment of such rent by the assignee is not part of the consideration for the sale, for the purpose of stamp duty. Swayne v. Id., (1900) 1 Q. B. 172, C. A. The conveyance on sale of a chose in action is within the Act, for it extends to any subject of "property which belongs to a person exclusive of others, and which can be the subject of a bargain and sale to another." Per Cur., Potter v. Inl. Rev. Coins., 10 Ex. 147, 156; 23 L. J., Ex. 345, 347. Thus it extends to the assign- ment of the goodwill of a business; S. C. ; Inl. Rev. Corns, v. Midler & CoSs Margarine, post, p. 252; see also Danubian Sugar Factories v. Inl. Rev. Coins., (1901) 1 K. B. 245, C. A.; a written sale of fixtures; Horsfall v. Hey, 2 Exch. 778; a deed whereby a partner in a firm of two, conveyed and released all his interest in the partnership property to his co-partuer, in consideration of the payment of the ascertained amount of the partnership property due to the former. Christie v. Inl. Rev. Corns., L. B., 2 Ex. 45; Phillips v. Id., Id. 399. An instrument whereby the C. Co. was amalgamated with the Gt. W. Co. on the terms that the Gt. W. Co. should issue its stock to the shareholders in the C. Co. in payment, is a conveyance on sale, and ad valorem duty is payable on the value of such stock; Gt. W. Ry. Co. v. Inl. Rev. Corns., (1894) 1 Q. B. 507, C. A.; so where a shareholder exchanges his shares in one company for those of another. Coats v. Inl. Rev. Corns., (1897) 2 Q. B. 423, C. A. A deed whereby the partners in a firm convert themselves into a limited company to carry on the business, receiving debentures in the company in proportion to their interest in the business, is a conveyance on sale, although the partners are the only members of the company. Foster (John) & Son v. Id., (1894) 1 Q. B. 516, C. A. And so is a deed of family arrangement where there is a conveyance of property and money given for it. Bristol, Mqs. of, v. Id., (1901) 2 K. B. 330. Where the value of land taken by a railway company is assessed at separate sums for (1) land, (2) buildings, (3) compensation for loss of business, the conveyance must bear an ad, valort m stamp in respect of the aggregate amount of these three sums. Inl. /lev. Corns, v. Glasgow .) Of any lauds, tenements, or heritable subjects except, or otherwise than as aforesaid: — the same duty as a lease for a year at the rent reserved for the definite term. "(3.) For any other definite term or for any indefinite term; of any lands, tenements, or heritable subjects — "Where the consi leration, or any part of the consideration, moving either to the lessor <>r to any other person, consists of any money, stock, or i irity : in respect of such consideration : — the same duty as a conveyance on a sale for the same consideration. " Where the consideration, or any part of the consideration is any rent: 256 Stamps. in respect of such consideration : — if the rent, whether reserved as a yearly rent ur otherwise, is at a rate or average rate : Not exceeding 5/. per annum Exceeding — 51. and nut exceeding 10/. LOZ. 15Z. 201. 251. 501. 151 1001. 151. 201. 251. 501. 151. 1001. If the term does not exceed 35 years, or is indefinite. If the term exceeds 35 years, but does not exceed 100 years. If the tnni exceeds 100 years. £ 8. d. £ S. d. £ S. d. 6 3 6 10 6 12 16 9 18 2 12 14 2 6 15 1 10 5 1 10 3 7 6 2 5 4 10 10 3 6 5 1 10 3 For every full sum of 50/. and also for any fractional part of 50/. thereof - " (4.) Of any other kind whatsoever not hereinbefore described : — 10s." It was held under the earlier Acts that where the lease was for 45 years at a substantial rent for the first 23 years, and at a peppercorn during the remaining 22, the lowest scale applied ; Pearson v. Inl. Rev. Corns., L. 11., 3 Ex. 242 ; but under the present Act it seems that, for the calculation of the duty, the average of the rent has to be taken for the whole term. Agreement for lease."] Sect. 75. (1.) An agreement for a lease, or with respect to the letting of any lands, tenements, &c, for any term not exceed- ing 35 years, or for any indefinite term, is to be charged with the same duty as if it were an actual lease made for the term and consideration mentioned in the agreement. (2.) A lease made subsequently to, and in conformity with, such an agreement duly stamped, is to be charged with the duty of 6d. only. [S. Act/l870, s. 96.] Sect. 76 relates to the calculation of the duty where the consideration consists of produce or goods. Sect. 77. (1.) A lease, or agreement for a lease, or with respect to any letting, is not to be charged with any duty in respect of any penal rent, or increased rent in the nature of a penal rent, thereby reserved or agreed to be reserved or made payable, or by reason of being made in consideration of the surrender or abandonment of any existing lease or agreement of or relating to the same subject-matter. " (2.) A lease made for any consideration or considerations in respect whereof it is chargeable with ad valorem duty, and in further consideration either of a covenant by the lessee to make, or of his having previously made, any substantia] improvement of or addition to the property demised to him, "i' (if any covenant relating to the matter of the lease, is not to be charged with any duty in respect of such further consideration. " (3.) No lease for a life or lives not exceeding three, or for a term of years determinable with a life or lives not exceeding three, and no lease tor a term absolute not exceeding 21 years, granted by an ecclesiastical Decisions on Lease Stamps. 257 corporation aggregate or sole, is to be charged with any higher duty than 35s." [S. Act, 1870, s. 98.] (5.) An instrument whereby the rent reserved by any other instrument duly stamped as a lease is increased, is chargeable only as a lease made in considera- tion of the additional rent thereby made payable. [39 & 40 V. c. 16, s, 11.] Adhesive Stamp.'] Sect. 78 (1). " The duty upon an instrument charge- able with duty as a lease or tack of — (a) Any dwelling-house or part of a dwellmg-house for a definite term not exceeding a year, at a rent not exceed- ing the rate of 10/. per annum, or (b) Any furnished dwelling-house or apartments for any definite term less than a year; and upon the duplicate or counterpart of any such instrument, may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the instrument is first executed." [S. Act, 1870, s. 99.] Decisions on lease stamj)s.~\ The Act makes no distinction as to whether a written lease is under seal or not. Goodtitle d. Eastwick v. Way, 1 T. K. 735. Where a lease contained a demise of two farms with two different habendums and separate reservations of rents and covenants, some applying to one farm and some to another, one ad valorem stamp for the amount of both rents was held sufficient. Blount v. Pearman, 1 N. C. 408 ; Parry v. Deare, 5 Ad. & B. 551. As to what payments in the lease of a tramway are rent, see British Electric Traction Co. v. Inl. Rev. Coins., infra. An instrument purporting to grant a freehold lease; Stone v. Royers, 2 M. & W. 443 ; Zimbler v. Abrahams, (1903) 1 K. B. 577, C. A., or a term of years exceeding three ; Barker v. Taswell, 2 De G. & J. 559 ; 27 L. J., Ch. 812; Bond y. Rosliny,! B. & S. 371; 30 L. J., Q. B. 127; Rollason v. Leon, 7 H. & N. 73; 31 L. J., Ex. 96; Tidey v. Mollett, 16 C. B., N. S. 298 ; 33 L. J., C. P. 235 ; Strauksv. St. John, L. R., 2 0. P. 376 ; but which was ineffectual for want of a seal, could only operate as an agreement, ami therefore did not require a lease stamp, but it required an agreement stamp, and when the term does not exceed 35 years the stamp is now the same as on a lease (see sect. 75 (1), ante, p. 256). A mere attornment does not require a stamp. Doe d. Linsey v. Edwards, 5 Ad. & E. 95 ; Ace. Barry v. Goodman, 2 M. & VV. 768. The stamp formerly required was regulated by the consideration (whether fine or rent) expressed to be paid, and not by that which was actually paid ; Doe d. Kettle v. Lewis, 10 B. & 0. 673 ; but under the present Act this seems to be otherwise. A lease containing an agree- ment to take the fixtures cannot be given in evidence without a lease stamp, though only used in an action for the value of the fixtures, and though it has an agreement stamp. Corder v. Drakeford, 3 Taunt. 382. A lease containing a distinct agreement, not ancillary to the lease, requires stamps of both kinds. Lovelock v. Frank/ 'yn, 8 tj. B. 371 ; Coster v. Cowling, 7 Bing. 456. But where there is a lease with an agreement contained in it, giving the lessee the option of purchasing the premises within a certain time, only a lease stamp is necessary. Worthinyton v. Warrington, 5 C. B. 356. An agreement by the lessees in the lease of a tramway to take electrical energy from the lessor to the value of not less than 100QI. a year, is within sect. 77 (2). British Electric Traction < to. v. ////. Bev. Ooma., (1902) 1 K. B. 441, C. A. Where there was a written lease to A., and an agreement at the end of it by a third person B., to guarantee to the lessor the payment of moneys to become due from A. to him under the provisions of the lease, a lease stamp and also an agreement stamp were held necessary, B. not being a party to the rest of the instrument. Wharton v. Walton, 7 (}. B. 474. An instrument, not under seal, whereby conservators agree to grant permission, during their pleasure, for the erection of a jetty in their river, subject to the R. — VOL. I. S 25S Stamps. payment to them of a yearly sum, while it is there, requires only a Qd. agree- ini'iii stamp. Conservators of li. Thames v. Inl. Rev. Corns., 18 Q. B. D. 279. A lease made by the landlord to a vendee of the party, to whom he had agreed to grant it, must recite and be charged upon the consideration paid on the sale to the vendee. A.-G. v. Brown, 3 Exch. 662. Under the Stamp Act, 1891, it is liable to double duty: i.e., the duty as on a lease to the vendor, and the duty as on a sale by him to the vendee. A lease at a. yearly rent of an incorporeal hereditament, e..) a marketable security by or on behalf of any foreign state or government, or foreign or colonial municipal body, corporation, or company (hereinafter called a foreign security), bearing date or signed after the 3rd June, 1862 ; (i.) which is made or issued in the United Kingdom, or (ii.) which, though originally issued out of the United Kingdom, has been, after the 6th August, 1885, or is offered for subscription, and given or delivered to a subscriber in the United Kingdom, or (iii.) which, the interest thereon being payable in the United Kingdom, is assigned, transferred, or in any manner negotiated in the United Kingdom ; and (c.) a marketable security by or on behalf of any colonial government which if the borrower were a foreign government would be a foreign security (hereinafter called a colonial government security). [34 & 35 V. c. 4, s. 2.] (2.) is repealed by stat. 56 & 57 V. c. 7, s. 4 (2). By 62 & 63 V. c. 9, s. 4.— (1.) " There shall be charged on every market- able security made or issued by or on behalf of any foreign state or govern- ment, or foreign or colonial municipal body, corporation, or company, being a security transferable by delivery, which (a) is after 1st August, 1899, assigned, transferred, or in any manner negotiated in the United Kingdom, and (/>) is not, under the law existing at the passing of this act, chargeable with stamp duty as a marketable security transferable by delivery," a stamp duty of Is. for every 10/., and also for any fractional part of 10/. of the money thereby secured. (2.) " There shall be charged on every instrument to bearer, not being a share warrant or stock certificate to bearer charged under the foregoing provision, by means of which any share or stock of any company or body of persons formed or established out of the United Kingdom is, after 1st August, 1899, assigned, transferred, or in any manner negotiated in the United Kingdom, a stamp duty of 3d. for every 25/., and also for every fractional part of 25/. of the nominal value of the share or stock." Sub-sect. (4), post, p. 275, defines the terms "ahare warrant" and "stock certificate." By sect. 6. "For the purposes of this part of this act " (i.e., sects. 4-14) "an instrument used for the purpose of assigning, transferring, or in any manner negotiating the ri^ht to any marketable security, share, or stock shall, if delivery thereof is by usage treated as sufficient for the purpose of a sale on the market, whether that delivery constitutes a legal assignment, transfer, or negotiation or not, be deemed a marketable security transferable 262 Stamps. by delivery, or an instrument to bearer, as the case may be, and the delivery thereof an assignment, transfer, or negotiation." By stat. 58 & 59 V. c. 16, s. 14, in the case of certain foreign securities on payment of the stamp duty, actual stamping may be dispensed with. By stat. 60 & 61 V. c. 24, s. 8, county council or municipal bills payable not more than 12 months from their date although charged on property, &c, :ire to be stamped as promissory notes and not as marketable securities. A security is "issued" when the company part with the possession aud control of it, it being then in a perfect state. Orenfell v. Inl. Rev. Comrs., 1 Ex. D. 242 ; explained in Baring v. Inl. Rev. Comrs., (1898) 1 Q. B. 78, 90, 92, C. A. Where bonds of a foreign company executed abroad, and then delivered to a trustee, T., for the bondholders, contained a declaration that they should not be valid until certified by T., and he in England certified and handed them to the bondholders, the bonds were held to be made and issued in England, S. C. ; affirm, in D. P., sub nom. Ld. Revehtoke v. Id., (1898) A. C. 565. See further as to the issue of bonds and their offer for subscription Brown v. Id. and Gordon v. Id., 84 L. T. 71, Mich. Sit., 1900, C. A. Instruments in the form of promissory notes issued by an American rail- way company, payable with interest in England, and each containing a statement that it is one of a series secured by a deposit of bonds held under a trust deed, are, if dealt in on the London Stock Exchange, to be stamped as marketable securities. Brown, Shipley r property comprised in the title-deeds, or for pledging or charging the same as a security *' |S. Act, 1870, s. 105]: "and 264 Stamps. ''(y) Any deed operating as a mortgage of any stock or marketable security. "(•J.) For the purpose of this act the expression 'equitable mortgage' means an agreement or memorandum under hand only relating to the deposit of any title-deeds or instruments constituting or being evidence of the title to any property whatever (other than stock or marketable security), or creating a charge on such property." [51 & 52 V. c. 8, s. 15 (1).] Sect. 87. (1.) A security for the transfer or retransfer of stock, and a transfer, &c., of such security is chargeable with the same duty as if the instrument were in respect of money equal to the value of the stock. " (2.) A security for the payment of any rentcharge, annuity, or periodical paj ments, by way of repayment, or in satisfaction or discharge of any loan, advance, or payment intended to be so repaid, satisfied, or discharged, is to be charged with the same duty as a similar security for the payment of the sum of money so lent, advanced, or paid. " (."..) A transfer of a duly stamped security and a security by way of further charge for money or stock, added to money or stock previously secured by a duly stamped instrument, is not to be charged with any duty by reason of its containing any further or additional security for the money or stock transferred or previously secured, or the interest or dividends thereof, or any new covenant, proviso, power, stipulation, or agreement in relation thereto, or any further assurance of the property comprised in the transferred or previous security." [S. Act, 1870, s. 109.] " (4.) Where any copyhold or customary lands or hereditaments are mort- gaged alone by means of a conditional surrender or grant, the ad valorem duty is to be charged on the surrender or grant, if made out of court, or the memorandum thereof, and on the copy of court roll of the surrender or grant, if made in court." [S. Act, 1870, s. 110.] (5.) Where such lands are mort- gaged with other property for securing the same money, &c, the ad valorem duty shall be on the instrument relating to the other property, and neither of the other instruments last above mentioned shall be charged with a higher duty than 10s. (6.) A mortgage is not chargeable with further duty because the equity of redemption is conveyed or limited in any other manner than to a jmrchaser. By sect. 88 (1.) Where the security is for payment of future advances, or a sum to become due on an account current with other without past advance, then if the ultimate amount secured is limited, the duty is on a security for the maximum amount. (2.) Where there is no such limit, the security is to be available only for the amount covered by the stamp impressed [S. Act, 1870, s. 107 (1, 2)] ; but where any advance has been made in excess of that amount, the security for the purpose of stamp duty be deemed to be a new ami separate instrument dated on the day when such advance was made. (3.) Provided that premiums for fire or life assurance policies, or fines for renewal of leases on the dropping of lives, when these relate to the security, are not to be charged with ad valorem duty. Decisions on stamps on mortgages, <{'c] Where title-deeds were deposited by way of equitable mortgage, a mere memorandum stating the object of such deposit required no stamp ; Meek v. Bayliss, 31 L. J., Ch. 448 ; nor an instrument reciting a past deposit, but not made for the purpose of 'letting a charge. Fyle v. Partridge, 15 M. & W. 20; see also Fancourt v. Thome, 9 Q. B. 312. But such memoranda would seem to be liable to duty under sect. 86 (2), supra. A pledge of goods, as a bill of ladins, is not within it. Harris v. Birch, 9 M. & W.^591. So, a memorandum Mortgage. 265 of the deposit of goods with a contingent power of sale does not. require a mortgage stamp. Be Attenborough, 11 Exch. 4G1 ; S. 0. sub nom. Atten- borough v. Inl. Bev. Coins., 25 L. J., Ex. 22. Where a deed is in substance a transfer of an existing mortgage, although in point of law the old debt and equity of redemption are extinguished, it need be stamped as a transitu' only. Wale v. Inl. Bev. Corns., 4 Ex. D. 270. An instrument issued by a company, not under seal, purporting on its face to be a "debenture," and containing an engagement to pay the amouut thereof to P. W. A., or order, and also to pay interest to the holder on presentation of the coupons attached, is chargeable as a debenture and not as a promissory note. British India St. Nav. Co. v. Inl. Bev. Corns., 7 Q. B. D. 165. See also Speyer Bros. v. Inl. Bev. Coins., ante, p. 263. A deed whereby, in consideration of an advance made by U. to L., L. agreed to execute a mortgage or charge, in such form as U. should request, of all L.'s interest in certain property to secure repay- ment of the advance with interest, is chargeable as a mortgage, &c. United Bealization Co. v. Inl. Bev. Corns., (1899) 1 Q. B. 361. Where a company issues a series of debentures of 100/. each, redeemable, on notice by the company, at 103/., stamp duty is payable on 100/. only. KnigMs Deep v. Id., (1900) 1 Q. B. 167, C. A. As to an auxiliary security, or by way of further assurance within Mortgage, &c, (2) ante, p. 262, see British Oil, &c. v. //(/. Bev. Coins., (1903) 1 K. B. 689, 0. A. The sale of a perpetual annuity is not within sect. 87 (2), hut is chargeable as a conveyance on sale. Mersey Docks, &c., Board v. Id., ante, p. 251. Debentures issued by a company charged on its property, to be exchanged for its stamped debentures previously issued and similarly charged, are not within sect. 87 (3), and must be stamped. City of London Brewery Co. v. /(/., (1899) 1 Q. B. 121, C. A. On an indenture whereby redeemable debenture stock was secured, an instrument was indorsed and signed by the trustees for the debenture holders, acknowledging that the stock and interest thereon had been "redeemed, paid off and satisfied;" this is not a "discharge" within Sched. (5) ante, p. 263, but merely a receipt. Frith if: Sons v. Inl. Bev. Corns., (1904) 2 K. B. 205. Exemptions.} By the general exemption (2) at the end of the schedule (ante, p. 250), instruments for the mortgage of a ship or vessel, or any share therein, are Jree from all stamp duty. By 35 & 36 V. c. 93, s. 21, a special contract pawn-ticket, or its duplicate, in respect of a loan by a pawnbroker, above 40.s. and not exceeding 10/., requires no stamp. Mortgages 00/., and has, as to such societies incorporated under the Building Societies Act, 1ST I (".7 & 38 V. c. 42), been wholly repealed by Id., ss. 7, 41. The receipt indorsed on a mortgage to a Building Society operating as a reconveyance under Id., sect. 42, is by sect. 41 exempted from duty. Old Battersea, dec. Building Society v. Inl Rev. do, us., (1898) 2 Q. B. 294. The Friendly Societies Act, is;:. (38 .V .".'.i V. c. 60), s. 15 (2, (/.), dors QO t exempt from duties, securities on which the funds of a friendly society are invested. See Re A'. Liver Friendly Society, I.. B., 5 Ex. 78. A conveyance by debtor to trustees in trust to sell and with the proceeds to discharge, first, debts due to the trustees and then debts due to other creditors, with a resulting trust lor the original debtors, is within the exception in the Stamp Act, 1891, s. 86 (c), ante, p. 263. < 'oatea v. Perry, 3 \'<. & B. 48. A transfer of a mortgage to effect an appointment of new trustees is not, 206 Stamps. by sect. 62 (ante, p. 249), to bear a higher stamp than 10s. See Foley, Ld. v. Inl. Rev. Corns., L. R., 3 Ex. 263. Policies of Insurance. Definitions.'] Sect. 91. " For the purposes of this act the expression 'policy of insurance' includes every writing whereby any contract of insurance is made, or agreed to be made, or is evidenced, and the expression ' insurance' includes assurance." [S. Act, 1870, s. 117 (1).] Sea insurance.'] Policij of sea insurance— -(1.) Where the premium or consideration does not exceed the rate of 2s. 6d. per centum of the sum insured, Id. (2.) In any other case— (a.) For or upon any voyage — in respect of every full sum of 100/., and also any fractional part of 100?. thereby insured, 3d. ; (b.) For time — in respect of every full sum of 100/., and also any frac- tional part of 100/. thereby insured— where the insurance shall be made for any time not exceeding six months, 3d. ; where the insurance shall be made for any time exceeding six months and not exceeding twelve months, Qd. By 1 E. 7 c. 7, s. 11 (2) where a time policy contains a " continuation clause" vide Id. (4) infra there is a further duty of 6d. on the policy. Definition, &c] By sect. 92. (1.) For the purposes of this act the expression "policy of sea insurance" means any insurance (including re-insurance) made upon any ship or vessel, or on the machinery, tackle, or furniture thereof, or upon any goods, &c, on board, or upon the freight, or any other interest which may be lawfully insured in or relating to any ship or vessel, and includes any insurance of goods, &c, for any transit which includes not only a sea risk, but also any other risk incidental to the transit insured. [30 & 31 V. c. 23, s. 4.] (2.) Where any person, in consideration of any sum for additional freight or otherwise, agrees to take any risk attending goods, &c, while on board any ship or vessel, or to indemnify the owner of the goods from any risk, loss, or damage, the agreement is to be deemed a contract for sea insurance. [30 & 31 V. c. 23, s. 12.] " By sect. 94, where the insurance is made for a voyage, and also lor time, or to extend to or cover any time beyond 30 days after the ship shall have arrived at her destination, and there be moored at anchor, the policy is made chargeable with both voyage and time policy duty. [30 & 31 V. c. 23, s. 11.] By 1 E. 7 c. 7, s. 11 (4) a " continuation clause means an agreement "that in the event of the ship being at sea or the voyage otherwise not completed on the expiration of the policy, the subject matter of the insurance shall be held covered until the arrival of the ship or for a reasonable time thereafter not exceeding 30 days." By sect. 95 (1.) a policy of sea insurance may not be stamped after it is signed, or underwritten by any person ; except in the case— (a.) Of mutual insurances not underwritten to an extent beyond that which the stamps already impressed warrant. (b) Policies executed abroad chargeable with duty, vide post, p. 268. [30 & 31 V. c. 23, s. 9.] Provided that a sea policy maybe stamped after execution, the penalty being 100/. (vide ante, p. 229). [39 & 40 V. c. 6, s. 2.] By 1 E. 7, c. 7, s. 11 (3), " if the risk covered by the continuation clause," vide Id. s. 11 (4) supra, "attaches and a new policy is not issued covering the risk the continuation clause shall be deemed to be a new and separate contract of sea insurance expressed on the policy in which it is Policy of Sea Insurance. 267 contained, but not covered by the stamp thereon, and the policy shall be stamped in respect of that contract accordingly, but may be so stamped with- out penalty at any time not exceeding 30 days after the risk has so attached." Sect. 97, (2.) " Every broker, agent, or other person negotiating or transacting any sea insurance contrary to the true intent and meaning of this Act, or writing any policy of sea insurance upon material not duly stamped, shall for every such offence incur a " penalty, " and shall not have any legal claim to any charge for brokerage, commission, or agency, or for any money expended or paid by him with reference to the insurance, and any money paid to him in respect of any such charge shall be deemed to be paid without consideration, and shall remain the property of his employer." [30 & 31 V. c. 23, ss. 14, 16.] See Roderick v. Hovil, 3 Camp. 103. Form of Policy.] Sect. 93 (1.) "A contract for sea insurance" (other than such insurance as is referred to in stat. 25 & 26 V. c. 63, s. 55, vide infra) " shall not be valid unless the same is expressed in a policy of sea insurance. (2.) " No policy of sea insurance made for time shall be made for any time exceeding 12 months." As to the period now, see 1 E. 7, c. 7, s. 11 (1), post, p. 268. (3.) " A policy of sea insurance shall not be valid unless it specifies the particular risk or adventure, the names of the subscribers or underwriters, and the sum or sums insured, and is made for a period not exceeding 12 months." [30 & 31 V. c. 23, s. 7.] This section, read with the definition clause, sect. 91, ante, p. 266, now replaces 35 G. 3, c. 63, s. 2, which was similar in its terms. It was sufficient if the name of the underwriting firm was expressed in the policy. Beid v. Allan, 4 Exch. 326; Dowdall v. Allan, 19 L. J., Q. B. 41. And where each of the parties in a secret partnership underwrites in his own name, on account of the partnership, this is a compliance with the Act. Brett v. Beckwiih, 26 L. J., Oh. 130. But a policy issued by the A. A. Association for mutual insurance, signed by the managers "per proc. of the several members of the A. A. Association for insuring each other's ships," the members liable being a fluctuating body, is void, for the policy does not state the names of the underwriters. In re Arthur Average Assoc, L. Pi., 10 Ch. 542. Where an agent has insured goods in his own name on behalf of his principal, the latter is entitled to sue on the policy, although it does not show that the agent was insuring as such. De Vignier v. Swanson, 1 B. & P. 346, n.; followed in Browning v. Provincial Insurance Co. of Canada, L. R., 5 P. C. 263. But it must be proved that the policy was effected on behalf of the plaint ill'. Watson v. Swan, 11 C. B., N. S. 756; •".1 L. J., C. P. 210; Boston Fruit Co. v. British &c. Marine Insur. Co., (1906) A. C. 336, 1). P. The statute applies to agreements of mutual insur- ance. Smith's case, L. R., 4 Ch. (ill; In re Arthur Average Assoc, supra. As to what is sufficient description of the risk, see Edwards v. Aberayron Mutual Ship Insur. Soc, 1 Q. Y>. D. 50:;. A defence arising from non- compliance with this section must now be pleaded specially. Utiles, 1883, O. xix. r. 20, post, p. 310. The 25 & 26 V. c. 63, s. 55, now replaced by 57 & 58 V. c. fiO, s. 506, to the same effect (see Beet. 7 15 (<•)), has reference to the following events, occurring without the actual fault or privity of the owners of the ship, viz.: — ■(«) loss of life or personal injury caused to any person carried in any ship; (//) damage or loss caused to any goods, mer- chandise, or other things whatsoever on board any ship; (c) loss of life or personal injury caused to any person carried in any other ship or boat by reason of the improper navigation of any ship; (d) loss or damage caused to any other ship or boat, or to any goods, merchandise, or other 268 Stamps. things whatsoever on board any other ship or boat, by reason of the improper navigation of any ship. By I E. 7, c. 7, s. 11 (1) a sea policy may contain a "continuation clause," vide lit. (1) ante, p. 266, and shall then not be invalid, on the ground only that by reason thereof, the policy may be available for more than 12 months. By 3 E. 7, c. 46, s. 8, a policy on a ship or its machinery or fittings whilst under construction or repair or on trial may be stamped as a voyage policy though made for a time exceeding 12 months, and shall not be deemed a time policy. Effect of SlipJ] An insurance slip, when initialled by an insurance com- pany or underwriters, is, in the ordinary course of business, treated as a contracl to insure and to issue a policy in accordance with the slip; sects. 92, 93 (ante, pp. 266, 267), however, prevent it from being used as evidence of such a contract, and the contract is therefore only binding in honour; Fisher v. Lire, pool Marine Insurance Go., L. B., 9 Q. B. 418, Ex. Ch. ; see Home Marine Insur. Co. v. Smith, (1898) 2 Q. B. 351, C. A. ; but the slip is admissible in evidence for any other purpose, e.g., to show the intention of the parties as to what risk was undertaken by the underwriters. lonides v. Pacific, (fee, Insurance Co., L. R., 6 Q. B. 674; L. R., 7 Q. B. 517, Ex. Ch.; Lishman v. N. Maritime Insur. Co., L. R., 8 C. P. 216; L. R., 10 C. P. 179, Ex. Ch. See also Cory v. Patton, L. R., 7 Q. B. 304 ; and L. R., 9 Q. B. 577, and 6 E. 7, c. 41, ss. 21, 89, post, p. 418. Apart from the initialling of the slip, there is no contract by an insurance company to forward the copy slip and to issue the policy. Fisher v. Liverpool Marine Insur. Co., supra. A slip cannot be stamped after execution. Home Marine Insur. Co. v. Smith, (1898) 1 Q. B. 829. Executed abroad^ By sect. 95, (1 h), a policy of sea insurance " made or executed out of, but being in any manner enforceable within, the United Kingdom, may be stamped at any time within ten days after it has been first received in the United Kingdom on payment of the duty only." [S. Act, 1870, s. 117 (2).] Alterations.'] By sect. 96, " nothing in this act shall prohibit the making of any alteration which may lawfully be made in the terms and conditions of any policy of sea insurance after the policy has been underwritten ; pro- vided that the alteration be made before notice of the determination of the risk originally insured, and that it do not prolong the time covered by the insurance thereby made beyond the period of six months, in the case of a policy made for a less period than six months, or beyond the period of twelve months in the case of a policy made for a greater period than six months, and that the articles insured remain the property of the same person or persons ; and that no additional or further sum be insured by reason or means of the alteration." [30 & 31 V. c. 23, s. 10.] The following cases were decided under 35 G. 3, c. 63, s. 13, now repealed, the provisions of which much resembled the above section. A mere exten- sion of the time of sailing is within the above clause, and the alteration requires no new stamp. Kensington v. Inglis, 8 East, 273 ; Brocklebanh v. Sugrue, 1 B. & Ad. 81. So a memorandum waiving the warranty of sea- worthiness. Weir v. Aberdeen, 2 B. & A. 325. But where a policy on " a ship and outfit " was altered by inserting " ship and goods," it was held to require a new stamp, and to be void against the underwriters, though they had assented to the alteration. Hill v. Patten, 8 East, 373. The Marine Insurance Act, 1906, 6 E. 7, c. 41, does not affect the pro- visions of the Stamp Acts, see sect. 91, post, p. 417. Policy of Life Insurance. 269 Life insurance.'] Policy of life insurance — Where the sum insured does not exceed 10?. — Id. ; exceeds 101. but does not exceed 251. — 3d. ; exceeds 25?. but does not exceed 500?. — for every full sum of 50?., and also for any fractional part of 50?., of the amount insured, 6c?. ; exceeds 500?. but does not exceed 1,000?. — for every full sum of 100?., and also for any fractional part of 100?., of the amount insured, Is. ; exceeds 1,000?. — for every full sum of 1,000?., and also for any fractional part of 1,000?., of the amount insured, 10s." By sect. 98. (1.) " For the purposes of this act the expression ' policy of life insurance ' means a policy of insurance upon any life or lives or upon any event or contingency relating to or depending upon any life or lives except a policv of insurance against accident." See Prudential Assur. Co. v. Inl. Rev. Corns., (1904) 2 K. 13. 658. By sect. 118 (1.), no assignment of such policy shall give the assignee any right to sue for the moneys assured, or to give a valid discharge therefrom, unless the assignment be duly stamped. Fire and accident insurance.'] Policy of insurance against accident aud policy of insurance for any payment agreed to be made during the sickness of any person, or his incapacity from personal injury, or by way of indemnity against loss or damage of or to any property : — Id. By sect. 98, for the purposes of this act, the expression " policy of insur- ance against accident " meaus a policy of insurance for any payment agreed to be made upon the death of any person only from accident or violence or otherwise than from a natural cause, or as compensation for personal injury, and includes any notice or advertisement in a newspaper or other publication which purports to insure the payment of money upon the death of or injury to the holder or bearer of the newspaper or publication containing the notice, only from accident or violence or otherwise than from a natural cause. [52 & 53 V. c. 42, s. 20.] (2.) A policy of insurance against accident is not to be charged with any further duty than Id. by reason of the same extending to any payment to be made during sickness or incapacity from personal injury. [53 & 54 V. c. 8, s. 20.] By sect. 99, this duty of Id. may be denoted by an adhesive stamp, which is to be caucelled by the person by whom the policy as first executed. [S. Act, 1870, s. 119.] By stat. 58 & 59 V . c. 16, s. 13, " a policy of insurance for any payment agreed to be made during the sickness of any person or his incapacity from personal injury " . . . " includes a notice or advertisement in a newspaper or other publication which purports to insure such payment." By 62 & 63 V. c. 9, s. 11, the provisions contained in sect. 98, supra, "in reference to the expression ' policy of insurance against accident ' shall extend to and include policies of insurance or indemnity against liability incurred by employers in consequence of claims made upon them by workmen who have sustained personal injury when the annual premium mi such policies does nut exceed 1?." In other cases such policies are not policies of insurance against accident within the schedule. See Lancashire lnsur. Co. v. Inl. Rev, Corns., (1899) 1 Q. B. 353. Poiver of Attorney. See Letter of attorney, ante, p. 259. Probate and Letters of Administration. These duties were not affected by the Stamp Act, 1891. They were formerly payable on the instruments themselves, but under the Customs and '-' 1 Stamps. Inland Revenue Act, 1881 (44 . 101. ^ By 3(3 G. 3, c. 52, s. 29 ; 48 G. 3, c. 149, s. 44 ; and 55 G. 3, c. 184, Sched. Part III., receipts for legacies may be stamped with the amount of legacy duty payable thereon, without penalty, within 21 days after they are signed ; they may be stamped afterwards on payment of the duty, and a penalty of 101. per cent, on the duty. Decisions on receipts.] In referring to decisions before 1871, it must be borne in mind that the provisions of the Stamp Act, 1891, as to receipts, are much more comprehensive than those prior to the Stamp Act, 1870. An acknowledgment of having received acceptances, with an undertaking to provide for them, has been held to require a receipt stamp. Scholey v. Walsby, Peake, 24. So a bill of parcels, subscribed " settled by two bills, one at nine, the other at twelve months," was held by Ld. Ellenborough to be an acquittance which could not be evidence unless stamped. Smith v. Kelly, Peake, 25, n. ; S. C. (ill-reported), 4 Esp. 249. So the word " settled " under a hill. Spawforth v. Alexander, 2 Esp. 621. So when on payment to a bank B., by a solicitor S., of sums of money recovered by him for B., entries made by S., in a book kept by him, of the amounts so paid by him were from time to time initialled by B.'s clerk, who received the money, with or without the word " settled," these acknowledgments were held to require stamps. A.-G. v. Carlton Bank, (1899) 2 Q. B. 158, cor. Ld. Russell, C.J. The siguature by a counsel on his brief acknowledging the payment of the lee, requires a stamp. General Council of the Bar v. Inl. Rev. Corns., (1907) 1 K. B. 462. " Memorandum. That any demand we have against G. W. for ironwork is this day discharged in consideration of services rendered by him to us : our account shall be delivered with a stamped receipt," — requires a stamp. Livingstone v. Whiting, 15 Q. B. 722. An account containing acknowledg- ments of sums received, made at successive times upon the payment of the money, requires a stamp; it differs from au account current, where the sums stated to be received are not written in the account at and upon the receipt of the money, but long after, and only amount to admissions of money received at an antecedent time. Wright v. Shawcross, 2 B. & A. 501, n. See Jacob v. Lindsay, 1 East, 460 ; Hawkins v. Wane, 3 B. & C. 690. A mere acknowledgment, not of the payment of money, but of a sum due and owing (as an I O U, signed by the party), requires no receipt stamp. Fisher v. Leslie, 1 Esp. 426 ; Israel v. Israel, 1 Camp. 499 ; Childers v. Boulnois, D. & By. N. P. 8. And such an acknowledgment, though in form a receipt (being in fact for money received long before), requires no stamp: thus, "Received by B. T. 170/., for which I promise to pay at the rate of 5/. per cent." (signed), is neither a receipt nor promissory note, nor Receipt. — Release. — Scrip Certificate, Scrip, &c. — Settlement. 273 an agreement of the value of 20?. Taylor v. Steele, 16 M. & W. 665. Where it is made solely to avoid the Statute of Limitations, it is expressly exempted from an agreement stamp. 9 G. 4, c. 14, s. 8, ante, p. 234. An instrument in these terms, " Mr. T. has left in my hands 2001. ; " Tomkins v. Ashby, 6 B. & C. 541 ; or in these, "I have in my hands three bills which amount to 120Z. 10s. 6d., which I have to get discounted or return on demand ; " Mullett v. Euchison, 7 B. & C. 639 ; or in these, " Mr. M. has this day left me 10?. on account of debt, interests, and costs," Levy v. Alexander, 4 Exch. 485, requires no stamp. So, the acknowledgment of the correctness of an account, containing a statement of sums advanced and disbursements made, has been held to require no stamp. Wellard v. Moss, 1 Bing. 134. So, " balancing up to this day. S. F., 19 Nov.," written on the back of an unstamped receipt, is evidence against S. F. of an admission of the state of account on that day, though the receipt itself is not admissible. Finney v. Tootel, 5 C. B. 504. And an unstamped receipt at the foot of a debtor and creditor account, signed by the party who received the balance, is evidence against him of the state of the account, the payment not being disputed. Matheson v. Ross, 2 H. L. C. 286. A receipt is not inadmissible as such, because it notices the terms and consideration upon which the money was paid. Watkinsv. Hewlett, 1 B. & B. 1. Nor because it contains subsequent matter of agreement and has no agreement stamp ; Odye v. Cookney, 1 M. & Rob. 517 ; uuless the agreement controls or qualifies what goes before, when the paper will be inadmissible without an agreement stamp. Grey v. Smith, 1 Camp. 387. Receipts for instalments ot the price of shares paid under the terms of the allotment letter are, if written on the duly stamped letter, within exemption 11. L. & Westminster Bank v. Inl. Rev. Comrs., (1900) 1 Q. B. 167, C. A., see also Firth & Sons v. Id., (1904) 2 K. B. 205. Where the indorsements of receipts on a bond have left no blank spaces for receipts of subsequent payments, such receipts written on an unstamped piece of paper aunexed to the bond are within exemption 11. Orrae v. Young, 4 Gamp. 336. It should be noticed that although exemp- tion 8, as to receipts written on stamped bills and notes, is repealed, such receipts fall under exemption 11. Release. " Release or renunciation of any property, or of any right or interest in any property : — " Upon a sale. See Conveyance on Sale," ante, p. 249. "By way of security. See Mortgage, <&c," ante, p. 262. " In any other case : — 10s." A receipt fur compensation paid by a railway company to a mineral owner uuder 8 & 9 V. c. 20, s. 78, is not a release " upon a sale " and is liable to the duty of 10s. only. Gt. N. Ry. Co. v. Inl. Rev. Comrs., (1899) 2 Q. B. 652 ; (1901) 1 K. B. 416, C. A. The term "renunciation" here refers only to certain Scotch documents. S. C, (1899) 2 Q. B. 666, 671. Scrip Certificate, Scrip, &c. See Letter of allotment, ante, p. 258. Settlement. "Settlement. Any instrument, whether voluntary or upon any good or valuable consideration, other than a hand fide pecuniary consideration, whereby any definite and certain principal sum of money (whether charged B. — VOL. I. T 21 I Stamps. or chargeable on lauds or other hereditaments or heritable subjects or not, or to be laid out in the purchase of lands or other hereditaments or heritable subjects or not), or any definite and certain amount of stock, or any security, is settled or agreed to be settled in any manner whatsoever: — for every 1001., and also for any fractional part of 1001., of the amount or value of the property settled or agreed to be settled : — 5s." Exemption.] "Instrument of appointment relating to any property in favour of persons specially named or described as the objects of a power of appointment, where duty has been duly paid in respect of the same property upon the settlement creating the power or the grant of representation of any will or testamentary instrument creating the power." See Russell v. Inl. Rt v. Corns., (1902) 1 K. B., 142, C. A. Sect. 101. " (1.) Where any money which may become due or payable upon any policy of lite insurance, or upon any security not being a market- able security, is settled or agreed to be settled, the instrument whereby the settlement is made, or agreed to be made, is to be charged with ad valorem duty in respect of that money. " (2.) Provided as follows : — (a) Where, in the case of a policy, no provision is made for keeping up the policy, the ad valorem duty is to be charged only on the value of the policy at the date of the instrument ; (b) If in any such case the instrument contains a statement of the said value, and is stamped in accordance with the statement, it is, so far as regards the policy, to be deemed duly stamped, unless or until it is shown that the statement is untrue, and that the instrument is, in fact, insufficiently stamped." [S. Act, 1870, s. 124.] See also sects. 105, 106. A settlement of contingent and reversionary interests only, in certain securities, which may be varied at the discretion of the trustees, is within the schedule. Onslow v. Inl. Rev. Corns., 24 Q. B. D. 584 ; (1891) 1 Q. B. 239, C. A. Share Warrant and Stock Certificate to Bearer. Share Warrant issued under the provisions of " The Companies Act, 1867," and Stock Certificate to bearer: — A duty of an amount equal to three times the amount of the ad valorem stamp duty which would be chargeable on a deed transferring the share or shares or stock specified in the warrant or certificate if the consideration for the transfer were the nominal value of such share or shares or stock, vide, ante, p. 249. Sect. 108. " For the purposes of this act the expression ' stock certificate to bearer ' includes every stock certificate to bearer issued after the 3rd day of June, 1881, under the provisions of the Local Authorities Loans Act, JsTo, or of any other act authorizing the creation of debenture stock, county stock, corporation stock, municipal stock, or funded debt, by whatever name known." [44 & 45 V. c. 12, s. 46.] By 62 & 63 V. c. 9, s. 5 (1), this stamp duty on share warrants "shall extend to any instrument to bearer issued by or on behalf of any company or body of persons formed or established in the United Kingdom and having a like effect as such a share warrant, and the stamp duty charged on stock certificates to bearer as ' above defined' shall extend to any instrument to bearer issued by or on behalf of any company or body of persons formed or established in the United Kingdom, and having a like effect as such a stock ceri i Heat e to bearer." By sect. 1 (1), there shall be charged "on every share warrant or stock Surrender. — Transfer of Shares in Cost-Book Mine. 275 certificate to bearer by means of which any share or stock of any company or body of persons formed or established out of the United Kingdom is, after" August 1st, 1899, "assigned, transferred, or in any manner negotiated in the United Kingdom, a stamp duty of Is. for every 10Z., and also for any fractional part of 101., of the nominal value of the share or stock to which the warrant or certificate relates." . . . (4.) For the purposes of this section — (a) the expression "share warrant to bearer" includes any instrument, by whatever name called, having the like effect as a share warrant issued under the provisions of the Companies Act, 1867; and (b) the expression " stock certificate to bearer " includes any instrument, by whatever name called, having the like effect as a stock certificate to bearer. See also sect. 4 (2), ante, p. 261. Surrender. " Surrender — of copyholds. See Copyhold," ante, p. 253. " Of any other kind whatsoever not chargeable with duty as a conveyance on sale or mortgage : — 10s." Where some of the executors of a tenant from year to year signed an instrument "renouncing and disclaiming, and also surrendering and yielding up " to the landlord all right, title, &c, in the premises ; and the landlord thereupon brought ejectment; held that such instrument was a surrender and not a disclaimer, and therefore could not be put in evidence for the plaintiff without a surrender stamp. Doe d. Wyatt v. Stagq, 5 N. C. 564. Transfer of Shares in Cost- Book Mine. " Transfer. Any request or authority to the purser or other officer of any mining company, conducted on the cost-book system, to enter or register any transfer of any share, or part of a share, in any mine, or any notice to such purser or officer of any such transfer : — 6d." Adhesive stamp.'] Sect. 110. (1) This duty "may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the request, authority, or notice is written or executed." [S. Act, 1870, s. 128 (1).] The cost-book mine companies referred to in this Act are certain un- registered companies or partnerships, witliiu the Stannaries of Devon and Cornwall. Such companies elsewhere must, if consisting of more than twenty members, be registered and incorporated under the Companies Act, 1862, see sect. 4. Whether the company he such a cost-book company is a question of fact and nut a matter of law. See ante, p. 83. As In what constitutes such a company, see the Introductory Notice in Procedure of the. Stannary Court, ed. L856, and Collier on Mines, 2nd ed., Ch. 3; and the Stannaries Act, 1869 (32 & 33 V. c. 19). The written request, or notice mentioned in the Stamp Act, 1891, is the usual (but not the only) form of transfer of shares in such a mine. See Toll v. Lee, I Exch. 230, cited ante, p. 252. where the mine was, in fact, a cost-hook mine. Warrant <>f Attorney. " Warrant of attorney to confess and enter up a judgment given as a security for the payment or repayment of money, or for the transfer or re-transfei of Btock. See Mortgage, efce.," ante, p. 262. " Warrant of attorney of any other kind : — 10s." x2 276 Evidence and Practice at Nisi Prius. Warrant/or Goods. II '< i n a n t for goods : — 3d. Exemptions.] "(1.) Any document or writing given by an inland carrier aeknowledgiirj; the receipl of goods conveyed by .such carrier. (2.) A weight note issued together with a duly stamped warrant, and relating solely to the same goods, wares, or merchandise." Definition.'] Sect. Ill, " (1.) For the purposes of this act the expression ' warrant tor goods' means any document or writing, being evidence of the title of any person therein named, or his assigns, or the holder thereof, to the property in any goods, wares, or merchandise lying in any warehouse or dock, or upon any wharf, and signed or certified by or on behalf of the person having the custody of the goods, wares, or merchandise." Adhesive stamp.] Sect. 111. (2.) The duty may be denoted by an adhesive stamp which is to be cancelled by the person by whom the instrument is made, executed, or issued. [S. Act, 1870, ss. 88, 89.] COURSE OF EVIDENCE AND PRACTICE AT NISI PRIUS. Prior to the C. L. P. Act, 1854, trials were always held before a judge and jury. Under sect. 1 of that Act, a trial might by consent of the parties and leave of court take place before a judge alone. Now under Rules, 1883, 0. xxxvi. r. 7, the mode of trial is in general by a judge without a jury; provided that iu any such case the court or a judge may at any time order any cause, matter, or issue to be tried by a judge with a jury or by a judge sitting with assessors or by an official referee with or without assessors. By r. 2, in act inns of slander, libel, false imprisonment, malicious prosecution, seduction, or breach of promise of marriage, either party is entitled on notice to have a trial by jury. By r. 3, causes or matters assigned by the J. Act, 1873, s. 34, to the Chancery Division, shall be tried by a judge without a jury unless the court or a judge shall otherwise order. By r. 4, " the court or a judge may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact or partly of fact and partly of law arising in any cause or matter which previously to the passing of the" J. Act, 1873, "could without any consent of parties have been tried without a jury." By r. 5, " the court or a judge may direct the trial without a jury of any cause, matter, or issue requiring any prolonged examination of documents or accounts, or any scientific or local investigation which cannot in their or his opinion con- veniently be made with a jury." By r. 0, " in any other cause or matter upon the application within 10 days after notice of trial has been given of any party thereto for a trial with a jury of the cause or matter, or any issue of fact, an order shall be made for a trial with a jury." By r. 8, " subject to the provisions of the preceding rules of this order the court or a judge may in any cause or matter at any time, or from time to time, order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and may appoint the places for such trials, and in all cases may order that one or more issues of fact be tried before any other or others." By r. 9, " every trial of any question or issue of fact with a jury shall be by a single judge unless such trial be specially ordered to be by two or more judges." The words in italics in r. 6 were added by R. S. C, December, 1885, r. 11. Practice at Nisi Prius. 211 Trials before referees are subject to the provisions of the Arbitration Act, 1889, ss. 13-16 (which replace the J. Act, 1873, ss. 57, 58), post, pp. 280 et seq., where the decisions on these sections are collected. Before whichever tribunal the cause is tried the rules of practice at the trial are nearly the same. The following was the course of practice before the C. L. P. Act, 1854 : — When the jury was sworn, the junior counsel for the plaintiff opened the pleadings ; after which, if the proof of the issue rested on the plaintiff, the senior counsel stated the case to the jury, and after witnesses had been examined in support of it, the counsel for the defendant was heard. If he called any witness, the plaintiff's counsel had the general reply. By Rules, 1883, O. xxxvi. r. 36 (which replace the C. L. P. Act, 1854, s. 18, in similar terms), it is provided that, " upon a trial with a jury, the addresses to the jury shall be regulated as follows : the party who begins, or his counsel, shall be allowed at the close of his case, if his opponent does not announce any intention to adduce evidence, to address the jury a second time for the purpose of summing up the evidence ; and the opposite party, or his counsel, shall be allowed to open his case, and also to sum up the evidence, if any, and the right to reply shall be the same as heretofore." As to the right to reply, vide post, p. 287. This rule merely allows the defendant's counsel to sum up his evidence, and does not permit the counsel to comment generally on the case ; Gilford v. Davis, 2 F. & F. 23; but it must be observed that the summing-up usually amounts to a general reply. Where a counsel has not announced his intention to adduce evidence, in consequence of which the party who began sums up his case, he cannot afterwards be permitted to alter his mind and adduce evidence. Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J., Ex. 227. The same course of practice is usually adopted on a trial before a judge alone ; Metzler v. Wood, 47 L. J., Ch. 139, one counsel only being heard on questions of fact; S. C. ; Conington v. QiUiat, 1 Ch. D. 694. A trial before a referee is conducted in the same manner as a trial before a judge. Rules, 1883, O. xxxvi. r. 49, -post, p. 282. Where there are several issues, some of which are incumbent on the plaintiff and others on the defendant, it is usual for the plaintiff to* begin and to prove those which are essential to his case; Jackson v. Hesketh, 2 Stark. 521 ; the defendant then does the same ; and the plaintiff is then entitled to go into evidence to controvert the defendant's affirmative proofs. The defendant's counsel is entitled to comment by way <>f reply upon such last- mentioned evidence in support of his own affirmative ; and the plaintiff's counsel has a general reply. Where the judge decides that there is no evidence to go to the jury on the plaintiff's case, his counsel will not be entitled to sum up. Ffodyes v. Ancrum, 11 Exch. 214 ; 24 L. J., Ex. 257. It was formerly laid down as a general rule, that when, by pleading or notice, the defence is known, the counsel for the plaintiff is hound to open the whole case in chief and cannot proceed in puts unless some specific fact be adduced by the defendant to which the plaintiff can give an answer; and that he cannot go into general evidence in reply. i?e M. & Ry. 139, 2s| (on a trial at bar; bul tl bjection was waived by the defendant); Lacon v. Biggins, '•'< Stark. ITS. I'.ul where the defendant traverses, and also justifies, the plaintiff may reserve his ea>e on the justification until the 2 i 8 Practice at Nisi Prius. defendant has proved it. Browne v. Murray, Ry. & M. 254, and note Id. Or he may enter upon the disproof thereof in the first instance; in which case be will not be allowed to give further evidence of the same kind in reply. Id. ; Accord. Shaw v. Beck, 8 Exch. 392. And plaintiff is entitled so to reserve his answer to the defendant's case, although his witnesses have been cross-examined so as to disclose the nature of the defence relied upon. hi. So where there are cross-demands, and the defendant pleads a set-off, the plaintiff has the option of proving, in the first instance, the balance only he claims, and after the defendant has proved his set-off, of proving other parts of his account to show that a larger sum was due. Williams v. Davies, 1 Or. & M. 464. Upon the trial of issues in a patent case, the plaintiff was held entitled to call evidence in reply for the purpose of rebutting a case of prior user set, up by the defendant. But after the evidence for the defence was summed up, the defendant was not allowed to adduce further evidence in answer to that given by the plaintiff in reply. Penn v. Jack, L. R., 2 Eq. 314. The geueral rule was recognized in Jacobs v. Tarleton, 11 Q. B. 421, where, in an action against acceptor, the issue was on the indorsement of a bill to the plaintiff. The plaintiff proved the handwriting of the indorser ; the defendant, e contra, gave evidence that the plaintiff was too poor to have given value fur the bill; that he had disclaimed knowledge of it, and had denied any authority from himself to bring the action : in reply the plaintiff offered proof that he was able to discount, and had in fact discounted the bill ; it was held that the proof in reply was merely confirmatory and ought not to have been received. It is observable on the report of this case that neither the evidence in defence nor in reply seems to have been pertinent to the issue : but another report (17 L. J., Q. B. 194) shows that fraud and want of consideration by the plaintiff were also in issue on the record. In Wright v. Wilcox, 9 C. B. 650; 19 L. J., C. P. 333, it was held that the plaintiff might, and (ut semble) ought to, be allowed to explain by evidence a fact which appears for the first time on the defendant's evidence ; and that the judge has a discretion iu admitting evidence in reply. And where the judge allowed the plaintiff to put in additional proof of title at the close of the case, and when he was about to sum up, the court above refused to interfere with his discretion. Doe d. Nicoll v. Bower, 16 Q. B. 805. Where a party tenders documentary evidence prima facie admissible, the other party will not, except under the rule mentioned below, be allowed to interpose with evidence for the purpose of excluding it. Thus, where plaintiff tendered an examination of defendant taken before bankruptcy commissioners, the defendant was not permitted to call witnesses to prove, before the examination was read, that it was incomplete, and therefore inad- missible. Such evidence, if not obtained by cross-examination, must be postponed as part of the defendant's case. Jones v. Fort, M. & M. 196. But evidence to disprove possession of an instrument, of which secondary evidence is tendered; Harvey v. Mitchell, 2 M. & Rob. 366 ; or to show that a contract about which the witness is questioned is in writing; Cox v. Couveless, 2 F. & F. 139, Martin, B. ; may be given immediately. It seems that under Rules, 1883, 0. xxxi. r. 15 (ante, p. 13), the opposite party may show that the document sought to be put in evidence was referred t.) in the pleadings or affidavits of the party seeking to put it in, and was not produced on notice, and is therefore inadmissible, uuless the non-production be excused under the rule. See Quilter v. Eeatly, 23 Ch. D. 42, C. A., explaining Webster v. Whewall, 15 Ch. D. 120. Where the judge has expressed an opinion adverse to the admissibility in evidence of a document, the counsel seeking to put it in must formally tender it in evidence and require a note to be taken of the tender, and if this Practice at Nisi Prius. 279 course is neglected the rejection cannot afterwards be relied on. Campbell v. loader, 34 L. J., Ex. 50.' Both parties are bound by the view taken of their respective cases, and the mode of conducting them, by their counsel at the trial ; and they cannot move for a new trial upon grounds omitted to be urged at N. P. See Doe d. Cord v. Needs, 2 M. & W. 129 ; Henn v. Neck, 3 Dowl. 163 ; Short v. Kalloivay, 11 Ad. & E. 28; Haslor v. Carpenter, 3 C. B., N. S. 172 ; Mac- .dougall v. Knight, 14 Ap. Ca. 194, D. P. ; Seaton v. Burnand, (1900) A. C. 135, D. P. And where counsel offers evidence for one purpose which the judge rejects, he will not, after the trial, be permitted to rely upon it as admissible for another purpose. 7?. v. Grant, 5 B. & Ad. 1081. Nor can he complain of misdirection upon a point which he has, in effect, waived at N. P. Robinson v. Cook, 6 Taunt. 336. And misstatement of facts by the judge should be adverted to by counsel at the time, though counsel need not object to the law as laid down by him. Payne v. Ibbotson, 27 L. J., Ex. 311. And where evidence has been admitted, without objection, as relevant to the issue, it cannot be objected to as inapplicable after the judge has begun to sum up. Abbot v. Parsons, 7 Bing. 563. Where the judge has, in the opinion of counsel, omitted to submit some material point or view of the case to the jury, he ought, it seems, to be reminded of it. Mayor v. Chadwick, 11 Ad. & E. 584, 585 ; Wedge v. Berkeley, 6 Ad. & E. 663. But counsel will not, it is apprehended, be taken to have acquiesced in the summing-up of the jud^e in point of law, merely because he has not interposed at the time. See Hughes v. Gt. W. By. Co., 14 C. B. 637; 23 L. J., 0. P. 153, per Cresswell, J. Where the point relied upon by counsel has been distinctly brought under the notice of the judge in the course of the cause, it would be very inconvenient to require that counsel should again advert to it, by way of protest, while the judge is charging the jury. A party appearing in person must examine the witnesses as well as address the jury. Shuttleiuorth v. Nicholson, 1 M. & Rob. 251. The party in person may conduct his own cause, examine witnesses, and give evidence in his own favour. Cobbett v. Hudson, 1 E. & B. 11 ; 22 L. J., Q. B. 11. But his wife cannot claim to conduct it in his absence. S. C, 15 Q. B. 988. A barrister has no privilege to be heard both personally and by his counsel in his own cause. Newton v. Chaplin, 10 C. B. 356; 19 L. J., C. P. 374; New Brunswick & Canada By. & Land Co. v. Conybeare, 9 H. L. C. 711 ; 31 L. J. Ch. 297. The leading counsel has a right, in his discretion, to interpose and take the examination of a witness out. of the hands of his junior ; but after one counsel has brought the examination to a close, a question cannot regularly be put to the witness by another counsel on the same side. Doe v. Boe, 2 Camp. 280. Counsel for the defendant, in addressing the jury, has no right to ask them whether they are satisfied that defendant is entitled to a verdict as the case stands, without calling witnesses. Moriarty v. Brooks, 6 C. & P. 684, per Ld. Lyndhurst, C.B. A judge at N. P. is not bound, at the request of counsel, to put insulated questions to the jury not distinctly raised by the issue on the record, although the verdict may turn upon them; nor is the jury bound to answer them ; "but with the consent of parties, and where the question is simple and decisive, a judge may in his discretion put it t<> the jury ; per Cur. in Walton v. Potter, 3 M. & Gr. 411, 433, 444; and it may be proper to do so; as where it is desirable to know ,) Practice at Nisi Prius. where the legality of each warrant stands on a different footing. Eggington v. Mayor of Lichfield, 5 E. & B. 100 ; 24 L. J., Q. B. 3G0. Trial of several causes together.'] Where there are several different actions all depending on the same point — e.g., whether defendant was guilty of negligence whereby each of the several plaintiffs was injured — all the causes may, by consent, be tried together by the same jury; but semb. they must be sworn in each of the causes. Pike v. Polytechnic Institution, 1 F. & F. 712. Trial of several issues separately.'] By Rules, 1883, 0. xviii. r. 1, a judge may order the separate trial of causes of action, united in the same action, if they cannot be conveniently tried together. See Frean v. Watley, 4 F. & F. 1038. Power to refer.] Generally, the counsel and attorneys in a cause were at common law presumed to have power to consent to refer the cause at N. P., and the court would not set aside an award made under such order ; Filmer v. Delber, 3 Taunt. 486: Faviell v. E. Counties By. Co., 2 Exch. 344; but enforced it, though the client repudiated the reference and did not attend. Smith v. Troup, 7 0. B. 757. But although counsel have this implied power of reference (see Neale v. Lennox, (1902) 1 K. B. 843, 849, C. A.), yet where the plaintiff consented to the reference of an action for defamation on the express terms of the withdrawal by the defendant's counsel I., of all imputations against her moral character, but Iter counsel C. agreed to the reference, omitting by mistake, to require the withdrawal of the imputations, the reference was set aside, although the restriction on C.'s authority was not known to I. S. C. in D. P., (1902) A.C. 465. And as between the attorney and his client, the former might be liable if he referred improperly, or against the will of the latter ; and it was certainly inexpedient to refer at N. P. without the consent of parties. And where a party was an infant, Biddell v. Bowse, 6 B. & C. 255 ; or a lunatic, Gumming v. Ince, 11 Q. B. 112 ; there was no adequate authority to refer, so as to bind that part3 r . See cases cited post, p. 283. The Arbitration Act, 1889 (52 & 53 V. c. 49), has repealed the provisions of the C. L. P. Act, 1854, and of the J. Act, 1873, which in some cases gave the judge the power compulsorily to refer an action or some question arising therein to arbitration. The Arbitration Act, 1889, contains similar pro- visions, but somewhat extends the judge's powers. By sect. 13 (1) (replacing J. Act, 1873, s. 56), " subject to rules of court and to any right to have particular cases tried by a jury, the court or a judge may refer any question arising in any cause or matter (other than a criminal proceeding by the crown) for inquiry or report to any official or special referee." By sect. 14 (replacing and extending the powers of C. L. P. Act, 1854, s. 3, and J. Act, 1873, s. 57), " in any cause or matter (other than a criminal proceeding by the crown), — (a) if all the parties interested who are not under disability consent : or, (b) if the cause or matter requires any pro- longed examination of documents or any scientific or local investigation which cannot in the opinion of the court or a judge conveniently be made before a jury or conducted by the court through its other ordinary officers : or, (c) if the question in dispute consists wholly or in part of matters of account ; the court or a judge may at any time order the vihole cause or in otter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before au official referee or officer of the court." Power to liefer. — Trial before a Referee. 281 By Rules, 1883, 0. xxxvi. rr. 46, 47, official referees take references in rotation unless (r. 47), the court or a judge direct a reference to a particular official referee, and the reference is usually so directed at the request of hoth parties. As to procedure on trial under this Act before a referee, vide post, pp. 281 et seq. By Rules, 1883, 0. xxxiii. r. 2, " the court or a judge may, at any stage of the proceedings iu a cause or matter, direct any necessary inquiries or accounts to he made or taken, notwithstanding that it may appear that there is some special or further relief sought for, or some special issue to be tried, as to which it may he proper that the cause or matter should proceed in the ordinary manner." By J. Act, 1873, s. 66, a judge may order any accounts to he taken or inquiries made in the office of a district registrar for report to the court. Sect. 13 (1), ante, p. 280, allows only a reference of such questions as have already arisen, or are certain to arise in the action. Weed v. Ward, 40 Ch. D. 555, C. A. It includes an inquiry by examination of witnesses. Wenlock, Ly. v. E. Dee Co., 19 Q. B. D. 155, C. A. ; decided under J. Act, 1873, s. 56. Sect. 14 expressly provides that in the cases mentioned therein, even the whole cause may be tried before a referee or arbitrator. It seems that "prolonged examination of documents" in sect. 14 (6), means an examination required by the judge to enable him to leave questions of fact to the jury, and not to determine the legal right. See Ormerod v. Todmorden Mill Co., 8 Q. B. D. 674, 677, per Brett, L.J. Under sect 14 (c) an order may be made although iu certain events it may become unnecessary to determine the matter of accounts ; Ilarlbatt v. Burnett, (1893) 1 Q. B. 77, C. A. ; before making it however, the Court should be satisfied that there is a substantial dispute between the parties and not unlikely to be a matter of account; S. C, Id. 80, 81, following Knight v. Coales, 19 Q. B. D. 296, C. A. The judge may, under sects. 13, 14, refer any scientific question in issue to an expert agreed on by the parties, for experiment and report to him. Badische Anilin, dr., Fabrik v. Levinstein, 24 Ch. D. 156. See also National Telephone Co. v. Baker, (1893) 2 Ch. 186, 190. Trial before a referee.] The Arbitration Act, 1889, s. 13 (1), ante, p. 280, enables a judge to refer any question arising in any cause for inquiry or report to any official or special referee. By sect. 13 (2), " the report of an official or special referee may be adopted wholly or partially by the court or a judge, and if so adopted may be enforced as a judgment or order to the same effect." In certain cases defined by sect. 14, ante, p. 280, the judge may order the whole cause or any question of fact therein to be tried by a referee or arbitrator. By sect. 15 (i) (replacing .1. Act, 1873, s. As), in all cases of reference to an official or special referee or arbitrator under an order of the court or a judge in any cause or matter, the official or special referee <>r arbitrator shall 'be deemed to be an officer of the court, and shall have such authority, and shall conduct the reference in such manner, as may be prescribed by Rules of Court, and subject thereto as the court or judge may direct. (2.) The report or award of any official or special referee or arbitrator on any such reference shall, unless set aside by the court or a judge, be equivalent to the verdict of a jury. (3.) The remuneration to he paid to any special referee or arbitrator to whom any matter is referred under order of the court or a jud power to state a special case. The rules in relation to such references are as follows: By 0. xxxvi. r. 48, "where any cause or matter, or any question in any cause or matter, is referred to a referee, he may, subject to the order of the court or a judge, hold the trial at or adjourn it to any place which he may deem most convenient, and have any inspection or view, either by himself or with his assessors (if any), which he may deem expedient for the better disposal of the controversy before him. He shall, unless otherwise directed by the court, or a judge, proceed with the trial de die in diem, in a similar manner as in actions tried with a jury." K. 49 : " Subject to any order to be made by the court or judge ordering the same, evidence shall he taken at any trial, before a referee, and the attendance of witnesses may be enforced by subpoena; and every such trial shall be conducted in the same manner, as nearly as circumstances will admit, as trials are conducted before a judge." E. 50 : " Subject to any such order as last aforesaid, the referee shall have the same authority with respect to discovery and production of documents, and in the conduct of any reference or trial, and the same power to direct that judgment be entered for any or either party, as a judge of the High Court," (r. 51) except the power to commit or enforce any order. R. 52 : " The referee may, before the conclusion of any trial before him, or by his report under the reference made to him, submit any question arising therein for the decision of the court, or state any facts specially, with power to the court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the court may direct; and the court shall have power to require any explanation or reasons from the referee, and to remit the cause or matter, or any part thereof, for re-trial or further consideration to the same or any other referee; or the court may decide the question referred to any referee on the evidence taken before him, either with or without additional evidence as the court may direct." By O. lix. r. 3, " where a compulsory reference to arbitration has been ordered, any party to such reference may appeal from the award or certificate of the arbitrator or referee upon any question of law ; and on the application of any party the court may set aside the award on any ground on which the court might set aside the verdict of a jury. Such appeal shall be to a divisional court who shall have power to set aside the award or certificate, or to remit all or any part of the matter in dispute to the arbitrator or referee, or to make any order with respect to the award or certificate or all or any of the matters in dispute that may be just.'" The J. Act, 1884, s. 8, extends the provisions of the J. Act, 1873, s. 45, to such appeals, but not to an appeal after a trial before a referee bv order under sect. 14, ante, p. 280. Munday v. Norton, (1892) 1 Q. B. 403, C. A. A referee has power to fix a peremptory appointment for the hearing. Wenlock v. R. Dee Co., 49 L. T. 617, Mich. S. 1883, C. A. A report under sect. 13, ante, pp. 280, 281, requires confirmation, but one under sect. 14, ante, p. 280, can only be set aside, like a verdict, on the ground that it is against the weight of evidence. Mansfield Union v. Wright, 9 Q. B. D. 686, per Jessel, M.Tt. Where on a reference the referee has directed judgment for the plaintiff under O. xxxvi. r. 52, the Court may on the evidence set it aside and enter judgment for the defendant. Clark v. Sonnenschein, 25 Q. B. D. 226, 464, C. A. He is not bound to take accounts sent to him for report in the same way that a chief clerk usually takes them Power to Compromise. 283 in the Chancery Div. In re Taylor, 44 Ch. D. 128. An award, made under a consent order, to refer an action and all matters in difference is still final. Darlington Wagon Co. v. Harding, (1891) 1 Q. B. 245, C. A. As to costs see Minister v. Apperly, p. 297. Power to compromise.'] At common law the parties were bound by the "conduct" of the suit in court by their counsel or attorney: thus, in an action of trespass counsel might, in the absence of the parties, consent to the amount of damages ; per Pollock, C.B., Thomas v. Harris, 27 L. J., Ex. 353 ; and in an action for malicious prosecution the defendant's counsel may also consent to withdraw all imputations from the plaintiff. Matthews v. Minister, 20 Q. B. D. 141, C. A. So in an action for libel counsel may consent to the withdrawal of a juror. Strauss v. Francis, L. R., 1 Q. B. 279. So, where the party was present and did not dissent from a compromise, he was bound thereby.' Chambers v. Mason, 5 C. B., N. S. 59 ; 28 L. J., C. P. 10 ; Rumsey v. King, 33 L. T. 728, Q. B., H. S. 1876. Aud generally, an attorney acting bond fide, reasonably, and skilfully, and not having express instructions not to compromise, was justified in doing so. Per Ld. Campbell, C.J., Fray v. Voules, 1 E. & E. 832; 28 L. J., Q. B. 232; Choum v. Parrott, 14 C. B., N. S. 74; 32 L. J., C. P: 197 ; Prestwich, (or Pristwick) v. Poley, 18 C. B., N. S. 800 ; 34 L. J., C. P. 189. Where the plaintiffs attorney, iu an action to recover the price of a piano, agreed to settle the action by the return of the piano and payment of costs, the court upheld the compromise. S. C. This principle applies to the solicitor's agent, whether country or London, on the record, although there is no privity between him and the lay client. In re Newen, (1903) 1 Ch. 812. The power of counsel or attorney to com- promise was much discussed on rules for attachment in the case of Swinfen v. Swinfen, 18 C. B. 485 ; 25 L. J., C. P. 303 ; 1 C. B., N. S. 364; 26 L. J., C. P. 97. In S. C. in Equity, it was held that neither counsel nor attorney could compromise the suit at N. P.; 24 Beav. 519; 2 De G. & J. 381; 27 L. J., Ch. 35, 491 ; though the L.J J. in so deciding declined to lay down any general principle on the subject. See also Green v. Crockett, 34 L. J., Ch. 606. It was not suggested in Matthews v. Munster, supra, that the common law rules above stated were affected by the J. Act, 1*73, s. 25 (11), post, p. 308. And a counsel has an implied authority to consent to a reference of the action, vide ante, p. 280. Consent given by counsel, by the authority of his client, to an order, there being no mistake or surprise, cannot be arbitrarily withdrawn, although the order has not been drawn up. Harvey v. Croydon 'Sanitary Authority, 26 Ch. D. 249, C. A. A compromise may, however, be set aside, e.g., on the ground of mistake or fraud, Wilding v. Sanderson, (1S97) 2 Ch. 534, C. A. See further Neale v. Lennox, (1902) A. C. 473, D. P., ante, p. 280. But a fresh action has been held necessary, where the order has been passed and entered, Ainsworih v. Wilding, (1896) 1 Ch. 673 ; but semble, not otherwise. Id. 680, per Homer, J. See, however, (1902) A. C. 473, per Ld. Lindley. The compromise will bind, although the solicitor of the party seeking to enforce it did not, when it was made, disclose to the opposite party all the material facts he knew : Turner v. Green, (IS! if)) 2 Ch. 205. N > compromise entered into by the next friend of an infant plaintiff is valid unless it be for the infant's benefit. Thus, an agreement not t.. appeal from a nonsuit on the terms of the defendant foregoing costs is invalid, the infant being impecunious. Rhodes v. Swithenbank, 'J,- Q. B. 1). 577, C. A. A solicitor has not, before action brought, implied authority to compromise a claim he has been instructed to make. Macaulay v. Polley, (1897) •! Q. B. 122, C. A. As to what liability a counsel or solicitor incurs to his client by settling an action contrary to his client's wishes, see Swinfen v. Chelmsford, Ld., 28 I Practice at Nisi Print. 5 H. & N. ,S90; 29 L. J., Ex. 382; Fray v. Voules, and Chown v. Parrott, ante, p. 28.".. JVho is to begin."] Tt is often a subject of inquiry whether the plaintiff or the defendant is to open the facts and evidence to the jury. This may be an advantage, and is then claimed as a rigid ; as where evidence is anticipated on the opposite side which will give a right to reply generally on the whole case; or it may be a burden; as where a party relies on the witness of his opponent, or on the difficulty of the proofs incumbent on him. The right or obligation to begin generally depends on the nature of the issue, and also on the rules respecting the onus probandi at the commence- ment of the trial (see ante, pp. 94 et seq.); and the test has been said to be, not on which side the affirmative lies, but which side will be entitled to a verdict if no evidence be given. Leete v. Ghresham Insurance Co., 15 Jurist, L161, Ex. M. T. 1851; "Best on Evid., 10th ed., § 268. Thus, where the plainti If declared for unworkmanlike execution of a contract, and defendant pleaded that it was executed in a workmanlike way, and thereupon issue was joined, it was held that plaintiff was to begin ; for it was not to be assumed that the work was bad. Per Alderson, B., Amos v. Hughes, 1 M. 6 Rob. 464. This test, however, is only another way of stating the common rule that he on whom the burden of proof lies must begin ; for this must be ascertained before it can be determined which side is entitled to the verdict. As a general rule the proof lies on him who affirms, except in cases where the presumption of law or fact is in favour of the affirmative. It must, however, be borne in mind that regard must be had to the effect and substance of the issue and not to its grammatical form. Soward v. Leggatt, 7 C. & P. 615, per Ld. Abinger ; Amos v. Hughes, supra. It will be seen, by a careful comparison of the cases collected below, that the most general criterion that can be given as to the right to begin is, that "he begins who in the absence of proof on either side would substantially fail in the action." This includes those actions for unliquidated damages noticed below, in which the plaintiff must give some evidence in order to get substantial damages, although he would, if no evidence were given on either side, be entitled to a verdict for a nominal amount, for such a verdict would be a substantial failure. See 45 Law Times, pp. 196, 219, on The Right to begin. Where, in an action by indorser against acceptor, defendant pleaded that the bill was for the drawer's accommodation, and that plaintiff did not give any consideration to the drawer, to which plaintiff replied that it was indorsed to him by the drawer for a good consideration : held, that as a consideration is presumed, the defendant must begin by proving the want of it, or some suspicious circumstances to throw the proof on the plaintiff. Mills v. Barber, 1 M. & W. 425 ; Accord. Lewis v. Parker, 4 Ad. & E. 838. In a declaration on a policy on a life, the plaintiff averred that the deceased had led a temperate life, which was denied by the plea; held that the onus probandi, and therefore the right to begin, was with the plaintiff, as he was bound to give some evidence that the life was insurable, though it was contended that intemperance was not to be presumed. Huckman v. Fernie, 3 M. & W. 505; Accord. Rawlins v. Desborough, 2 M. & Rob. 70. And the same point was ruled in two other cases in which the issue raised on the plea was respecting the health of the insured; Geech v. Ingall, 14 M. & W. 95 ; Ashby v. Bates, 15 M. & W. 589; although the plea, alleging a specific complaint, ended with a verification in the last case. Where an issue on the sanity of a person was directed by Chancery, the court presumed that the person ordered to be plaintiff was to begin. Frank v. Frank, 2 M. & Rob. 314. So, in general, if the affirmative of the issue He on the defendant, and the Who is to Begin. 285 plaintiff do not seek to recover unascertained damages within the rule on that subject presently noticed, the defendant's counsel begins (after the pleadings have been opened by the plaintiff), and has the general reply. Cotton v. James, M. & M. 275 ; Jackson v. Hesketh, 2 Stark. 518. So, where lib. ten. was pleaded, and no general issue. Pearson v. Coles, 1 M. & Rob. 206. So, where the defendant, a constable, being sued in trespass, pleaded a justification without the general issue, it was held, that his counsel, admitting a demand of a copy and perusal of the warrant (24 G. 2, c. 44) vide post, p. 1133, and the damages claimed, was entitled to begin. Burrell v. Nicholson, Id. 305. To trespass q. c.f. the defendant pleaded a right to a watercourse and entry to remove obstructions, the plaintiff traversed the right : held, that the judge might properly allow the defendant to begin, unless the plaintiff undertook to prove substantial damage. Chapman v. Bawson, 8 Q. B. 673. So, where a defendant in replevin pleads property in a third person, A., and not in the plaintiff, to which the plaintiff replies that the property is not in A., but in the plaintiff, the defendant is entitled to begin. Colstone v. Hiscolbs, 1 M. & Eob. 301. And where, to an action of covenant for repayment of money, the defendant pleaded that the deed was given to secure money lost by gambling, it was ruled that the defendant was entitled to begin. Hill v. Fox, 1 F. & F. 136. But where by order of court the defendant is under an obligation to admit the plaintiffs case, this does not necessarily deprive the plaintiff of his right to begin. Thivaites v. Sainsbury, 5 C. & P. 69. Nor does the admission by the defendant's counsel of all the facts, the proof of which are on the plaintiff, give the defendant the right to begin, where the admission of these facts might have been made in pleading. Pontifex v. Jolly, 9 C. & P. 202; Price v. Seaward, Car. & M. 23. In many cases where damages, and not the decision of a mere right, have been the object of an action, defendants used so to plead as to take an affirmative issue on themselves, and thereby attempt to exclude the plaintiffs right to a general reply. The judges, however, came to a resolution that " In actions for libel, slander, and injuries to the person, the plaintiff shall begin, although the affirmative issue is on the defendant." Mercer v. Wliall, •per Ld. Deuman, C.J., 5 Q. B. 447, 462. The resolution, however, is not to be taken as confined to those actions, or introducing a new practice, but as declaratory of a principle applicable to other actions. See ld. 456, 463. The general rule, therefore, as laid down in this case, is, that wherever the record shows that something, even damages only, is to lie proved by the plaintiff, he ought to begin, whether the action be in contract or tort. Where the damages are of ascertained amount or must he nominal, then it seems that the defendant may begin, if the pleading will admit of it. See Id. 455, 465. See further as to this resolution Can nam v. Farm'}-, infra, and cases cited in Mr, Kr v. W'hiill, sn.pra. Thus, in covenant lor dismissing a clerk, the defendant pleaded misconduct, and plaintiff replied begin. S. ('. So, in an action on a promissory note to which defendant pleads, inter alia, payment into court, and issue is joined as to damages ultra, the plaintiff is to begin, though other issues lie on the defendant. Boulh v. Mill us, L5 M. iV \Y. 669. On a note by the defendant, to which she pleaded coverture wheu she made it, on which issue is joined, the defendant was to be.^in, although the plaintiff Bought to recover interest, not mentioned on the note. Cannam v. Farmer, 3 Exch. 698. In replevin and avowry for rent, plaintiff pleaded discontinuance of receipt for 20 years, and no distress within 20 years after the right accrued : replication, distress within 20 years and issue: held, that plaintiff should begin, because he must show when the distress was made. (Jollier v. Clarke, 5 Q. B. 467. In tres- pass q. c.f., where the defendant pleaded a custom to divert water, which 286 Practice at Nisi Prius. was traversed by the plaint ill', the defendant was allowed to begin, though the plaintiffs counsel asserted his intention of asking for heavy damages. Bastard v. Smith, 2 M. & Rob. 129; and per Tindal, C.J., "The plaintiff might have traversed the custom and new assigned excess, and then would have had a right to begin." Id. 132. Uuder the present practice the plaintiff, instead of new assigning, would amend his statement of claim, or reply specially, vide post, p. 310. In a similar action the defendant was also held entitled to begin, as the plaintiffs counsel would not pledge himself to go in for substantial damage. Chapman v. Rawson, 8 Q. B. 673. In Gann v. Facey, cor. Gurney, !'>., Exeter Sum Ass. 1835, in an action of trespass for shooting a dog, where a defendant justified to prevent it from trespassing, the plaintiff was held entitled to begin, though the defendant offered to admit the value of the dog; for, per Car., "the defendant may have damages beyond that amount;" and a similar ruling by Ld. Tenterden was cited. Accord, in a case of justification for shooting a mad dog; Shapland v. Cockram, Exeter Sum. Ass. 1844, per Patteson, J., after consulting Wightman, J. So, in Mills v. Stephens, Exeter Spring Ass. 1838, Bosauquet, J., held that plaintiff luul a right to begin in a case of trespass for breaking into his house, where the issue was on a plea of leave and licence. Under Rules, 1883, 0. xxi. r. 4, "no denial or defence shall be necessary as to damages claimed, or their amount, but they shall be deemed to be put in issue in all cases unless expressly admitted." See also 0. xix. r. 17, post, p. 310. But where the damages sought to be recovered are unliquidated, yet if the defendant admit at the trial the amount claimed in the plaintiff's particulars, he will be entitled to begin, provided the material allegations in the defence are affirmative only. Lacon v. Hiqgins, 3 Stark. 178 ; Morris v. Lotan, 1 M. & Bob. 233 ; Bonfield v. Smith, 2 M. & Rob. 519 ; S. C, 3 C. & P. 463 ; Woodgate v. Potts, 2 Car. & K. 258 ; Tindall v. Baskett, 2 F. & F. 644, and J Taylor, Ev., 10th ed. § 383. Where the affirmative of any one material issue is on the plaintiff, and he undertakes to give evidence upon it, he iias a right to begin as to all ; Raivlins v. Desborough, 2 M. & Bob. 328 ; Collier v. ^Clarke, 5 Q. B. 467 ; and it seems that judgment by default as to part has the same effect, though the defendant pleads affirmatively as to the residue. See Wood v. Pringle, 1 M. & Bob. 277. But where to an action on a bill and on an account stated, defendant pleaded payment to the first and non assumpsit to the second count, it was held that the plaintiff had no right to begin unless his counsel undertook to give some evidence of the account stated besides the bill. Smart v. Rayner, 6 C. & P. 721 ; Mills v. Oddy, Id. 728 ; overruling Homan v. Thompson, Id. 716, omn. cor. Parke, B. ; Frith v. Mclntyre, 7 C. & P. 44; Oakeley v. Ooddeen, 2 F. & F. 656 ; S. P. ruled by Cresswell, J., in Lanyon v. Davey, Bodmin Summer Ass. 1842. The plaintiff in replevin has the same right as in other actions, though both parties are actors. Curtis v. Wheeler, M. & M. 493. In the Admiralty Division, in an action of damage by collision, the defendant begins when the onus is on him of rebutting a prima facie case of negligence. The Merchant Prince, (1892) P. 9. Who is to begin in action for recovery of land.] In the now superseded action of ejectment the defendant might in some cases, by admitting a title in the plaintiff, entitle himself to begin, and the same principle will apply to the action for recovery of possession of land introduced by the J. Acts, not- withstanding the use of pleadings therein. Thus, where the plaintiff claims as heir-at-law, and defendant as devisee, it is a settled rule that the defendant, by admitting plaintiff's pedigree, and the dying seised, may entitle himself to begin and to reply. Qoodtitle d. Reuett v. Braham, 4 T. R. 497; Ace. Who is to Begin.— Bight to Reply. 287 Fenn v. Johnson, Adam's Eject., 2nd ed. 256, and Mercer v. WhaU, 5 Q. B. 4(34, per Cur. And the same principle applies though one of the plaintiffs had, since the death of the testator, become assignee of an outstanding term in part of the land ; for " the real question in dispute is the validity of the will." Doe d. Smith v. Smart, 1 M. & Rob. 476, per Gurney, B., after con- ferring with Patteson, J. For the same reason, where the plaintiff claimed as heir of C. and as devisee and heir of R., who was C.'s heir, and the defendant claimed as devisee of C, the defendant's counsel was permitted to begin on admitting that plaintiff was heir of C. and of R., and entitled to recover, unless defendant proved C.'s will. Doe d. WoUaston v. Barnes, Id. 386, cor. Ld. Denman, C.J. See observations on this case in Doe d. Bather v. Brayne, 5 C. B. 655. Where the plaintiff claims as devisee of A., and the defendant as devisee under a subsequent will of A., the defendant cannot, by admitting the seisin of A. and the prima facie title of tbe plaintiff, entitle himself to begin. S. C, overruling Doe d. Corbett v. Corbett, 3 Camp. 368. Generally, in order to entitle the defendant to begin by admitting the plaintiff's case, he must admit the whole without qualification. Doe d. Pill v. Wilson, 1 M. & Rob. 323. Therefore, where the plaintiff claims as the heir of A., and defendant under a conveyance by A. in his lifetime, the latter cannot deprive the plaintiff of the right to begin by only admitting the heir- ship of the plaintiff and seisin of A. unless defeated by the conveyance ; Doe d. Tucker v. Tucker, M. & M. 536 ; for it is part of the plaintiff's case that A. died seised. So, where each party claimed as heir, and defendant admitted that plaintiff was entitled as heir if defendant, were not legitimate : held, that he could not by so doing obtain a right to begin. Doe d. Warren v. Bray, Id. 166. Direction of judge as who is to begin.'] An erroneous ruling of the judge as to the proper party to begin will not, as a matter of course, entitle the party to a new trial. Brandford v. Freeman, 5 Exch. 734 ; Burrell v. Nicholson, 1 M. & Rob. 304; Bird v. Higginson, 2 Ad. & E. 160. But a clear case of error, by which an undue advantage may have been given to the successful party, or injustice done, is ground of new trial ; Ashby v. Bates, 15 M. & W. 589; Edwards v. Matthews, 4 D. & L. 721; and one was accordingly granted in Doe d. Bather v. Brayne, supra. Bight to reply.] In general, the parly who begins has a right to the general reply when the opposite party calls witnesses. See Clack v. Clack, (1906) 1 K. B. 483, 485. Where the defendant brings evidence to impeach the plaintiff's case, and also sets up an entirely new case, which again the plaintiff controverts by evidence, the defendant's reply is confined to the new case set up by him, for upon that relied on by the plaintiff the defendant's > "iinsel has already commented in the opening of his own case; and the plaintiff is then entitled to the general reply. I Stark. Ev., 4th ed. 609 et seq. In si rictness, Rules, 1883, 0. xxxvi., r. 36, ante, p. !_'77, makes no differ- ence in this respect, for it only enables tin' defendant to sum up his case; but this rule is not elosely adhered to; vide ante, p. 277. Unless the defendant give evidence, the plaintiff is not entitled to reply, there being no new facts upon which his counsel can comment. Where the defendant, on being called on by the plaintiff to produce a document, inter- poses with evidence to show it is not in his possession, this gives no general reply. Harvey v. Mitchell, 2 M. & Rob. 366. Where the counsel for the defendant opened material facts to the jury, which he called no witness to prove, it was in the discretion of the judge; to permit the plaintiffs counsel to reply. Crera/r v. Sudu, M. & M. 85. And, where the defendant's counsel in a crown case read a paper or made statements 288 Practice at Nisi Priiis. of material facts likely to have weight with the jury without attempting to prove them, both Ld. Kenyon and Ld. Tenterdeu permitted a general reply. R. v. Bignold, 1>. & Ry. N. P. C. 59. As, however, under O. xxxvi. r. .'it! (ante, \>. -17), the defendant's counsel has to aunounce his intention to call witnesses at the close of the plaintiff's case, if he did not do so, he would not be allowed to open fresh facts in his speech, for it has been held that when he has allowed the plaintiff's counsel to sum up, he cannot afterwards change his mind. Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J., Ex. 227. Rult where money is paid into courtJ] By E.S.C., 0. xxii. r. 22, Nov., 1893, "Where a cause or matter is tried by a judge with a jury no com- munication to the jury shall be made until after the verdict is given, either of the fact that money has been paid into court, or of the amount paid in. The jury shall be required to find the amount of the debt or damages, as the case may be, without reference to any payment into court." This rule is valid. Williams v. Goose, (1897) 1 Q. B. 471, C. A. Arguments of counsel.'] When points of law arise incidentally, all the counsel on both sides are usually heard by the court ; and the leading counsel of the party making the objection, or submitting the point, alone replies. But, on the claim of a right to begin, Ld. Dennian ruled that one counsel only was to be heard on each side. Rawlins v. Desborough, 2 M. & Rob. 70. This rule, however, is not always adhered to. See Bastard v. Smith, Id. 132. If the defendant's counsel apply for judgment for the defendant on a point of law, and the plaintiff's counsel answer it, the defendant's counsel has a right to reply upon the law only. Arden v. Tucker, 1 M. & Rob. 192. The objection of a witness to a question which he considers himself not bound to answer is not a point on which counsel in the cause are heard. R. v. Adey, 1 M. & Rob. 94, ante, p. 174. Nor is his obligation to produce documents, ante, p. 158. Where the party conducts his case, addresses the jury and examines wit- nesses in person, it is questionable whether counsel can be heard for him on a point of law. Shuttleworth v. Nicholson, 1 M. & Rob. 254 ; Moscatti v. Lawson, lb. 454. In the latter case, Alderson, B., said that, though there were many precedents, it was a very objectionable practice. It has been decided that a party, who conducts his own case, cannot on that account be excluded from giving evidence as a witness. Cobbett v. Hudson, 1 E. & B. 11. See Rules, 1883, 0. xxv. r. 2, post, p. 295, as to points of law. Separate defence of co-defendants.] In an action for the price of goods, in which the defendants appeared and pleaded non assumpsit by separate attorneys and counsel, but relied on the same defence (viz. payment), it was ruled by Gibbs, C.J., that the senior counsel could alone address the jury, and the witnesses were to be examined by the counsel successively, in the same manner as if the defence were joint and not separate : "It cannot be left in the power of defendants, whose interests are the same, to make twenty cases out of one." Chippendale v. Masson, 4 Camp. 174. And, in ejectment, where the defendants defended in the same right, but by different attorneys and counsel, Ld. Tenterdeu ruled that only one counsel could address the jury. Doe d. Hogg v. Tindal, M. & M. 314. So in Mason v. Ditchbourne, 1 M. & Rob. 462, n., in debt on bond, plea non est factum and fraud, Ld. Abinger refused to allow two counsel to address the jury, " for there could not be a verdict for one, and against the other, defendant." But, in an action ex delicto, where defendants have pleaded and appeared by separate attorneys and counsel, separate cross-examinations and addresses Separate Defence. — Set-off and Counter-Claim, 289 have been permitted by Abbott, C.J. ; King v. Williamson, 3 Stark. 162; and by Tindal, C.J., in Massey v. Goyder, 4 C. & P. 1G2, and in Southey v. Tuff, C. P. sittings after T. T. 1834, MS. ; and even in assumpsit, under similar circumstances, the same course was allowed and was approved by the court in banc in Ridgway v. Philip, 1 C. M. & R. 415; in which case, however, it appears, by another report, that one of the defences was mis- joinder of defendants as partners. S. C, 3 Dowl. 154. Where the defendants appear by the same solicitor and plead a joint defence, the practice is to hear one counsel only. So held in trover, plea, not guilty. Perring v. Tucker, M. & M. 392. And in debt, where the defence under plea of never indebted was that all the defendants were not parties to the contract, the court would not hear more than one counsel. Nicholson v. Brooke, 2 Exch. 213. It seems, however, to be a matter of discretion with the judge at N. P. S. C. A defendant does not, by appearing at the trial in person, acquire any right to address the jury, which he would not have if he appeared by counsel. Perring v. Tucker, supra. In King v. Williamson, supra, only one counsel was allowed to examine those witnesses, who had been subpoenaed by both defendants. In cases where the defendants have no right to a separate address or examination, yet the counsel of any will be heard on a legal objection ; as that there is no evidence against one of them; per Tindal, C.J., in Poole v. Bidden and another, C. P. sittings after M. T. 1832, MS. (on the general issue to indeb. assumpsit). When two were made defendants in an issue out of Chancery whose interests were at variance with each other, the counsel of each was allowed to address the jury and prove his case separately and in succession ; the witnesses of each might be cross-examined by the co-defendant's as well as the plaintiffs counsel ; and the plaintiff had the general reply. Phillips v. Willetts, 2 M. & Rob. 319, and Wynne v. Wynne, cited Id. 321. The order in which co-defendants shall examine and address seems to be in the judge's discretion. Fletcher v. C'rosbie, Id. 417. Where it was ordered, on an issue out of Chancery, that a third party "should be at liberty to attend the trial," the counsel for such party might cross-examine and suggest points of law, but could not call witnesses or address the jury. Wright v. Wright, 7 Biug. 458. As to practice where the plaintiff has joined defendants with the view of obtaining relief against them in the alternative, see Child v. Stemming, 7 Ch. D. 413. Set-off and counter-claim.'] Set-off and counter-claim are now in the same position as if they formed a statement of claim by the defendant against the plaintiff; and under Rules, 18S3, 0. xxi. r. 16, although the action is stayed, discontinued, or dismissed, the counter-claim may be pro- ceeded with ; and by r. 17, post, p. 295, judgment may be given for the defendant for any balance found to be due to him. Third party.] Where the defendant claims to be entitled to contribution or indemnity over against aDy party not a party to the action, the defendant may briog him in under Rules, L883, 0. xvi. rr. 48 — 53. Uuder thes'e rules the plaintiff may bring in such person to enforce indemnity against a claim raised by the defendant's counter-claim. Levi v. Anglo-Continental Gold Beefs of Bhodesia, (1902) 2 K. B. 481, C. A. The directions for trial given by the court or judge under r. 52, will regulate the manner in which the questions are to be tried, and under r. 53 the third [arty may have leave to defend the action. Under r. 54, post, p. 300, the court or a judge has power to decide all questions of costs. R. 55 places a co-defendant agw," '. b. — vol. I. u 290 Practice 'if Nisi Print. whom a defendant seeks contribution or indemnity in the same position as a third party. Under this rule contribution may be ordered between co- defendants. ' Sawyer v. Sawyer, 28 Ch. ]). GOO. Where the question of liability of the third party is ordered to be tried as soon as may be convenient, after the trial of the action, the third party who has entered an appearance only, may attend the trial hy counsel, and cross-examine the witnesses; and the question will be tried as soon as the trial of the action between the plaintiff and defendant is concluded. Blore v. Ashhy, 42 Ch. D. 682. Inspection of property by Judge.'] By Rules, 0. 1. r. 4. "It shall be lawful for any judge by whom any cause or matter may be heard or tried with or without a jury" . . . " to inspect any property or thing concerning which any question may arise therein." This rule does not entitle the judse to put a view in the place of evidence; a view is for the purpose of enabling the tribunal to understand the questions that are being raised, and to follow and apply the evidence. L. General Omnibus Co. v. Lavell, (1901)1 Ch. 135, C. A. Direction of Judge — exception for misdirect ion.] The J. Act, 1875, s. 22, enacts that nothing in the J. Act, 1S73, "nor in any rule or order made under the powers thereof or of this act shall take away or prejudice the right of any party to any action to have the issues for trial by jury sub- mitted and left by the judge to the jury before whom the same shall come for trial with a proper and complete direction to the jury upon the law, and as to the evidence applicable to such issues. Provided also, that the said right may be enforced either by motion in the High Court of Justice, or by motion in the Court of Appeal, founded upon an exception entered upon or annexed to the record." Under the provisions of the J. Act, 1890, s. 1, the motion must be made in the Court of Appeal, and not in a Divisional Court. The Rules, 1883, O. lviii. r. 1, direct that all appeals to the Court of Appeal shall be by way of rehearing, and shall be brought by notice of motion in a summary way. As to the duty of the judge in directing the jury, see Edmonds v. Prudential Assur. Co., 2 Ap. Ca. 487, 507, per Ld. Blackburn. The judge is bound to direct a verdict for the defendant, unless there is some evidence on which the jury may reasonably act; a mere scintilla of evidence is not sufficient. Ryder v. Wombwell, L. R., 4 Ex. 32, 39, Ex. Ch. ; OiUin v. McMullen, L. R., 2 P. C. 317, 335; Steward v. Young, L. R., 5 C. P. 122, 128; Panic? v. Metropolitan By. Co., L. R., 5 H. L. 45 ; Jackson v. Id., 3 Ap. Ca. 193, D. P. See further Slattery v. Dublin, WicMow, &c, By. Co., Id. 1155, D. P.; Davey v. L. & S. W. By. Co., 11 Q. B. D. 213 ; 12 Id. 70, C. A. ; Wahelin v. Id., 12 Ap. Ca. 41, D. P. The rule is, that if the evidence be such that the jury could conjecture only, not judge, it ought not to go to the jury, and the onus lies on the party offering the evidence ; and if he offer only evidence consistent with either supposition of fact, he is not entitled to have it put to the jury; per Ld. Tenterden, C.J., referred to by Cresswell, J., in Avery v. Bow'den, 6 E. & B. 953, 974 ; 26 L. J., Q. B. 3, and cited by Willes, J., in Phillipson v. Eayter, L. R„ 6 C. P. 42, 43. The judge may assist the jury, at their request, with his opinion on a question of fact, which he expressly left for them to decide. Smith v. Dart, 14 Q. B. D. 105. The judge cannot direct a verdict for the defendant on the opening of the plaintiff's counsel, without his consent, without hearing the evidence. Fletcher v. L. & N. W. By. Co., [1892] 1 Q. B. 122, C. A. Discontinuance — Amendment at Nisi Prius. 291 Discontinuance.'] By Rules, 1883, 0. xxvi. r. 1^ "save .if? in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the court or a judge, but the court or a judge may, before, or at, or after the hearing or trial upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. The court or a judge may, in like manner and with the like discretion as to term?, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out, but it shall not be com- petent to a defendant to withdraw his defence, or any part thereof, without such leave." This rule deprives the plaintiff of his common law right to elect to be nonsuit; and if he offer no evidence the defendant is entitled to a verdict. Fox v. Star Newspaper Co., (1900) A. C. 19, D. P. It may be observed that it does not in terms prohibit a defendant from withdrawing his counter-claim. By r. 2, a cause may be withdrawn by either party " upon producing to the proper officer a consent in writing signed by the parties." The discontinuance of an action does not affect a counter-claim, vide ante, p. 289. Effect of opposite party not appearing at trial.] By Rule?, 1883, 0. xxxvi. r. 3i, "if, when a trial is called on, the plaintiff appears, and the defendant does not appear, the plaintiff may prove his claim so far as the burden of proof lies upon him." If the burden of proof is on the defendant, the plaintiff need not, it seems, in this case have the jury sworn. See Lane v. Eve, infra. By r. 32, "if, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action; but if lie has a counter- claim, then he may prove such counter-claim so far as, the burden of proof lies upon him." In the former case, the defendant need not have the jury sworn. Lane v. Eve, W. N., 187G, p. 86, per Deuman, J. And judgment will be given under this rule dismissing the action. Armour v. Bate, (1891) 2 Q. B. 233, C. A. By r. 33, "any verdict or judgment obtained where one party does not appear at the trial may be set aside, by the court or a judge, upon such terms as may seem fit, upon an application made within six days after the trial. Such application may be made either at the assizes or in Middlesex." Where the default arises from inadvertence, the application will be granted on payment of the costs of the day, including all costs that have been wasted, and the costs of the application. Burgoine v. Taylor, 9 Ch. D. 1, C. A. Where one party appears, but the opposite party does not appear, the former may proceed and obtain judgment without proving service of notice of trial. James v. Crow, 7 Ch. D. 410, following Ex pte. Lotos, Id. 160, C. A. Amendment at Nisi Prius.] By Rules, 1883, 0. xxviii. r. 1, "The court or a judge may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may bo necessary for the purpose of determining the real questions in controversy between the parties." By r. 6, application for leave to amend may be made " to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just." By r. 12, " the court or a judge may at any time, and on such terms as to costs or otherwise u 2 292 Practice at Nisi Prim. as the court or judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings." An amendment may be allowed at the trial, so as to raise a new case requiring fresh evidence. Budding v. Murdoch, 1 Ch. D. 42; King v. Corke, LI. 57. See also Roe v. Davies, 2 Ch. D. 729. The pro- visions of the C. L. P. Acts, 1852, s. 222 ; 1854, s. 96 ; and 1860, s. 36, which were repealed by 46 & 47 V. c. 49, s. 3, are expressed in very similar terms. Under those repealed sections many of the cases collected below were decided. They have been selected from the very large group of decisions as to amendment. All amendments ought to be made that are necessary and proper, for the object of the rules is to meet cases in which, by mistake or oversight, the real matter in issue is not raised by the pleadings, and under it the matter may be put on the record which was not on it before, if it be shown to the satisfaction of the judge to be the existing matter in controversy. What that matter in controversy may be is a matter of fact to be determined by the jud<*e upon the evidence and pleadings before him. See Maule, J., in Wilkin v. Reed, 15 C. B. 192 ; 23 L. J., C. P. 193 ; Blake v. Done, 7 H. &. N. 465 ; 31 L. J., Ex. 100 ; Kurtz v. Spence, 36 Ch. D. 770, 773, C. A. Leave to amend should always be given, unless the judge is satisfied that the party applying is acting mala fide, or that by his blunder he has done some injury to liis opponent" which cannot be compensated for by costs or otherwise. Tildesley v. Harper, 10 Ch. D. 393, 396, 397, per Bramwell, L.J. ; accord, per Cur. in titeioard v. N. Metropolitan Tramways Co., post, p. 293. See also Laird v. Briggs, 19 Ch. D. 22, C. A. ; Cropper v. Smith, 26 Ch. D. 710, 711, per Bowen, L.J. An amendment should not be allowed for the purpose of trying a question which has arisen at the trial, but it is not that which the parties came to try. Wilkin v. Reed, supra ; Lucas v. Tarleton, 3 H. & N. 116; 27 L. J., Ex. 246; Ritchie v. Van Gelder, 9 Exch. 762; Ellis v. Manchester Carriage Co., 2 C. P. D. 13. Thus, where the action was for fraudulently misrepresenting to the plaintiff the cause for which the defendant had discharged a servant from his service, and it turned out at the trial that the defendant had improperly suppressed the fact of the servant's dishonesty, but had truly stated the cause of his discharge, it was held that, as this suppression was not in fact the ground of the plaintiff's complaint, but onlv the supposed misrepresentation, which was negatived, the judge had rightly refused to amend by substituting a charge of fraudulent suppression. Wilkin v. Reed, supra. So leave to amend the defence by denying an allegation not denied by the defence was refused, where the defendant knew the facts all along. Lowther v. Heaver, 41 Ch. D. 248 ; affirmed in C. A. on the additional ground that the amendment would have been useless ; vide Ld. 262. See also Edevain v. Cohen, 41 Ch. D. 563 ; 43 Ch. D. 187, C. A. No amendment will be allowed so as to prejudice the other party, lhe plaintiff ought at first to state his cause of action, if there were one, truly and in substance according to the facts, in order that the defendant may know whether he should object to their sufficiency in point of law, admitting the facts, or, denyiug them, go to trial. It would be better that there should be no trial at all, than that a plaintiff should be allowed to state one cause of action, and then, on any difficulty arising as to his maintaining it on the evidence, to amend so as to raise another and different cause of action. It would be far better to require no pleadings at all, than to allow pleadings which could only operate as a snare. Bradworth v. Foshaw, 10 W. K. 760, Ex. T. T. 1862, per Cur. See also Riley v. Baxendale, 30 L. J., Ex. 87, 88, per Martin, B. ; Newly v. Sharpe, 8 Ch. D. 39, C. A. ; New Amendment at Nisi Prius. 293 Zealand, &c, Co. v. Watson, 7 Q. B. D. 374, 382 ; Edevain v. Cohen, ante, p. 292; Raleigh v. Goschen, (1898) 1 Ch. 73, 81. An amendment was refused, the object of which was to throw the liability on a third party A., the right of action against A. having become barred by lapse of time. Steward v. N. Metropolitan Tramways Co., 16 Q. B. D. 178, 556, C. A. Where a tenant in common brought an action of trespass and trover against his co-teDant for cutting and carrying away the whole produce of the common property, and the action was held not maintainable, the court refused to mould the action into one of account, on the ground that such an action was so distinct from the one stated in the declaration, that the amend- ment would not do justice between the parties. Jacobs v. Seward, L. R., 4 C. P. 328; L. R., 5 H. L. 4H4. If the amendment be to insert in the breach a claim on which the plaintiff can recover only nominal damages, and in respect of which defendant would probably not have defended the action, the judge will be Justine! in refusing it. Times Insurance Co. v. Hawke, 28 L. J., Ex. 317. See also Spoor v. Creen, L. 1!., 9 Ex. 9'J. Where the amendment would evade the real question in controversy, it should be refused. Thus, where the plaintiff claimed a larger easement than he proved at the trial, the judge would not allow him to limit it by amendment, if in fact the larger claim was the one really claimed and asserted by plaintiff and resisted by defendant. Cawkwell v. Russell, 26 L. J., Ex. 34. In an action against the directors of a building society who had signed a loan note on behalf of the society, brought for the money lent, a count alleging breach of warranty of authority in the directors to borrow money for the society was added. Richardson v. Williamson, L. R., 6 Q. B. 276. See also Mountstephen v. Lakeman, L. R., 5 Q. B. 613, 614 ; L. R., 7 H. L. 17. An injury to the possession may be altered to an injury to the reversion. May v. Footner, 5 E. & B. 505 ; 25 L. J., Q. B. 32. In a count for falsely representing the value of defendant's business at 100/. per month, the judge inserted the words " over the counter," that being the real question to be tried. Roles v. Davis, 4 H. & N. 484 ; 28 L. J., Ex. 287. In an action to recover instalments of an annuity, an amendment of the claim was allowed so as to include a later instalment due before action. Knowlman v. Bluett, L. R., 9 Ex. 1. But the plaintiff will not in general be allowed to amend by alleging fresh causes of action, which since writ issued have become barred by the Statute of Limitations. Weldon v. Neal, 19 Q. B. D. 394, C. A. An amendment of the statement of claim may be allowed in an action of libel, on the ground of variance with the libel proved. Rainy v. Bravo, L. R., 4 P. C. 287. In like manner the statement of defence may be amended at the trial, in order to meet the facts proved at it. Mitchell v. Craswelter, 13 C. B. 237 ; 22 L. J., C. P. 100. A plea of payment was added to other pleas in an action on a guarantee, in l.'_'. The rights of the parties as to costs are not affected by the entry <>f judgment for the defendant under this rule. Shrapnel v. Laing, 20 Q. B. D. 334, C. A. Where the defendant denies liability and pays money into court as an alternative defence, ami the defendant succeeds OB the latter defence and fails on the former, the defendant is entitled to judgment in the action ; Wheeler v. United Telephone Co., 13 Q. B. D. 597, C. A.; but the plaintiff is entitled to judgment for costs against a co-defendant who had severed in pleading, and failed in his defence, not having paid money into court. Penny v. Wimbledon, &c, Council, (1899) 2 Q. B. 72, C. A. Application to stay execution.] By Rules, L883, <>. xlii. r. 17, in the ease of money or costs being payable under a judgment or order, execution by Ji. fa. or elegit may be issued so >-oon as such money or costs shall be payable, but, (a) not until the period within which the judgment required the mouey to be paid has expired; and (b) " the court or judge may, at or 'J'.'ii Practice at Nisi Prius. after (lit- time of giviug judgment or making an order, stay execution until such time as they or he shall think fit." The successful party is, therefore, in the case of a judgment for money or costs, entitled to immediate execution; and if the other party desire delay, he must apply that the judgment should be for payment after a limited time, or that execution should be stayed. By O. xlvii. r. 2, where the judgment is to recover possession of land, the plaintiff may "sue out a writ of possession on filing an affidavit showing due service of such judgment or order, and that the same has not been obeyed." Subject therefore to the requirements of this rule, the execution is immediate, and there seems no express power given to delay the execution; the same end may, however, be attained by the judge postponing the entry of judgment till after the lapse of a certain time. Order for delivery of specific chattels.] Rules, 1883, 0. xlviii. r. 1, allow a judgment for the delivery of specific chattels to be enforced by a writ of delivery, which the court or a judge may order to issue. It is still a necessary condition that the value of the goods should have been first assessed by the jury, or by the judge if tried without a jury, as it was under the C. L. P. Act, 1854, s. 78. Corbett v. Lewin, W. N., 1884, p. 62, cor. Field, J., following Chilton v. Carrington, 15 C. B. 730; 24 L. J., C. P. 78. Order as to costs.] By Rules, 1883, O. lxv. r. 1, " Subject to the provisions of the acts and these rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge provided that nothing herein contained shall deprive an executor, administrator, trustee, or mortgagee, who has not unreasonably instituted or carried on or resisted any proceedings, of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in the Chancery Division ; provided also that, where any action, cause, matter, or issue is tried with a jury, the costs shall follow the event, unless the judge by whom such action, cause, matter, or issue is tried, or the court, shall for good cause otherwise order." This rule replaces Rules, 1875, 0. lv. r. 1, under which many of the cases collected below were decided. The provisions of the Acts herein referred to are contained in the J. Act, 1873, s. 07. These are now super- seded by the County Courts Act, 1888, s. 116, post, p. 301, and the rule is now subject to the provisions of that section. By rule 2, amended by R. S. C. Jan. & July, 1902, " when issues in fact and law are raised upon a claim or counter-claim, the costs of the several issues respectively, both in law and fact, shall, unless otherwise ordered, follow the event. And an order giving a 'party costs, except so far as they have been occasioned or incurred by, or relate to, some particular issue or part of his proceedings, shall be read and construed as excluding only the amount by which the costs have been increased by such issue or proceedings .- but the court or a judge, if the whole costs of the action or other proceeding are not intended to be given to the party, may wherever practicable, by the order direct taxation of the whole costs and payment of such proportion thereof as the court or judge shall determine." Rule 1, which impliedly repeals 21 J. 1, c. 16, s. 6, and 3 & 4 V. c. 24, bs. '_', ."., governs the right to costs in every case iu which the plaintiff is not deprived of them by the County Courts Acts, 1S88, s. 11G, or some sub- sequent statute. Garnett v. Bradley, 3 Ap. Ca. 1)44, D. P. But provisions relating to costs in statutes passed for the protection of special classes of j" rsons, are not affected by rule 1. Id. 970, per Ld. Blackburn; accord. In re Mills EstaU ,34 Ch. D. 24, 40, per Bowen, L.J. ; llasker v. Wood, 51 L. J., Order as to Costs under Rules, 1883, 0. Ixv. 297 Q. B. 419, C. A. See also Reeve v. Gibson, (1891) 1 Q. B. 650, C. A. In the particular case of special constables, cited by Ld. Blackburn, ante, p. 296, this principle no longer applies as 1 & 2 W. 4, c. 41, s. 19, has been repealed by 56 & 57 V. c. 61. The rule has also been altered in special cases by subsequent statutes, e.g., the Copyright (Musical Compositions) Act, 1888 (51 & 52 V. c. 17), and the Slander of Women Act, 1891 (54 & 55 V. c. 51). By the J. Act, 1890, s. 5, subject to the J. " Acts and the rules of court made thereunder, and to the express provisions of any statute, whether passed before or after the commencement of this act, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid." But this section does "not alter the law with respect to the discretion of a judge as to costs, or with respect to the powers of the C. A. in dealing with that discretion;" Civil Service Co-operative Soc. v. General S. Nav. Co., (1903) 2 K. B. 756, 765, .per Ld. Alverstone, C. J. Where the action is tried by a judge alone, the custs are ab>olutely in his discretion, and neither party can get them from the other without an order. But where an action was brought to enforce a legal right, and there had been no misconduct on his part, as to which vide infra, a successful plaintiff is entitled to an order for his costs under 0. Ixv. r. 1. Cooper v. Whittingham, 15 Ch. D. 501. So in the case of a successful defendant. Civil Service Co- operative Soc. v. General S. Nav. Co., (1903), and F. King & Co. v. Gillard & Co., infra. But although this is in general a good working rule, the discretion of the judge in each case must be unfettered. Walter v. Steinhopff, (1892) 3 Ch. 489. " Where costs have been given to a person who has no right to them there is an appeal, but where there is no right, and they are in the discretion of the persons who have to award them, then there is no appeal except by leave." See J. Act, 1873, s. 49 ; Minister v. Apperly (1902) 1 K. B. 643, 645. This applies where the whole of an action has been referred by order of court to an official referee without any directions as to costs. S. C. Where, however, a successful party has not been allowed his costs on a wrong principle an appeal lies. Thus, where the defendant was not allowed them on the ground that lie had refused to consent to the case being decided by the judge as arbitrator to say what should be done; Civil Service Co-operative Soc. v. Gt /<• ral S. Nav. Co., (1903) 2 K. B. 756, C. A.; or that he had been guilty of improper conduct, e.g. a misrepresentation to tin' public, not connected with the issue between him and the plaintiff. F. King& Co. v. Gillard & Co.. (1905) 2 Ch. 7, the C. A. allowed them to him. The defendant cannot be ordered to pay the whole costs of ;i plaint ill who lias no right to sue. Dicks v. Yates, 18 Ch. 1>. 76, 0. A., followed in Re Foster, 8 Q. B. D. 515, C. A. In matters of equitable jurisdiction the judge may give costs as between solicitor and client ; Andrews v. Barnes, 3'.» Ch. 1). 133 ; and perhaps under J. Act, 1890, s. 5, supra, in other actions also. Express power is given in some statutes, e.g., 56 & 57 V. c. 61, s. 1 (d) (2>ost, p. 1131), in certain cases, to award such costs. Where an action is tried by a jury, there, is "good cause " for making an order under the proviso, " whenever it is fair ami just :is between the parties that it should be so." Forster v. Farqukar, I L893) 1 Q. B. 564, 567, C. A. It may appear from the, conduct "I the parties prior to and conducing to the litigation. Harnett v. Vise, 5 Ex. I). 307, C. A.; Bostock v. J,'0O/., recovered 501. only, good cause was held to exist. Huxley v. II'. London, &c, A'//. Co., l'l Ap. Ca. 26, D. P. See also Roberta v. Jones and Willey v. Gt. N. By. 298 Practice at Nisi Prius. Co., (1891 ) 2 Q. B. 194. So where the plaintiff used Lis right to name the place of trial iu an oppressive manner, S. CC. ; and even although the Court had refused to change it at the defendant's instance. S. C. Iu these two cases, Hawkins,.!., made special orders as to the division of the costs between the parties. And the judge may even order a plaintiff who has recovered only a nominal sum to pay the defendant's costs. Harris v. Petherick, 4 Q. B. D. Ill 1, C. A. So where the plaintiff failed on three out of four distinct items of damage, involving separate evidence, though not technically distinct issues, lie was ordered to pay the defendant's costs of those in which he failed. Forster v. Farquhar, ante, p. 297. But letters or conversations "without prejudice" cannot be taken into consideration. Walker v. Wilsher, 23 Q. B. 1>. 335, < '. A. The judge may ex mero motu make an order to deprive the plaintiff of costs, though no application has beeu made to him on the pari of the defendant. Turner v. Heyland, 4 C. P. D. 432; Collins v. Welch, 5 C. P. E. 27, C. A. The judge may make an order as to costs after the trial, and though it would sietn he must make it within a reasonable time (sec Bowey v. Bell, infra); yet an order depriving the plaintiff of costs on an application made to the judge five or six weeks after the trial was held good. Huxley v. W. London, &c, By. Co., ante, p. 297. The power to make such order is not affected by stat. 56 & 57 V. c. 61, s. 1 (b), -post, p. 1131. Bostock v. Bamsey Urban Council, (1900) 2 Q. B. 616, C. A. And semble the judge may in such case allow the defendant costs as between party and party only. S. C. (1900) 1 Q. B. 364, per Ld. Russell, C.J. Where no application lias been made to the judge an application may be made to a divisional court to deprive a successful party of his costs; Myers v. Dcfries, Siddons v. Lawrence, 4 Ex. D. 176, C. A. ; provided such applica- tion be made within a reasonable time ; Brooks v. Israel, 4 Q. B. D. 95 ; but not otherwise. Bowey v. Bell, Id. The jurisdiction of the judge or court to interfere, by order, with the rule of costs of au action tried with a jury, only arises where there is " good cause ; " an appeal therefore lies from such order to the C. A. as to the existence of facts constituting good cause. Jones v. Curling, 13 Q. B. D. 262, C. A. ; Wright v. Shaw, 19 Q. B. D. 396, C. A. ; Huxley v. W. London, &c, By. Co., ante, p. 297. It is not " good cause " that the defendant has suceeded only on a statutory defence, e.g. the Gaming Acts, post, p. <<17. Granville & Co., v. Firth, 19 T. L. R. 213, Feb. 3rd, 1903, C. A. A trustee is cutitled to his costs unless he lias been guilty of misconduct ; whether he lias been so guilty is a matter on which an appeal lies. In re Knighfs Will, 26 Ch. D. 82, C. A. Where, however, the facts give the judge jurisdiction under this rule, no appeal lies from his discretion; Huxley v. W. London, &c., By. Co., ante, p. 297 ; unless he acted under some rule which he considered to exclude it. Bew v. Bew, (1899) 2 Ch. 467, C. A. In any case in which there is but one issue between the parties no difficulty can arise as to the meaning of the term "event" in 0. lxv. r. 1. Where there are several distinct causes of action on which the plaintiff aud defendant respec- tively succeed, the term is to be taken distributivtly, and the defendant is entitled to the costs of the issues found for him. Myersv.Defries,5 Ex. D. 15, 180, C. A. ; Hoycs v. Tate, (1907) 1 K. P». 656, C. A. Where the defendant, in an action for unliquidated damages, has paid money into Court with a denial of the cause of action, and the plaintiff proves it, but recovers less than the amount paid in, but enough to carry costs, he is entitled to the whole costs of the action down to the time of the payment into court, and to the subse- quent costs of the issue on which he has succeeded, although the defendant receives the general costs of the action, for the liability aud the amount of damages are distinct issues. Goutard v. Carr, 13 Q. B. D. 59S, n., C. A.; Wagstaffe v. Bentley, (1902) 1 K. B. 824 C. A.; Powell v. Vickers, &c, Order as to Costs under Rules, 1883, 0. Ixv. 299 (1907) 1 K. B. 71, C. A. And this rule applies where in an action by several plaintiffs suing in different interests, a sum of money was paid into court without appropriation. Benning v. Ilfurd Gas Co., (1907) W. N. 106, K. B. D. So even where the issue on which the plaintiff succeeds does not go to the whole cause of the action. Hubback v. British N. Borneo Co., (1904) 2 K. B. 473, C. A. Where the defendant succeeds on a simple set-off, or on a counter-claim founded on matters that would have been a defence prior to the J. Acts, and to an amount not less than the plaintiff's claim, he has a complete defence to the action, and is therefore entitled to his costs. See Lund v. Campbell, 14 Q. B. D. 821, 0. A. ; Stooke v. Taylor, 5 Q. B. D. 569, 576 et seq., per Cockburn, C.J. ; Baines v. Bromley, 6 Q. B. D. 691, 694, per Brett, L.J. ; Lowe v. Holme, 10 Q. II D. 286; Chatfield v. Sedgwick, 4 C. P. D. 459, C. A. But the plaintiff is entitled to the costs of the issues on which lie has succeeded. Lund v. Campbell, supra. Where, however, the counter-claim is in the nature of a cross action and the plaintiff is successful on his claim, and the defendant also on his counter-claim, the plaintiff is entitled to the costs of his claim, less the costs of the issues ou which he has failed, and the defendant is entitled to the costs of the counter-claim, less the costs of the issues on which he has failed, as if the claim and counter-claim had been separate actions. Shrapnel v. Laing, 20 Q. B. D. 334, 0. A.; and see Atlas Metal Co. v. Miller, (1898) 2 Q. B. 5u0, C. A. Where the claim and counter-claim are buth dismissed with costs, the plaintiff pays the general costs of the action, and the defendant the amount only by which the costs have been increased by the counter-claim ; S. C. ; and not costs saved because there is an action existing which enables the defendant to raise his counter-claim ; S. C. ; but costs incurred in support of, or in opposition to, both the defence and counter-claim are to be apportioned ; S. C. The distinction above pointed out between set-off and counter-claim, as to which, see further Defences to Actions on Si7nple Contract — Set-off and Counter-claim, post, p. 704, was overlooked in many of the earlier cases on the subject. See judgments in Stooke v. Taylor, 5 Q. B. D. 569. It should be observed that the rights of the parties as to costs may be seriously affected by an incorrect entry of the judgment. See Haines v. Bromley, . 263, G. A. The county court cannot entertain an action for an injunction to restrain an infringement of a registered trade mark. Bow v. Hart, (1905) 1 K. B. 592, C. A. By the J. Act, 1S7;'>, s. 89, the county court can in all causes within its jurisdiction grant relief and give effect to defence and counter-claim as fully as the High Court of Justice could have clone. Money paid into court under a defence of payment into court is recovered within the meaning of the County Courts Act, 1888, s. 116; Boidding v. Tyler, 3 B. cv S. 472 ; 32 L. J., Q. B. 95 ; Parr v. Lillicrap, 1 H. &. C. 615 ; 32 L. J., Ex. 150; Hewitt & Co. v. Cory, L. E., 5 Q. B. 418 ; but it is other- wise where the defence is tender. James v. Vane, 2 E. & E. 883; 29 L. J., Q. B. 169. As to cases in which the payment of money into court aud the recovery at the trial are in respect of different causes of action, see Palmer v. Garrett, I. K., 5 C. L. 412, C. P. ; Byrne v. M'Evoy, Id. 568 ; Leonard v. Brotvurigg, I. R., 6 C. L. 161, Q. B., and cases there cited. The first paragraph in sect. 116 refers both to the "character of the action and the amount really involved"; so, however large is the amount claimed, that which the plaintiff substantiates is alone to be considered. Solomon v. Mulliner, (1901) 1 Q. B. 76, 83, C. A. Where the plaintiff's claim was proved to be 114?. and the defendant's set-off to be 109?., it was held, that as the county court had no jurisdiction to entertain the plaintiff's claim, he was not deprived of his costs. Potter v. Chambers, 4 C. P. D. 457 ; Neale v. Clarke, 4 Ex. D. 286; QoldUll v. Clarke, 68 L. T. 414, Mich. S. 1892, cor. Charles, J. Though it would have been otherwise if the set-off had been admitted. See Lovejoy v. Cole, ante, p. 301. Sect. 116 (1) applies to the plaintiff's costs against the defendant from whom he has recovered less than 100?. although he has recovered a larger sum against another defendant, see Duxberry v. Barlow, (1901) 2 K. B. 23, C. A. Where the plaintiff proved a claim of 35?. for rent and damages, and the defendant a counter-claim of 20?. for damages, the plaintiff was held entitled to recover the costs of his claim and the defendant the costs of his counter- claim. Stooke v. Taylor, 5 Q. B. D. 569 ; not following Staples v. Young, 2 Ex. D. 324, where it was held that if the plaintiff proved a claim and the defendant proved a counter-claim of less amount, the plaintiff recovered the balance only. The provisions of the County Courts Act, 1888, s. 116, do not affect the right to costs of a defendant who has succeeded on a counter-claim. Blake v. Appleyard, 3 Ex. D. 195; Chatfield v. Sedgivick, 4 C. P. D. 383, 459, C. A. Hence in the same action the plaintiff, though successful, may be deprived of his costs on his claim, while the defendant recovers costs on his counter-claim. S. C. ; Ahrbecker v. Frost, 17 Q. B. D. 606. Nor does the section apply where the defendant succeeds on a counter-claim against a third party. Bates v. Burchell, W. N. 1884, p. 108, Field, J. ; see also Lewin v. Trimming, 21 Q. B. D. 230. Nor does it apply to the plaintiff's costs of a counter-claim on which he has succeeded, although he has recovered less than 50?. on his claim. Amon v. Bobbett, 22 Q. B. D. 543, C. A. In order to decide for the purposes of the County Courts Act, 1888, s. 116 (2), whether an action is founded on contract or on tort, the substantial nature of the action alone, and not its form, is to be considered ; see Kelly v. Metropolitan By. Co., (1905) 1 K. B. 944, 946, per Ld. Esher, M.R. The principle for determining such nature, in the case of negligence or breach of duty, is, after some conflicting decisions, now settled to be as follows, viz. — Where the cause of action falls within the common law liability arising from the relation between the parties, although such relation was established by contract, the action is one of tort, if it does not, and the plaintiff must Certificate for Costs under Comity Courts Act, 1888. 303 rely on the breach of some particular stipulation in the contract, the action is one of contract. Sachs v. Henderson, (1902) 1 K. B. 612, C. A., following Turnery. Stallibrass, (1898) 1 Q. B. 50, 59, GO. Thus an action founded on the common law liability of a bailee is one of tort. S. C. So is an action by a passenger against a railway company for personal injury caused by negligeuce of their servants. Kelly v. Metropolitan By. < 'o., ante, p. 302. So is an action by the consignor against the carrier for delivering the goods to the consignee, after the consignor has given a notice to stop them in transitu. Pontifex v. Mid- land By. Co., 3 Q. B. D. 23. So is an action for the detention of goods ; Bryant v. Herbert, 3 C. P. D. 389, C. A. ; Du Pasquier v. Cadhury, Jones, & Co., infra ; or for the removal by the landlord of fixtures from a house agreed to be let by him to the plaintiff. Sachs v. Henderson , supra. The section does not apply to an action, which though brought nominally in respect of a tort, in respect of which less than 10/. is recovered, includes a successful claim for an injunction as the main part of the relief sought. Keates v. Woodward, (1902) 1 K. B. 532, C. A. Nor to an action of detinue claiming the return of goods, which were delivered to the plaintiff after action, but before trial, at which the plaintiff recovered 33/. in respect of a claim founded on contract. Du Pasquier v. Cadhury, Jones, & Co., (1903) 1 K. B. 104, C. A. The plaintiff is, it would seem, in ordinary cases, entitled to a certificate, under sect. 116, that there was sufficient reason for bringing the action in the High Court, where the defendant is abroad, and could not therefore be served with county court process. See Mendelssohn v. Hoppe, W. N., 188 1, p. 31, Mathew, J. Where in an action of contract, the plaintiff claimed IS/., and obtained an order under Rules, 1883, 0. xiv., to sign judgment for 45/., and on proceeding to trial recovered 3/. more, he is entitled, under the proviso in sect. 116, ante, p. 301, to all the costs of the action on the High Court scale. Barker v. Hempstead, 23 Q. B. D. 8. The judge was not bound to certify, although the plaintiff had commenced a suit in the county court, which the defendant stayed by proceedings under 19 & 20 V. c. 108, s. 39, now replaced by 51 & 52 V. c. 43, s. 62. Flitters v. Allfrey, L. It., 10 C. P. 29. The order of a judge under sect. 111!, allowing costs on the High Court scale, is made under a discretionary power, and therefore by reason of J. Act, 1873, s. I'.i, no appeal lies therefrom. Bazett v. Morgan, 24 Q. B. D. 48. Where an action is referred to an arbitrator "with all the powers of certifying of a judge at N. P.," he cannot certify after his award has been made. Bedwell v. Wood, 2 Q. B. D. 626. But where an action has been referred, costs to abide the event, a judge at chambers may certify after award made. Hyde v. Beard- fry, L8 Q. B. D. 244. Sect. 116 seems not to apply to an action commenced in an inferior court and removed by certiorari int.. the superior court, for the wording of the section avoids the construction put upon the County Courts Act, 1867, s. 5, in Pellas v. Breslauer, L. R., 6 Q. B. 438, B. C. The cases in which plaintiffs were deprived of costs by reason of the verdict not amounting to a sufficient sum, were formerly extended by certain obscure enactments contained in the Btate. 31 & 32 V. c. 71, and 32 & 33 V. c. 51, which conferred admiralty jurisdiction on the county courts; see 31 & 32 V. c. 71, s. 9; but these are now re| ealed by Rules, 1883, 0. lxv. r. 1. BocJcett v. Clippingdale, (1891) 2 Q. B. 293, C. A., following Oarnett v. Bradley, 3 Ap. Ca. 91 I, D. I'., ante, \k 296. Order to disallow unnecessary costs.} By Rides, 1883, O. lxv. r. 27 (20), u The court or judge may, at the hearing of any cause or matter " . . . "and whether the same is objected to or nut, direcl the coats of any indorsement on a writ of summons, pleading, summons, affidavit, evidence," &c, "or 304 Practice at Nisi Prius. other proceeding, <>r any put thereof, which is improper, vexatious, un- necessary, or contains vexations or unnecessary matter, or is of unnecessary length, or caused by misconduct or negligence, to be disallowed, or may direct the taxing officer to look into the same, and to disallow the costs thereof, or of such part thereof as he shall find to be improper, unnecessary, vexatious, or 1" contain unnecessary matter, or to be of unnecessary length, or caused by misconduct or negligence." Order as to costs occasioned by refusal to admit.'] By Rules, 1883, 0. xxi. r. 9, " Where the court or a judge shall be of opinion that any allegations of fact, denied or not admitted by the defence, ought to have been admitted, the court or judge may make such order as shall be just with reSpect to any extra costs occasioned by their having been denied or not admitted." We have seen, ante, p. 73, tit. Admissions, that the judge may relieve a party, called upon to admit a document or fact, under Rules, 1883, 0. xxxii. rr. 2, 4, from the costs occasioned by his refusal, by a certificate that his refusal was reasonable. This is to be given at the trial ; but the court or a judge may at any time allow the costs of proving facts included in the notice to admit : there is no similar provision as to documents. It seems to be reasonable to refuse to admit a document which the party called upon has no opportunity of inspecting or verifying. Butter v. Chapman, 8 M. & \V. 391, per Our. Order as to costs of discovery.'] Ry Rules, 1883, 0. xxxi. r. 25, " the costs of discovery by interrogatories or otherwise shall, unless otherwise ordered by the court or a judge, be secured " by a deposit to be made (see rule 2G), " by the party seeking such discovery, and shall be allowed as part of his costs where and only where such discovery shall appear to the judge at the trial, or if there is no trial to the court or a judge, or shall appear to the taxing officer, to have been reasonably asked for." Order of costs for shorthand writers' notes.] Costs of shorthand writers' notes of the trial will not be allowed on taxation, unless a special direction to that effect is given in the judgment. Applications for such directions must be made at the hearing, or before the judgment is drawn up. Be la Warr, Earl, v. Miles, 19 Ch. D. 80, C. A. Order for costs of proving original ivill.] Where an original will is produced and proved, the judge shall order by which party the costs of the production and proof shall be paid. 20 & 21 V. c. 77, s. 65, ante, p. 151. Certificate of costs for special jury.] The statute 6 G. 4, c. 50, s. 34, provides that the party who has obtained the special jury shall bear the costs thereof, and shall not on taxation be allowed the extra costs thereby caused, " unless the judge before whom the cause is tried shall, immediately after the verdict, certify under his hand, upon the back of the record, that the same was a cause proper to be tried by a special jury." Where this certificate is necessary, it must be applied for immediately after the verdict or nonsuit. In Waggett v. Shaw, 3 Camp. 31G, an applica- tion on the day after the trial was considered too late. Where the certificate was verbally granted immediately and indorsed on the record, but was not signed by the judge till the costs were undergoing taxation, it was held too late. Grace v. Clinch, 4 Q. B. G06. As to the word "immediate," the following decisions on 3 & 4 V. c. 24, s. 2, where the words were " unless the judge or presiding officer before whom such verdict shall be obtained Certificate for Costs of Special Jury. 305 shall immediately afterwards certify on the back of the record," may be found useful. Under that section the judge might take a reasonable time to consider the application for a certificate. He was not bound to give it instantly at the close of the trial, nor before the adjournment of the court ; Thompson v. Gibson, 8 M. & W. 281 ; Page v. Pearce, Id. 677 ; nor semi, pel- Ld. Abicger, C.B., Id., even on the same day ; the object of the legisla- ture being only to exclude the operation of any intervening fact or discussion upon the judge's mind, and to make the certificate " the result of his impres- sion at the time." And he might by consent or acquiescence of the parties at the trial, certify a long time afterwards. Jones v. Williams, 13 M. & W. 420. See Eeden v. Atlantic P. M. S. Navigation Co., 2 E. & E. 671 ; 29 L. J., Q. B. 191. But where no application for the certificate was made till ten days after, at the next assize town, and the certificate was then made, the court set it aside as being too late. Forsdike v. Stone, L. R., 3 C. P. 607. And it seems that when the judge had at the trial refused the certificate, he could not afterwards grant it. See Folkard v. Metropolitan Py. Co., L. R., 8 C. P. 470. The court above had no jurisdiction to review tlie discretion exercised by the judge at N. P. Parker v. HoVier, S M. & W. 513; Pichardson v. Barnes, 4 Exch. 128. H. — vol. i. ( 306 ) PART II. EVIDENCE IN PARTICULAR ACTIONS. Effect of the Judicature Acts, 1873, 1875. The J. Acts, 1873, 1875, made great alterations in the practice and pro- cedure of the courts. All the superior courts at Westminster were thereby constituted divisions of the High Court of Justice, each division having all the jurisdiction which was previously vested in each or either of the courts before they were consolidated. See Pinney v. Bunt, 6 Cb. D. 98 ; Bradford v. Young, 26 Ch. D. 656 ; Priestman v. Thomas, 9 P. D. 70, 210. And by the Bankruptcy Act, 1883 (46 & 47 V. c. 52), s. 93, the jurisdiction of the London Court of Bankruptcy has been also transferred to the High Court. By the J. Act, 1873, effect is to he given by every division to equitable estates, interests, and principles, in the same way as they were previously recognized by the courts of equity ; mortgagees and assignees of choses in action may in general sue in their own names ; stipulations as to time, &c, are not to be considered of tbe essence of a contract where they were not so in equity, and in general equity rules are to prevail. The principal provisions of the J. Act, 1873, relating to these subjects are as follows : — Effect to be given Sect. 2 ^. " I Q every civil cause or matter commenced in to equitable the High Court of Justice, law and equity shall be ad- tatere 8 8te nd ministered by the High Court of Justice and tbe Court of Appeal respectively according to the rules following : — (1.) "If any plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right, which heretofore could only have been given by a court of equity, the said courts respectively, and every judge thereof, shall give to such plaintiff or petitioner such and the same relief as ought to have been given by the Court of Chancery in a suit or proceed- ing for the same or the like purpose, properly instituted before the passing of this Act." _ (2.) " If any defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim asserted by any plaintiff or petitioner in such cause or matter, or alleges any ground of equitable defence to any claim of the plaintiff or petitioner in such cause or matter, the said courts respectively, and every judge thereof, shall give to every equitable estate, right, or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect, by way of defence against the claim of such plaintiff or petitioner, as the Court of Chancery ought to have given if the same or the like matters had been relied on by way of defence in any suit or proceeding instituted in that court for the same or the like purpose before the passing of this Act." TJie Judicature Ad, 1873, ss. 24, 25. 307 (3.) "The said courts respectively, and every judge thereof, shall also have power to grant to any defendant in respect of any equitable estate or right, or other matter of equity, and also in respect of any legal estate, right, or title claimed or asserted by him, all such relief against any plaintiff, or petitioner as such defendant shall have properly claimed by his pleading, and as the said courts respectively, or any judge thereof, might have granted in any suit instituted tor that purpose by the same defendant against the same plaintiff or petitioner; and also all such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter or not, who shall have been duly served with notice in writing of such claim pursuant to any rule of court or any order of the court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose ; and every person served with any such notice shall thenceforth be deemed a party to such cause or matter with the same rights, in respect of his defence against such claim, as if he had been duly sued in the ordinary way by such defendant.'" (4.) "The said courts respectively, and every judge thereof, shall recognize and take notice of all equitable estates, titles, and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in which the Court of Chancery would have recognized and taken notice of the same in any suit or proceeding duly insti- tuted therein before the passing of this Act." (6.) " Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the said courts respectively, and every jud^e thereof, shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom, or created by any statute, in the same manner as the same would have been recognized and given effect to if this Act had not passed by any of the courts whose jurisdiction is hereby trans- ferred to the said High Court of Justice." (7.) " The High Court of Justice and the Court of Appeal respectively, in the exercise of the jurisdiction vested in them by this Act, in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to them shall seem just, all Mich remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equit- able claim properly brought forward by them respectively in such cause or matter; so that, as far as possible, all matters so in controversy between the said parties respectively may lie completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided." By sect. 25 (5.) " A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land as to which 0.0 notice of his intention to take possession or to enter into the Mortgagor may receipt of the rents and profits thereof shall have been given *"*'" '"" """ by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises 11)1011 a lease or other contract made by him jointly with any other person." See Fairclouyh v. Marshall, 1 Ex. D. 37, C. A. : Van Odder v. tioiverbtj Bridge, &c, flour Soc., 11 Ch. I>. 374, I '. A., and Mathews v. Usher, post, p. 1008. (6.) " Any absolute assignment, by writing under the baud of the assignor x2 308 Effect of the Judicature Acts, 1873, 1875. (not purporting to lie by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have Assignee of been given to the debtor, trustee, or other person from whom chose in action t ] ie assignor would have been entitled to receive or claim own nam" ' such debt or chose in action, shall be, and be deemed to have been, effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the con- currence of the assignor." This clause " has not made contracts assignable which were not assignable in equity before, but it has enabled assigns of assignable contracts to sue upon them in their own names without joining the assignor." Tolhurst v. Assoc. Portland Cement Manufacturers, (1903) A. C. 414, 424, per Ld. Lindley ; TorUngton v. Magee, (1902) 2 K. B. 427, which explained May v. Lane, (1894) 64 L. J., Q. B. 23(5, was reversed on other grounds; (1903) 1 K. B. 644, C. A. A claim under the Lands Clauses Act, 1845 (8 & 9 V. c. 18, s. G8), for injurious affection of land is assignable; Dawson v. Gt. N. and City By. Co., (1905) 1 K. B. 260, C. A. " An assignment of a mere right of litigation is bad, but an assignment of property is valid, even although that property may be incapable of being recovered without litigation." Id. 271. The decisions hereon relating to debts will be found post, p. 620, sub tit. Action for money had and received — On transfer of debt. (7.) " Stipulations in contracts as to time or otherwise, which would not, before the passing " (August 5th, 1873) " of this Act, have Stipulations in been deemed to be or to have become of the essence of such time^&c! aS ° contracts in a court of equity, shall receive in all courts the same construction and effect as they would have here- tofore received in equity." See hereon post, pp. 323, 324. (11.) "Generally, in all matters not hereinbefore particularly mentioned in which there is any conflict or variance between the rules E revan rUleS t0 of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail." For instance of the application of this rule, see Bustros v. White, ante, p. 156; Grant v. Holland, 3 C. P. D. 180 ; Lowe v. Dixon, post, p. 595 ; and Vibart v. Coles, 24 Q. B. D. 364, C. A. It must, however, be observed that the effect of the Act is not to abolish the distinction between legal and equitable estates. Clements v. Matthews, 11 Q. B. D. 814, per Cotton, L.J. ; Joseph v. Lyons, 15 Q. B. D. 286, per Cotton, L.J. ; and see Swain v. Ayres, 21 Q. B. D. 293, 295, per Ld. Esher, M.E., and Lindley, L.J. By the J. Act, 1875, s. 10 [repealiug J. Act, 1873, s. 25 (1)] " in the administration by the court of the assets of any person who Rules as to ma y <}j e a fter the commencement of this Act "(1st Nov. debts provable. 1875), "and whose estate may prove to be insufficient for the payment in full of his debts and liabilities, and in the winding-up of any company under the Companies Acts, 1862 and 1867, whose assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding-up ; the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt ; and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person, or out of the assets of any such company, may come in under the Sales, 1883, relating to Pleading. 309 decree or order for the administration of such estate, or under the winding-up of such company, and make such claims against the same as they may respectively be entitled to by virtue of this Act." Rules, 1883, relating to Pleading. It will be convenient here to give a summary of the Rules, 1883, so far as they affect pleading. By Rules, 1883, O. xvi. rr. 1, 4, 11, ante, pp. 89, 90, objection on the ground of non-joinder or mis-joinder of parties is no longer a defence, and ample powers of amendment are given. By 0. xix. r. 4, " every pleading shall contain and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved." R. 5 provides that the forms given in Appeudices C, D., and E. shall be used where applicable. R. 6. " In all cases in which the party pleading relies on any misrepre- sentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items, if necessary), shall be stated in the pleading, provided that if the particulars be of debt, expenses, or damages," reference to particulars otherwise delivered shall be sufficient, if they exceed three folios. R. 12. "Nothing in these rules contained shall affect the right of any defendant to plead not guilty by statute. Aud every defence of not guilty by statute shall have the same effect as a plea of not guilty by statute has heretofore had, but if the defendant so plead, he shall not plead any other defence to the same cause of action without the leave of the court or a judge." See further O. xxi. r. 19, post, p. 310. R. 13. " Every allegation of fact in auy pleading not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition." R. 14. " Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant (as the case may be) ; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary fur the case of the plaintiff or defendant shall be implied in his pleading." R. 15. " The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counter-claim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or Statute of Frauds." The particular section of the last statute need not be stated, but if stated the defendant will be bound by it, and an amendment has been refused at the trial. James v. Smith, (1891) 1 Ch. 384. R. 16. "No pleading, nol being a petition or summons, shall, except by way of amendment, raise auy new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same." 11. 17. "It shall not be sufficient for a defendant in his statement of 310 tiulcs, lss.',, relating to Pleading. defence to deny generally the "rounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defeuce by way of counter-claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages." R. 19. " When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part i hereof, or else set out how much he received. And if an allegation is made with divers circumstances, it shall not be sufficient to deny it along with I hose circumstances." R. 20. " When a contract, promise, or agreement is alleged in any plead- ing, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, promise, or agreement, whether with reference to the Statute of Frauds, or otherwise." O. xsi. rr. 1, 2, 3, 5, will be found sub. tit. Defences to simple contracts, post, p. 658. R. 4. "No denial or defence shall be ntcessary as to damages claimed, or their amount: but they shall be deemed to be put in issue in all cases unless expressly admitted." Hence any evidence may be given in miti- gation of damages, although its effect have not been raised L>y the defence. See Wood v. Durham, Earl of, 21 Q. B. D. 501. R. 19. " In every case in which a party shall plead the general issue, intending to give the special matter in evidence, by virtue of an act of parliament, he shall insert in the margin of his phading the words 'by statute,' together with the year of the reign in which the act of parliament on which he relies was passed, and also the chapter and section of such act, and shall specify whether such act is public or otherwise, otherwise such defeuce shall be taken not to have beeu pleaded by virtue of any act of parliament." By 0. xix. r. 12, ante, p. 309, the defence of "not guilty by statute," is retained. R. 20. "No plea or defence shall be pleaded in abatement." O. xxiii.r. 1 (1) "Except in Admiralty actions no reply shall be delivered unless the same be ordered." (R. S. C, July, 1902, r. 7, which annulled the former O. xxiii.) R. 6. " No new assignment shall be necessary or used. But everything which was formerly alleged by way of new assignment may hereafter be introduced by amendment of the statement of claim or by way of reply.'''' This rule is annulled, vide supra, but it correctly describes the form of pleading which now takes the place of a new assignment. See Bullen & Leake's Prec. Pleading, Oth ed., p. 553, u. 0. xxv. r. 2. "Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who triis the cause, at or after the trial." As to arguments on points of law, vide ante, p. 288. O. xxvii. r. 13. "If the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading within the period allowed fur that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been dtnied and put in issue." O. xxxvi. r. 58. " 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." As to a " contiuuing cause of action," vide ante, p. 295. Actions founded on Simple Contract. 311 Under R. S. C, Nov., 1893, 0. xviii. a, post, p. 659, the plaintiff may without pleadings proceed to trial, subject to the rules in the order, on the statement of the nature of his claim, and of the relief or remedy required in the action. The Rules relating to Set-off and Counter-claim will be found sub tit. Set-off and Counter-claim, post, p. 704. Reference is made in appropriate parts of this work to the various sections of the J. Acts, and the Rules, S. C, affecting principles of law or the practice at N. P. ACTIONS FOUNDED ON SIMPLE CONTRACT. In the early editions of this work an alphabetical arrangement of particular actions, in the order of the known forms of action, was adopted for convenient reference. These forms have now become obsolete, and this arrangement has therefore been recast in the following pages, and the actions are distributed under the two heads still recognized for some purposes, namely, of actions on contracts, simple or by specialty, and actions for tvrongs independent of con- tract. The legal reader, however, will not require to be told that a strict adherence to this, or any other distribution of the subject, is practically impossible, and he will occasionally rind under one head decisions which are also applicable to another and different head. ACTION ON SALE OF REAL PROPERTY. VENDOR AGAINST VENDEE. In an action by the vendor of real property on the purchaser's default in completing the contract, the plaintiff may be called upon by the defence to prove the contract ; the performance by himself of all conditions precedent ; and the defendant's default. Proof of the Contract — Stat, of Frauds, .s. 4.] Where an offer to sell is accepted by letter, the vendor is bound from the time of posting the letter. Potter v. Sanders, 6 Hare, 1. So, an offer to sell, made and accepted by letter, binds both parties from the time the acceptance was posted; Adams v. Lindsell, 1 B. & A. 081 ; even though the letter was never received. Household Insur. Co. v. Grant, 4 Ex. D. 216, C. A. And " where the cir- cumstances of the case are such that it must have been within the contem- plation of the parties that according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted." IJenthorn v. Fraser, (1892) 2 Ch. 27, 33, per Ld. Hcrschcll. Accord. Brunei- v. Moore, (1904) 1 Ch. 305. As to what amounts to an offer see Harvey v. Facey, (1893) A. C. 552, J. C. As to the distinction between an agreement for sale and an agency agreement see Livingstone v. lioss, (1901) A. C. 327, J. C. If nn offer be made to buy within a certain time, the offer may be retracted before acceptance; Roulhdge v. Gran I, I Bing. 653; Head v. Diggon, 3 M. & Ry. 97 ; but the offer remains open until the other party has received notice of retractation thereof. Stevenson v. McLean, 5 Q. B. D. !>46 ; Hen- thorn v. Fraser, supra. It is insufficient to pjst a letter of retractation 312 Action on Sale of Real Property. — Vendor against Vendee. which is not iu the ordinary course of post received till after a letter accept- ing the offer has been posted. S. C; Byrne v. Van Tienhoven, 5 C. P. 1). 344. Notice of sale to another person amounts to retractation of an offer to sell. Dickinson v. Dodds, 2 Cli. D. 463, C. A. If the offer be refused by- letter, but the refusal be withdrawn and the offer accepted in a subsequent letter, the vendor is not bound by bis offer, though he had not expressly withdrawn his original offer. Hyde v. Wrench, 3 Beav. 334. When the offer is made l>y an agent of the vendor, and the acceptance is notified by letter to such agent, the principal is bound, though the agent has neglected to notify to him. Wright v. Bigg, 15 Beav. 592. See further as to con- tracts by interchange of letters, -post, pp. 531 et seq., and p. 1100. "The liability of a principal on a contract entered into by his agent within the terms of his authority cannot be affected by the unknown motives by which the agent was actuated in making the contract." Hambro v. Burnand, (1004) 2 K. B. 10, 26, C. A. When an offer to purchase land was made by A. to B., who acted as agent to the owner C, but had no authority to sell, and was accepted by B., but withdrawn by A. before ratification by C, which did not take place till after action for specific performance brought by C, it was held that there was relation back to B.'s acceptance, and a contract which bound A. Bolton Partners v. Lambert, 41 Ch. D. 295, C. A., followed in Ex pte. Badman, 45 Ch. 16, C. A. Sedquxre. See strictures theieou in Fry on Specific Performance, 4th ed., p. 677, note A; and Fleming v. Bank of New Zealand, (1900) A. C. 577, 587, per J. C. But a contract must at any rate, be ratified within a reasonable time after acceptance by an un- authorized person, and cannot he ratified after the date fixed for performance to begin. Met. Asylums Board v. Kingham, 6 T. L. E. 217, (1890) cor., Fry, L.J. See also Dibbins v. Dibbins, (1896) 2 Ch. 348, per Chitty, J. Where a contract is made by R., who does not profess to act as agent, but is intending to contract on K.'s behalf, though without his authority, K. cannot ratify it. Keighhy, Maxsted & Co. v. Durant, (1901) A. C. 240, D. P. As to the authority of an estate agent to contract to sell land, see Chadbum v. Moore, post, p. 319. By the Stat, of Frauds, 29 C. 2, c. 3, s. 4, no action shall be brought whereby to charge any person [upon any agreement made] upon any contract, or sale of lands, tenements, or hereditaments, or any interest in, or concerning them, unless the agreement upon which such an action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him law- fully authorized. The words in brackets occur in a preceding part of the clause, aud seem to belong to this part also. See Sugd. V. & P., 14th ed. 123. A defence under this statute must now be pleaded specially. Rules 1883, O. xix. r. 20, ante, p. 310. When it is so pleaded it will be necessary to prove a contract in writing. A contract by deed seems not to be within the statute, and therefore requires no signature, vide ante, p. 138. What is an interest in land within Stat, of Frauds, s. 4.] A question often arises as to what is an "interest in or concerning " land, &c, within this section. Where crops sold are of grass or growing fruit, and the terms of the sale imply the grant of an interest in the land, and not of a mere easement or right of entry, then the contract is within sect 4. Crosby v. Wadsworth, 6 East, 602 ; Jones v. Flint, 10 Ad. & E. 753 ; Bodwell v. Phillips, 9 M. & W. 501. But if the crops be not natural, as grass, but industrial, as wheat, and are fit to cut when sold, the sale is not an interest in land within sect. 4, though it might have been within sect. 17 (now replaced by the Sale of Goods Act, 1893, s. 4, post, p. 526); and it is imma- terial whether the cutting is to be by the buyer or seller. Evans v. Roberts, Statute of Frauds, s. 4. — Interest in Land. 313 5 B. & C. 829; Parker v. Staniland, 11 East, 362. Where timber is sold as such, to be cut by either the seller or the buyer, it has been held to be the sale of a chattel. Smith v. Surman, 9 B. & C. 561 ; Marshall v. Green, 1 C. P. D. 35. See further, 1 Wms. Saund. 277 c (/). But a contract for the sale of " the building materials " of a standing house, to be taken down and cleared off the ground within two months, after which date any materials then not cleared will be deemed a trespass and become forfeited, and the purchaser's right of access to the ground shall absolutely cease, is within the section. Lavery v. Pursell, 39 Ch. D. 508. Where the contract relates to an interest in land, any collateral contract, such as to provide additional furniture, cannot be enforced if the agreement be not in writing. Mechelen v. Wallace, 7 Ad. & E. 49 ; Vaughan v. Hancock, 3 C. B. 766. So, on an oral contract to give up a house and fixtures fur a certain sum, payment of the sum agreed cannot be enforced, although the house has been given up pursuant to the agreemeut. Kelly v. Webster, 12 C. B. 283 ; 21 L. J., C. P. 163. But where there was an agreement between landlord and tenant that the landlord, at the expiration of the tenancy, would take at a valuation the fixtures, which the tenant had power to remuve during his term, this was held not within the statute. Hatten v. Bunder, 1 C. M. & R. 266 ; Lee v. Gaskell, 1 Q. B. D. 700. An agreement to take furnished lodgings is within sect. 4. Inman v. Stamp, 1 Stark. 42 ; Edye v. Strafford, 1 C. & J. 391. In those cases the contract, if carried out, would have amounted to a demise, and the occupier could have maintained trespass or ejectment ; but if the contract be merely for board and lodging as an inmate of the house, although the inmate is tu have a separate room, such contract is not within sect. 4. Wright v. Staoert, 2 E. 6 E. 721 ; 29 L. J., Q. B. 161. Nor, it would seem, is a contract to take as lodger, and not as under-tenant, certaiu defined rooms within sect. 4. See Allan v. Liverpool,!^. II., 9 Q. B. 191, 192, and cases cited, post, p. 905, sub tit. Actions for Illegal Distress. Nor is an agreement to build a house, though it implies a licence to go on the land. Wright v. Stavert, supra, per Crompton, J . See also Wells v. Kingston-upon-Eull, L. R., 10 C. P. 402. A grant of a right to shoot over land and take away part of the game killed is within sect. 4. Webber v. Lee, 9 Q. B. D. 315, C. A. So is a contract to retire from a partnership, part of the property of which consists of land. Gray v. Smith, 43 Ch. D. 208. So is a contract to retire from a milk-walk in favour of the defendant, and to give up the premises occupied by the plaintiffs and stock to him. Smart v. I larding, 15 C. B. 652; 24 L. J., C. P. 76. So, on an oral agreement to give up a brickyard and bricks on it to the plaintiff at a valuation, defendant undertaking to pay to the landlord the rent then due, though plaintiff has taken possession and paid for the bricks, he cannot sue defendant for not paying the landlord ; the contract and consideration being entire. Hodgson v. Johnson, E. B. & E. 685 ; 28 L. J., Q. B. 88 ; Sanderson v. Graves, L. R., 10 Ex. 234. For although the plaintiff's part of the agreement be performed, it cannot be enforced against the defendant if not in writing. Cocking v. Ward, 1 C. B. 858. See, however, Pu/brook v. Lawes, 1 Q. B. D. 284. And an agreement as to laud, if entirely performed on both sides, may be given in evidence, though not in writing, for a collateral purpose: thus, under an oral agreement that plaintiff should pay 37?. for defendant's interest in premises, defendant to return 10/. if plaintiff were refused a licence to use the premises as a slaughter-house, the plaintiff had possession of the premises and paid the defendant the 37Z.; it was held that the plaintiff could recover the 10?. on the licence being refused. Grten v. Saddington, 7 E5. & B. 503. A contract relating to the expenses of investigating the title to land is not within this section. Jeakes v. While, 6 Exeb. 873. Nor is it clear that 314 Action on Sale of Real Property. — Vendor ayainst Vendee. an agreement relating to an easement on land is within it; such contract, however, if it professes to grant an casement, must be by deed. See Sugd. V. & P., 14th ed. 123, and -post, tit. Trespass to land — Defence of licence, ■post, pp. 943, 944. A share in a mine actually in work was held to be within sect. i. Boyce v. Green, Batty, 608, Ir. Q. B. But in Watson v. Spratley, 10 Exch. 222; 24 L. J., Ex. 53, an oral sale of shares in an unincor- porated mine company in Cornwall, formed on the "cost-book" principle, was held good. Accord. Powell v. Jessop, 18 C. B. 336 ; 25 L. J., C. P. 199. These decisions are founded on the principle that a shareholder has an interest, not in the land, but in the adventure and profits thereof. If he be a co-tenant, in law or equity, of the land, the case would be different. The same principle applies to all joint stock companies possessing land, in which, even although unincorporated, the shareholders have no direct interest in the land necessarily occupied for carrying on the business, but only a right to the profits of the business itself, as has been frequently decided under the Mortmain Act; Myers v. Perigal, 2 D. M. & G. 599; 22 L. J., Ch. 431 ; Edwards v. Hall, 6 D. M. & G. 74 ; 25 L. J., Ch. 82 ; Attree v. Hawe, 9 Ch. D. 337, C. A. ; aud in appeal cases from the revising barristers ; Buhner v. Norris, 9 C. B., N. S. 19 ; 30 L. J., C. P. 25 ; Bennett v. Blain, 15 C. B., N. S. 578; 33 L. J., C. P. 63; Freeman v. Gainsford, 18 C. B., N. S. 185; 34 L. J., C. P. 95; Robinson v. Ainge, L. R., 4 C. P. 429; Watson v. Black, 16 Q. B. D. Ii70. But debentures issued by a company owning leasehold property which charged its uudertaking and property as a floating security, with liberty to the company to dispose of the property in the course cf business, the principal money secured to become payable if the company created any specific charge on its freehold or leasehold property in priority to the debentures, and reserving power to the debenture holders on default of payment, or in the case of a winding-up to appoint a receiver who may sell the property, is within the section. Driver v. Broad, (1893) 1 Q. B. 539, 744, C. A. So are bonds issued by commissioners secured by a covering deed mortgaging lands under a statutory power. Toppin v. Lomas, 16 C- B. 145 ; 24 L. J., C. P. 144. A contract by the defendant to get for the plaintiff a lease of land, in which the defendant has no interest, is within the section. Horsey v. Graham, L. R., 5 C. P. 9. But a collateral agreement to do something not relating to land, in consideration that one of the parties shall sign a contract relating to land, is not within the section. Morgan v. Griffith, L. R., 6 Ex. 70 ; Erskine v. Adeane, L. R., 8 Ch. 756 ; Mann v. Nunn, 43 L. J., C. P. 241; Angell v. Duke, L. R., 10 Q. B. 174; ace. Boston v. Boston, (1904) 1 K. B. 124, C. A. So where in such case the agreement was a warranty as to an existing fact. De Lassalle v. Guild- ford, (1901) 2 K. B. 215, C. A. Wliat is a sufficient note within Stat, of Frauds, s. 4.] The note or memorandum must be a memorandum of an agreement complete when the memorandum is made. Munday v. Asprey, 13 Ch. D. 855. An affidavit of the defendant in prior proceedings, or a recital in his deed, may be sufficient. See Barkworth v. Young, and In re Holland, cited post, p. 317. The memorandum must specify the terms ; for otherwise all the danger of perjury, which the statute intended to guard against, would be let in. Sugd. V. & P., 14th ed. 134. Thus, where an auctioneer's receipt for the deposit was set up as an agreement, it was rejected because it did not state the price to be paid for the estate ; Blagden v. Bradbear, 12 Ves. 466 ; but had the receipt referred to the conditions of sale, so as to have entitled the court to look at them for the terms, it might have been enforced as an agreement. S. C. The agreement cannot be enforced, unless both the con- tracting parties are named in it. Williams v. Jordan, 6 Ch. D. 517; Statute of Frauds, s. 4. — Sufficient Note. 315 Williams v. Byrnes, 1 Moo. P. C, N. S. 154; Williams v. Lake, 2 E. & E. 319; 29 L. J., Q. B. 1. Subject, terms, and names of the parties must appear. S. C. The signature of the defendant may supply his name. Stokell v. Niven, 61 L. T. 18, T. S. 1889, C. A. And it is sufficient if the names appear by certain description ; thus, where the property was described "as belonging to the late A. B.," and the sale was stated to be by direction of the executors ; Hood v. Barrington, Ld., L. R., 6 Eq. 218, or was stated to be sold " by direction of the proprietor ; " Sale v. Lambert, L. R., 18 Eq. 1 ; Rossiter v. Miller, 3 Ap. Ca. 1124, D. P., or by a trustee selling under a trust for sale; Catling v. King, 5 Cb. D. 060, or, it appear that the sale is by a company in possession; Commins v. Scott, L. R., 20 Eq. 11; the confirmation of the auctioneer or vendor's solicitor "as agent for the vendors," was held to satisfy this rule. See also Carr v. Lynch, (1900) 1 Ch. 613. And the name of an agent contracting for an undisclosed principal is suffi- cient. Filby v. Eounsell, (1896) 2 Ch. 737. This point was not taken in Jarrett v. Hunter, 34 Ch. D. 182. But the term "vendor" without further description is insufficient. Potter v. Ha field, L. R., 18 Eq. 4; Thomas v. Brown, 1 Q. B. D. 714. A general description of the property sold is sufficient, the property being identified by extrinsic evidence. Tims "Mr. O.'s hcuse," Ogilvie v. Foljambe, 3 Mer. 53; "the propel ty in Cable Street," Bleakley v. Smith, 11 Sim. 150; "24 acres of land freehold at T. iu the parish of D.," Plant v. Bourne, (1897) 2 Ch. 281, C. A. And a memorandum, " The property duly sold to A. S., and deposit paid at close of sale," coupled with a receipt, "Piuxtou, Mar. 29, 1880. Received of A. S. the sum of 21/. as deposit on property purchased at 420/., at the Sun Inn, Tinxton, on the above date. C, owner," have been held sufficient. Shardlow v. Cottrell, 20 Ch. D. 90, C. A. It is not necessary that the names or terms should appear in any single paper. The contract may be collected from several connected papers. Kennedy v. Lee, 3 Meriv. 441 ; Warner v. Willmgton, 3 Drew. 523 ; 25 L. J., Ch. 662; Ridgway v. Wharton, 6 H. L. C. 238; 27 L. J., Ch. 46; Nene Valley Drainage Commrs. v. Duukley, 4 Ch.D. 1; Baumann Y.James, L. R., 3 Ch. 508. So, if a letter, properly signed, does not contain the whole agreement, yet if it actually refer to a writing that does, it will lie sufficient, though the latter writing is not signed; and oral evidence is admissible to identify the writing; referred to. Allen v. Bennet, 3 Taunt. 169; Oliver v. Hunting, 11 Ch. I ». 205; see Olinan v. Cooke, 1 Sch. & Lef. ■'!■'!. And a written contract stating "the land is sold subject to the con- ditions of the Halifax Incorporated Law Society," was held to lie sufficient on proof of what those conditions were at the date of the contract. Pickles v. SutcHffe, (1902) W. N. 200, Mich. S., Parwell, J. Where a contract in writing exists which binds one party to the contract under the statute, any subsequent note, signed by the other, is sufficient to bind him, provided it either contains the terms, or refers to any other writing that contains them; Dobell v. Hutchinson, 3 Ad. & E. 355; Rossiter v. Miller, supra; even though the subsequent note is written to request a rescission of the contract. Coupland v. Arrowsmith, 18 L. T. 755, July, 1868, Giffard, V.-C. The connection ought to appear on the papers, and not by extrinsic oral evidence only. Boydell v. Drummond, 11 East, 152; Taylor v. Smith, (1893) 2 Q. B. 65, C. A. ; 1 Smith's L. C, 11th ed. 308 -9. But it need not be by express or specific description of one paper in the other. Dart's V. &P.,'7th ed. 246; Long v. Millar, I C. I'. 1 >. 450, C. A.; Warner v. Willington, Oliver v. Hunting, and other cases, cited supra. The name of one of the parties may be supplied by the indorsement on the envelope iu which a letter which contained the, other terms of the contract was proved to have been enclosed. Pearce v. Gardner, (1897) 1 Q. B. 688, C. A. Where 316 Action on Sale oj Heal Property.— Vendor against Vendee. a contract is sought to be gathered from several letters, the whole of the correspondence must be considered, and although two early letters appear tu constitute a complete contract, the later ones may be referred to to show that such contract was not within the contemplation of the parties. Hussey v. Home Payne, I Ap. Ca. 311, D. P.; May v. Thomson, 20 Ch. D. 705, C. A.; Bristol, (fee, Bread Co. v. Maggs,$A Ch. D. 616. See hereon Bellamy v. Debenham, 15 Ch. D. 481 ; aitirmed in the C. A. on other grounds, (1891) 1 Cb. 412. A letter, " 1 agree to let to A. the stables in G. for the same rent, and subject to the same conditions that I hold them myself," accepted by writing signed by A., is not sufficient, as it does not state the duration of the term. Bayley v. Fitzmaurice, 8 E. & B. 664 ; 27 L. J., Q. B. 143 ; 9 H. L. C. 78. So, the memorandum is insufficient if it do not appear therefrom when the term is to begin; Marshall v. Berridgc, 19 Ch. D. 233, C. A.; there is no inference that the term begins on its date. S. C. Where it appears from the agreement that the lease is to begin at the date of possession being given, evidence of the date when possession was given is admissible. In re Lander & Bagley's Contract, (1892) 3 Ch. 41. Where the letter signed by the defendant, the lessor, contained terms, to some of which the plaiutiffdid not agree, it was held there was no agreement in writing between the parties; Marshall v. Berridgc, supra. So, the acceptance of an offer, signed by the purchaser, must be unconditional in order to bind him ; thus, where the vendors, in answer to an offer of purchase, wrote referring thereto "which offer we accept and now hand you two copies of conditions of sale," and enclosing agreement with special conditions, it was held that the acceptance was conditional only. Crossley v. Maycock, L. R., 18 Eq. 180 ; Smith v. Webster, 3 Ch. D. "49, C. A. ; Jones v. Daniel, (1894) 2 Ch. 332. See Bristol, &c, Bread Co. v. Maggs, and Bellamy v. Debenham, supra. Where the terms are to be settled by a third person ; Stanley v. Doivdeswell, L. R., 10 C. P. 102 ; or a formal contract is to be prepared and signed by the parties ; Chinnock v. Mchs. of Ely, 4 D. J. & S. 638 ; Winn v. Bull, 7 Ch. D. 29 ; there is no agreement till that has been done ; and such con- dition cannot be waived by one party alone. Lloyd v. Nowell, (1895) 2 Ch. 744. But, unless it clearly appear that the signature of a formal contract is a condition precedent to there being a binding bargain, the acceptance by letter will bind. Bonnewell v. Jenkins, 8 Ch. D. 70, C. A.; Rossiter v. Miller, 3 Ap. Ca. 1124, D. P. ; Lewis v. Brass, 3 Q. B. D. 667, C. A.; Gray v. Smith, 43 Ch. D. 208, C. A. Whether there is such a coudition precedent is a question of construction of the evidence. S. CC. And the intention to execute a formal instrument may be waived by the conduct of the parties. Metropolitan By. Co. v. Brogden, 2 Ap. Ca. 666, D. P. It seems, notwithstanding the decisions in Hudson v. Buck, 7 Ch. D. 683, and Hussey v. Home Payne, 8 Ch. D. 670, C. A., that a term in the contract that the title is to be approved by the vendee's solicitor is not a condition, but merely implies that the title is to be investigated. S. C, 4 Ap. Ca. 3l2, 322, per Ld. Cairns, C. ; Bolton Partners v. JAimbert, ante, p. 312. A letter written by the defendant to his own agent containing the terms of the agreement is sufficient to bind him. Smith v. Watson, Bunb. 55; Gibson v. Holland, L. R., 1 C. P. 1. The recital in a will of the agreement is sufficient to bind the testator's estate. In re Hoyle, (1893) 1 Ch. 84, C. A. An agreement, good under the Stat, of Frauds, can, it seems, be wholly rescinded, but cannot be varied by a subsequent oral agreement ; nor does such agreement to vary operate by way of rescission of the original agreement, vide ante, p. 28. Signature of Note.'] With regard to the signing, it has been held that a printed name is sufficient (Saundersou v. Jackson, 2 B. & P. 238 (decided on Statute of Frauds, s. 4. — Signature of Note. 317 sect. 17)), if recognized by, or brought home to, the party, as having been printed by his authority; Schneider v. Norris, 2 M. & S. 288; and it is immaterial in what part of the agreement the name is signed. S. C. ; Johnson v. Bodgson, 2 M. & W. 653 ; Knight v. Crockford, 1 Esp. 190 ; Cox's note to 1 P. Wms. 771. Thus, "A. B. agrees with J. E. B. to take the property situate, &c, for 248?.," in J. R. B.'s writinsr, is sufficient signature by him as vendor. BleaMey v. Smith, 11 Sim. 150. So, " Messrs. E. bought of A. B." in the writing of Messrs. E.'s agent, binds them. Burrell v. Evans, 1 H. & C. 174 : 31 L. J., Ex. 337, Ex. Ch. 1. So, a memorandum of agreement between the plaintiff and the defendant H. M. & Co., in the form of a letter from the plaintiff to the defendant headed " H. M. & Co.," written by the defendant's agent by their authority and presented to the plaintiff for signature, and signed by him, was held to bind the defendant. Evans v. Iloare, (1892) 1 Q. B. 593. Leave to appeal refused. See other cases, cited post, p. 533. But the mere drawing of an instrument with the name of the defendant put as one of the contracting parties by his agent, is not sufficient, if the instrument is evidently incom- plete ; as where it ends with "witness our hands," without any further signature following. Hubert v. Treherne, 3 M. & Gr. 743. And the signa- ture must be introduced so as to govern every material and operative part of the instrument. Caton v. Caton, L. R., 2 H. L. 127. A minute of a contract entered in accordance with the Companies Act, 1862, s. 67, and signed by the chairman, is sufficient to bind the company. Jones v. Victoria Graving Bock Co., 2 Q. B. D. 314. A signing as ivitness has been held sufficient, if the party signing be cognisant of the contents of the instrument. Welford v. Beazeley, 3 Atk. 503 ; Harding v. Crethorn, 1 Esp. 57 ; Coles v. Trecothick, 9 Ves. 234. But this doctrine was doubted in Gosbell v. Archer, 2 Ad. & E. 500, unless the person signing as a witness be a principal, or be express^ acting as agent of the principal. Nor is it clear that the signature of a solicitor approving of a draft agreement is sufficient to bind his client. Thornbunj v. BeviU, 1 Y. & C, C. C. 554. See Smith v. Webster, 3 Ch. D. 49, C. A. But the signature of a draft proposed contract by the principal, preceded by the word "approved," may amount to a sufficient signature. Metropolitan Ry. Co. v. Brogden, 2 Ap. Ca. 666, D. P. A letter from the purchaser's solicitor enclosing and referring to a draft conveyance which recites the agreement is insufficient. Munday v. Asprey, 13 Ch. D. 855. An affidavit containing a statement of an oral contract, signed and filed by the defendant in proceedings prior to the action on the contract, is sufficient. Barkworth v. Young, 4 Drew. 1 ; 26 L. J., Ch. 153. So a recital of sucli contract in a deed of the defendant. In re Holland, (1902) 2 Ch. 360, C. A. Where a person cannot write, a signature by mark, if properly identified, is sufficient; and no inquiry can be made as to whether the person can write or not. Baker v. Dening, 8 Ad. & E. 94. Hence a signature by initials is sufficient. In re Blewitf, 5 P. D. 116. Sugden, V. & P., 14th ed. 144; •J Smith's L. C, 11th ed. ;535-6. The statute requires the agreement to be signed by the party to be charged therewith, or some other person thereuntil by him lawfully authorized. \t is good as against him though only signed by the party to be charged, and not by the other party. Scion, v. Slade, 7 Ves. 27. r > ; Laythoarp v. Bryant, 2 N. 0. 735; and the cases collected Sugd. V. & P., 14th ed. 129 (b). See also Saunderson v. Jackson, 2 B. & P. 238 (<>n sect. 17); and the important observations on this point in a note to Sweet v. Lee, 3 M. & Gr. 462. And it is good although the agreement, purported to be inter partes, and the party suing on it had orally accepted but had never signed it; Liverpool Hanking Co. v. Eccles, 4 H. & N. 139; 28 L. J. Ex. 122; Smith v. Neale, 2 C. B., N. S. 67 ; 26 L. J., C. P. 143; so, a proposal in writing signed by 318 Art i,>n on Sale of Real Property.— Vendor against Vendee. the party to he charged ami accepted orally is sufficient ; JReuss v. Picksiey, L. R., 1 Ex. 342, Ex. Cb.; even although it is one of two alternative proposals that lias been accepted. Lever v. Koffler, (1901) 1 Ch. 543. Recognition of a previous signature is sufficient; thus, where a proposal signed by A. is made to B. and altered by B., if A. assent to the alteration he will be bound, and oral evidence is admissible as to the state of the document when he gave his assent, and thereby converted the proposal into an agreement. Stewart v. Eddowes, L. R., 9 C. P. 311 (on sect. 17). With regard to the person authorized by the party to sign, it is settled that such person need not be authorized in writing. Coles v. Trecothick, 9 Ves. 250; Ernmerson v. Heelis, 2 Taunt. 38; nor specially to sign a record of the contract. John Griffiths Cycle Cor. v. Humber & Co., (1899) 2 Q. B. 414, reversed on facts, (1901) W. N. 110, D. P., no opinion being expressed on point decided in C. A. A subsequent recognition of the authority of the agent by the principal is sufficient. Maclean v. Dunn, 4 Bing. 722. A telegram sent by the defendant may be sufficient; the instructions for sending the telegram are a mandatory to the company or government officer to sign for the sender. Godwin v. Francis, L. R., 5 C. P. 295. The plaintiffs written offer to buy land was in this case accepted by a telegram : it was assumed that the original instructions for the telegram furnished by the defendant to the company, and the copy actually delivered by the company's servant to the plaintiff, were in evidence. S. C. See also Coupland v. Arroivsmith, 18 L. T. 755, ante, p. 315. The sender of a message is not liable for a mistake made by a telegraph clerk. Henkel v. Pape, L. R., 6 Ex. 7. A sale by auction is within the Stat, of Frauds; Blagden v. Bradbear, 12 Ves. 46(1 ; and the auctioneer is for this purpose the agent for both vendor and vendee, and his writing down the name of the highest bidder in the auctioneer's book or catalogue is sufficient signature; Ernmerson v. Heelis, supra; White v. Proctor, 4 Taunt. 209; but this is not a sufficient memo- randum if the conditions of sale are not attached to the book. Kenioorthy v. Schofield, 2 B. & C. 945. If the highest bidder be agent for another, the writing of the auctioneer of the agent's name as purchaser binds the principal ; Id. 948, per Holroyd, J.; White v. Proctor, supra; in the latter case the principal was present though his agent bid. But the agency of the auctioneer ceases and does not apply to a memorandum signed by him several days after the auction ; Bell v. Balls, (1897) 1 Ch. 663 ; nor to a sale by him after the auction ; Mews v. t'arr, 1 H. &. N. 484; 26 L. J., Ex. 39. the agent must be a third person, and not one of the parties ; Wright v. Hannah, 2 Camp. 203 ; therefore, if the action is brought against tne purchaser by the auctioneer himself, the signing of the defendant's name l>y the auctioneer is insufficient to satisfy the statute. Farebrother v. Simmons, 5 B. & A. 333 ; Sharman v. Brandt, L. R., 6 Q. B. 720, Ex. Ch. (on sect. 17). But the signature by the auctioneer's clerk is sufficient in such action, where the clerk, as each lot was knocked down, named the purchaser aloud, and, on a sign of assent from him, made a note accordingly in a book. Bird v. Boulter, 4 B. & Ad. 443. So where the purchaser otherwise signified his assent. Sims v. Landray, (1894) 2 Ch. 318. Apart from some mark of assent, however, the clerk has no authority to sign for the purchaser. Bell v. Balls, supra. Where the auctioneer's clerk signed the contract, "Witness T. N.," without more, this was held not to be a signing by an agent of the vendor, though the deposit was paid over to the vendor's attorney, who wrote a letter to vendee's attorney advising the purchase to be relinquished ; for such facts did not amount to a ratification of the agency of T. N. or of the contract, even supposing the signature as witness to be sufficient. Oosbell v. Archer, 2 Ad. & E. 500. Enforcement of Oral Contract. 319 A bidding at an auction may be retracted before the hammer is down. Payne v. Cave, 3 T. R. 148 ; see Routledge v. Grant, 4 Bing. 653, 660. And it is very doubtful if the usual condition against retracting biddings could in the case of an ordinary sale by auction, be enforced. Sugdeu, V. & P., 14th ed. 14 ; Jones v. Nanney, 13 Price, 99. An auctioneer has an implied authority to sell without reserve ; Rainbow v. Hawkins, (1904) 2 K. B. 322. Instructions to a house and estate agent to procure a purchaser and tu negotiate a sale of land do not authorize the agent to bind his principal by a contract to sell it. Chadburn v. Moore, 61 L. J., Ch. 674. It has, however, been held to be otherwise where the instructions are to sell, with an agree- ment to pav the agent a commission on the price accepted. Rosenbaum v. Belson, (1900) 2 Ch. 267. When an oral contract within Stat, of Frauds can be enforced."] The courts of equity were in the habit of granting specific performance of con- tracts falling within the provisions of the Stat, of Frauds, s. 4, where there had been a part performance of the contract, although there was no written note or memorandum of the agreement as required by the section ; see Maddison v. Alderson, 8 Ap. Ca. 420, 475, 476, per Ld. Selborne, C. ; and under Cairns' Act (21 & 22 V. c. 27) those courts were in such cases further empowered to award damages for the breach of the contract so partially per- formed. By the J. Act, 1873, s. 24, ante, pp. 306, 307, all the Divisions of the High Court, constituted by that Act, can exercise all the powers previously exercised by the Court of Chancery only. The jurisdiction to award damages is not affected by the. repeal of Cairns' Act, supra, by 46 & 47 V. c. 49. Sayers v. Collyer, 28 Ch. D. 103, C. A. But damages can only be awarded in cases in which judgment for specific performance could be given. Lavery v. Pursell, 39 Ch. D.^508. The general rule as to what amounts to such part performance is, that the parties must, by reason of the Act relied on, be in a position un- equivocally different from that in which, according to their legal rights, they would have been if there were no contract. Dale v. Hamilton, 5 Hare, 381, per Wigram, V.-C. Thus, the fact of the purchaser being in possession of the vendor's land without liability to an action of trespass, shows unequivo- cally the existence of a contract between the parties. S. C. See Dickinson v. Barrow, (1904) 2 < 'h. 339. Hence, acceptance of possession is sufficient part performance of the purchaser against his vendor ; Morphett v. Jones, 1 Swans. 172 ; Surcome v. Pinniger, 3 D. M. & G. 571 ; Ungley v. Ungley, 5 Ch. D. 887, C. A.; and, similarly, delivery of possession by the vendor is sufficient as against his purchaser. Jiuckmaster v. Harrop, L3 Ves. 456. Sc • also Coles v. Pi/kington, L. It., 19 Eq. 174. So, if a tenant in possession, in pursuance of the terms of an oral agreement for a lease, pay the increased rent t" be reserved by the lease; Ntmn v. Fabian, L. It., 1 Ch. 35; Miller 6 Aldworth v. Sharp, (1899) 1 Ch. (122 ; or lay out money which, in the event of there being no such agreement, he could not recover back from his landlord. Mundy v. Jolliffe, 5 Myl.& Cr. L67. See also Williams v. E 'vans, I-. It., 19 Eq. 547. In these cases the court will endeavour to find out what was the oral contract between the parties, and then give it effect. Mundy v. Jolliffe, sujrra. So, where the parties have for a long time acted on the assumption of there being a contract. II Inch ford v. Kirkpatrick, 6 Beav. 232. See further the judgments in 1>. P. in Maddison v. Alderson, post, p. 320. An oral agreement for an easement over land is within this principle. McManus v. Cooke, 35 Ch. D. 681. See furl her Id. 697, post, \>. 526. A.a has been often observed, however, the court will enforce, hut cannoi make contracts. Where, therefore, the contract is incomplete; Thynne,Ly. v. QUngall, EL, 2 H. L. C. 131, L58 ; or, its terms are uncertain ; Reynolds v. 320 Action on Sale of Heal Property. — Vendor against Vendee. Waring, You. 346 ; Price v. Griffith, 1 D. M. & G. 80; the court cannot decree, specific performance. It must not only appear what the terms of the agreement are, but the acts of part performance must bo referable to that agreement alone. Price v. Salvsbury, 32 Beav. 446, 459; affirm, by L.JJ., see Id. 461, n. Ami an act which, though done in performance of a contract, admits of explanation without supposing a contract, will not in general take the case out of the statute, e.g., payment of the alleged purchase-money. Bale v. Hamilton, ante, p. 319. See also Maddison v. Alderson, 8 A p. Ca. 467, D. P. ; and Humphreys v. Green, 10 Q. B. D. 148, C. A. It may be observed that where marriage is the consideration for an oral contract, the entering into the marriage is not a part performance for the purpose of specific performance. Caton v. Caton, L. R., 1 Ch. 137. The specific performance of a written agreement with a subsequent oral variation, stands on the same footing as that of an original independent oral agreement. See Price v. Dyer, 17 Ves. 356, and Van v. C'otpe, 3 Myl. & K. 269, 277. But a plaintiff seeking to enforce a written contract, could not, in general, formerly, in equity, any more than he could at law (as to which vide ante, pp. 15 et seq.), on the ground of fraud, surprise, or mistake, vary its terms by oral evidence; Price v. Dyer, supra; Toiunshend, Mqs. of, v. Stangroom, 6 Ves. 328 ; May v. Piatt, (1900) 1 Ch. 616 ; except, perhaps, where the fraud consists in a refusal to accede to a promised variation on the faith of which the plaintiff entered into a written agreement. Pember v. Mathers, 1 Bro. C. C. 52, 54; Sugd. V. & P., 14th ed. 174. It seems, how- ever, that under the Judicature Act, 1873, s. 24 (7), ante, p. 307, the plaintiff may obtain both rectification of the contract on the ground of common mistake, and also specific performance of the rectified contract. See Olley v. Fisher, 34 Ch. D. 367. On the ground that the statute is not to be made an instrument of fraud, the courts, following the old rules of equity, will enforce the contract where the absence of a written memorandum is caused by the fraud of the other party, or where the memorandum has been fraudulently drawn up so as not to express the real intention of the parties. See note to Pym v. Blackburn, 3 Ves. 38. See further on this subject Sugden's V. & P., 14th ed., cap. iv., s. 7 ; and Dart's V. & P., 7th ed., cap. xvii. An agent, A., who has been employed to buy land, cannot retain the land himself and rely on the Statute of Frauds, ss. 7, 8, on the ground of the absence of a written agreement between himself and his principal; Beard v. Pilley, L. R., 4 Ch. 548 ; Pochefoucauld v. Boustead, (1897) 1 Ch. 196, C. A. Performance of conditions precedent.] When the defendant relies on the non-performance by the plaintiff of conditions precedent, he must plead the defence specially. Rules, 1883, O. xix. r. 15, ante, p. 309. The record, therefore, sufficiently indicates the proofs necessary at N. P. Certain con- ditions are, by the Vendor and Purchaser Act, 1874 (37 & 38 V. c. 78), ss. 1, 2, now incorporated in all contracts of sale of land, unless the contrary is stipulated; such of these provisions as are likely to be important at Nisi Prius will be found below. Proof of title.} If the title of the plaintiff be put in issue, he must prove it. In the absence of stipulation to the contrary, the vendor was formerly obliged to deduce a good title commencing not later than 60 years back, but the Vendor and Purchaser Act, 1874, s. 1 (vide supra), has reduced this period to 40 years ; in the cases, however, in which the period of 60 years was insufficient (as to which see Sugd. V. & P., 14th ed., pp. 366, 367), earlier title than 40 years may now he required. Where Proof of Title. 321 abstracts of title are delivered, the refusal to complete the purchase is generally preceded by some communication between the parties in wliich a specific objection has been pointed out, and the title thereby admitted to be in other respects unexceptionable. See Laythoarp v. Bryant, 1 N. C. 421, per Tindal, C.J. It is sufficient if the contract show a good equit- able title in the vendor, with power to get in the legal estate under the Trustee Act, without showing where the outstanding legal estate may be. Camberwell, &c, Building Society v. Bolloway, 13 Ch. D. 754. The defen- dant may insist upon any defect, whether legal or equitable, in the title deduced. Maberley v. Robins, 5 Taunt. 625 ; Elliot v. Edwards, 3 B. & P. 181 ; Jeakes v. Wright, 6 Exch. 873; 21 L. J., Ex. 265; Stevens v. Austen, 3 E. & E. 685; 30 L. J., Q. B. 212. Where the vendor has no power of sale, he cannot compel the purchaser to enter into a fresh contract with some one else who has the puwer. In re Bryant & Bamingham 's Contract, 44 Co. D. 218. "Where the contract expressly provides that a good title shall be deduced, evidence that the purchaser knew of the existence of covenants which rendered the title unmarketable is inadmissible. Cato v. Thompson, 9 Q. B. D. 616, C. A. ; see also May v. Piatt, (1900) 1 Ch. 616. It is, however, otherwise where there is no such express stipulation. See In re Gloag and Millers Contract, 23 Ch. D. 320, 327, per Fry. J. A contract for "possession" means possession with a good title. Tdley v. Thomas, L. R., 3 Ch. 61. The vendor cannot require the vendee to make the title good by accepting it, and thereby avoiding a prior voluntary conveyance. Clarke v. Willott, L. R., 7 Ex. 313 ; In re Briggs and Spicer, (1891) 2 Ch. 127. By the Vendor and Purchaser Act, 1874, s. 2, r. 2 : "Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instru- ments, acts of parliament, or statutory declarations 20 years old at the date of the contract shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions." By rule 3 : " The inability of the vendor to furnish the purchaser with a legal covenant to produce aud furnish copies of documents of title, shall not be an objection to title in case the purchaser will, on the completion of the contract, have an equitable right to the production of such documents." The recital in a deed 20 years old that the then vendor was seised in fee simple, was held by Malins, V.C., to be evidence thereof under rule 2, and unless disproved, to dispense with production of any earlier title. Bolton v. L. School Board, 7 Ch. D. 766. This decision has however been generally disapproved. See In re Wallis & Groufs Contract, (1906) 2 Ch. 206. The plaintiff is held to strict proof of his derivative title. Crosby v. Percy, 1 Camp. 30. In the sale of leaseholds more than 60 years old, in the absence of a condition to the contrary, the lease itself must be produced. Erend v. Buckley, L. R., 5 Q. B. 213, Ex. Ch. A contract for the sale of leasehold property is not satisfied by an underlease, unless the contract gives the purchaser notice that the property is held under a derivative lease. Camber- well, etc., Building Soc. v. Ilolloway, 13 Ch. D. 754. In the absence of a stipulation to the contrary, there was formerly, in every contract for the sale of a lease, an implied undertaking to make out tli'' lessor's title to demise, as well as the title of the vendor to the lease; Souter v. Drake, 5 B. & Ad. 992 ; J fall v. Betty, 4 M. & Gr. 410 ; and see Stranks v. St. John, L. 1!,, 2 C. P. 376. But, by the Vendor and Pur- chaser Act, 1871, s. 2, r. 1 : "Under a contract to grant or assign a term of years, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the freehold ;" and now by the Conveyancing and Law of Property Act, 1881 B. — VOL. I. Y 322 Action on Sat* of Real Property. — Vendor against Vendee. I I I & 45 V. c. 41), ss. '■'' (1), L3 (1), on a contract to sell and assign, or to grant a lease for a term of years to be derived out of a leasehold interest, the intended assignee or lessee has not the right to call fur the title to the lease- hold reversion, i.e. the reversion to the leasehold iuterest out of which the sub-lease lias been or is to l>s created. Gosling v. Wool/, (1893) 1 Q. B. 39. The title to that leasehold interest must be proved. S. 0. And if the intended assignee or vendee can show defects in the lessor's title, he may insist on those defects. Jones v. Watts, 43 Oh. P. 571, C. A. See also Shepherd v. Keatley, 1 0. M. & R. 117. See also SelUch v. Trevor, and Phillips v. Caldcleugh, post, p. 322. But where the contract contained a similar clause, and the defendant agreed to sell to the plaintiff the lease "as he held the same," it was held that the plaintiff could not raise any objection to the lessor's tide. Spratt v. Jeffery, 10 B. & C. 249. So, where the condition was that the "lessor's title will not be shown and shall not be impaired into." J I nine v. Bentley, 5 Ue G. & S. 520; 21 L. J., Ch. 760. See also Best v. Eamand, 12 Ch. D. 1, 0. A. ; and Scott v. Alvarez, (1895) 2 Ch. 603, < '. A. But Avhere the title is bad specific performance will not be decreed unless, perhaps, when the condition is very definite. S. C. It has, however, been held that, notwithstanding such a condition, the purchaser may raise any objection to the title which the vendor himself discloses. Smith v. Robinson, 13 Ch. D. 148. And, where the contract provided that it should form no objection to the title that the indenture was an underlease, aud no requisition or inquiry should be made respecting the title, the purchaser was held to be at liberty to show aliunde that the lessor was mortgagor only, and had no power to grant the lease. Waddell v. Wolfe, L. R., 9 Q. B. 515. See also Harnett v. Baker, L. R., 20 Eq. 50. There is no implied contract for title on the sale of an agreement for a lease ; for this is only a sale of the vendor's iuterest such as it is. Kintrea v. Preston, 1 H. & N. 357 ; 25 L. J., Ex. 287. So, on a sale of a patent right, there is no implied warranty of valid letters patent. Hall v. Oondcr, 2 C. B., N. S. 22 ; 26 L. J., C. P. 138 ; Smith v. Neale, 2 C. B., N. S. 07; 26 L. J., C. P. 143. See, however, Chanter v. Leese, 5 M. & W. 698. In a sale of leaseholds, where the licence of the lessor is, by the terms of the lease, required for an assignment, the vendor must obtain the required licence. Winter V. Dumevgue, 14 W. R. 281, 282, M. T. 1866, C. P. ; Id. 699, Ex. Ch. As to the time when such licence must be produced, see Ellis v. Rogers, 29 Ch. D. 661, C. A. Where land is taken by a railway company, under their parliamentary powers, the necessity for such licence is taken away by the operation of the Act. Slipper v. Tottenham, &c., By. Co., L. R., 4 Eq. 112. See also Bailey v. De Crespigny, L. R.,4 Q. B. 180. If the vendor stipulate that he shall not he bound to produce title prior to the last conveyance, if he produce an earlier title bad on the face of the abstract, the veudee may reject it. Sellich v. Trevor, 11 M. & W. 722. So, if the vendor agree to sell a "freehold" residence, under a similar condition, and the title deed produced show that the property is encumbered with a condition or covenant, the vendee may reject it, as he bargained for an unencumbered freehold. Phillips v. Caldcleugh, L. II., 4 Q. B. 159. Where the property consisted of several parcels sold by auction in distinct lots to one veodee, Ld. Kenyon is said to have held that the vendor, having made out a title to a single lot only, the whole contract might be rescinded, considering the purchase of the several lots as having been made with a view to a joint concern. Chambers v. Griffiths, 1 Esp. 150. But, where several lots are knocked down to a bidder at an auction, and his name is marked against them in the catalogue, a separate contract arises on each lot. Boots v. Dormer, Ld., 4 B. & Ad. 77. See the cases collected and discussed in Casamajor v. Strode, 2 Myl. & K. 706, 721 ; and Chambers v. Time for Completion, &c, when material. 323 Griffiths, supra,, cannot be maintained as an authority, except where it can be shown that there was an agreement that the purchaser was not to take any of the lots unless he should obtain them all. In Dykes v. Blake, 4 N. C. 463, post, p. 328, the vendee was allowed to repudiate two lots, bought separately, because they were made the subject of one entire contract by a written agreement signed at the auction. An alleged delivery of an "abstract" is not satisfied by proof of a delivery of the deeds themselves. Home v. Wingfield; 3 M. & Gr. 33. But an alleged delivery of a " full and sufficient abstract of title " is satisfied by a delivery of a full abstract of all the vendor's title deeds, and of the facts deducing the title to himself or a trustee for him (known as a perfect abstract), though they may not constitute a good title; Blackburn v. Smith, 2 Exch. 783; and, if any condition refer to the delivery of the abstract, tins, in any question as to time, means the delivery of a perfect abstract. S. C. ; Hobson v. Bell, 2 Beav. 17 ; Gray v. Foivler, L. R., 8 Ex. 249, 279, Ex. Ch. It is the duty of the purchaser to apply for the abstract, as well as of the vendor to deliver it. Guest v. Homfray, 5 Ves. 818. When an abstract is delivered by the vendor, he must be able to verify it by the title deeds in his possession ; Cornish v. Rowley, 1 Selw. N. P., 13th ed. 219 ; Berry v. Young, 2 Esp. 610, n. ; which deeds must be duly stamped. Whiting to Loomes, 17 Ch. I). 10, C. A. The vendee may rescind the contract where the vendor can neither convey nor enforce a conveyance from other proper parties. Forrer v. Nash, 35 Beav. 167 ; Breun r v. Broadwood, 22 Ch. D. 105 ; Bellamy v. Debenham, (1891) 1 Ch. 412, C. A. As to the time within which the vendor must make out his title vide infra. As to the vendor's right to rescind, on objection being taken to the title, vide^^ost, p. 329. Where the contract "is subject to the approval of the title by the vendee's solicitor," it cannot be enforced if he bond fide disapprove of the title. Hudson v. Buck, 7 Ch. D. 683. See also Ilussey v. Home Payne, 8 Ch. D. 670, C. A.; 4 Ap. Ca. 311, D. P. Where, without a stipulation in the contract to that effect, the purchaser takes possession before completion with knowledge that there are defects in the title which the vendor cannot remove, the purchaser waives his right to have those defects removed or to repudiate the contract. In re Gloag and Miller's Contract, 23 Ch. D. 320. Secus, where the defects are removable by the vendor. See S. C. Time for completion, &c, when material.'} When a day is tixed for com- pletion, unless the vendor make out a good title by that day, the purchaser was, at law, entitled to rescind the contract ; Cornish v. Rowley, and Berry v. Young, supra; Noble v. Edwardes, 5 Ch. D. 378, C. A.; even though it appeared that the purchaser was not ready to pay the purchase money. Clarke v. King, Ry. & M. 394. II no time be mentioned fur the vendor to make out a good title, he must be allowed a reasonable time; Samson v. Rhodes, 6 N. C. 261; but Ld. St. Leonards [V. & 1'., 14th ed. 259 (/)J adds sed qua a . But although, at law, the time of completion was of the essence of the contract, in equity this was in general otherwise, if there were nothing in the express stipulations between the parties, the nature of the property, or the surrounding circumstances which would make it inequitable to interfere with and modify the legal right. Roberts v. Berry, '■', D. M. & G. 284, 291, per Turner, L. J. ; Tilley v. Thomas, I,. 1,'., ,'i Ch. ill, (17, per Ld. Cairns, L.J. By the J. Act, 187:!, s. 25 (7), ante, p. 308, the rule of equity now prevails. Howe v. Smith, 27 Ch. I). *'.), '.HI, 103, C. A. See Cornwall v. Ilenson, (1900) 2 Ch. 298, 0. A. A court of equity proceeded on the 324 Action on Sale of Real Property.— Vendor against Vendee. principle that, having regard to the nature of the subject, time was im- material to the value, and was urged only by way of pretence and evasion. Doloret v. Rothschild, 1 Sim. & St 590. This principle, however, does not apply where the property fluctuates in value from day to day, as in the case of foreign stork': time is then of the essence of the contract. S. C. So, in the case of a life annuity; see Withy v. Cottle, Turn. & R. 78. Or, of a reversion; see Newman v. Sogers, 4 Bro. C. C. 391 ; Spurrier v. Hancock, I Ves. 667 : Patrick v. Milner, infra. So, where property is bought for the purpose of residence ; Tilley v. Thomas, ante, p. .".23 ; or, of trade, as in the case of a grant of a mining lease; Parker v. Frith, 1 Sim. & St. 199, n. ; or, of the sale of a public-house as a going concern ; Goiules v. Gale, L. R., 7 Ch. 12. In this latter case the vendor is bound only to have a valid licence, and to "indorse it, to enable the purchaser to apply at once for interim protection under 5 & 6 V. c. 44, s. 1. Tadcaster Tower Brewery Co. v. Wilson, (1897) 1 ( !h. 705. Time is also of the essence of the contract in equity where the vendors are a fluctuating body, and beneficially interested, as in the case of an ecclesiastical corporation. Carter v. Ely, Dean of, 7 Sim. 211. In such cases, however, if the conditions of sale provide lor the possibility of delay in completion, it seems that time is not of the essence of the contract. Patrick v. Milner, 2 C. P. D. 342. If either party has been guilty of delay, then, although time was not originally of the essence of the contract in equity, the other party may make it so by giving notice to complete within a reasonable time limited by such notice. Stewart v. Smith, 6 Hare, 222, n. ; Benson v. Lamb, 9 Beav. 502 ; Green v. Sevin, 13 Ch. D. 589, 599, GOO, per Fry, J. What is a reasonable time depends on the circumstances of each case, the state of the title, &c, and it is impossible to lay down any definite rule as to what the length ot the notice must be. See Sugd. V. & P., 14th ed. 268, 269; Dart. V. & P., 6th ed. 487, 488; Green v. Sevin, supra; Compton v. Bayley, (1892) 1 Ch. 313. So, conversely, although time may have been originally of the essence of the contract, or made so by subsequent notice, this may be waived by the conduct of the other party. Hudson v. Bartram, 3 Madd. 440 ; Cutts v. Thodey, 13 Sim. 206. Thus, if the purchaser proceed with the purchase after the expiration of the time fixed. King v. Wilson, 6 Beav. 124 ; Webb v. Hughes, L. R., 10 Eq. 281. And the same principle applies to a vendor. See Pegg v. Wisden, 16 Beav. 239. Where the contract fixes a day for completion, and provides for the pay- ment of interest from that day till completion, time is not so much of the essence of the contract that the purchaser can at once repudiate the contract, if it be not completed on the day from a defect of conveyance, and not of title ; the purchaser must first give the vendor notice to remove the defect within a reasonable time. Hatten v. Russell, 38 Ch. D. 334. If the purchaser have not made an application for the title before the commencement of the action, and no time is fixed for completing the con- tract, it is said to be sufficient if the plaintiff can show a good title in himself at the time of trial. Thompson v. Miles, 1 Esp. 185. And where time is not of the essence of the contract, and the delay originates in the state of the title, it is sufficient if, on an action being brought by the vendor for specific performance, he make out a good title at the time of the judg- ment. Sudg. V. & P., 14th ed. 264. Readiness to convey.} An averment of readiness to convey, if traversed, is negatived by proof of a defective title; for it negatives ability to convey. Be Medina v. Norman, 9 M. & W. 820. See further on the evidence under a negative of readiness, Action for not accepting goods, post, p. 537. The plaintiff Readiness to Convey. — Damages. 325 is not bound to tender a conveyance where (as is usual) it is to be prepared by and at the cost of the vendee. Wilmot v. Wilkinson, 6 B. & C. 506. An averment of readiness at the steward's office, on a certain day, to com- plete the conveyance of copyhold by surrender, &c, is proved by the plaintiff's readiness to go to the office, though he omitted to do so, because the defendant had just before that day told him that he should not be ready. Perry v. Smith, Car. & M. 554, ptr Patteson, J. See further Smith v. Butler, (1900) 1 Q. B. 694, C. A. As to the right of the vendee to require separate conveyances of parcels, see Egmont, El. of, v. Smith, 6 Ch. D. 469. By the Conveyancing and Law of Property Act, 1881 (44 & 45 V. c. 41), s. 8 (1), "On a sale, the purchaser shall not be entitled to require that the conveyance to him be executed in his presence, or in that of his solicitor, as such ; but shall be entitled to have, at his own cost, the execution of the conveyance attested by some person appointed by him, who may, if he thinks fit, be his solicitor." The purchaser might at common law have refused to take a conveyance executed under a power of attorney ; for it multiplies his proofs, and there is the risk of express or implied revocations. Anon.., cited 1 Esp. 116 ; Richards v. Barton, Id. 269. Under the Conveyancing Act, 1882 (45 & 46 V. c. 39), ss. 8, 9 (ante, p. 138), a power of attorney may be made irrevocable, in favour of a purchaser, and the 44 & 45 V. c. 41, s. 48 (1, 4, 6), ante, p. 138, provides a means of proving it by an office copy. There is no provision under sect. 8, supra, that the purchaser may provide a witness to the execution of the power, and it is very doubtful if the above sections would oblige a purchaser to accept a conveyance executed under a power. If the vendee did not attend to complete, it was no objection that the vendor's solicitor had not a formal authority to receive the purchase money. See Cox v. Watson, 7 Ch. D. 196. As to authority to receive the purchase money, vide Payment, post, p. 695. Claim on an account stated.] Where the contract is not in writing as required by the Stat, of Frauds, plaintiff may sometimes recover on a claim for an account stated by proving an acknwledgment of money due. Cocking v. Ward, 1 C. B. 858 ; Laijcoch v. Pickles, 4 1'.. & S. 497 ; 33 L. J., Q. B. 43, cited Action on account stated, post, p. 627. Damages.] Where the action is brought before conveyance, the defendant having taken possession and dispensed with the execution of the conveyance, the plaintiff cannot recover the whole purchase money, but only damages ; for the land continues to belong to him. Laird v. Pirn, 7 M. & W. 171. This rule applies in the case of land compulsorily taken under the pro- visions of the Lands Clauses Consolidation Act, IS If). E. London Union v. Metropolitan Ry. Co., L. It., 4 Ex. 309. The plaintiff may recover his bill of costs without proving that it has been paid. Richardson v. Chasen, 10 Q. B. 756. The conditions of sale usually provide that if the purchase be not com- pleted by the appointed day "from any cause whatever other than wilful default on the part of tin; vendor," the vendee is to pay interest from that day on the purchase money. As to what amounts to "wilful default" sec the judgment in Bennett v. Stone, (1902) I Ch. 226,(1903) 1 Ch.509, C. A., where the recent decisions thereon are summarized. The conditions of sale usually also provide for the payment of a deposit by the purchaser, which is to be forfeited to the vendor, on default of the former in complying with the other conditions. Where the purchaser fails to make the agreed deposit, the vendor, on default made by the purchaser in completion, is entitled to recover the amount of the deposit. Wallis v. Smith, 21 Ch. D. 243, C. A. The forfeiture of the deposit does not, however, 326 Action on Sale of Real Property. — Vendor against Vendee. prevent the vendor from recovering general damages on the purchaser's refusal to complete. Jcely v. (Iran, 6 Nev. & M. 467; Essex v. Dan i '<■// , L. 11., 10 C. P. 538. But, where the vendor resells the property under a usual condition of sale, and docs so at a loss, he must, in suing the vendee for such loss and for the expenses, give him credit for the amount of the deposit paid. Ochenden v. Henley, E. B. & E. 485; 27 L. J., Q. B. 361. Where the contract contains a variety of stipulations of different importance, and one sum is stated to he payable on breach of performance of any one of them, then the general rule is that, although it be called by the name of liquidated damages, it is in reality a penalty, and the actual damage sus- tained is alone recoverable. Magee v, Lavell, L. R. 9 C. P. 107, 111, 115. So also, where the sum agreed to he paid is under the circumstances so large as to make absurd the idea that it was intended to be paid as liquidated damages. Law v. Redditch, Local Board, ^1802) 1 Q B. 127, 130, per Ld. Esher, M.R. The contract must however in each case be construed according to the intention of the parties, to be ascertained from all the circumstances. Pye v. British Automobile Syndicate, (190(5) 1 K. B. 425. See further Law v. Redditch Local Bd., C. A., supra ; In re Newman, 4 Ch. D. 724 ; Elphin- stone, Ld. v. Monkland Iron and Coal Co., 11 Ap. Ca. 332, D. P.; Willson v. Love, (1896) 1 Q. B. 626, C. A. ; Strickland v. Williams, (1899) 1 Q. B. 382, C. A.; Clydebank Engineering Co. v. Don Jose, &c, y Castanda, (1905) A. C, 6, D.'P. ; Public Works Comrs. v. Hill, (1906) A. C. 368, J. C. ; Diestal v. Stevenson, (1906) 2 K. B. 345. Accidental deterioration after the date of the contract is a loss which must fall on the vendee. Robertson v. Skelton, 12 Beav. 260; 19 L. J., Ch. 140. Hence, it seems that such loss may be claimed as part of the plaintiff's damages occasioned by the defendant's non-completion. Loss arising from the vendor's neglect of care in preserving the property falls on him, vide post, p. 330. Damages may he granted in lieu of specific performance notwith- standing the repeal of Cairns' Act (21 & 22 V. c. 27, s. 2) by 46 & 47 V. c. 49, s. 3. See Chapman v. Auckland Union, 23 Q. B. D. 294, C. A. ; Sayers v. Collyer, 28 Ch. D. 103, C. A.; and Hipgrave v. Case, Id. 356, C. A. Defence. By Rules, 1883, 0. xix. r. 15, ante, p. 309, the defendant must allege in his statement of defence all facts not previously stated on which he relics, and must raise all such grounds of defence as, if not pleaded, would be likely to take the plaintiff by surprise. Rule 17, ante, p. 310, provides that a plaintiff shall not deny generally the allegations in the statement of claim. See Bijrd v. Nunn, 5 Ch. D. 781 ; 7 Ch. D. 284, C. A. Denial of Contract.'] By Rules, 1883, O. xix. r. 20, ante, p. 310, a bare denial of a contract alleged in any pleading shall he construed only as a denial of the making of the contract in fact, and not of its legality or its sufficiency in law, whether in reference to the Stat, of Frauds or otherwise. This rule requires the defendant speci6cally to allege in his defence that he relies on the objection to the contract arising under the statute. Clark v. < 'allow, 46 L. J., Q. B. 53, C. A. As to when a written contract is dispensed with by part performance, vide ante, pp. 319 et seq. Fraud — Misdescription.'] Fraud must be specially pleaded. Rules, 1883, <>. xix. r. 15, ante, p. 309. See further as to fraud, Defences to actions on si in I'/i- contracts — Fraud, post, pp. 663 et seq. It is a defence that a misdescription has been wilfully introduced into the conditions of sale to make the land appear more valuable. Norfolk, Dk. Defence. — Fra ud. — Misdescription . 327 of, v. Worthy, infra ; and see Vernon v. Keys, 12 East, 637. The result of the decisions on this point is thus stated by Tindal, C.J., in Might v. Booth, 1 N. C. 376 : — "All the cases concur in this, that where the mis- statement is wilful or designed, it amounts to fraud, and such fraud, upon general principles of law, avoids the contract altogether. But with respect to mis-statements which stand clear of fraud, it is impossible to reconcile all the cases; some of them laying it down that uo mis-statements which originate in carelessness, however gross, shall avoid the contract, but shall form the subject of compensation only ; Norfolk, Dk. of, v. Worthy, 1 Camp. 340; Wright v. Wilson, post, p. 328, whilst other cases lay down the rule that a misdescription in a material point, although occasioned by negligence only, not by fraud, will vitiate the contract of sale. Jones v. Edney, 3 Camp. 284 ; Waring v. Boggart, Ry. & M. 39 ; Stewart v. AUiston, 1 Mer. 26. In this state of discrepancy between the decided cases, we think it is at all events a safe rule to adopt, that where the misdescription, although not proceeding from fraud, is in a material and substantial point so far affecting the subject- matter of the contract that it may reasonably be supposed that, but for such misdescription, the purchaser might never have entered into the contract at all, in such case the contract is avoided altogether and the purchaser is not bound to resort to the clause of compensation. Under such a state of facts the purchaser may be considered as not having purchased the thing which was really the subject of the sale, as in Jones v. Edney, supra, where the subject-matter of the sale was described to be a free public-house, while the lease contained a proviso that the lessee and his assigns should take all the beer from a particular brewery, in which case the misdescription was held to be fatal." Accord. In re Fawcett and Holmes, 42 Ch. D. 150, C. A. ; Jacobs v. Revell, (1900) 2 Ch. 858, and In re Puckett and Smith's Contract, (1!»02) 2 Ch. 258 C. A. See also Fulsford v. Richards, 17 Beav. 96. So where the land is without the knowledge of the purchaser subject to restrictive covenants, In re Nisbet and Fotfs Contract, (1900) 1 Ch. 380, C. A.; or to a party wall notice and award under the London Building Act, 1894 (57 & 58 V. c. ccxiii.) ss. 90, 91, Carlish v. Salt, Id. 335. An innocent misrepresentation may be such as to preclude a judgment for specific performance, although it is not ground for rescinding the contract. See Hope v. Walters, (1900) 1 Ch. 257, C. A. Where premises were maid fide described as " a substantial brick building," which were not such, and a plot of land mentioned in the particulars did not exist at all, the sale was held voidable. Robinson v. Musi/rune, 2 M. & Rob. 92. So, where they were described as an " eligible investment ;" and fcbey were, in fact, liable to be taken under a local public Act- : held that the pur- chaser might rescind the contract, and that the Act, though public, was not, notice perse. Ballard v. Way, 1 M. & W. 520. And, where the premises, including a yard, were said to be held under a term of 23 years, when, in truth, the yard, which was an essential part, was held under a yearly tenancy, the purchaser was allowed to rescind the sale, though a lease of the yard for the same term was afterwards procured by the seller, and though there was a clause in the conditions for compensation in the case of erroneous description, and a provision that the contract should not be annulled by it. Dobell v. llnlchiiisoii,?> Ad. Ac E. 355. Where an agreement for sale contains a clause similar to the one in the last, case, the court will not decree specific performance where the acreage varies very largely from that represented. Durham, El. of, v. Legard, 34 Beav. Oil ; 34 L.J.,Ch. 589, and cases there cited. Where; an estate was represented to contain 1,5:» acres, when in facl it contained only 1,100 acres, it was held that a condition that the estate as to extent of acreage should be taken to be conclusively shown by certain deeds, was a mere conveyancing condition as to identity, and that, coupled with the 328 Action on Sale of Real Property. — Vendor against Vendee. representation as to the acreage, it did not estop the purchaser from rescind- ing; on the ground of deficiency in acreage. Aberaman Ironworks v. Wickens, L. R., 4 Ch. 101. But, where it was provided by the conditions of sale, that " if any mistake should be made in the description of the premises, or if any other material error should appear in the particulars of sale, such mistake or error should not annul the sale, but a compensation should be made," the vendee was held not to be released from the contract by reason of a mis- description in the particulars of sale obvious on sale of the premises, unless such misdescription were wilful and designed. Wright v. Wilson, 1 M. & Rob. 207. So, a specific performance for the purchase of a meadow was decreed, where a visible footpath went across it, of which no notice was given. Old- field v. Bound, 5 Ves. 508 ; see Sugd. V. & P., 14th ed. 328. Where building ground was sold, as such, without notice of a right of way reserved across it by a lease of another portion of it, held that the contract was voidable; and the purchaser was permitted to avoid it as to two lots separately bought at an auction, though the defect applied only to one lot ; the seller having afterwards united both in a single contract of sale at an entire sum. Dykes v. Blake, 4 N. C. 463 ; Accord. Shackleton v. Sutcliffe, 1 De G. & Sm. 609. See also Eeyivood v. Mallalieu, 25 Ch. D. 357 ; and Nottingham Brick and Tile Co. v. Butler, 15 Q. B. D. 261. As to the effect of a misleading con- veyancing condition, see In re Banister, 12 Ch. D. 131, C. A.; In re Marsh and Earl Granville, 24 Ch. D. 11, C. A. A vendee of land described as copyhold is not compellable to accept freehold, notwithstanding a provision that errors in description should not vitiate the sale. Ayles v. Cox, 16 Beav. 23. See Turquand v. Rhodes, 37 L. J., Cb. 830. An agent employed to find a purchaser has authority to describe the property, and state any fact or circumstance relating to tlie value, so as to bind the vendor. Mullens v. Miller, 22 Ch. D. 194. See also Brett v. Cloioser, 5 C. P. D. 376. When more than one person is employed by the vendor to bid at a sale by auetion this will be deemed a fraud. Croivder v. Austin, 3 Bing. 368; Wheeler v. Collier, M. & M. 126. And the employment of a single puffer when the sale is "without reserve," avoided it at law. Thornett v. Haines, 15 M. & W. 367. Ami where the sale is not advertised as " without reserve," the employment of a single puffer, unknown to the bidders, is evidence for the jury to sustain the defence of fraud. Green v. Baversfock, 14 C. B., N. S. 204 ; 32 L. J., C. P. 181. But a sale is not avoided by the fictitious binding of a mere stranger. Union Bank of London v. Munster, 37 Ch. D. 51. By 30 & 31 V. c. 48, s. 4, the rule in equity is made the same as at law ; see also sects. 5 and 6, infra. It seems that an auctioneer who advertis-c.s a sale "without rc-erve," and without disclosing his principal's name, is liable to an action, if he knock down the lot to the principal's bidding after that of the plaintiff. Warlow v. Harrison, 1 E. & E. 309 ; 29 L. J., Q. B. 14, Ex. Ch. But where a reference was made by name to the solicitor of the mortgagee by whose direction the sale was represented to be made, tbe auctioneer was held not to be liable. Mainprice v. Westley, 5 B. & S. 420 ; 34 L. J., Q. B. 229. See, however, Woolfe v. Home, & Rain- how v.Howkins, cited, post, p. 544. By 30 & 31 V. c. 48, s. 5, it is enacted, " that the particulars or conditions of sale by auction of any land shall state whether such land will be sold without reserve, or subject to a reserved price, or whether a right to bid is reserved ; if it is stated that such land will be sold without reserve, or to that effect, then it shall not be lawful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowingly any bidding from any such person." By sect. 6, where the sale is declared " to be subject to a right for the seller to bid, it shall be lawful for the seller, or any one person on his behalf, to bid at such auction in such manner as he may think Vendee against Vendor. 329 proper." Where the conditions state that the sale is subject to a reserved bidding, this Act renders it illegal for the vendor to employ a person to bid up to the reserved price, unless the right to do so is expressly stipulated for. Gilliat v. Gilliat, L. R., 9 Eq. 60. Sale of leaseholds.'] The purchaser is not bound to complete a contract for the purchase of a lease, if subject to onerous covenants of an unusual character, unless, prior to the contract, he had an opportunity of ascertaining the terms of the covenants. Molyneux v. Haivtrey, (1903) 2 K. B. 487, C. A. So in the case of a contract to take an underlease. Hyde v. Warden, 3 Ex. D. 72, C. A. VENDEE AGAINST VENDOR. If the vendor refuse, or is unable to complete his contract, the purchaser may either sue for damages for such breach of contract ; or in case he has made a deposit or paid part of the purchase money and has not taken possession, may sue to recover it back as money had and received. So, if a fraud have been practised on him by the vendor to induce him to buy, the vendee may rescind the contract, and sue for the deposit. Thornet v. Haines, ante, p. 328. In a special action on the contract by the purchaser, he must prove tbe contract, if denied ; and by other defences he may be put to prove the per- formance of conditions precedent, and all other matters traversed by the defendant. The vendee is entitled to have a good title; vide ante, p. 320 ; but this right is lost by failure to take objections to that disclosed on the abstract within the time limited by the contract. Rosenberg v. Cook, 8 Q. B. D. 162, C. A. In this case the vendee was held entitled to delivery of possession, only, of the land by the vendor. When the defendant's title, as stated in the abstract, is objected to, it will not be enough to prove that the title has been deemed by conveyancers to be insufficient; tbe defect must be pointed out; Camfiehl v. Gilbert, 4 Esp. 212; and the plaintiff cannot, at the trial, insist upon any objection to the title, as stated therein, which he neglected to take at the time of rescinding the contract, and which might have been remedied by the vendor if taken before. Todd v. Hoggart, M. & M. 128, cor. Ld. Tenterden, * '.->. The vendor may compel delivery of particulars of every matter of fact relied upon as an objection ; but not of matter of law. Roberts v. Rowlands, 3 M. & W. 543. If no particulars have been given, ami the pleadings are general, the vendee will be at liberty to prove any infraction of the conditions of sale. Squire v. Tod, 1 Camp. 293. Where the sale is subject to a condition that if the purchaser make any requisition which "the vendor should be unable or unwilling to remove or comply with," the right to rescind thereunder must be exercised reasonably. In re Starr-Bowkett Building Society and Sibun's Contract, I- Ch. D. 375, C. A. It arises as soon as the requisition is made. S. C. The vendor is not bound to state his reasons lor rescission. S. C. Alter rescission, the contract is at an end, and the subsequent withdrawal by the purchaser of his requisitions has no effect. In re Dames uml Hon-/, 29 < !h. I ». 626, 0. A. See further, as to rescissi mder such a condition. Gray v. Fowler, L. 1!., 8 Ex. 249, Ex. Ch. ; Woolcott \. Peggie, L5 \\>. <'a. 1'J, .).('. ; hire Arbibu,,d Class's Contract, (1891) 1 Ch. 601, C. A. As to when the vendee is eatitled to sue the vendor for not completing on the day fixed, vide ante, pp. 323 et seq. As to action for deposit, vide post, p. 330. After the purchaser has recovered the deposit only, bom the auctioneer, he may, in a special action against the vendor, recover interest ami the expenses of investigating the 330 Action on Sale of Real Property. — Vendee against Vendor. title. Farqukar v. Farley, 7 Taunt. 592. The expenses of investigating the title cannot be recovered under a claim for money paid. Camfield v. Gilbert, 1 Esp. 221. As a general rule, the vendee is bound to tender a conveyance to the vendor for execution by biin. Poole v. Hill, G M. & W. 835. Yet, even when he is bound by the express terms of the contract to tender one, if a bad title be produced, he may maintain an action for the recovery of his deposit without tendering it. Seaward v. Willock, 5 East, 198, 202, per Ld. Ellenborough ; and in Loiundes v. Bray, Sugd. V & P., 14th ed.364 (b). So, where the vendor has, by selling the estate, incapacitated himself from executing a conveyance to the purchaser, further trouble and expense on the plaintiff's part are unnecessary, and he may sustain an action without tender- ing a conveyance, or the purchase money. Lovelock v. Franhlyn, 8 Q. B. 371. As to the vendee's right to rescind the contract on the ground of want of title in the vendor, vide ante, p. 32.!. After the completion of the conveyance the purchaser may, if he were induced to enter into the agreement by fraud, maintain an action to set aside the agreement and recover his purchase money. Roddy v. Williams, 3 J. & L. 1 ; or for damages, vide Action for Deceit and Misrepresentation, 'post, pp. 843 et seq. Where he was induced to enter into it by an innocent material misstatement, he may maintain an action to set it aside, and to recover his purchase money ; vide post, p. 844; but he cannot, in the absence of a special term in the agreement of purchase that he shall be allowed com- pensation, maintain an action for damages. Clayton v. Leech, 41 Ch. D. 103, C. A., approving Besley v. Besley, 9 Ch. D. 103 ; Brett v. Clowser, 5 C. P. D. 376; Joliffe v. Baker, 11 Q. B. D. 255. Where, however, there is such special term in the agreement, it is not, for this purpose, merged in the conveyance, and the purchaser may recover damages thereon. Palmer v. Johnson, 13 Q. B. D. 351, C. A., following Bos v. Helsham, L. R., 2 Ex. 72 ; In re Tamer and Skelton, 13 Ch. D. 130. Accord. 2 Dart's V. & P., 7th ed. 812, 813. But the usual term as to compensation does not apply to defect in the vendor's title. Debenham v. Sawbridge, (1901) 2 Ch. 99. A repre- sentation made by the vendor at the time of completion may amount to a collateral warrantry for breach of which the purchaser can sue him. See Be Lassalle v. Guildford, (1901) 2 K. B. 215, C. A. cited, ante, p. 314. Where the vendor keeps possession till completion he is a trustee for the purchaser, and is bound to take reasonable care to preserve the property; R. Bristol Permanent Building Society v. Bomash, 35 Ch. D. 390; Clarke v. Ramuz, (1891) 2 Q. B. 457, C. A. ; and where damage of which neither the vendor nor the vendee knew at the time of completion has arisen from such want of care, the execution of the conveyance is no bar to its recovery. S. C. An auctioneer is not liable at the suit of a disappointed bidder for with- drawing lots from an advertised sale. Harris v. Nickerson, L. P., 8 Q. B. 286. A vendor, B., is liable in damages to J., to whom the property was knocked down at the auction, if, although J. complies with the conditions of sale, B. refuses to allow him to sign a contract, and the Statute of Frauds is no defence. Johnston v. Boyes, (1899) 2 Ch. 73. The deposit must be paid in cash if the vendor so require. S. C. Claim for deposit.] To enable the purchaser to maintain an action for money had and received to recover the deposit, the contract must be dis- affirmed ab initio. Some of the grounds upon which it may be rescinded arc stated ante, pp. 322, 323. As to when the purchaser is entitled to rescind the contract on the ground of non-completion of the contract on the appointed day, vide ante, pp. 323, 324. If the purchaser have taken possession of the Claim for Deposit. — Damages. 331 premises under the contract, he has adopted the contract, and cannot disaffirm it afterwards by quitting the premises, as the parties cannot be put in the same situation in which they before stood. Hunt v. Silk, 5 East, 449. See also In. re Gloag and Millers Contract, 23 Ch. D. 320, cited ante, p. 323. His remedy is then on the contract itself. Blackburn v. Smith, 2 Exch. 783. If the purchaser repudiate the contract, Ex pte. Barrel!, L. B., 10 Ch. 512 ; or fail to complete it within a reasonable time, Howe v. Smith, 27 Ch. D. 89, C. A. ; he cannot recover the deposit, though there be no clause of forfeiture in the contract. See also Smith v. Butler, (1900) 1 Q. B. 694, C. A. And, even if the contract be oral only, the purchaser cannot, by repudiating it, alter he has obtained the abstract and sent requisitions thereon, entitle himself to recover the deposit. Thomas v. Brown, 1 Q. B. D. 714. It seems that the purchaser cannot recover the deposit if he would get a good holding title, even although it is not one which the court would force on him. See Nottingham Patent Brick and Tile Co. v. Butler, 16 Q. B. D. 778, C. A. Where the vendee, A., has accepted the title, and the vendor, B., has forfeited the deposit under a clause in the contract for non-completion, A. cannot afterwards recover it on the ground that the title was bad. Soper v. Arnold, 37 Ch. D. 96, C. A. ; 14 Ap. Ca. 429, D. P. See further as to right to recover deposit on the ground of want of title, Want v. Stallibrass, L. B., 8 Ex. 175. When the plaintiff seeks to recover the deposit, he must prove payment of it to the defendant. A payment to the agent of the vendor is, in law, a payment to the principal ; and in an action against the latter for the recovery of the money, it is immaterial whether it has actually been paid over to him or not. Norfolk, Dk. of, v. Worthy, 1 Camp. 337. And even where after an auction the deposit has been paid to the solicitor, J., of the vendor, G., as his agent, the action must be against G. and not against J. Ellis v. Goulton, (1893) 1 Q. B. 350, C. A. But if the deposit has been paid to the auctioneer, an action for it will lie against him before payment over to his principal, for he is in the nature of a stakeholder; BurrougJi v. Skinner, 5 Burr. 2639 ; or, if he has paid it over after notice of the delect in the title ; Edwards v. Sodding, 5 Taunt. 815 ; and even, it shuuld seem, after payment over to the principal without notice; for he ought tu keep the deposit until the sale is complete, and it appears to whom it ought to be paid. Gray v. Gufleridge, 1 M. & By. 614. No notice to the auctioneer previous to the action being brought against him as stakeholder is necessary. Duncan v. Cafe, 2 M. & W. 244. Interest on the deposit cannot, in general, be recovered in such action. Lee v. Munn, 8 Taunt. 15; Farquhar v. Farley, 7 Taunt. 594. But it may be given by the jury under 3 & 4 W. 4, c. 42, s. 28, as damages, if a demand for the repayment of the money has been made with a notice that interest will be claimed; vide Action for interest, post, p. 625. Where an auctioneer does not disclose the name of principal, an action will lie against himself for damages for the breach of contract. Hanson v. Roberdeau, Peake, 120; Simon v. Motivos, 3 Burr. 1921. Damages.'] Where the contract is oral the vendee can ncover the deposit only, for he cannot sue upon the speeial emit met. Walkrr v. Constable, 1 B. & P. 306. In other cases the purchaser may recover, in a Bpecial action against the vendor, the deposit with interest, and the expenses of investi- gating the title, searching for judgments, &c. //edges v. Lichfield, El. of, 1 N.C.492; Turner v. Beaurain, Sugd. V. & P., I ttfa ed. 362; Farquhar v.Farley,! Taunt. 592. And such expenses as a solicitor's bill may be recovered under an avermeni thai plaintiff " had been put to greal expenses, to wit, &c, in and about investigating the title," &c, although not actually paid. Richardson v. Chosen, 1<> Q. B. 7. r .i;. If the purchase m< y has been 332 Action on Sale of Real Property. — Vendee against Vendor. Lying ready without any interest bring made of it, and it was reasonable to keep it so lying, interest may be recovered as damages. Sherry v. Oke, 3 Dowl. 349. But a person who has agreed to advance a sum on a mortgage, cannot recover interest on it where the negotiation fails for want of title, unless there be a special contract to pay it. Sweetland v. Smith, 1 Cr. & M. 585. The purchaser cannot recover expenses incurred previously to entering into the contract; nor the expenses of a survey of the estate made before he knows the title ; nor the expense of a conveyance drawn in anticipation ; nor the extra costs of a suit for specific performance brought by the vendor; nor losses on the re-sale of stock prepared for the farm. Hodges v. Lichfield, El. of, ante, p. 331. So where the vendee filed a bill for specific performance, which was dismissed in consequence of the defective title, he was not per- mitted to recover these costs in an action against the vendor for breach of contract. Maiden v. Fyson, 11 Q. B. 292. Nor can the vendee recover any expenses incurred in preparing a conveyance after the defect in title was discovered; Pounsett v. Fuller, 17 C. B. 660; 25 L. J., C. P. 145; or in further fruitless negotiations. Sihes v. Wild, 1 B. & S. 587 ; 30 L. J., Q. B. 325 ; 4 B. & S. 421 ; 32 L. J., Q. B. 375, Ex. Oh. And where a lessee, with power to alter and improve, had an option to purchase, and, after laying out money in improvements, elected to purchase, and the title proved bad, he was held entitled only to damages for the breach of contract, but not- for expense of improvements. Worth ington v. Warrington, 8 C. B. 134. Where the defendant agreed to demise lands to the plaintiff, and to deduce a good title thereto, and the plaintiff had formed a company to establish certain works on it, and the title proved to be a bad one, it was held that the plaintiff might recover the expenses of the agree- ment, of investigating the title and endeavouring to procure a good one and to obtain the lease ; but not the expense of raising the purchase money with interest, or of forming, establishing, and registering the company, nor the profits that would have accrued either to the company from the lease, or to the plaintiff as their solicitor, in carrying their project into effect ; the latter heads of expense being either premature or speculative. Ilanslip v. Padwick, 5 Exch. 615. The purchaser is not in general entitled to recover compensation for the fancied goodness of his bargain, where the vendor is, without fraud, incapable of making a title. Flureau v. Thornhill, 2 W. Bl. 1078 ; Bain v. Foihergill L. Pi., 7 H. L. 158. This rule is of general application, and the exception engrafted thereon by Hopkins v. Qrazebrook, 6 B. & 0. 31 ; Eohinson v. Harman, 1 Exch. 850, is no longer law. S. C. In such case the purchaser can only by an action for deceit recover any damages beyond the expenses he has incurred. S. C, per Ld. Chelmsford, L. P., 7 H. L. 207. So a purchaser who has obtained judgment for specific performance cannot in general recover damages for delay in completion. Bowe v. London School Board, 36 Ch. D. 619. A contract to grant an eassment is for this purpose equivalent to a contract to sell land. S. C. Where, however, on the sale of a lease, the vendor did not do his best to obtain the consent of the lessor, as required by the lease, and the sale went off because the consent was refused, the vendee was held entitled to recover damages for the loss of his bargain. Bay v. Singleton, (1899) 2 Ch. 320, C. A. And where the sale does not go off for want of title, but by reason of the refusal of the vendor to take the necessary steps to give possession to the vendee, the plaintiff can recover, as such damages, the difference between the contract price and the value at the time of the breach. Engel v. Fitch, L. R., 4 Q. B. 659, Ex. Ch. The price at which the estate was afterwards sold is prima facie evidence of its then value. S. C. ; and see Qodivin v. Francis, L. P., 5 C. P. 295, cited post, Action for Use and Occupation— Plaintiff' 's Title. 333 p. 493. Where A. agreed to let premises to B., knowing bis iutention to carry on a trade thereon, B. was held entitled to recover from A., for the breach of this agreement, damages for the loss of anticipated business duriug the time he necessarily occupied in gettiug other premises. Jaques v. Millar, 6 Ch. D. 153. So loss of rent may be recovered as damages. B. Bristol Permanent Building Soc. v. Bomash, 35 Ch. 390. See also Jones v. Gardiner, (1902) 1 Ch. 191. As to the effect of a provision in the contract for the payment of a penalty or liquidated damages, vide ante, p. 326. As to what damages are recoverable under a claim for the deposit, vide ante, p. 331. ACTION FOR USE AND OCCUPATION. This action is grounded on stat. 11 G. 2, c. 19, s. 14, by which it is enacted that it shall be lawful for landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments held or occupied by the defendants, in an action on the case for the use aud occupation of what was so held or enjoyed ; and if, on the trial of such action, any parol demise or any agreement (not being by deed) whereon a certain rent was reserved shall appear, the plaintiff shall not therefore be nonsuited, but may make use thereof as evidence of the quantum of damages to be recovered. But, the action of debt for rent on a contract for use and occupation lies at common law and not upon this statute. Egler v. Marsden, 5 Taunt. 25 ; Gibson v. Kirk, 1 Q. B. 850 ; and per Bramwell, B., in Church- ward v. Ford, cited infra. It may be observed that since the abolition of real actions by stat. 3 & 4 W. 4, c. 42, debt for a rentcharge in fee will lie ngaiust the freehold tenant in possession of the land ; Thomas v. Sylvester, L. R., 8 Q. B. 308 ; Searle v. Cooke, 43 Ch. D. 519, C. A. ; even although the rentcharge may be also recoverable under 44 & 45 V. c. 41, s. 44. S. C. ; and it exceeds the profits of the land. Pertwee v. Townsend, (1896) 2 Q. B. 129. It will not, however, lie against a tenant for years in occupation of the land ; Charity Corns, v. Green, (1896) 2 Ch. 811 ; nor against the official liquidator of a company in whom the land out of which the rentcharge issues has been vested by order of the court under the Companies Act, 1862, s. 203. Graham v. Edge, 20 Q. B. D. 683, C. A. By 54 & 55 V. c. 19, s. 5 (2), where any yearly or other periodical payment has been made in respect of any land to or for the benefit of any charity or charitable purposes for 12 consecutive years, such payment shall be deemed prima facie evidence of the perpetual liability of such land to such payment, without proof of the origin thereof. Plaintiffs title.'] If the defendant have come in under the plaintiff, or have acknowledged his title by the payment of rout to him or otherwise, he will not be permitteil to impeach it at the trial ; SylUvan v. Stradling, - Wils. 208; Cooke v. Lozley, 5 T. K. 1 ; Phipps v. Sculthorpe, 1 B. & A. 50; and it is not material in sucb case that the plaintiff should have the legal estate. 1 1 all v. Vdughan, pay to him. Churchward v. Ford, 2 11. & N. 446; 26 L. J., Ex. 354. But, unless the defendant came in under the plaintiff, or had recognized his title, the plaintiff could only recover rent from the time that the legal estate vested in him. Cobb v. Carpenter, 2 Camp. 13, D. It seems, however, that since the J. Acts it is sufficient if the plaintiff has a right in equity to receive the rents as such. Tenants in common may join in this action on a parol yearly tenancy, if the tenant has always paid the rent to a joint agent of the plaintiff's; for 331 Action for Use and Occupation. this is evidence of a joint letting. Last v. Dinn, 28 L. J., Ex. 94. Where :i person, after letting defendant into possession on an agreement for a future lease, mortgaged the premises to the plaintiff, who gave notice to the defendant of the mortgage, it was held that the plaintiff might recover in this form of action rent accruing due for a half-year subsequent to the mortgage, and during the currency of which the notice was given. Rawsuu v. Eicke, 7 Ad. & E. 451. A defendant, whose tenancy began under A., and who has since paid rent to the cestui que trust under A.'s will, cannot set up the want of the legal estate to an action for use and occupation by cestui que Iras/, though the fact is disclosed by the plaintiff's evidence. Dolby v. lies, 11 Ad. & E. 335. The assignee uf the landlord of A., who holds under a parol lease, may sue A. in this action, although there has been no recognition of tenancy or promise as between him and the assignee; at least where the grant by the assignor was " for himself and assigns." Standen v. Christinas, 10 Q. B. 135. There is a distinction between the case where a person has actually received possession from one who has no title, and the case where he has merely attorned by mistake to one who has title; in the former case the tenant cannot, except under very special circumstances, dispute the title; in the latter he may. Per Bayley, J., in Cornish v. Searell, 8 B. & 0. 475; Rogers v. Pitcher, Taunt. 202 ; Gravenor v. Woodhouse, 1 Bing. 38 ; and see the cases cited, sub tit. Replevin — Tenancy of Plaintiff , post, pp. 1082 et seq. Thus, where a tenant took "premises from A. and B., for and on behalf of the trustees of the joint estate of C. and D.," and it appeared at the trial, on the evidence of the plaintiffs (who described themselves in the declaration as joint trustees), that they were trustees of C. only ; it was held that the tenant was estopped from taking advantage of this variance. Fleming v. Gooding, 10 Bing. 549. So, where A. hired apartments by the year from B., and B. afterwards let the entire house to C, who sued A. for use and occupation, it was held that A. could not impeach C.'s title. Rennie v. Robinson, 1 Bing. 147. But a payment on a mistaken supposition that the claimant was personal representative of the tenant's deceased landlord will not estop the tenant. Knight v. Cox, 18 C. B. 645. And where land, belonging to a parish, was occupied by A., and he paid rent to the church- wardens, who executed a lease of the same land for a term of years to B., and gave A. notice of the lease ; in an action for use and occupation by B. against A., it was held that A. was not precluded from disputing B.'s title, for that B. could not derive a valid title from the churchwardens. Phillips v. Pearce, 5 B. & 0. 433. An estoppel must be mutual ; therefore if the landlord is not estopped, neither is the tenant. Bac. Abr. Leases (O.); Brereton v. Evans, Cro. Eliz. 700. Thus, where a husband and wife joined in leasing, by deed, land to the defendant, of which the husband alone was seised, it was held that, in an action of debt for rent, brought by the wife after her husband's death, the defendant was not estopped from showing that the plaintiff had no interest in the land, because the wife could not be estopped by the lease. S.( !. So, where husband and wife demised laud, the legal estate of which was in trustees for the wife, it was held that the husband could not, after his wife's death, distrain for the subsequent rent, as there was no estoppel. Howe v. Scarrot, 4 H. & N. 723 ; 28 L. J., Ex. 325. In general, the title of the plaintiff is established by the production of a writing or agreement, which is proved in the usual manner, &c. ; but if there be no actual lease or agreement, the plaintiff's title may be established by evidence of the defendant haviug paid rent to him, or submitted to a distress by him. Panton v. Jones, 3 Camp. 372. Notice to produce the receipts for rent, or the notice of distress, if any, should in such cases be given by the plaintiff. Where the defendant occupied the plaintiff's land Plaintiff's Title. 335 under the powers of a local Act, and, upon a dispute respecting the right of the plaintiff to demand rent, a decree for payment was made in an amicable suit in Chaucery, in whicli the defendant acquiesced for several years, it was held that he could uot afterwards dispute his liability to rent in an action for use and occupation. AUason v. Stark, 9 Ad. & E. 255. Payment of an annual sum by defendant and his predecessors, occupiers, to the overseers of the parish for a century, as for " rent of common lands," is evidence of a rent-service, and not a rent-charge, especially if the defendant have his title deeds in court aud decline to produce them. Hardon v. Eesketh, 4 H. & N. 175 ; 28 L. J., Ex. 137. See, however, Doe d. Whittick v. Johnson, Gow, 173, in which Holroyd, J., held that such payment is evidence only of a right to the rents, and not to the land, and that the presumption is that they were cpuit rents ; this case was not cited in Hardon v. Hesketh, supra. If it appear from the plaintiffs witnesses that the defendant holds under a written agreement not produced, or which, when produced, cannot be read for want of a stamp, the plaintiff will not be allowed to give oral evidence of the holding. Bremer v. Palmer, 3 Esp. 213; Bamsbotlom v. Mortley, 2 M. & S. 445. But, if the plaintiff have made out a prima facie case, aud the defendant seek to show that he holds under a written agreement, he must produce the instrument duly stamped, or his objection is untenable. Fielder v. Ray, 6 Bing. 332 ; if", v. Padstow, 4 B. & Ad. 208. A parol demise for all the residue of the lessor's term, it being the intention of the parties to create the relation of landlord and teuant, will operate as a lease, so as to enable the lessor to maintain an action for use and occupation, or debt for rent. Poulteney v. Holmes, 1 Str. 405; Baker v. Gostling, 1 N. C. 19; Pollock v. Stacy, 9 Q. B. 1033. Such demise, however, operates as an assignment. Beardman v. Wilson, L. B., 4 0. P. 57. Where A. lets land to B. as tenant from year to year, and B. by deed assigns his interest in the land to C, and A. assigns his reversion to D., who does not accept C. as his tenant, D. cannot sue B. for the rent, there being no privity of estate or contract between them. Allcock v. Moorhouse, 9 Q. B. D. 366,0. A. One joint tenant, or tenant in common, can demise his interest at a rent, to another joint tenant, or tenant in common. Cowper v. Fletcher, 6 B. & S. 164; 34 L. J., Q. B. 187 ; Leigh v. Dickeson, 12 Q. B. D. 194 ; 15 Q. B. D. 60, 0. A. A reversionary lease creates an interesse termini only, until eutry thereunder at the time fixed therein, and does not enlarge the term of the original lease. Lewis v. Baker, (1905) 1 Ch. 46. A married woman may, under the Married Women's Property Act, 1882 (45 & 46 V. c. 75), s. 1 (2), sue alone, for the use and occupation of land to the rents of which she is, under sects. 1 (1), 2, 5 of that Act, separately entitled. See sub tit., Actions by married ivomen, post, pp. 1176 el seq. Where the estate of the lessor ceased before, or on the rent day, the tenant was not, at common law, liable to pay any rent for his occupation from the last rent day to the day of such cesser. This was remedied in certain cases by stats. 11 G. 2, c. 19, s. 15, and -1 & 5 W. 1, c. 22, s. 1. And now by the Apportionment Act, 1870 (3:; & 34 V. c. 35, s. 2), all "rents" . . . "shall, like interest on money lent, be considered as accruing from day to day, and be apportionable in respect of time accordingly ; " but (sect. .'!) the apportioned part shall not be payable until the entire rent shall or would have become payable. By sect. 1, all persons, their heirs and executors, &c, are to have the same remedies for recovering the apportioned part, as for the entire portions if entitled thereto; but in the case of rents received and continuing, the entire rent shall be received by the person who would have been entitled if there had been no apportionment, aud the apportioned part shall be recover- able from him. By si_ct. 5 "rents" includes rent service, rent charge, rent '•->'■'•'• Action for Use and Occtipativn. seek, and also tithes and payments in lieu thereof. See hereon, Swansea Bank v. Thomas, -1 Ex. 1 >. 94; Ex pte. Mandleberg, (1895) 1 Q. B. 844; Hoc/tester, Bp. of, v. he Fanu, (1906) 2 Ch. 513; Ellis v. Bowbotham, (1900) 1 Q. B. 740, 0. A. The Act does not apply to forehand rent. S. C. By stat. 14 & 15 V. c. 25, s. 1, where a tenancy of lands held by a tenant T. at rack rent determines by the cesser of the estate of the landlord L., entitled for his life, &c. s instead of claims to emblements, T. shall hold the lands under the succeeding owner 0., on the same terms as he would have held the same of L., till the eud of the current year of tenancy, and shall then quit without notice ; 0. may recover a proportional part of the rent reserved for the time between the cesser of L.'s estate and T.'s quitting. The section applies to those tenancies only in which the right to emblements would arise. Haines v. Welch, L. R., 4 C. P. 91. It applies to the tenancy of a labourer's cottage with more than an acre of land, partly cultivated as a garden aud partly sown with corn and planted with potatoes. S. C. Defendant's occupation.'] There must be an occupation or holding actual or constructive ; therefore a tenant who has agreed to take premises, but has not entered, is not liable to an action for use and occupation. Edge v. Strafford, 1 C. & J. 391 ; Lowe v. Boss, 5 Exch. 553 ; Towne v. D'Heinrich, 13 C. B. 892; 22 L. J., C. P. 219. But it is prima facie sufficient for the plaintiff to prove that the defendant did occupy the premises; and the continuance of the occupation will be presumed till the contrary appears. Harland v. Bromley, 1 Stark. 455 ; }\'(ird v. Mason, 9 Price, 291. Where there has been an actual demise, a constructive occupation of the premises by the defendant during the time granted is sufficient; an occupation which he might have had, if he had not voluntarily abstained from it. Ber Gibbs, C.J., Whitehead v. Clifford, 5 Taunt. 519 ; Binero v. Judson, 6 Bing. 206 ; Atkins v. Humphrey, 2 C. B. 654, 659, per Cresswell, J. See Smallwood v. Sheppards, (1895) 2 Q. B. 627. But there does not appear to be any authority for the proposition that use and occupation can, in the absence of an actual demise, be maintained on a constructive occupation after the tenant has in fact ceased to occupy, and has offered to surrender the premises to the landlord. As to what creates an actual demise, see Beplevin — Tenancy of Plaintiff, post, pp. 1082 et seq. Where there has been an actual demise to the defendant, to which he has assented, he is liable in debt for rent, even before entry. See Co. Litt. 270 a ; Bac. Abr. Leases (M.). Where the defendant entered a house under an agreement to take it and pay a half-year's rent in advance, Lush, J., held that that sum was recover- able only on a special count on the agreement. Angell v. Randall, 16 L. T. 498. The assignee of the reversion cannot, as it seems, maintain this action for rent in part incurred before the assignment ; for there was then no occupation of the plaintiff's property by his permission, but debt for rent would lie. Mortimer v. Breedy, 3 M. & W. 602. An adverse occupation by the defendant will not entitle Ihe owner to sue in this form of actiou. Teiv v. Jones, 13 M. & W. 12. Indeed, the stat. 11 G. 2, c. 19, contemplates the relation of landlord and tenant. Hence, where a trespasser entered on land after a mortgage of it to the plaintiff, who had never taken possession nor got a judgment in ejectment, it was held that the latter could not recover rent in this form of action. Turner v. Cameron's Coal Co., 5 Exch. 932. But a tenancy at sufferance is enough to support this action ; as where a lessee under a lease from the plaintiff continues to hold adversely to him, after the expiration of it, as tenant to a stranger whose title is not shown. Bayley v. Bradley, 5 C. B. 396 ; Hellier v. Sillcox, 19 L. J., Q. B. 295. If A. agrees to let lands to B., who permits (J. to occupy them, B. may be sued Defendant's Occupation. 337 by A. for use and occupation. Bull v. Sibbs, 8 T. P. 327 ; Conolhj v. Baxter, 2 Stark. 525. So, if B. assigns all his interest in the premises toD., A. may maintain an action for use and occupation against B., provided A. has never recognized D. as his tenant. Shine v. Dillon, I. R., 1 0. L. 277, Ex. After an agreement between the plaintiff and defendant for a lease, the receipt by the defendant of the rents and profits, or an attornment from an under- tenant, is proof of use and occupation by the defendant. Neal v. Swind, 2 C. & J. 377. If the premises are in possession of an under-tenant, the landlord may refuse to accept the possession, and hold the original lessee liable during such time as the under-tenant retains possession, for the lessor is entitled to receive the absolute possession at the end of the term. Harding v. Orethorn, 1 Esp. 57 ; Lbbs v. Bichardson, 9 Ad. & E. 849 • see Levy v. Lewis, 6 C. B., N. S. 766 ; 28 L. J., C. P. 304 ; 9 C. B., N. s' 872; 30 L. J., C. P. 141, Ex. Ch. ; Henderson v. Squire, L. P., 4 Q. B. 170. But it may be proved that the lessor had accepted the uuder-teuant as his tenant, as by his having accepted the key from the original lessee, while the under-tenant was in possession : by his acceptance of reDt from him, or by some act tantamount to it. Harding v. Orethorn; supra, per Ld. Kenvon. A tenant who has quitted in pursuance of an oral surrender to his landlord, without having given or received a notice to quit, remains liable ; Mollett \ . Brayne, 2 Camp. 104; Matthews v. Sawell, 8 Taunt. 270: or, after an insufficient notice to quit, although first acquiesced in by the landlord; Johnstone v. Hudlestone, 4 B. & C. 922; Bessell v. Landsberg, 7 Q. B. 638 ; even though the landlord, on the tenant's quitting, puts up a hill in the window for the purpose of getting another tenant for the premises. Redpath v. Roberts, 3 Esp. 225; Johnstone v. Hudlestone, supra. But, not so, if the landlord have, with the assent of the tenant, accepted another person as tenant, and he have entered, for this operates as a surrender in law of the first tenant's term. Thomas v. Cook, 2 B. & A. 119 ; Nickells v. Atherstone, 10 Q. B. 944. And the operation of such acceptance as a surrender applies even where there was a lease under seal ; Davison v. Gent, 1 H. & N. 744; 26 L. J., Ex. 122; and possession of the premises 1 .y the new tenant, and the fact of a new lease having been granted and tl Id one delivered up and cancelled, is evidence of the assent of the first tenant. S. C; Walker v. Bichardson, 2 M. & W. 8S2. The old tenant must give up possession to the new tenant at or about the time of the grant of the new lease to which he assents. Wallis v. Hands, (1893) 2 Ch. 75, 82. If the landlord have accepted the key of the premises, this in itself is a surrender, and the acceptance of another tenant is immaterial; Dodd v. Acklom, 6 M. & fir. 672; so, if after refusal of the key which the tenanl have. behind, the landlord make use of it and enter the premises and puis up a hoard "to let." Pheni v. Popph well, 12 C. B., N. S. 334; 31 L. J., I '. P. 235; see Lyon v. Beed, 13 M. & W. 285, and tin tes to Ih. of Kingston's case, 2 Smith's L. C, 11th ed. 8::7 et seq. Anything which amounts to an agreement on the part of the tenant to abandon, and on the pari of the land- lord to resume, possession of the premises, if followed by such resumption of possession, amounts to a surrender by operation of law. Phend v. Popplewell, per Erie, C.J., 12 C. B., N. S. 340; 31 L. J., C. P. 236. But, unless the landlord intend to resume possession, the fad thai the key has been left with him, and he has tried to let the premises, does not eonstitute a surrender, and after he has let them there is no relation back beyond the lime of 1, tting. Oastler v. Henderson, 2 Q. B. I>. 575. A., the tenant of a house, tb cottages, and a stable and yard at an entire rent for a term of seven yen , before the expiration of the term assigned all the premi 1 to B. for the remainder of the term, the house and cottages being in the possessk t under-tenants. The landlord accepted a sum of money as rent up to the day b. — vol. r. z 338 Action for Use and Occupation. of the assignment, which was in t lie middle of a quarter. B. took possession of the stable ami yard only. The occupiers of the cottages having left them alter the assignment, and before the expiration of the term, the landlord relet them. A. paid no rent after the assignment, hut the landlord received rent from the under-tenants. Before the expiration of the term the landlord advertised the whole of the premises to be let or sold. It was held that tins was a surrender by operation of law of all the premises. Reeve v. Bird, 1 C. M. & R. ."»l ; S. C, 1 Tyrw. 612. Where a tenant from year to year, at a rent payable half-yearly, quitted without giving notice to quit, and the landlord, before the expiration of the next half year, let the premises to another tenant, it was held that the landlord was not entitled to recover rent from the first tenant from the expiration of the current year when he quitted the premises to the time when the landlord relet the same to the second tenant. Hall v. Burgess, 5 B. & C. 332 ; and see Wails v. Atcheson, 3 Bing. 462. So, where rent was payable quarterly, if the tenant quitted by consent in the middle of a quarter, the landlord could not recover the rent, pro rata, either for the subsequent portion of the quarter or for that part of it during which the tenant occupied. Whitehead v. Clifford, 5 Taunt. 518; Grim man v. Legge, 8 B. & C. 324. But now see the Apportionment Act, 1870, ante, p. 335. Where a tenant, whose lease expired on Lady Day, paid a quarter's rent, after deducting a sum for repairs, on Midsummer Day, and was not afterwards seen on the premises, and a third person afterwards came into possession, and paid rent at irregular periods, a jury may presume that the landlord has accepted the latter as his tenant. Woodcock v. Nutli, 8 Bing. 170. Where a tenant from year to year of a Lady Day holding, agreed with the landlord in December to surrender at Midsummer, a new tenancy is created, which operates as a surrender of the former one. Fenner v. Blake, (1900) 1 Q. B. 426. Although the premises are burnt down and remain unoccupied, the tenant still continues liable in this action for the rent subsequently accruing ; for the premises continue to be " held " by the defendant ; Baker v. Holtpzaffell, 4 Taunt. 45 ; Izon v. Gorton, 5 N. C. 501 ; unless it be agreed that the liability shall cease after the fire ; in which case the lessee will be liable in use and occupation, for a portion of the rent during the time of actual occupation. Packer v. Gibhins, 1 Q. B. 421. And the fact of the premises having been insured, and the landlord having received the insurance money and not applied it to reinstating the premises, affords no equitable defence to the action. Lofft v. Dennis, 1 E. & E. 474; 28 L. J., Q. B. 168. Where a tenant from year to year assigned all his personal property to the defendant for the benefit of his creditors, and the defendant executed the deed and acted under it, it was held that he was liable for the rent unless he repudiated the tenancy. White v. Hunt, L. R., 6 Ex. 32. Use and occupation did not, at common law, lie against a husband for a half-year's rent due in respect of premises occupied for part of that time by his wife before marriage, and which continued to be occupied by her for a short time after her marriage; debt for rent was the proper remedy. Richardson v. Hall, 1 B. &B. 50. Where one of two executors of a deceased tenant for years enters into the premises, such entry does not enure as the entry of both so as to make them both liable in an action for use and occupation. Nation v. Tozer, 1 C. M. & R. 172. And, when one only of two joint lessees holds over the other cannot be charged for rent. Draper v. Crofts, 15 M. & W. 166. But, where two persons sign an agreement to become tenants, and one enters under it, it may be presumed that he entered for both ; and use and occupation against both will lie. Glen v. Dungey, 4 Exch. 61. Where premises were held by parol under two trustees, one of whom died, and the lessee continues to hold, the surviving trustee may sue Defendant's Occupation. 339 in his own right, and not as survivor. WJieathy v. Boyd, 7 Exch. 20 ; 21 L. J., Ex. 39. If, after the determination of a lease, the tenant holds over and pays rent, such payment is conclusive evidence of a tenancy ; and he will he liable in an action for use and occupation for the time he occupies the premises. Bishop v. Howard, 2 B. & C. 100; and see Bayley v. Bradley, 5 <'. 1'.. 326, ante, p. 336. So, an executor of a tenant from year to year, holding en and paying rent, will hold on the terms of the former demise, and be personally liable. Buckiuorth v. Simpson, 1 C. M. iv R. 834. And where there has been a lease for a year, and by consent of both parties the tenant continues in possession afterwards, then, in the absence of anything showing a contrary intention, a tenancy from year to year on the terms of the lease, so far as they are applicable to such a tenancy is to be applied ; Dutx/al v. McCarthy, (1893) 1 Q. B. 736, C. A., following Right d. Flower v. Parhy, 1 T. II. 159, 162, 163. See further, cases cited post, p. .147. But where a tenant from year to year, after the expiration of his landlord's title, continued in possession for one quarter, and paid rent for that quarter to the part}- entitled in reversion, but quitted at the end of it, the payment is not evidence of a tenancy for more than the quarter, and the reversioner cannot sue the tenant for use and occupation beyond the quarter. Freeman v. Jury, M. >v M. 19; Jenner v. Glegg, 1 M. & Rob. 213. As to the power of a corporation to sue, and its liability to be sued for use and occupation, vide p>ost, p. 1093. We have seen that it is not necessary that there should be an express con- tract creating the relation of landlord and tenant between the parties: the relation may be implied. Thus where the defendant has entered under a contract for sale which ultimately goes off, and his occupation has been a beneficial one, it seems that he may be liable in this action; I learn v. Tomlin, Peake, 191 ; but, only for the period since the putting an end to the contract; Howard v. Shaw, 8 M. & W. 118; see Crouch v. Tregonning, L. R., 7 Ex. 88; and he is not liable for rent at all, if the sale goes off for want of title, and there is no agreement about paying for such occupation. Winterbottom v. Ingham, 7 Q. B. 611. And it has been Ik Id thai the defendant may rebut an implied agreement to pay for use and occupation by showing that he entered as vendee under a parol agreement, and that a pay- ment he then made was for purchase-money and not rent. Corringan v. Woods, 15 W. R. 318, H. T. 1868, Ir. Ex. But, in a case where the defen- dant, vendor, was under contract to sell the premises, but subsequently gained possession of them from a sub-vendee by falsely representing thai the original contract was at an end, he was held liable to the sub-vendee dm such possession for use and occupation, though at that time the defendant had the legal estate. Hull v. Vaughan, 6 Price, 157. So, where defendant took possession under an agreement that plaintiff, the landlord, Bhould pul the premises in repair, and that rent should not, be payable till the com pletion of the repairs, and he quitted after six oths in consequence oi non-repair; yet this was held evidence from which aj nry mighl infer an agreement to pay ad interim, on the footing of a quantum valebant. Smith v. Eldridge, 15 C. B. 236. Where, under an agreement of purchase, the plaintiffs were to receive the rents and profits ol the premisei from a given day, and to pay the defendants interest on the purchase-money from thai day, the plaintiffs were entitled to recover the occupation value of the premises although there was no tenancy l" tween the parties. Metropolitan By. Co. v. Pefrles, 2 Q. B. 1). 189, 387,0. A. This action does not lie where the defendanl enters under an agre< men! for a lease which the plaintiff cannot rant for want of title. Bumbatt v. Wriuht 1 C & B 589. B. entered into a building agreemenl with A., 9 ' z 2 340 Action for Use and Occupation. which settled the rent to be reserved by the leases of future houses to be built under A., and provided that certain annual rents or sums should be payable to A., in the interim. B. assigned the agreement to C, and 0. to D. ; held, that C. could not be sued for the reserved annual sums after his assignment to D. ; for that neither B. nor C. became yearly tenants by the payments of the above sums, no estate having passed under the agreement; and the annual sums being only collateral sums, independent of any tenancy, for which B. alone was liable on the contract. Camden, Mqs. of, v. Batter- bury, 5 C. B., N. S. 808 ; 28 L. J., 0. P. 187, Ex. Ch. ; 7 C. B., N. S. 864 ; 28 L. J., C. P. 335. But B. is liable to pay such sums though the leases to be granted exceed three years, and the agreement is not under seal. Adams v. Haggtr, 4 Q. B. D. 480, C. A. If the plaintiff be a co-director with the defendant of a company which occupies the plaintiffs premises, he cannot sue defendant on an implied contract. Chadwick v. Clarke, 1 C. B. 700. One co-tenant, who occupies a house alone, but without excluding his co- tenants, is not therefore liable to pay rent to them; McMahon v. Burchell, 2 Phill. 127 ; and one tenant of a farm, who takes all the profits, is not impliedly liable to his co-tenants for use and occupation. Henderson v. Easin, Id. 308, and 12 Q. B. 986. Where A. agreed by letter with B. to take a lease of B.'s iron ore for forty years at a certain rent, engaging to work the veins in a certain manner, it was held that this was not a mere licence, but a right constituting a here- ditament within 11 G. 2, c. 19, s. 14, in respect of which use and occupation would lie against A., who had worked under it. Jones v. Reynolds, 4 Ad. & E. 805. So this action lies against one who, under a written agreement or licence, had used a fishery; Holford v. Pritchard, 3 Exch. 793 ; or who has exercised a right of sporting. See Thomas v. Fredericks, 10 Q. B. 775, and Adams v. Clutterbuck, 10 Q. B. D. 403, cited post, p. 345. Where premises were hired with regard to a special event, which was the foundation of the contract, and had become impossible by reason of an unfore- seen accident, both parties are discharged from the further performance of the contract, and rent not due till a subsequent time is not recoverable. Krell v. Henry, (1903) 2 K. B. 740, C. A. ; secus as to rent due previously ; Chandler v. Webster, (1904) 1 K. B. 493 C. A. ; and rent paid in advance cannot be recovered back. See Civil Service Co-operative Soc. v. Gen. Steam Nav. Co., cited post, p. 606; and Elliott v. Crutchley, (1904) 1 K. B 565 C. A.; (1906) A. (J. 7, where the contract contained a special provision against the occurrence of the accident. See further, cases cited post, p. 589. Damages.] Where a rent is mentioned in the lease or agreement, such rent will he the measure of damages, though the lease be void by the Statute of Frauds. De Medina v. Poison, Holt, N. P. 47. But where there is no express agreement as to rent, or where the terms of the agreement have been so far departed from that the stipulated rent is no just criterion of value, the value of the premises must be proved ; Tomlinson v. Day, 2 B. & B. 680; and though a tenant, who holds over after the end of his term, is presumed to hold at the old rent, yet where a new tenant is substituted by consent under an agreement afterwards abandoned, no such inference arises, and the jury must find the real annual value. Thetford, Mayor of, v. Tyler, 8 Q. B. 95. Plaintiffs title expired.] Although the defendant cannot impeach the title of the plaintiff under whom he holds (ante, p. 333), yet he may show that it has expired. Holmes v. Pontin, Peake, 99 ; Gravenorv. Woodhouse, 1 Bing. 43. So he may show ouster of the plaintiff's title by sequestration. Powell v. Hibbert, 15 Q. B. 129. Where the defendant had come in under Plaintiff's Title expired. — Defendant's Occupation. — Eviction. 341 the plaintiff, it was held not competent for him to show that the plaintiff's interest had been forfeited to the lord of the manor, to whom the defendant bad since paid rent upon notice and demand made, unless he has expressly renounced the plaintiff's title, and commenced a fresh holding under the new landlord. Balls v. Westwood, 2 Camp. 11. But it is not necessary for the tenant to surrender or suffer eviction before he refuses to pay rent. It will be enough if he have paid it to a bond fide claimant really entitled to the premises, under whom he has made a new arrangement, and commenced a fresh tenancy. Mountnoy v. Collier, 1 E. & B. 630; 22 L. J., Q. B. 124. See post, Replevin, — Evidence on denial of tenancy. But a mere claim of rent is no defence at all, unless the defendant has actually given up posses- sion, or has paid the. rent to the owner of the legal estate uuder compulsion, so as to be able to show an eviction. Emery v. Barnett, 4 C. B., N. S. 473 ; 27 L. J., C. P. 216 ; Hickman v. Machin, 4 H. & N. 716 ; 28 L. L., Ex. 310 ; Wilton v. Dunn, 17 Q. B. 294; 21 L. J., Q. B. 60. As to what amounts to an eviction, vide infra. Defendant's occupation determined.'] As to notice to quit possession of land, see post, Action for recovery of possession of land by landlord. As to the notice necessary in the case of a right to shoot, see Lowe v. Adams, (1901) 2 Ch. 598. An agreemeut that on the tenant's quitting the rent shall cease, and an acceptance of the key by the landlord, or a letting of the premises by him to a third person, is (as already stated, ante, p. 337) a sufficient defence. Whitehead v. Clifford, 5 Taunt. 518 ; Hall v. Burgess, 5 B. & C. 332 ; Grimman v. Legge, 8 B. & C. 324; Walls v. Atcheson, 3 Bing. 462. But delivery of the keys by an agent of the defendant to a servant at the plaiutiff's house, is not alone sufficient to prove an acceptance by the plaintiff. Harland v. Bromley, 1 Stark. 455. Accord. Cannan v. Hartley, 9 C. B. 634 ; 19 L. J., C. P. 323. A tenancy from year to year is assignable by deed, and the privity of estate between the landlord and tenant is thereby severed. Allcoch v. Moorhouse, 9 Q. B. D. 366, C. A., cited ante, p. 335. Eviction.] An eviction by the landlord is a defence, as it determines the occupation. Prentice v. Elliott, 5 M. & W. 606. And where the premises are let at an entire rent, an eviction from part, if the tenant quits the residue, is a complete defence. Smith v. Raleigh, 3 Camp. 513. It has been said that, if the tenant continue in possession of the residue, he is liable pro tanto on a quantum meruit. Stolcts v. Cooper, Id. 514, n. But it is now settled that eviction from any part by the lessor, is a suspension of the whole rent while the eviction lasts. Co. Litt. 148 b ; 2 Wins. Saund. 204 (2) ; Walker's case, 3 Rep. 22 b ; Reeve v. Bird, 1 C. M. & R. 31, 36, per Parke, B. ; Neale v. Mackenzie, 1 M. & W. 747, Ex. Ch. ; Morrison v. Chadwick, 7 C. B. 266 ; Upton v. Townend, 17 C. B. 30 ; 25 L. J., C. P. 44. Eviction from part of the demised premises by a strauger, by title paramount, does not suspend the whole rent, but is merely a ground for its being appor- tioned. Walker's case, supra ; 1 VVms. Saund. 204 a (/). See also Stevenson v. Lambard, 2 East, 575. A mere trespass is not an eviction; Hodgskin v. Queenborough, Willes, 130, n. (b) ; B. N. P. ]77 ; Newby v. Sharpe, 8 Ch. D. 39, C. A.; nor is a demand of rent by an elegit creditor who had no right to eject the defendant. Poole, Mayor, &c. of, v. Whltt, 15 M. & W. 571. But a threat of expulsion by a person entitled to possession, and a consequent attornment to him, are equivalent to expulsion. Si /»/<., S. C. So a demand by a person lawfully entitled, and a giving up possession to him, may amount to eviction. Semb., Carpenter v. Parker, 3 C. B., N. S. 206 ; 27 L. J., C. P. 78. An eviction of the under-teDant is an eviction of the tenant. Bum v. Phelps, 1 Stark. 94. 342 Action for Use and Occupation. But a forcible expulsion of a man put iuto the plaintiff's bouse to keep possession for the defendant (tenant), and who was an unfit person, was held no eviction; the jury finding that the plaintiff did not intend to dispossess the defendant. Henderson v. Mears, 28 L. J., Q. B. 305. Where a lease of mines provided thai the lessee should, jointly with the lessor, have the use of a railroad upon the demised premises, it was held that an exjjulsion from this railroad did not amount to an eviction, as the rent issued out of the land demised, and not out of the easement to use the railway. Williams v. Hay- ward, 1 E. & E. 1040; 28 L. J., Q. B. 374. See further, as to what amounts to an eviction, Dunn v. Di Nuovo, 3 M. & Gr. 105 ; Upton v. Townend, supra; Wheeler v. Stevenson, 6 H. & N. 155 ; 30 L. J., Ex. 46; Pellatt v. Boosey, 31 L. J., C. P. 281. Defendant treated by plaintiff as a trespasser.'] If the landlord have treated the tenant as a trespasser, he cannot afterwards recover against him in this action. Thus, if he had recovered against him in ejectment, he could not sue in this action for the rent accruing eifter the date of the writ; for, by suing for the tort, he precluded himself from suing ex contractu.. Birch v. Wright, 1 T. E. 378; Bridges v. Smyth, 5 Bmg. 410. And the mere bringing of an ejectment for a forfeiture will prevent the plaintiff from suing for rent subsequently due ; for this determines the lease. Jones v. Carter, 15 M. & W. 718 ; Grimwood v. Moss, L. R., 7 C. P. 360; and see Toleman v. Portbury, L. H,, 7 Q. B. 344, Ex. Ch. ; and Dendyv. Nicholl, 4 C. B., N. S. 376 ; 27 L. J., C. P. 220. So the issue and service by a superior landlord of a writ to recover possession for a forfeiture which has been incurred, bars a claim for rent by the mesne landlord. Serjeant v. Nash, (1903) 2 K. B. 304, C. A. No beneficial occupation.'] In the case of a ready- furnished house there is an implied condition that it shall be reasonably fit for occupation when the tenancy is to begin; and if the house be then uninhabitable by reason of its being infested with vermin; Smith v. Marrable, 11 M. & W. 5 ; Campbell v. Wenlock, Ld., 4 F. & F. 716 ; or of defective drainage ; Wilson v. Finch Ilatton, 2 Ex. D. 336 ; the tenant may give up occupation, and then ceases to be liable to pay rent. There is, however, no condition that it shall remain fit for occupation during the term. Parson v. Roberts, (1895) 2 Q. B. 395, C. A. And in the case of an unfurnished house, there is in general no condition that it shall be fit for occupation. Hart v. Windsor, 12 M. & W. 68, 86; Manchester Bonded Warehouse Co. v. Carr, 5 C. P. D. 507. But now by the Housing of the Working Classes Act, 1890 (53 & 54 V. c. 70), s. 75, in any contract " for letting for habitation a bouse, or part of a house," at a rent not exceeding that stated below, " there shall be implied a condition that the house is, at the commencement of the holding, in all respects reasonably fit for human habitation ; " the limit of anuual rent is, in the metropolis 101., in Liverpool 13?., in Manchester and Birmingham 101., and elsewhere 81. By 3 E. 7. c. 39, s. 12, this condition applies to any such contract made after Aug. 14th, 1903, notwithstanding any agreement to the contrary. A tenant may sue his landlord for damages sustained by a breach of this condition. Walker v. Ilobbs, 23 Q. B. D. 458 (decided under 48 & 49 Y. c. 72, s. 12, which was identically the same). A tenant is, notwithstanding the destruction of the house demised, liable to pay the rent reserved. Manchester Bonded Warehouse Co. v. Carr, supra; Baker v. Eoltjpzaffell, 1 Taunt. 45. Non-compliance of the landlord with a covenant to do repairs, whereby the premises have become unfit for profitable occupa- tion, and that the defendant has quitted them on that account, is no defence. Surplice v. Farnsworth, 7 M. & Gr. 576 ; Sutton v. Temple, 12 M. & W. 52 ; and some reported N. P. cases contra are not law. Payment. — Statute of Limitations. 343 Payment.'] By 4 A. c. 16, s. 10, payment of rent by the defendant to his lessor, before he had notice of an assignment of the premises by him to the plaintiff is a good defence. Cook v. Moylan, 1 Exch. 67 — 51. But pay- ment in advance to the lessor before the rent day affords no defence at law, as against the assignee, if the defendant had notice of the assignment before the rent day. De Nicholls v. Saunders, L. R. 5 C. P. 589. See Cluris case, 10 Rep. 127 ; Cromwell, Ld. v. Andrews, Cro. Eliz. 15. If he had not notice before the rent day, the advance then becomes payment. Cook v. Ouerra, L. R., 7 C. P. 132. As to what amounts to notice, vide S. C. Payment of property tax by the tenant, which the landlord is bound to allow him under 5&6V. c. 35, Sched. A., No. IV., Rule 9; 16 & 17 V. c. 34, s. 40; 27 & 28 V. c. 18, s. 15 ; and 6 E. 7. c. 8, s. 6, is, in effect, payment by the tenant of so much of the next rent due by him. See Denby v. Moore, 1 B. & A. 123, 129, 130. It would, however, now seem necessary to plead the defence specially, as it would otherwise be likely to take the plaintiff by surprise. Rules, 1883, O. xix. r. 15, ante, p. 309. The tax must be deducted from the next paymeut of rent thereafter to be made by the tenant, and if the tenant do not so deduct the tax he cannot afterwards sue the landlord fur it as money paid. Denby v. Moore, supra; dimming v. Bedborough, 15 M. & W. 438. Nor can he deduct it from rent subsequently payable, vide S. CC. Nor can he in the case of land tax. Andrew v. Hancock, 1 B. & B. 47. Nor could he have done so in the case of tithe rent charge. Dawes v. Thomas, (1892) 1 Q. B. 414. But the tenant can enforce an agreement by the landlord to repay him the property tax, if he pay the rent in full. Lamb v. Brewster, 4 Q. B. D. 220, 607, C. A. These statutes do not allow the tenant to deduct the tax payable on the full improved value of the premises, but only that on the rent reserved. Watson v. Home, 7 B. & C. 286 ; Smith v. Humble, 15 C. B., N. S. 321. This amount may be deducted although a deduction from the rent has been made by the tenant under the Licensing Act, 1904 (4 E. 7. c. 23), s. 3. Hancock v. Gillard, (1907) 1 K. B. D. 47. The tax cannot be deducted unless it has been paid by the tenant. See Pocock v. Eustace, 2 Camp. 181 ; explained in Baker v. Davis, 3 Camp. 474 ; Ryan v. Thompson, L. R., 3 C. P. 144, cited post, p. 909, Action for illegal distress — Defence. The tenant may also, by way of payment, show payment of rates, which he may deduct from his rent under a statute allowing such deduction to be made, provided that the statute specifically enacts that such paymeut shall be a discharge pro tanto of the rent, e.g. the Poor Rate Assessment, &c, Act, 1869 (32 & 33 V. c. 41), s. 1, see Hammond v. Furrow, (1904) 2 K. B. 332, the Rating Act, 1874 (37 & 38 V. c. 54), ss. 5, 6, 8, 9, see Chaloncr v. Bolckow, 3 Ap. Ca. 933, D. P. Where however the statute does not so enact, as in cases of the Public Health Act, 1875 (38 & 39 V. c. 55), ss. 216, 226, and the Metropolis Management Amendment Act, 1862 (25 & 26 V. c. 102), s. 9b, the defence is one of set- off. Skinner v. Hunt, (1904) 2 K. B. 452, 457, per Vaughan Williams, L.J. With regard to payment of an amount equivalent to the rent to the superior landlord, under compulsion or threat ot distress, or payment of any other charge on the land, see Jleplevin — Denial of rent being in arrear, post, p. 1086. Statute of Limitations.] The Statute of Limitations is a good defence in an action against a person who has been tenant from year to year, but who has not, within the last six years, occupied the premises, paid rent, or done any act from which a tenancy can be inferred; though no notice to quit has been given. Leigh v. Thornton, 1 B. iV; A. 625. Illegality.] It is a good defence that the premises have been knowingly let by the plaintiff to the defendant for an immoral purpose; Crisp v. Churchill, cited 1 B. & P. .'J 10; or. for the delivery of blasphemous lectures; 344 Action for Waste, Bad Husbandry, 2 et seq. (7). By the J. Act, 1873, s. 25 (3), a tenant for life without impeachment of waste may not commit equit- able waste unless an intention to allow him to do so shall expressly appear by the instrument creating the estate. The general rule as t<> waste at common law is that, in order to constitute it, there must be a diminution of value of the estate by it; or an increased burden upon it; or an impairing of the evidence of title. Per Patteson, J., in Huntley v. Russell, 13 Q. B. 572. It is not waste for a tenant to dig gravel from pits, or work mines already open on the land when leased, if they are not excepted; Co. Lit. 54 b ; Bac. Abr. Waste (C. 3); nor to work quarries which have been worked by the owners of the inheritance for the purpose of inol'nuj u profit. Elias V. Snowdat Stale Quarries Co., 4 Ap. Ca. 454, D. P. Working for use is sufficient. Id. p. 465, per La*. Selborne. But where grave] pits an- opened by surveyors of high- ways under the Highway Acts, the tenant cannot continue to work and sell gravel for his own profit. Huntley v. Russell, supra (case of rector for dilapidations by predecessor). If anything lie done to destroy the evidence of title, an action is maintainable by the landlord against his 346 Action for Waste, Bail Husbandry, the obligation to repair under such a covenant, is stated under tit. Action on covenant to repair, post, pp. 737 et seq. There is no implied obligation of the landlord to do substantial repairs though the premises be in a dangerous state. Oott v. Oandy, '1 E. A.- B. 845; '_'•'! L. J., Q. B. 1. Nor, to inform a proposed tenant of their state. Keates v. Gadogan, El. of, L0 0. B. 591 : 20 L. J., C. P. 76. As to how far it might be an answer to an action on the lessee's covenant to repair, see beck v. 1 1 1 '/'tilers' Co., 1 Q. B. 234. The tenant in common <>\' a house is under no liability to contribute to expense of repairs done by his co-tenant. See Leigh v. Dickeson, 15 Q. B. D. 60, C. A. Good husbandry — Custom.} The obligation to good husbandry arises 348 Action for Waste, Bad Husbandry, &c. either by contract, or the mere relation of tenant, or from local custom, or other circumstances. The custom is not necessarily excluded by proof of express agreement, if the two be consistent. Hutton v. Warren, 1 M. & W. 466. But a custom that au outgoing tenant should leave the manure, being paid for it, is excluded by au express stipulation that he should leave it without any mention of payment. Roberts v. Barker, 1 Cr. & M. 808. A tenant who holds over after a lease has expired, or enters under an agreement for a lease, holds subject to the terms of the lease, as to the course of husbandry. S. C. ; Doe d. Thomson v. Amey, 12 Ad. & E. 476. See also the cases cited ante, p. 347. But if, after holding over and paying rent, he by deed assign his interest to a third person, the assignee does not, until his tenancy has been recognized by the lessor, hold on the terms of the original lease. Elliott v. Johnson, L. R., 2 Q. B. 120. In this case there was a clause in the lease against assignment, but the majority of the court rested their judgment ou the ground that the doctrine of con- ditions running with the laud is coufined to covenants annexed to the land by indenture of demise, aud a mere assignment of a parol tenancy does not pass to the assignees the right to enforce collateral stipulations. Id. 124, 127. Though it is generally treated as a custom for the incoming tenant to pay the value of fallows, &c, to the outgoing tenant, yet when there is no incoming tenant, the contract implied by the custom is that the landlord shall pay the value Faviell v. Gaslcoin, 7 Exch. 273; 21 L. J., Ex. 85. In such case the person in receipt of the rents is liable, although only tenant for life. Mansel v. Norton, 22 Ch. D. 769, C. A. Prima, facie, the outgoing tenant's remedy for tillages or tenant right is against the land- lord, for there is, under ordinary circumstances, no privity between the outgoing and incoming tenants. The mere fact of the incoming tenant entering upon the laud does not render him liable for such tillages, but it is a question of fact whether the contract between the outgoing tenant and the landlord subsists, or a new contract has been entered into with the incoming tenant, the landlord being discharged. Oodd v. Brown, 15 L. T. 536, H. T. 1867, C. P.; SucJesmith v. Wilson, 4 F. & F. 1083, Martin, B. ; and see Faviell v. GasJeoin, supra, and Bradburn v. Foley, 3 0. P. D. 128. And a usage that the outgoing tenant should look to the incoming tenant for payment for such tillages, to the exclusion of the landlord's liability, is unreasonable and bad. S. C. Whatever the arrangement between the outgoing and incoming tenant, the landlord is entitled to a payment of arrears of rent due from the former out of the valuation. Stafford v. Gardner, L. R., 7 C. P. 242. The amount is recoverable by the tenant from the landlord on a quantum meruit, and the ascertainment of the amount by valuation is not a condition precedent to his right to sue when it is not made such by the terms of the lease, SucJesmith v. Wilson, supra. Where a tenant holds on the general terms of cultivating according to good husbandry, drainage may be part of it, and a custom for the outgoing tenant to charge his landlord with part of the expense of such drainage, though done without his knowledge, is reasonable and consistent with the terms. Mousley v. Ludlam, 21 L. J., Q. B. 64. As to the allowance of interest on the valuation, see Marsh v. Jones, 40 Ch. D. 563. A stipulation that the tenant shall not sell any straw or manure produced on the farm without licence, disables him from selling it even after the tenancy has expired. Massey v. Goodall, 17 Q. B. 310 ; 20 L. J., Q. B. 526. The tenant is exonerated from his agreement to use as fodder on the farm, all the hay, &c, produced thereon, if the hay, &c, has been destroyed by fire before being so used. In re Hall & Ly. Meux's Arbitration, (1905) 1 K. B. 588, C. A. By the Agricultural Holdings (England) Act, 1900 (63 & 64 V. c. 50), s. 1, which gives au outgoing Action by and against Assignee of Lessor.— Breach. 349 agricultural tenant a right to compensation for certain improvements effected by bim, by sub-sect. 5, provides that " nothing in this section shall prejudice the right of a tenant to claim an}' compensation to which he may be entitled under custom agreement or otherwise in lieu of any compensation provided by this section." By the Agricultural Holdings Act, 1906, 6 E. 7. c. 56, ss. 3, 9, after Dec. 31st, 1908, certain freedom of cropping and disposal of the produce is allowed the tenant, notwithstanding any custom or contract. By sects. 2, 4, the tenant is entitled to compensation for damage done to his crops by game and for unreasonable disturbance. A valuation made in the usual way cannot be reopened, although the valuers have included therein things which by the custom of the country should not have been valued or which did not exist. Per Kelly, C.B., Martin and Pigott, BB., Freeman v. Jefferies, L. R., 4 Ex. 189. Action by and against assignee of lessor.] The stat. 32 H. 8. c. 34, giving the right of action by the assignor of the lessor against the lessee (sect. 1), and by the lessee against the assignee of the lessor (sect. 2.), does not extend to parol contracts ; Standen v. Chrismas, 10 Q. B. 135 ; but where the assignee can determine the tenancy, the continued holding of the tenant under him is evidence of an agreement with the assignee to hold on the old terms. Buckworth v. Simpson, 1 C. M. & R. 834, 844 ; Arden v. Sullivan, 14 Q. B. 832; Cornish v. Stubbs, L. R., 5 C. P. 334; Smith v. Eggington, L. R., 9 C. P. 145. In other cases, the action must have been in the name of the original lessor. Bickford v. Parson, 5 C. B. 923. See Elliott v. Johnson, ante, p. 348; Allcock v. Moorhouse, ante, p. 335. Now, however, under the Conveyancing and Law of Property Act, 1881, s. 10 (1), post, p. 724, the person entitled to the income of the land may enforce any provision contained in a lease, made after Dec. 31st, 1881, having reference to the subject-matter thereof, and this section seems to apply to a parol lease, where a deed is not required by statute. But not to an agreement for a lease unless it could be enforced by specific performance. See Manchester Brewery Co. v. Coombs, (1901) 2 Ch. 608, 619, per Farwell, J. Where a demise is determined by the expiration of the landlord's estate, and the tenant continues to hold under the remainderman, paying the same rent, the question whether a term contained in the former tenancy is adopted into the new contract of demise is a question of fact. If such a tenant continue to hold under the remainderman, and nothing pass between them except the payment and receipt of rent, the new landlord is not bound by a stipulation, contained in a former tenancy, which is not known to him in fact, nor is according to the custom of the country. Oakley v. Monck, L. R., 1 Ex. 159, Ex. Ch. Breach.] As to proof of breach of contract to repair or to use good husbandry, see Action on covenant*, post, pp. 735 et seq. Where the customary course of husbandry, as alleged, is negatived by the jury, the plaintiff cannot recover for not cultivating according to the real custom. Angerstein v. Handson, 1 C. M. & R. 789. But the judge may amend when the breach is non-repair. ACTION ON BILLS OF EXCHANGE, CHEQUES, AND PROMISSORY NOTES. The law as to bills of exchange, cheques, and promissory notes has been codified by the hills of Exchauge Act, 1882 * (45 & 46 V. c. 61). The * Cited for brevity as B. of Ex. Act, 1882. 350 Action on Bills of Exchange. several sections of this Act therefore now replace a large number of the decisions on these instruments, which were collected in editions of this work prior to 1884. "The proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law," but if " a provision be of doubtful import resort to the previous state of the law " woidd be perfectly legitimate. Bank of England v. Vagliano, (1891) A. C. 107, 144, 115, per Lord Herschell. The Act, in Part II., enacts in detail the law, so far as relates to bills of exchange, and in Parts III. and IV. respectively enacts that relating to cheques and promissory notes : this is done, to a great extent, by reference to Part II., and this scheme is accordingly adopted in the following pages. The following sections are general in their application : — Sect. 2. " In this act, unless the context otherwise requires, — " Acceptance means an acceptance completed by delivery or notification." See sect. 21, post, p. 353. Acceptance is defined by sect. 17, post, p. 362, and its requisites are there stated. " Action includes counter-claim and set-off. " Banker includes a body of persons, whether incorporated or not, who carry on the business of banking. " Bankrupt includes any person whose estate is vested in a trustee or assignee under the law for the time being in force relating to bankruptcy. " Bearer means the person in possession of a bill or note which is payable to bearer. " Bill means bill of exchange, and note means promissory note." These instruments respectively are defined by sect. 3, post, p. 351, and sect. 83, post, p. 412. " Delivery means transfer of possession, actual or constructive, from one person to another." As to delivery, see sect. 21, post, p. 353. " Holder means the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof." A holder in due course is defined by sect. 29, post, p. 354. The rights of holders are defined by sect. 38, post, p. 355. " Indorsement means an indorsement completed by delivery." See sect. 21, post, p. 353. The requisites of an indorsement are stated in sect. 32, post, p. 370. "Issue means the first delivery" (vide supra) "of a bill or note, complete in form to a person who takes it as a holder. " Person includes a body of persons, whether incorporated or not. " Value means valuable consideration." See sect. 27, post, p. 354. " Written includes printed, and writing includes print." By sect. 90, " A thing is deemed to be done in good faith, within the meaning of this act, where it is in fact done honestly, whether it is done negligently or not." By sect. 91, " (1.) Where, by this act, any instrument or writing is required to be signed by any person, it is not necessary that he should sign it with his own hand, but it is sufficient if his signature is written thereon by some other person by or under his authority. " (2.) In the case of a corporation, where, by this act, any instrument or writing is required to be signed, it is sufficient if the instrument or writing be sealed with the corporate seal. "But nothing in this section shall be construed as requiring the bill or note of a corporation to be under seal." Sect. 96 repeals numerous statutory enactments relating to bills of exchange, cheques, and notes. By sect. 97, " (1.) The rules in bankruptcy relating to bills of exchange, Bills of Exchange Act, 1882. 351 promissory notes, and cheques, shall continue to apply thereto, notwith- standing anything in this act contained. " ('2.) The rules of common law including the law merchant, save in so far as they are inconsistent with the express provisions of this act, shall continue to apply to bills of exchange, promissory notes, and cheques. "(3.) Nothing in this act or in any repeal affected thereby shall affect — " (a.) The provisions of the Stamp Act, 1870, or acts amending it, or any law or enactment for the time being in force relating to the revenue : " (vide ante, pp. 237 et seq.) " (b.) The provisions of the Companies Act, 1862, or acts amending it, or any act relating to joint stock banks or companies :" (vide post, pp. 413, 414, and Part TIL, Actions by and against companies, post, pp. 1016, 1115.) " (c.) The provisions of any act relating to or confirming the privileges of the Bank of England or the Bank of Ireland respectively : " (d.) The validity of any usage relating to dividend warrants, or the indorsements thereof." When a dividend warrant is payable to the order of two or more persons, it is the usage to pay to the order of one of them: this provision saves this exception from the general rule laid down by sect. 32 (3), post, p. 370. By sect. 99, " Where any act or document refers to any enactment repealed by this act, the act or document shall be construed, and shall operate, as if it referred to the corresponding provisions of this act." As to who is the holder of a bill, see Latter v. White, L. B., 5. H. L. 578, post, p. 413. As to the application of sect. 97 (2), to the recovery of damages for re-exchange, see Ex pte. Gillespie, 18 Q. B. D. 286, C. A., cited post, p. 394. Action on Bills of Exchange. Statute.] The general sections of the B. of Ex. Acts, 1882, relating to bills of exchange are as follows : — Sect. 3. "(1.) A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer. " (2.) An instrument which does not comply with these conditions, or which orders any act to be done in addition to the payment of money, is not a bill of exchange. " (3.) An order to pay out of a particular fund is not unconditional within the meaning of this section ; but an unqualified order to pay, coupled with (a) an indication <>f a particular fund out of which the drawee is to reimburse himself <>r a particular account to be debited, with the amount, or (b) a statement of the transaction which cjives rise to the hill, is unconditional." See In re Boyse, .">:; Ch. D. 612. "(4.) A bill is not invalid by reason — " (a.) That it is not dated ; " (b.) That it does not specify the value given, or that any value has been given therefor ; "(c.) That it does not specify the place where it is drawn, or the place where it is payable." See sect. 12, post, p. 352, as to the insertion of the date in an undated bill. Sect. 4. "(1.) An inland bill is a bill which is or on the face of it 352 Action on Bills of Exchange. purports to be (a) both drawn and payable within the British Island?, or (b) drawn within the British Islands upon some person resident therein. Any other hill is a foreign bill. "For the purposes of t his act 'British Islands' mean any part of the United Kingdom of Great Britain and Ireland, the islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent to any of them being part of the dominions of her Majesty. "('2.) Unless the contrary appear on the face of the bill the holder may fnii/ it as an inland bill.'" This sub-section is new. By eect. 97 (3, «.), ante, p. 351, nothing in this act affects the Stamp Acts. Sect. 5. "(1.) A bill may be drawn payable to, or to the order of, the drawer; or it may be drawn payable to, or to the order of the drawee." See Chamberlain v. Young, (1893) 2 Q. B. 206, C. A., post, p. 360. Sect. 6. "(1.) The drawee must be named or otherwise indicated in a bill with reasonable certainty. " (2.) A bill may be addressed to two or more drawees whether they are partners or not, but an order addressed to two drawees in the alternative or to two or more drawees in succession is not a bill of exchange." Sect. 7. " (1.) Where a bill is not payable to bearer, the payee must be named or otherwise indicated therein with reasonable certainty." See Chamberlain v. Young, supra. "(2.) A bill may be made payable to two or more payees jointly, or it may be made payable in the alternative to one of two, or one or some of several payees. A bill may also be made payable to the holder of an office for the time being." The provision in italics is new; vide post, p. 414. Sect. 9. "(1.) The sum payable by a bill is a sum certain within the meaning of this act, although it is required to be paid — " (a.) With interest. " (b.) By stated instalments. " (c.) By stated instalments, with a provision that upon default in pay- ment of any instalment the whole shall become due. " (d.) According to an indicated rate of exchange or according to a rate of exchange to be ascertained as directed by the bill." "(3.) Where a bill is expressed to be payable with interest, unless the instrument otherwise provides, interest runs from the date of the bill, and if the bill is undated from the issue thereof." As to damages on the dishonour of a bill, see sect. 57,p>ost, p. 393. Sect. 10. u (1.) A bill is payable on demand — "(a.) Which is expressed to be payable on demand, or at sight, or on presentation ; " replacing 34 & 35 V. c. 74 ; "or " (b.) In which no time for payment is expressed. "(2.) Where a bill is accepted or indorsed when it is overdue, it shall as regards the acceptor who so accepts, or any indorser who so indorses it, be deemed a bill payable on demand." Sect. 11. "A bill is payable at a determinable future time within the meaning of this act which is exjjressed to be payable — "(1.) At a fixed period after date or sight." As to fixing the due date, see sect. 14 (2), (3), post, p. 361, and sect. 65 (5), post, p. 390. "(2.) On or at a fixed period after the occurrence of a specified event which is certain to happen, though the time of happening may be uncertain. " An instrument expressed to be payable on a contingency is not a bill, and the happening of the event does not cure the defect." Sect. 12. " Where a bill expressed to be payable at a fixed period after date is issued undated, or where the acceptance of a bill payable at a fixed Bills of Exchange Act, 1882. 353 period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the biil shall be payable accordingly. " Provided that (1) where the holder in good faith and by mistake inserts a wrong date, and (2) in every case where a wrong date is inserted, if the bill subsequently comes into the hands of a holder in due course the bill shall not be avoided thereby, but shall operate and be payable as if the date so inserted had been the true date." As to the insertion of other material particulars omitted, vide a. 20, infra. Sect. 13. "(1.) Where a bill or an acceptance or any indorsement on a bill is dated, the date shall, unless the contrary be proved, be deemed to be the true date of the drawing, acceptance, or indorsement, as the case may be. "(2.) A bill is not invalid by reason only that it is ante-dated or post- dated, or that it bears date on a Sunday." Sect. 20. " (1.) Where a simple signature on a blank stamped paper is delivered by the signer in order that it may be converted into a bill, it operates as a prima fade authority to rill it up as a complete bill for any amount the stamp will cover, using the signature for that of the drawer, or the acceptor, or an indorser ; and, in like manner, when a bill is wanting in any material particular, the person in possession of it has a prima facie authority to rill up the omission in any way he thinks fit. " (2.) In order that any such instrument when completed may be enforceable against any person who became a party thereto prior to its completion, it must be rilled up within a reasonable time, and strictly in accordance with the authority given. Reasonable time for this purpose is a question of fact. " Provided that if any such instrument after completion is negotiated to a holder in due course''' {vide sect. 29, post, p. 354) "it shall be valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up within a reasonable time and strictly in accordance with the authority given." Sect. 21. " (1.) Every contract on a bill, whether it be the drawer's, the acceptor's or an indorser's, is incomplete and revocable, until delivery " (vide sect. 2, ante, p. 350) " of the instrument in order to give effect thereto. "Provided that where an acceptance is written on a bill, and the drawee gives notice to or according to the directions of the person entitled to the bill that he has accepted it, the acceptance then becomes complete and irrevocable. "(2.) As between immediate parties, and as regards a remote party other than a holder in due course" {vide sect. 29, post, p. 351), "the delivery — " (a.) in order to be effectual must be made either by or under the authority of the party drawing, accepting, or indorsing, as the case may be : " (b.) may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring the property in the bill, "But if the bill be in the hands of a holder in due course" (vide sect. 2!), infra), "a valid delivery of the bill by all parties prior to him so as to make them Liable to him is conclusively presumed. "(3.) Where a bill is no longer in the possession of a party who has signed it as drawer, acceptor, or indorser, a valid and unconditional delivery by him is presumed until the contrary is proved." Sect. 22. "(1.) Capacity to incur liability as a party to a bill is co-extensive with capacity to contract. " Provided that nothing in this section shall enable a corporation to make itself liable as drawer, acceptor, or indorser oi a bill unless it is competent to it so to do under the law for the time being in force relating to corporations." n. — VOL. I. A A 354 Action on Bills of Exchange. By sect. 91 (2), ante, p. 350, t lie seal of a corporation on a bill is equivalent to signature. "(2.) Where a bill is drawn or indorsed by an infant, minor, or corpora- tion having no capacity or power to incur liability on a bill, the drawing or indorsement entitles the holder to receive payment of the bill, and to enforce it against any other party thereto." By seel. 27, " (1.) Valuable consideration for a bill may be constituted by- "(a.) Any consideration sufficient to support a simple contract: "(6.) An antecedent debt or liability. Such a debt or liability is deemed valuable consideration whether the bill is payable on demand or at a future time. "('_'.) Where value has at any time been given for a bill, the holder" (vide sect. 2, ante, p. 350) "is deemed to be a holder for value as regards the acceptor and all parties to the bill who became parties prior to such time. "(3.) Where the holder of a bill has a lien on it, arising either from contract or by implication of law, he is deemed to be a holder for value to the extent of the sum for which he has a lieu." Sect. 29. "(1.) A holder in due course is a holder" (see sect. 2, ante, p. 350) " who has taken a bill, complete and regular on the face of it, under the following conditions ; namely : " (a.) That he became the holder of it before it was overdue " (vide sect. 14, post, p. 3G1) "and without notice that it had been previously dis- honoured, if such was the fact: " (b.) That he took the bill in good faith " (vide sect. 90, ante, p. 350), "and for value" (vide sect. 27, supra), "and that at the time the bill was negotiated to him he had no notice of any defect in the title of the person who negotiated it. "(2.) In particular the title of a person who negotiates a bill is defective within the meaning of this act when he obtained the bill, or the acceptance thereof, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud. " (3.) A holder (whether for value or not) who derives his title to a bill through a holder iu due course, and who is not himself a party to any fraud or illegality affecting it, has all the rights of that holder in due course as regards the acceptor and all parties to the bill prior to that holder." It will be seen that this section substitutes the term "holder in due course," for " bond fide holder for value without notice." The rights of a holder in due course are defined by sect. 38, 2>ost, p. 355. " Defect in the title" is used in this act as equivalent to " equity attaching to the bill." "Force and fear" is the equivalent, in Scottish law, for "duress." The effect of taking a bill overdue or dishonoured is defined by sect. 36 (2, 5), post, pp. 394, 395. By sect. 30, " (1.) Every party whose signature appears on a bill is prima facie deemed to have become a party thereto for value. " (2.) Every holder of a bill is prima facie deemed to be a holder in due course " (vide, sect. 29, supra) ; " but if in an action on a bill it is admitted or proved that the acceptance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or illegality, the burden of proof is shifted, unless and until the holder proves that, subsequent to the alleged fraud or illegality, value has in good faith been given for the bill." Sect. 37. " Where a bill is negotiated back to the drawer, or to a prior indorser or to the acceptor, such party may, subject to the provisions of this act" (vide sect. 59 (3) post, p. 401, aud sect. 01, post, p. 401), Bills of Exchange Act, 1882. 355 " re-issue and further negotiate the bill, but he is not entitled to enforce payment of the bill against any intervening party to whom he was previously liable." Sect. 38. " The rights and powers of the holder " (vide sect. 2,ante, p. 350) " of a bill are as follows : — "(1.) He may sue on the bill in his own name ; "(2.) Where he is a holder in due course" (vide sect. 29, ante, p. 354), " he holds the bill free from any defect of title " (vide ante, p. 354) "of prior parties, as well as from mere personal defences available to prior parties among themselves, and may enforce payment against all parties liable on the bill : " (3.) Where his title is defective — u (a.) If he negotiates the bill to a holder in due course, that holder obtains a good and complete title to the bill; and " (b.) if he obtains payment of the bill the person who pays him in due course " (vide sect. 59 (1), post, p. 401) " gets a valid discharge for the bill." Sect. 53. " (1.) A bill, of itself, does not operate as an assignment of funds in the hands of the drawee available for the payment thereof, and the drawee of a bill who does not accept as required by this act is not liable on the instrument." Sect. 58. "(1.) Where the holder" (vide sect. 2, ante, p. 350) "of a bill payable to bearer negotiates it by delivery without indorsing it, he is called a ' transferor by delivery.' "(2.) A transferor by delivery is not liable on the instrument. " (3.) A transferor by delivery who negotiates a bill thereby warrants to his immediate transferee being a holder for value that the bill is what it purports to be, that he has a right to transfer it, and that at the time of transfer he is not aware of any fact which renders it valueless." Sect. 71. " (1.) Where a bill is drawn iu a set, each part of the set being numbered, and containing a reference to the other parts, the whole of the parts constitute one bill." " (3.) Where two or more parts of a set are negotiated to different holders in due course, the holder whose title first accrues is as between such holders deemed the true owner of the bill ; but nothing in this sub-section shall affect the rights of a person who in due course accepts or pays " (vide sect. 59 (1), post, p. 401), " the part first presented to him." As to stamp on bills in sets, vide ante, p. 241. Sect. 72. " Where a bill drawn in one country is negotiated, accepted, oi payable in another, the rights, duties, and liabilities of the parties thereto are determined as follows : " (1.) The validity of a bill as regards requisites in form is determined by the law of the place of issue " (vide sect. 2, ante, p. 350), and the validity as regards requisites in form of the supervening contracts, such as acceptance, or indorsement " (vide Id.), " or acceptance supra protest, is determined by the law of the place where such contract was made. " Provided that— " (a.) Where a bill is issued out of the United Kingdom it is not invalid by reason only that it is not stamped in accordance with the law of the place of issue : " (b.) Where a bill, issued out of the United Kingdom, conforms, as regards requisites in form, to the law of the United Kingdom, it may for the purpose of enforcing payment thereof, be treated as valid as between all persons who negotiate, hold, or become parties to it in the United Kingdom. 356 Action on Bills of Exchange. " (2.) [Subject to the provisions of this act " {vide infra), " the interpreta- tion of the drawing, indorsement, acceptance, or acceptance supra protest of a bill, is determined by the law of the place where such contract is made. " Provided that where an inland bill is indorsed in a foreign country the indorsement shall, as regards the payer, be interpreted according to the law of the United Kingdom. " (3.) The duties of the holder with respect to presentment for acceptance or payment, and the necessity for or sufficiency of a protest or notice of dishonour, or otherwise, are determined by the law of the place where the act is done or the bill is dishonoured. " (4.) Where a bill is drawn out of but payable in the United Kingdom and the sum payable is not expressed in the currency of the United Kingdom, the amount shall, in the absence of some express stipula- tion, be calculated according to the rate of exchange for sight drafts at the place of payment on the day the bill is payable." The value for stamp duty is ascertained at the date of the instrument, vide ante, p. 227. " (5.) Where a bill is drawn in one country and is payable in another, the due date thereof is determined according to the law of the place where it is payable." In sub-sect. 2 " interpretation " means legal effect. Alcock v. Smith, (1892) 1 Ch. 238, 256; and " the payer" means the acceptor. Id. 262. See further on this section, S. C. and Embericos v. Anglo- Austrian Bank, (1905) 1 K. B. 677, C. A., post, p. 966. Amount of bill.'] There is now no restriction as to the amount of a bill, for the stat, 48 G. 3, c. 88, s. 2, is repealed by the B. of Ex. Act, 1882, s. 96. Production of the bill.'] It is generally necessary for the plaintiff to produce the bill or note on which he claims, whenever the form of pleading puts it in issue ; and even when not in issue, interest is not recoverable without production. Hutton v. Ward, 85 Q. B. 26 ; 19 L. J., Q. B. 293. But, where it appears that it has been destroyed, as where the defendant tore his own note of hand, a copy is admissible; Anon., 1 Ld. Raym. 731; or, other secondary evidence may be given where the defence is not raised that the instrument is lost or destroyed. Blackie v. Pidding, Chamley v. Grundy, ■infra. Thus, under a defence denying acceptance, it is not competent for defendant to avail himself of the defence that plaintiff, an indorsee, has lost the bill and cannot produce it. Blackie v. Pidding, 6 C. B. 196. So, in an action on a note against maker, the defence of the loss of it must be pleaded specially. Chamley v. Grundy, 14 C.B. 608 ; 23 L. J., C. P. 121. The principle of this defence is that the holder of a negotiable security is only entitled to payment on production of it for re-delivery to the person liable to pay. If the defendant refuse to pay on that ground only, as where it is destroyed or is lost, there must be a defence to that effect. In Poole v. Smith, Holt, jM. P. 144, Gibbs, C.J., seems to have held that where the bill is lost after plea pleaded, the defence might be raised without a special plea ; sed qucere. By sect. 69, " Where a bill has been lost before it is overdue, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer if required to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again. "If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so." Production of Bill. — Variance in Parties. 357 Sect. 70. " In any action or proceeding upon a bill, the court or a judge may order tbat the loss of the instrument shall not be set up, provided an indemnity be given to the satisfaction of the court or judge against the claims of any other person upon the instrument in question." See sect. 51 (8), post, p. 386, as to protest on lost bill. Unless the plaintiff avail himself of relief afforded by these sections he cannot, where the defence is properly pleaded, recover on a lost bill indorsed by the payee without proving that it had been destroyed ; though he had offered an indemnity to the defendant; Pierson v. Hutchinson, 2 Camp. 211 ; Hansard v. Robinson, 7 B. & C. 90 ; and, though the bill was lost after it became due ; S. C. ; or, was payable to the plaintiffs order and not indorsed when lost ; Bamuz v. Crowe, 1 Exch. 167. See further Conflans Stone Quarry Co. v. Parker, L. E., 3 C. P. 1. And, the loss of a bill in a negotiable state, is fatal to a recovery, on the debt for which the bill was given, as well as on the bill. Crowe v. Clay, 9 Exch. 604 ; 23 L. J., Ex. 150, Ex. Ch. Even an express promise by the defendant to pay the bill will not entitle the plaintiff to recover on it. Davis v. Dodd, 4 Taunt. 602. But the payee of a note, not negotiable, may require payment without pro- ducing it. Wain v. Bailey, 10 Ad. & E. 616 ; and see per Jervis, O.J., in Charnley v. Orundy, 14 C. B. 614 ; 23 L. J., C. P. 122. If the acceptor improperly detain the bill in his hands, the drawer or other party may sue him upon it, without giving him notice to produce it; Smith v. M'Clure, 5 East, 477 ; and, where the defendant had admitted that he owed the money due upon a bill which was in his own possession, Abbott, C.J., held that such admission might be given in evidence under the common counts without a notice to produce the bill. Fryer v. Brown, Ry. & M. 145. An admission of the handwriting of the defendant to the acceptance is prima facie evidence of the regularity of such acceptance, and it dispenses with production, unless there be a " saving of just exceptions ; " Chaplin v. Levy, 9 Exch. 531 ; 23 L. J., Ex. 117, cited ante, p. 74 ; and see Sharpies v. Richard, 2 H. & N. 57 ; 26 L. J., Ex. 302, where, in an action by indorsee against drawer, the court doubted whether on traverses only of presentment for acceptance and notices of dishonour, it was necessary to produce the bill. And where notice to produce must be given, see ante, pp. 7 et seq. The bill or note produced must appear to be the same upon which the plaintiff claims, and if any material variance exist, it will be fatal, unless amended by leave of the judge at N. P. Where a bill appears to be altered it lies upon the party producing it to show that the alteration was made under such circumstances as not to vitiate the instrument ; Henman v. Dickinson, 5 Bing. 183 ; and it cannot be left to the jury on the mere inspection of the bill, without other proof, to decide whether it was altered at the time of making or at a subsequent period. Knight v. Clements, 8 Ad. & E. 218. Where a note payable in two months was dated by mistake January, 1854, instead of 1855, but crossed by the maker before delivery, "due 4th March, 1855," it was held that this operated as a correction, and that the note was rightly described as of 1855. Fitch v. Jones, 5 E. & B. 238; 24 L. J., Q. B. 293. See further as to alterations in a bill, ante, pp. 244, 245, and Defence, post, pp. 395, 396. Variance in parties — Liability on the bill — Statute.] A nominal partner who is named in the bill must join in suing. Guidon v. Bobson, 2 Camp. 302. By sect. 23, " No person is liable as drawer, indorser, or acceptor of a bill who has not signed it as such : Provided that — " (1.) Where a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name : 358 Action on Bills of Exchange. " (2.) The signature of the name of a firm is equivalent to the signature by the person so signing of the names of all persons liable as partners in that firm." As to this liability, vide post, pp. 555 et seq. As to signature by agent, vide sect. 91, ante, p. 350. By sect. 53, " (1) The drawee of a bill who does not accept as re- quired by this act," (vide sect. 17 (2), post, p. 362) "is not liable on the instrument." Sect. 24. " Subject to the provisions of this act, where a signature on a bill is forged or placed thereon without the authority of the person whose signature it purports to be, the forged or unauthorized signature is wholly inoperative, and no right to retain the bill or to give a discharge therefor, or to enforce payment thereof, against any party thereto, can be acquired through or under that signature, unless the party against whom it is sought to retain or enforce payment of the bill is precluded from setting up the forgery or want of authority. "Provided that nothing in this section shall affect the ratification of an unauthorized signature not amounting to a forgery." See sect. 21 (1), ante, p. 353, as to the effect of notification by the drawee that bill is accepted; sect. 54: (1), post, p. 363, as to that of acceptance; sect. 55 (1) (a) post, p. 375, of drawing ; sect. 55 (2) (b) (c), post, p. 391, of indorsing. See also sect. 60, post, p. 406, and sect. 82, post, p. 410, for the special protection of bankers. Sect. 25. " A signature by procuration operates as notice that the agent has but a limited authority to sign, and the principal is only bound by such signature if the agent in so signing was acting within the actual limits of his authority." By sect. 26, " (1) Where a person signs a bill as drawer, indorser, or acceptor, and adds words to his signature, indicating that he signs for or on behalf of a principal, or in a representative character, he is not personally liable thereon ; but the mere addition to his signature of words describing him as an agent, or as filling a representative character, does not exempt him from personal liability. "(2.) In determining whether a signature on a bill is that of the principal or that of the agent by whose hand it is written, the construction most favourable to the validity of the instrument shall be adopted." As to amendment in case of variance of parties, see ante, pp. 89 et seq. As to signatures on behalf of companies, vide post, pp. 413, 414. By sect. 58, " (2) A transferrer by delivery is not liable on the in- strument." A person is not liable as acceptor who accepts by procuration for the drawee, but without his authority. Polhill v. Walter, 3 B. & Ad. 122; Eastwood v. Bain, 3 H. & N. 738 ; 28 L. J., Ex. 44. He is, however, liable for breach of warranty of authority; vide Action on warranty of authority, post, p. 493. And, if one of several partners accept a bill in his own name on behalf of the partnership, having no authority to bind the firm, he will be personally liable as acceptor. Owen v. Van Uster, 10 C. B. 318; 20 L. J., C. P. 61 ; Nicholls v. Diamond, 9 Exch. 154 ; 23 L. J., Ex. 1. But where a bill drawn orr a firm of B. & Co. was accepted by W. A. M. B., a partner having authority to accept bills, thus, " B. & Co., W. A. M. B.," it was held that W. A. M. B. was liable thereon jointly with his co-partners only. In re Barnard, 32 Ch. D. 447, C. A. The master of a ship who drew a bill of exchange on the owners in favour of the suppliers of coal to the ship, concluding with the words "value received ... on . . . coal . . . supplied to my vessel to enable her to complete her voyage . . . for which I hold my vessel owners and freight responsible," is personally liable thereon. The^Elmville, (1904) P. 319. Variance. 359 Sect. 24 {ante, p. 358) does not apply to indorsements made abroad. Embiricos v. Anglo- Austrian Bank, (1905) 1 K. B. 677, C. A. Variance in names, &c.~] Although variances are now in most cases amendable, it has been thought as well to retain the cases as bearing upon other important points. Where initials or some contraction for a Christian name are used in the bill itself, the same initials or contraction may be used in the writ or statement of claim by 3 & 4 W. 4, c. 42, s. 12; but it may become necessary to identify the parties so designated, and if the name is spelt wrongly, oral evidence is admissible to show who was intended. Willi* v. Barrett, 2 Stark. 29. Where a bill is drawn with the payee's name in blank, and in the statement of claim it is stated that A. B. (a bond fide holder who has inserted his own name) was payee, it is no variance. Atttvood v. Griffin, By. & M. 425. In an action against several joint makers of a note, it is no objection on the ground of variance, that one of them, who has let judgment go by default, has been sued by a wrong Christian name ; the identity of the party and service of the writ on him being shown. Dickinson v. Bowes, 16 East, 110. The name of a party to the bill may be stated as on the bill, though it be not the real name. Forman v. Jacob, 1 Stark. 47. Variance in the place of payment.'] If a bill be drawn payable at a parti- cular place, this, as against the drawer, is part of the contract, and it is a variance to state it without that qualification : Bayley on Bills, 6th ed., 393 ; but as against the acceptor, this is now, by reason of sect. 19 (post, p. 362), no variance, unless the bill be accepted payable at a particular place, and not " otherwise or elsewhere." So, where a bill was directed to " A. B., payable in London," payment in Loudon was held part of the contract. Hodge v. Fillis, 3 Camp. 463. As to promissory notes see sect. 87, post, pp. 414, 416. Where a note contains in the body of it a promise to pay at a particular place, it is a variance to omit the place. Spindler v. Grellett, 1 Exch. 384 ; Vandcrdonckt v. Thellusson, 8 C. B. 812 ; Sanderson v. Bowes, 14 East, 500. But when the place of payment is only mentioned in the memorandum at the foot of a note, it is no variance to omit it ; Price v. Mitchell, 4 Camp. 200'; Williams v. Waring, 10 B. & C. 2; Masters v. Baretto, 8 C. B. I.!.;. And, the reason is not because a writing in the corner may not be part of a contract, but because by the usage of merchants it is a mere memorandum there written for the convenience of parties. Per cur. Warrington v. Early, 2 E. & B. 766; 23 L. J., Q. B. 47. But where a note was' alleged to be payable at a certain place, and it was only made so payable by a memo- randum at the bottom, Abbott, C.J., held it no variance; Hardy v. Wood- roofe, 2 Stark. 319; Sproule v. Legg, 3 Stark. 157; and, the reason seems to be that, if payable generally, it is payable at the place named. Blake v. Beaumont, 4 M. & Gr. 7. Variance in consideration.'] The words " value received," in a bill payable to the drawer's order, mean value received by the, drawee; and if stated to be value received by the drawer, it is a variance. Highmore v. Primrose, 5 M. & S. r,:, ; Priddy v. Henbrey, 1 B. & 0. 674. But where the bill is drawn payable t » the mder of a third person, " for value received," it is no variance to state that it was lor value received "of the drawer." Grant v. Da Costa, 3 M. & S. 351. ''Value received,'' in a note, imports value received from the payee. Clayton v. Gosling, 5 I!. .V < '. ">»i<>. Variance in the sum.] The money mentioned in the statement of claim on a bill means English money ; if the hill is really for foreign money it is a variance. Kearney v. King, 2 B. & A. 301; Sproule v. Legge, 1 B. & C. 16. 360 Action on Bills of Etrrftange. By sect. 9, " (2) Where the sum payable," by a bill, " is expressed in words, and also in figures, and there is a discrepancy between the two, the sura denoted by the words is the amount payable." Ambiguous and irregular instrument*.] Sect. 3 (1), ante, p. 351, defines a bill of exchange, and (2) enacts that an instrument not complying with the conditions therein stated is not a bill. See also sects. 6 (2), 7 (2), ante, p. 352. By sect. 5, "(2) Where in a bill drawer and drawee are the same person " (vide sect. 2, aide, p. 350), " or where the drawee is a fictitious person or a person not having capacity to contract, the bolder may treat the instrument, at his option, either as a bill of exchange or as a promissory note." By sect. 7, " (3) Where the payee is a fictitious or non-existing person the bill may be treated as payable to bearer. An instrument drawn thus, " pay to — order," the blank not having been filled up, is payable to the order of the drawer. Chamberlain v. Young, (1893) 2 Q. B. 206, C. A. The following instrument, " I promise to pay to J. B. or order," &c, signed "J. B." with J. G.'s name and address in the corner, and J. G.'s name written across it as an acceptance, and indorsed by J. B., may be treated by the holder as against J. B., as a note by him ; Edis v. Bury, 6 B. & C. 433 ; and semble, at the holder's election as a bill of exchange. Id. " Pay without acceptance to the order of J. C. F." signed by the manager on behalf of a joint-stock banking company at one place and addressed to the company at another, is as against a partner in the company, a promissory note. Miller v. Thomson, 3 M. & Gr. 576. The manager of an incorporated company wrote to the cashier thus: "53 days after date credit P., or order, with the sum of 500?., claimed per 1 Cleopatra,' in cash on account of this corporation," signed by the manager. This was held to be a bill of exchange. Ellison v. Collingridge, 9 C. B. 570; 19 L. J., C. P. 268. " I promise to pay T. L. or order," signed H. 0. : the name of the defendant was on the left corner, and his acceptance across it. Held, that T. L. might sue defendant on it as a bill of exchange. Lloyd v. Oliver, 18 Q. B. 471 ; 21 L. J., Q. B. 307 ; and semb., it might have been treated as either a bill or a note as against H. O. Id. An instrument payable to order, with a direc- tion " at Messrs. A. B.," instead of to Messrs. A. B., may also be treated as a bill or note, in an action against the drawer. Shuftlen'orth v. Stephens, 1 Cam]). 407; Allan v. Mawson, 4 Camp. 115. Without the drawer's signature, a bill though accepted is of no force (see sect. 3, ante, p. 351), and cannot be treated as a promissory note ; Stoessiger v. S. E. By. Co., 3 E. & B. 549 ; 23 L. J., Q. B. 293 ; Ooldsmid v. Hampton, 5 C. B., N. S. 94 ; 27 L. J., C. P. 286 ; M'Call v. Taylor, 19 C. B., N. S. 301 ; 34 L. J., C. P. 365. So, a bill not directed to any drawee is void as a bill, and an acceptance by some one, to whom it is not directed, is no acceptance ; Beto v. Beynolds, 9 Exch. 410; Davis v. Clarke, 6 Q. B. 16 ; unless he be an acceptor for honour ; Bolhill v. Walter, 3 B. & Ad. 122. An acceptance where there is no drawee named may make the person accepting liable as on a promissory note by himself. Beto v. Beynolds, supra. In Fielder v. Marshall, 9 C. B., N. S. 506 ; 30 L. J., C. P. 158, S. M. was sued on the following instrument: — "Pay to Mrs. E. F., or order," (Signed) "A. L. ; " directed "To Mrs. E. F., Nelson Lodge, Chelsea," and across was written, "Accepted, S. M. ; " — the whole document, except "A. L.," was written by the defendant, and was given by him to E. F. to secure a debt from A. L. to her ; and it was held that the address, " To Mrs. E. F.," might be treated as a repetition of the payee's name, and not as a drawee, and the document as a promissory note made by S. M. Payee against Acceptor. 361 A payee, P., is fictitious within sect. 7 (3), ante, p. 360, where although P. is a real person he was never intended by the drawer to have any right on the bill, and even although the document which was concocted by G. is not really a bill, the signatures of the named drawer and that of P. having been forged by G., who fraudulently obtained the signature of the plaintiff V., as acceptor, V. and P. being both ignorant of the circumstances; such a docu- ment may therefore be treated as payable to bearer. Bank of England v. Vagliano, (1891) A. C. 107, D. P. Sect. 7 (3) applies although the acceptor believed that P. was a real person. S. C. ; Glutton v. Attenborough, (1897) A. C. 90, D. P. Seats, where the drawer is induced by fraud to draw a cheque to the order of a real person K., as a payment to him. Macbeth v. N. & S. Wales Bank, (1906) 2 K. B. 718, following Vinden v. Hughes, (1905) 1 K. B. 795. Payee against Acceptor. The proofs in this action entirely depend upon the pleadings. If the acceptance be intended to be put in issue, it must be traversed by the state- ment of defence. See post, Defence, p. 394. Bill when payable — Statute.'} Sects. 10, 11, ante, p. 352, respectively define what bills are payable on demand, and what bills are payable at a determinable future time. By sect. 14, u Where a bill, is not payable on demand " (vide sect. 10, ante, p. 352) " the day on which it falls due is determined as follows : "(1.) Three days, called days of grace, are, in every case where the bill itself does not otherwise provide, added to the time of payment as fixed by the bill, and the bill is due and payable on the last day of grace : Provided that — " (a.) When the last day of grace falls on Sunday, Christmas Day, Good Friday, or a day appointed by Royal proclamation as a public fast or thanksgiving day, the bill is, except iu the case hereinafter pro- vided for, due and payable on the preceding business day"(v/rfe sect. 92, post, p. 383) ; "(b.) When the last day of grace is a bank holiday (other than Christmas Day or Good Friday) under the Bank Holidays Act, 1871, and Acts amending or extending it, or when the last day of grace is a Sunday and the second day of grace is a bank holiday, the bill is due and payable on the succeeding business day " (vide sect. 92, post, p. 383). " (2.) Where a bill is payable at a fixed period after date, after sight, or after the happening of a specified event, the time of payment is deter- mined by excluding the day from which the time is to begin to run and by including the day of payment. "(3.) Where a bill is payable at a fixed period after sight, the time begins to run from the date of the acceptance if the bill be accepted, and from the date of noting or protest if the bill be noted or protested for non-acceptance, or for non-delivery. "(4.) The term 'month' in a bill means calendar month." By sect. 65, "(5) Where a bill payable after sight is accepted for honour, its maturity is calculated from, the date of /In- noting for non-acceptance, and not from the date of the acceptance for honour.'''' The provision in italics is new. The Bank Holidays Act, 1871 (34 & 35 V. c. 17), s. 1, appoints as bank holidays, Easter Monday, Whitsun Monday, the first Monday in August, and December 26th, if a week day. If it be a Sunday, then the holiday is December 27th ; 38 & 39 V. c. 13, s. 2. By 34 & 35 V. c. 17, 362 Action on Bills of Exchange. — Payee against Acceptor. s. 5, these days may in any year be altered by Order in Council ; and her Majesty may by proclamation appoint other days to be kept as bank holidays (sect. 4). Bill when payable.'] Where a bill is drawn at so many months after date, calendar months are intended, sect. 14 (4), ante, p. 361 ; and the day on which it falls due is always regulated by the day of the date, irrespective of the length of the months, and in ordinary cases will be the day with the same number in the last month of the currency ; thus a bill drawn at two months on the 10th of January, will be due on the 10th of March. But, if the date be one of the last days of a month having more days than the month in which the bill becomes due, then the bill will be due on the last day of that month : thus, bills drawn, at one month, on the 28th 29th, 30th, or 31st of January, will, it would seem, in ordinary years, be all due on the 28th of February, and with the days of grace payable on the 3rd of March ; Byles on Bills, 11th ed. p. 204 ; Story on Bills, 2nd ed. s. 300, pp. 74, 75 ; Marius, 4th ed. p. 18; and the dicta of the judges in Freeman v. Read, 4 B. & S. 174 ; 32 L. J., M. C. 239, and in Webb v. Fairmaner, 3 M. & W. 473. It follows from sect. 14 (1), ante, p. 361, that where a fast or thanksgiving day alone is proclaimed, the bills due that day are payable the day before, but if the proclamation further appoint the day to be kept as a bank holiday, they are payable the day after the fast or thanksgiving day. An action on the bill commenced before the expiration of the last day of grace is premature. Kennedy v. Thomas, (1894) 2 Q. B., 759, C. A. Acceptance — statute.] By sect. 2, u Acceptance means an acceptance com- pleted by delivery or notification," as to which vide, sect. 21, ante, p. 353. Sect. 17. " (1) The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. " (2.) An acceptance is invalid unless it complies with the following con- ditions, namely : " (a.) It must be written on the bill and be signed by the drawee " (19 & 20 V. c. 97, s. 6). "The mere signature of the drawee without additional words is sufficient " (41 & 42 V. c. 13). " (b.) It must not express that the drawee will perform his promise by any other means than the payment of money." As to acceptance of a bill drawn in a set, vide sect. 71 (4), post, p. 363. As to signature by agent, vide sect. 91 (1), ante, p. 350. Sect. 18. " A bill may be accepted, "(1.) Before it has been signed by the drawer, or while otherwise in- complete : " (2.) When it is overdue, or after it has beeu dishonoured by a previous refusal to accept, or by non-payment : " (3.) When a bill payable after sight is dishonoured by non-acceptance, and the drawee subsequently accepts it, the holder, in the absence of any different agreement, is entitled to have the bill accepted as of the date of first presentment to the drawee for acceptance." Sect. 19. "(1) An acceptance is either (a) general or (b) qualified. " (2) A general acceptance assents without qualification to the order of the drawer. A qualified acceptance in express terms varies the effect of the bill as drawn. " In particular an acceptance is qualified which is — "(a.) conditional, that is to say, which makes payment by the acceptor dependent on the fulfilment of a condition therein stated : " (b.) partial, that is to say, an acceptance to pay part only of the amount for which the bill is drawn : Acceptance. 363 "(c.) local, that is to say, an acceptance to pay only at a particular specified place: An acceptance to pay at a particular place is a general acceptance, unless it expressly states that the bill is to be paid there only and not elsewhere " (1 & 2 G. 4, c. 78, s. 1) : " (d.) qualified as to time : " (e.) the acceptance of some one or more of the drawees, but not of all." By sect. 21 (1), ante, p. 353, the acceptor's contract is incomplete and revocable until delivery of the bill has been made, or notiGcation of acceptance given as described in that section. By sect. 44 (1), post, p. 376, " the holder of a bill may refuse to take a qualified acceptance." As to the effect of taking such an acceptance, vide sect. 44 (2), post, p. 376. Sect. 52. "(1.) When a bill is accepted generally, presentment for pay- ment is not necessary in order to render the acceptor liable. " (2.) When by the terms of a qualified acceptance " (vide sect. 19, ante, p. 362) " presentment for payment is required, the acceptor, in the absence of an express stipulation to that effect, is not discharged by the omission to present the bill for payment on the day that it matures. " (3.) In order to render the acceptor of a bill liable it is not necessary to protest it, or that notice of dishonour should be given to him." Sect. 54. " The acceptor of a bill by accepting it — "(1.) Engages that he will pay it according to the tenor of his accept- ance" {vide sect. 19, ante, p. 362) : "(2.) Is precluded from denying to a holder in due course" (vide sect. 29, ante, p. 354) : " (a.) The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the bill; " (b.) In the case of a bill payable to drawer's order, the then capacity of the drawer to indorse, but not the genuineness or validity of his indorsement ; " (c.) In the case of a bill paj 7 able to the order of a third person, the existence of the payee and his then capacity to indorse, but not the genuineness or validity of his indorsement." By sect. 71 (4), where a bill is drawn in a set, " The acceptance may be written on any part, and it must be written on one part only. " If the drawee accepts more than one part, and such accepted part get into the hands of different holders in due course" vide sect. 2!t, ante, p. 354), " he is liable on every such part as if it were a separate bill." Acceptance, general or (jwdijicd. | A conditional acceptance will not support the allegation of a geueral one, though the condition has been performed. Langston v. Corney, 4 Camp. 177 ; Ealli v. Sarell, D. & By. N. P. C. 33; Swan v. Vox, 1 Marsh. 17(i. But where the drawee has accepted on condition of an extension of time for payment, the indorsee may sue as on a bill accepted payable at the postponed date. Russell v. Phillips, 14 Q. B. 891. Drawee of a bill, dated 8th September, at four months, accepted generally, adding the words "due 11th December." Held, a memo- randum for his own convenience perhaps accidentally mis-dated, and not a qualified acceptance. Famhawe v. Feet, 2 II. Ac N. 1; 26 L. J., Ex. 314. " Accepted, payable on giving up a bill of Lading lor goods, &c, ;»/■ Amazon," is a conditional acceptance, binding the holder to give up the bill of lading on presentment for payment, but, not imposing on him a further condition to the acceptor's liability, that the bill of lading should be given up on the very day the bill falls due. Smith v. Ferine, 9 ('. B., N. S. 214; 80 L. J., C. P. 56. A bill of exchange was drawn by F. payable " to order F.," the 364 Action on Bills of Exchange. — Payee against Acceptor. drawees accepted the bill, as follows — across its face they stamped the words " Accepted payable at the A. Bank " ; above " accepted " they wrote the words " In favour of F. only — No. 28," the word " order " had been struck out, but it did not appear by whom ; it was held, in an action by indorsees for value, that there was a general acceptance of a negotiable bill. Decroix v. Meyer, (1891) A. (J. 520, D. P. Whether an acceptance be general or qualified is a question of law for the judge. Sproat v. Matthews, 1 T. R. 182. An acceptance, expressed to be payable at a banker's or other place, was formerly held to be a special or qualified, and not a general acceptance. Rowe v. Young, 2 B. & B. 165. But by sect. 19 (2), ante, p. 362, replacing Onslow's Act (1 & 2 G. 4, c. 78), s. 1, such acceptance is general unless it expressly states that the bill is to be paid there only, and not elsewhere. A bill which is drawn payable at a particular place is within this section ; there being no distinction between the case where the bill is so rendered payable by the language of the drawer, or of the acceptor; and unless the acceptance be special within the statute, it is unnecessary, as against the acceptor, to aver or prove any presentment. Selby v. Eden, 3 Bing. 611 ; Fayle v. Bird, 6 B. & C. 531. The use of the word " only " is not essential to qualify the acceptance, if the words " and not elsewhere " are inserted. Biggins v. Nichols, 7 Dowl. 551. By sect. 52 (1), ante, p. 363, when a bill is accepted generally, presentment for payment is not necessary in order to render the acceptor liable; and if the holder neglect to present, and the bankers, at whose house it is made payable generally, fail, with money of the acceptor in their hands, the acceptor is not thereby discharged. Turner v. Hayden, 4 B. & C. 1. But, by sect. 54 (1), ante, p. 363, if the acceptance is local, the plaintiff must prove presentment at the place named, in order to charge the acceptor ; and this was the rule at common law. Rowe v. Young, supra. An acceptance payable at the acceptor's bankers is equivalent to an order on the banker to pay the bill to any holder who can by law give a valid dis- charge for it, and to debit his customer with the amount. Roharts v. Tucker, 16 Q. B. 560; 20 L. J., Q. B. 270, Ex. Ch. A bill of exchange drawn generally may now be accepted in three ways ; either generally, or payable at a particular banker's, or at a particular banker's and not elsewhere. If the drawee accept generally, he undertakes to pay the bill at maturity when presented to him. If he accept payable at a banker's, he undertakes to pay the bill at maturity, when presented, either to himself or at the banker's. If he accept payable at a banker's and not elsewhere, he contracts to pay the bill at maturity, provided it is presented at the banker's, but not otherwise. Halstead v. Skelton, 5 Q. B. 93. Acceptance, how proved.'] The acceptance, wheu traversed, is proved by evidence of the acceptor's handwriting, and the production of the bill, with such proof, is prima facie evidence of acceptance before action brought, as the presumption is that it was accepted within a reasonable time after date, according to the regular course of business, and before maturity. Roberts v. Bethell, 12 C. B. 778 ; 22 L. J., C. P. 69. What is such reasonable time depends on the places of residence of the parties, &c. Per cur., S.C. If several, not partners, are acceptors, the handwriting of all must be proved. Gray v. Palmers, 1 Esq. 135. Acceptance by partners.] By sect. 23 (2), ante, p. 358, " the signature of the name of a firm is equivalent to the signature by the person so signing of the names of all persons liable as partners in that firm." If one of several partners accept a bill drawn on the firm, it is sufficient to prove the partner- ship, and his handwriting, in an action against all ; Mason v. Rumsey, 1 Acceptance by. Partners. 365 Cainp. 384 ; and, where a bill was directed to " E. M. and uthers, trustees of," &c, and was "accepted, E. M.," it was held that, on proving that E. M. accepted by authority of the other trustees, plaintiff could recover on the bill against the others, as well as agaiust E. M., though E. M. alone signed, and did not expressly sign on behalf of the rest. Jenkins v. Morris, 16 M. & W. 877. But the name of the firm must appear on the face of the instrument, and an action cannot be maintained thereon against the firm, when one partner signed his own name only, although the proceeds were in reality applied to partnership purposes ; Siffkin v. Walker, 2 Camp. 308 ; Emly v. Lye, 15 East, 7 ; Nicholson v. Ricketts, L! E. & E. 497 ; 29 L. J., Q. B. 55; lor no person whose name, or the name of whose firm, does not appear on the bill can be liable on it; Emly v. Lye, supra; Beckham v. Drake, 9 M. & W. 79, 92, 96 ; Miles' Claim, L. R., 9 Ch. 635 ; and see sect. 23, ante, p. 357. It was, indeed, held in Mason v. Rumsey, ante, p. 364, that where a bill was directed to a firm, an acceptance by one partner in his own name was sufficient ; but this decision is not in accordance with the later decisions cited above, and the reason given by Ld. Ellenborough that " it would have beeu enough if the wurd 'accepted' had been written on the bill," is now removed by sect. 17 (2) (a), ante, p. 362. Where a bill is accepted by a partner in a firm in a name common to himself and the firm, and he carries on no business separate from the firm, there is a presumption that the bill is accepted for aud binds the firm. Yorkshire Banking Co. v. Beatson, 5 C. P. D. 109, 121, C. A. This presumption may, however, be rebutted by evidence that the bill was accepted as that of the partner for his own private purposes, and not as those of the firm. 8. C. The Partner- ship Act, 1890, 53 & 54 V. c. 39, s. 6, post, p. 556, does not affect any general rule of law relating to the execution of negotiable instruments. It is a good defence that the plaintiff had notice that the firm would not be bound by such an acceptance ; Oallway Ld. v. Mathew, 10 East, 264 ; Jones v. Corbett, 2 Q. B. 828 ; Grout v. Enthoven, 1 Exch. 838 ; 53 & 54 V. c. 39, s. 8, post, p. 559; or, that the bill was not accepted for partnership purposes, and that there was covin between the partner who accepted aud the plaintiff. Sliirreff v. Wilks, 1 East, 48. Although it was formerly held that, in the absence of fraud or collusion, a party who had received a bill given by one or several partners in the name of the firm for his separate debt, might sue the partnership on such bill ; Swan v. Steele, 7 East, 210 ; Ridley v. Taylor, 13 East, 175 ; Lloyd v. Ashby, 2 B. & Ad. 23 ; it is now established that the unexplained fact that a partnership security has been received from one of the partners in discharge of a separate claim against himself is a badge of fraud, or of such palpable negligence as amounts to fraud, which it is incumbent on the party who takes the security to remove, by showing either that the party from whom he received it acted with the authority of the rest of his partners, or that he himself had good reason to believe so. Leverson v. Ijane, 13 C. 15., N. S. 278 ; 32 L. J., 0. P. 10; Ex pte. Darlington Joint Stock /Junking Co., 34 L. J., Bky. 10; Arden v. Sharp, 2 Esp. 524 ; Green v. Deakin, 2 Stark. 347; and now .see 53 & 54 V. c. 39, s. 7, post, p. 559 ; see also llcilbut v. Ncvill, L. K., 4 C. P. 354; Ex. Ch., L. R., 5 C. P. 478. This defence was formerly raised by a traverse of the acceptance. Hogg v. Sheen, 18 C. B., N. S. 426; 34 L. J., C. P. 153, explaining Musgrave v. Drake, 5 tj. B. 185. But under Rides, 1883, O. xix. r. 15, ante, p. 309, it would seem it ought to be specially pleaded. Where one partner has subscribed in a style slightly differing from the real name of the firm, it is a question for the jury whether he had authority from the firm to do so ; or whether he must be taken to have issued the bill on his own account. Faith v. Richmond, 11 Ad. & E. 339. Aud, it seems, 366 Action on Bills of Exchange. — Payee against Acceptor. that no partner has any implied authority to bind in any but the true style of the firm. Kirk v. Blurton, 9 M. & W. 284. Where a bill was accepted by one of two partners, "J. B. & Co.," the true style being "J. B.," the linn was livid, as matter of law, not bound. S. C. The correctness of the application of the law in this case lias, however, been doubted, on the ground that it was a question for the jury whether " J. B." and " J. B. & Co." did not mean the same thing. Stephens v. Reynolds, 5 H. & N. 513 ; 29 L. J., Ex. 278, per Martin, B. "See also Maclae v. Sutherland, 3 E. & B. 36 ; 23 L. J., Q. B. 242, per cur. And one of two partners may perhaps, under the general authority conferred by the partnership, bind the other by signing the true names of both, instead of the fictitious name of the firm. Norton v. Seymour, 3 C. B. 792, 794, per Maule, J. As to the liability of partner on an acceptance in blank by his co-partner, see Hogarth v. Latham, 3 Q. B. D. 643, C. A., aud cases there cited. The implied power of one partner to bind the others by his acceptance, &c, of bills does not extend to partnerships other than for trading purposes, such as solicitors ; lledley v. Bainbridge, 3 Q. B. 316 ; see Forster v. Mackreth, L. B., 2 Ex. 163, cited post, p. 407 ; or, brokers ; Yates v. Daltou, 28 L. J., Ex. 69; or auctioneers; Wheatley v. Smithers, (1906) 2 K. B. 321. So, there is no implied authority in a director of a joint-stock compauy, not being a trading partnership, to accept bills on the part of the directors of the company. Bramah v. Roberts, 3 N. C. 963. Nor is there any implied authority to the directors of a mining company to bind the shareholders by making notes or accepting bills. Dickinson v. Valpy, 10 B. & C. 128. But if it be shown to be necessary from the very nature of the company, or usual iu similar companies, to draw and accept bills, it would be reasonable that the directors should have such powers, and the law would imply it. Per Bosanquet, J., Id. After a partnership is proved, the admission of one partner that he accepted the bill iu the name of the firm will be proof of the acceptance as against all. Hodenpyl v. Vingerhoed, per Abbott, C.J., MSS. ; Chitty on BUls, 11th ed. 415 ; see 53 & 54 V. c. 39, s. 15 ; and further, ante, p. 70. A railway company incorporated in the usual manner, cannot draw, accept or indorse bills. Bateman v. Mid Wales Ry. Co., L. R., 1 C. P. 499. Nor, has a compauy incorporated under the Companies Act, 1862, this power, unless it is, at any rate impliedly, given by the memorandum and articles of association. Peruvian Ry. Co. v. Thames aud, Mersey Marine Insurance Co., L. R., 2 Ch. 617. But where a company has the power, aud represent that they have exercised it, they cannot afterwards set up an informality in the execution of the power. Ex pte. Overend, Gumey, & Co., L. R., 4 Ch. 460. As to the liability of directors, who accept a bill for a company, which cannot accept bills, vide pout, p. 494. The power of registered companies to make or accept notes aud bills is regulated by statute. See Actions by and against companies, post, pp. 1110, 1115. Acceptance by agent.'] By sect. 26, ante, p. 358, an agent will be personally liable to third persons by drawing, indorsing, or accepting in his own name, unless he unequivocally show on the face of the writing that he signs only in a ministerial capacity. Thus, a bill was drawn, " Pay to J. S. or order 200^., value received, and place same to account of Y. B. Co., as per advice from C. M. to H. B." (the defendant), "cashier of the Y. B. Co.," and the defendant wrote, "Accepted per H. B. ; " it was held that defendant was personally liable, although he accepted by direction of the company. Thomas v. Bishop, 2 Str. 855. So, where an agent to a country branch of a London bank, to whom the plaintiff sent a sum of money iu order to procure a bill upon London, drew in his own name a bill Acceptance by Agent. — Proof of Acceptance by Admission. 367 for the amount upon the firm in London, he was held liable, although the plaintiff knew he was agent only. Leadbitter v. Farrow, 5 M. & S. 345. See also the cases cited, Promissory notes, post, pp. 413, 414. Where a bill was directed " to the A. C. Mining Co.," and was accepted in his own name, " for the A. C. Mining Co.," by one of the managing partners who had no authority to sign for the rest, it was held that on proof of his being partner in the adventure he was liable on the acceptance. Owen v. Van Uster, 10 C. B. 318; 20 L. J., C. P. 61. So, where a bill was directed to "J. D., purser of W. D. Mining Co.," being an unincorporated company, and the acceptance was " J. D., per pro. W. D. Mining Co.," held that J. D. was personally liable, being himself a shareholder, and not authorized to bind the rest; and this, although at the time of acceptance he notified to the plaintiff's, the drawers, his intention not to be personally bound. Nicholls v. Diamond, 9 Exch. 154; 23 L. J., Ex. 1. And where a bill directed to a person who was only purser and not an adventurer, purported to be in payment for goods supplied to the company, and the drawee accepted it " for the company, W. C, purser," he was held liable ; for the bill was not directed to the company, and therefore could not be accepted by, or by procuration for them, and the acceptance " for the company " was not inconsistent with an intention on the part of the defendant to bind him- self; and, being at utmost only ambiguous, must be taken to be operative against him. Mare v. Charles, 5 E. & B. 978; 25 L. J., Q. B. 119. Semble, if the acceptance had been "per procuration," it would have been inoperative. 8. C. If the acceptance be by an agent, his authority and handwriting must be proved. If it be within his authority, his abuse of the power will not affect a bond fide holder for value. Bryant, &c, Ld., v. Quebec Bank, (1893) A. C. 170, J. C. ; see also Hambro v. Burnand, ante, p. 312. An admission by defendant of his liability on another bill, accepted by the same agent, is confirmatory evidence, after other proof, of a general authority. Llewellyn v. Wincktuorth, 13 M. & \V. 5'J8. But semb., it would not be evidence per se. S. C. As to signature by procuration, see sect. 25, ante, p. 358, and Reid v. Rigby, (1894) 2 Q. B. 40, decided thereon. If an agent, as apparent principal, carry on a business for another, to which business the drawing or accepting bills is incidental, the principal cannot, by secret instructions to his agent, divest the latter of the power of drawing and accepting bills. Edmunds v. Bushell, L. R., 1 Q. B. 97. Proof that the defendant's wife conducted his business and had applied the proceeds of the bill in paymeut of debts incurred iu the business, and absence of any proof by whom the defendant's name was written as acceptor, is no evidence that the defendant had sanctioned the acceptance. Goldstoue v. Tovey, 6 N. C. 98. Proof of an acceptance by the wife, in her own name, of a bill drawn on her husband, and that he, alter looking at it, promised to pay, saying he knew all about it, is evidence that he authorized this mode of acceptance, and he is bound by it. Lindus v. Bradwell, 5 C. B. 583. The manager of a co-partnership has not, as such manager, authority to sign the name of the firm. Beueridyc v. Beveridge, L. R., 2 H. L. Sc. 183. See also post, pp. 371 et seq., sub tit., Indorsement, how proved. Proof of acceptance by admission.'] By sect. 21 (1), ante, p. 353, where an acceptance is written on a bill, notice by the drawee to the person entitled thereto, that he has accepted it, makes the acceptance complete and irrevocable. By sect. 24, ante, p. 358, subject to the provisions of the act, a forged or unauthorized signature is wholly inoperative unless the party against whom it is Bought to enforce payment of the bill is precluded (see beet. 51 (2), ante, p. 363) from setting up the forgery or want of authority. 368 Action on Bills of Exchange. — Payee against Acceptor. But this is not to " affect the ratification of an unauthorized signature not amounting to a forgery." It seems, therefore, that a forged acceptance cannot be ratified, except, perhaps, in a case falling within sect. 21 (1). See Brook v. Hook, L. R., 6 Ex. 89. The defendant paid a bill of exchange (of which the plaintiff was holder) on which his acceptance had been forged. In an action against him on another bill similarly accepted, the jury fouud that the signature was not made by the defendant's authority, nor had he adopted it; that the defendant did not know that the plaintiff was the holder of the former bill, nor did he lead the plaintiff to believe that the acceptance was his. It was held that the payment by him of the former bill did not estop the defendant from denying the authority to accept. Morris v. Bethell, L. R., 5 C. P. 47. See also ftVKenzie v. British Linen Co., 6 Ap. Ca. 82, D. I\ Where in an action against the acceptor of a bill, his attorney gave a notice to produce all papers relating to the bill, describing it, and adding, " and which said bill was accepted by the said defendant," the notice was held to be prima facie evidence of the acceptance. Holt v. Squire, Ry. & M. 282. Proof of identity of acceptor.'] Vide ante, pp. 125, 135. Acceptance before draiuing.] As to acceptance of a bill before it is filled in, see sect. 20, ante, p. 353. The Statute of Limitations is no defence to an action by a holder in due course ; vide sect. 20, ante, p. 354 ; though the drawer issued the bill improperly after a lapse of twelve years. Montague v. Perkins, 22 L. J., C. P. 187. And even although a smaller sum is expressed in figures on the margin of the bill, yet if these be altered and the blank filled in to the full amount covered by the stamp, the acceptor is liable to that amount to a holder in due course. Garrard v. Lewis, 10 Q. B. D. 30. Where an acceptance has been given for valuable consideration with the drawer's name alone in blank, the latter can be added after the death of the acceptor. Carter v. White, 20 Ch. D. 225 ; 25 Ch. D. 666, C. A. And it is immaterial that the names of the drawer and indorsee are forgeries or fictitious. L. cfc S. W. Bank v. Wentworth, 5 Ex. D. 96. But where A. merely writes a blank acceptance, he will not be liable thereon even at the suit of a bona fide holder for value, unless A. issued the acceptance, intending it to be filled up so as to become a complete bill. Baxendale v. Bennett, 3 Q. B. D. 525, C. A. It is a material alteration, which avoids the bill, at any rate as between the immediate parties, to insert words before the acceptance making the bill payable at a particular place. Hanbury v. Lovett, 28 L. T., 366, E. T. 1868, Ex. And it seems that where the holder of a bill, accepted in blank, has taken it from the drawer with knowledge of it having been so accepted, he will have no better title than the drawer had. Hatch v. Searies, 2 Sm. & Gift. 1 17 ; aff. by L.JJ., 24 L. J., Ch. 22. See further as to acceptance in blank, Hogarth v. Latham, 3 Q. B. D. 6-13, C. A. The proviso in sect. 'JO (2), ante, p. 353, applies to an instrument nego- tiated to a holder in due course, but not to one issued only, vide sect. 2, ante, p. 350, to such holder. Herdman v. Wheeler, (1902) 1 K. B. 361. But apart from that section the apparent acceptor may be estopped from denying the acceptance. Lloyd's Bank v. Cooke, (1907) 1 K. B. 794, C. A. Presentment for payment.] Proof of presentment is necessary against the acceptor on a qualified acceptance, but not on a general acceptance, see ante, p. 363, even where the bill is payable on demand. Rumball v. Ball, 10 Mod. 38 ; Norton v. Ellam, 2 M. & W. 461. If the bill or note be payable after sight, it must be presented in order to charge the acceptor or maker. Bills of Exchange Act, 1882. — Indorsement. 369 Dixon v. Nuttall, 1 C. M. & R, 307 ; and see sect. 54 (1), ante, p. 363. But by sect. 52 (2), ante, p. 368, the acceptor is not in general discharged by non-presentation of the bill to him on the day it matures. As to when a bill falls due, vide ante, p. 362. By sect. 10 (1) (a), a bill payable at sight is payable on demand. Evidence under money claims.'] In an action by payee against acceptor if the plaintiff be also the drawer, the bill will be evidence of money had and received ; Thompson v. Morgan, 3 Camp. 101 ; or on an account stated ; per Abbott, C. J., Bhodes v. Gent, 5 B. & A. 245 ; but not where the payees or holders are third persons. Semb., Early v. Bowman, 1 B. & Ad. 889. An acknowledgment of his acceptance by the defendant to the holder is evidence of an account stated between them. Per Bailey, J., Leaper v. Tatton, 16 East, 423 ; Eighmore v. Primrose, 5 M. & S. 65. Acceptance, effect of, in accrediting the drawing.'] Sect. 54 (2), ante, p. 363, defines the effect of an acceptance in admitting the drawing. For this purpose it matters not that the bill is accepted in blank; L. & S. W. Bank v. Wentworth, 5 Ex. D. 96. So an acceptor for the honour of the drawer is estopped from disputing the drawer's siguature. Phillips v. 1m Thurn, 18 C. B., N. S. 694 ; L. R., 1 C. P. 463. Indorsee against Acceptor. In this action the plaintiff may be put to prove the indorsements alleged, besides the facts required to be proved in an action by the payee. Indorsement — Statute.] By sect. 2, " Indorsement means an indorsement completed by delivery," vide sect. 21, ante, p. 353. Sect. 8. "(1) When a bill contaius words prohibiting transferor indi- cating an intention that it should not be transferable, it is valid as between the parties thereto, but is not negotiable. " (2.) A negotiable bill may be payable either to order or to bearer. " (3.) A bill is payable to bearer which is expressed to be so payable, or on which the only or last indorsement is an indorsement in blank. "(4.) A bill is payable to order which is expressed to be so payable, or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer, or indicating an intention that it should not be transferable. " (5.) Where a bill, either originally or by indorsement, is expressed to be payable to the order of a specified person, and not to him or his order, it is nevertheless payable to him or his order at his option." The rules laid down by the words in italics are new. As to restraining negotiability of bill, vide sects. 34 (4) and 36 (1), post, p. 370. Sect. 31. "(1.) A bill is negotiated when it is transferred from one person to another in such a manner as to constitute the transferee the holder " (vide sect. 2, ante, p. 350) "of the bill. " (2.) A bill payable to bearer " (vide sect. 2, ante, p. 349) " is negotiated by delivery " (vide sect. 21, ante, p. 353). " (3.) A bill payable to order " (vide sect. 8 (4), supra) " is negotiated by the indorsement of the holder completed by delivery" (vide sect. 21, ante, p. 353). " (4.) Where the holder of a bill payable to his order transfers it for value without indorsing it, the transfer gives the transferee such title as the transferror had in the bill, and the transferee in addition acquires the right to have the indorsement of the transferror. r. — vol. i. u 11 370 Action on Hills of Exchange. — Indorsee against Acceptor. " (5.) Where any person is under obligation to indorse a bill in a representative capacity, he may indorse the bill in such terms as to negative personal liability." See sect. 16, post, p. 375, and sect. 26, anil , p. 358. Sect. 32. " An indorsement, in order to operate as a negotiation, must comply with the following conditions, namely : — " (1.) It must be written on the bill itself and be signed by the indorser. The simple signature" (vide sect. 91, ante, p. 350) "of the indorser on the bill, without additional words, is sufficient. " An indorsement written on an allonge, or on a ' copy ' of a bill issued or negotiated in a country where 'copies' are recognized, is deemed to be written on the bill itself. " (2.) It must be au indorsement of the entire bill. A partial indorsement, that is to say, an indorsement which purports to transfer to the indorsee a part only of the amount payable, or which purports to transfer the bill to two or more iudorsees severally, does not operate as a negotiation of the bill. " (3.) Where a bill is payable to the order of two or more payees or indorsees who are not partners, all must indorse, unless the one indorsing has authority to indorse for the others." In the case of dividend warrants the rule is otherwise, vide sect. 97 (3) (d), ante, p. 351. " (4.) Where, in a bill payable to order, the payee or indorsee is wrongly designated, or his name is mis-spelt, he may indorse the bill as therein described, adding, if he think fit, his proper signature. "(5.) Where there are two or more indorsements on a bill, each indorse- ment is deemed to have been made in the order in which it appears on the bill, uutil the contrary is proved. " (6.) An indorsement may be made in blank or special." (Vide sect. 34, infra.) "It may also contain terms making it restrictive." (Vide sect. 35, infra.) Sect. 34. " (1.) An indorsement in blank specifies no indorsee, and a bill so indorsed becomes payable to bearer. " (2.) A special indorsement specifies the person to whom, or to whose order the bill is to be payable. " (3.) The provisions of this act relating to a payee apply with the necessary modifications to an indorsee under a special indorsement." (Vide sect. 7, ante, p. 352, and sect. 8, ante, p. 369.) "(4.) When a bill has been indorsed in blank, any holder may convert the blank indorsement into a special indorsement by writing above the indorser's signature a direction to pay the bill to or to the order of himself or some other person." ( Vide sect. 8 (3), ante, p. 369.) Sect. 35. "(1.) An indorsement is restrictive which prohibits the further negotiation of the bill or which expresses that it is a mere authority to deal with the bill as thereby directed and not a transfer of tlie ownership) thereof, as, for example, if a bill be indorsed ' Pay D. only,' or ' Pay D. for the account of X.,' or ' Pay D. or order for collection.' "(2.) A restrictive indorsement gives the indorsee the right to receive payment of the bill and to sue any party thereto that his indorser could have sued, but gives him no power to transfer his rights as indorsee unless it expressly authorize him to do so. "(3.) Where a restrictive indorsement authorizes further transfer, all subsequent indorsees take the bill with the same rights and subject to the same liabilities as t lie first indorsee under the restrictive indorsement." Sect. 36. " (1.) Where a bill is negotiable in its origin it continues to he negotiable until it has been (a) restrictively indorsed" (vide sect. 35, supra), Indorsement, how proved. 371 " or (6) discharged by payment or otherwise." ( Vide sect. 59, post, p. 401, sect. 60, post, p. -406, and sects. 61 — 63, post, p. 404.) Sect. 37, ante, p. 354, relates to the negotiation of a bill to a party liable thereon. Sect. 38, ante, p. 355, defines the rights and powers of the holder of a bill. Indorsement, how proved.'] It appears from sects. 21 {ante, p. 353), and 32 (1) (ante, p. 370), that " indorsement " in general implies the writing of the holder's name on the bill and the delivery thereof to the alleged indorsee as indorsee; "delivery " is defined by sect. 2, ante, p. 350; as to the requi- sites of valid delivery, see sect. 21 (2, 3), ante, p. 353. As against the acceptor it is not necessary that the indorser should intend to guarantee the indorsee, if the acceptor make default. See Denton v. Peters, L. R., 5 Q. B. 475, 477, and Smith v. Johnson, post, p. 375. The delivery need not be personal. Thus, if a general agent for the indorsee, being indebted to him, indorse and deposit a bill among other securities of the indorsee in his custody, it is sufficient. Lysayht v. Bryant, 9 C. B. 46 ; 19 L. J., C. P. 160. So, where A. indorsed a bill in blank and delivered it to the plaintiff, the manager of a bank, for value received from the bank, and the plaintiff, by direction of the directors of the hank, sued the acceptor upon it ; it was held that those facts proved an indorsement to the plaintiff, inasmuch as an indorsement in blank enables the indorsee to hand it over and give title to any one to sue. Law v. Parnell, 7 C. B., N. S. 282 ; 29 L. J., C. P. 17 ; Ancna v. Marks, 7 H. & N. 686 ; 31 L. J., Ex. 163. But, there must be a delivery with intent to transfer the property, and, if the indorsed bill be delivered to an agent for a special purpose only, and he part with it improperly, this will not be an indorsement except in' the hands of a bond jidc holder for value ; Marston v. Allen, 8 M. & W. 503 ; Barber v Richards, 6 Exch. 63; and therefore, where the bill was delivered by such agent to plaintiff when overdue without consideration, it was held no indorsement. Lloyd v. Howard, 15 Q. B. 995 ; 20 L. J., Q. B. 1. An indorsement made in France of a bill drawn, accepted and made payable in England, is good, if made according to English law. Lebel v. Tucker, L. R., 3 Q. B. 77. And see sect. 72 (2), ante, p. 356. So, where the bill was also drawn in France, and there indorsed to an Englishman in England. Hmallpage and Brandon's cases, 30 Ch. D. 598. But, the indorsement of a French promissory note must be made according to French law to enable the indorsee to sue in England ; Trimbcy v. Viynier, 1 N. C. 151 ; so in the case of a French bill, even though accepted in England. Bradlauyh v. De Bin, L. R., 3 C. P. 538. This seems to have been assumed by the Ex. Ch. on appeal in this case, though they reversed the judgment on the ground that the C. P. had proceeded on an erroneous view of the law of France; and the court intimated that the judgment in Trimbcy v. Viynier, supra, was wrong, on the same ground. L. R., 5 C. P. 473. Hy sect. 54 (2), ante, p. 363, the acceptor is precluded from denying to a bolder in due course the capacity of the payee to indorse, but not the genuineness or validity of his indorsement. Thus, where a bill is drawn by a partner in the name of his firm, his authority to indorse is not admitted by acceptance. Garland v. Jacomb, L. R., 8 Ex. 216, Ex. Ch. So, where a bill payable to the drawer's own order was drawn and indorsed by procuration by the same person, it was held that the acceptance only admitted the drawing by procuration and not the indorsing. Robinson v. Yarrow, 7 Taunt. 455. But, where the drawing and indorsement are both forgeries, and the acceptor, with knowledge of this, negotiates tin; bills, he cannot dispute the regularity of the indorsement. Beemcm v. Duck, 11 M. & W. 251. It seems that iib2 ■"•72 Action on Hills of Exchange. — Indorset against Acceptor. under the Crim. P. Act, 1865, s. 8, ante, p. 141, an indorsement might be proved by comparing it with tbe drawer's signature, which the acceptor is estopped from denying; and that as an authority to draw bills is some evidence of an authority to indorse also, see Prescott v. Flinn, infra, the indorsement might be so proved, even when both signatures are per procuration. By sect. 7 (3), ante, p. 360, where the payee is a fictitious or non-existing person, the bill may be treated as payable to bearer. Where there was no proof of the handwriting of one of the indorsers, but it appeared that the indorsement was upon the bill when the defendant accepted it, and that he promised to pay it, Ryder, C.J., left the case to the jury, who found for the plaintiff, and the court refused a new trial, lluitkey v. Wilson, Sayer, 223. So, an offer made b}' the acceptor to pay a bill with certain names on it, is a sufficient admission of the plaintiff's title, so as to supersede the necessity of proof of each person's handwriting. Bosanquet v. Anderson, 6 Esp. 43. But, where the bill was shown to the defendant with the name of the payee indorsed upon it, and the defendant merely objected to the want of consideration, it was ruled that that did not supersede the necessity of proving the indorser's hand- writing. Duncan v. Scott, 1 Camp. 101. An admission of his handwriting by the indorser, though evidence against himself, is not evidence of indorsement in an action against the acceptor. Hemings v. Robinson, Barnes, 436. Indorsement by agent.] When the indorsement is by an agent, it is necessary to show that the person by whom the indorsement was written had the authority of the person whose name is written. In such a case an authority to draw does not of itself import an authority to indorse bills ; but it is a fact which ought to go to the jury as evidence. The clerk of the payees of a bill having been accustomed to draw cheques for them, and in one instance authorized to indorse a bill, and two other bills indorsed by him having been discounted at the payee's bankers, and the proceeds received by them, — these facts were held evidence that the clerk had a general authority to indorse. Prescott v. Flinn, 9 Bing. 19. A power to A. to indorse and negotiate bills remitted to G., will not authorize the indorsement of a bill remitted to G., for a special purpose, and which G. could not have applied to his own use without fraud ; and though the indorsement by G. himself would have transferred a good title to a bond fide holder, the indorsement by A. in G.'s name does not. Feam v. Filica, 7 M. & Gr. 513. Where a bill payable to the drawer's order is handed by him to another, for a good consideration, with the intention of transferring the property to him, but the drawer omits to indorse it, the transferee has no authority to indorse by procuration in the drawer's name. Ilarrop v. Fisher, 10 C. B., N. S. 196 ; 30 L. J., C. P. 283. A farm bailiff, accustomed to pay and receive all moneys for his employer, has no implied authority to draw or indorse bills in the name of his principal. Davidson v. Stanley, 2 M. & Gr. 721. Though a wife, who carries on business for her husband, may be presumed to have authority to indorse in his name, yet an indorsement in her own name by a feme covert of a bill payable to her order, formerly conveyed no interest if without her husband's consent; Barlow v. Bishop, 1 East, 432 ; aliter, if the indorsement be made with the husband's consent ; Prestwiclc v. Marshall, 7 Bing. 565. But under the Married Women's Property Act, 1882, 45 & 46 V. c. 75, s. 1, a married woman can indorse a bill of exchange payable to her. Tf the maker promise to pay a note, with the indorsement of a married woman upon it, it may be presumed as against him that she had authority from her husband to indorse it in her own name; Cotes v. Davis, 1 Camp. 485; recognized in Prestwick v. Marshall, supra; Prince v. Brunatte,! N. C. 435; Indorsement. 373 and Lindas v. Bradivell, 5 C. B. 583 ; but, it is to be observed that, as she was the payee, the defendant, as maker, was estopped, without any promise, from disputing her capacity to indorse ; see sect. 54 (2) (c), ante, p. 363. Where the wife, who managed all the money part of the business, had power to indorse in the husband's name, it may be left to the jury to say whether the power authorized an indorsement by her daughter, in her presence, and by her direction. Lord v. Roll, 8 C. B. 627. A power to A. to draw or indorse in B.'s name may be exercised by a clerk of A. by his direction. Ex parte Sutton, 2 Cox, 84, cited per cur. in the last case. By sect. 32 (3), ante, p. 370, " where a bill is payable to the order of two or more payees or indorsees who are not partners, all must indorse, urdess the one indorsing has authority to indorse for the others." A partner may indorse for the whole firm by procuration. Williamson v. Johnson, 1 B. & C. 146. Where a bill of exchange indorsed to H. & F. was indorsed by H. & P. by procuration of J. D., a partner in the firm of H. & Co., who managed the business of the firm, and it was proved that J. D. was in the habit of indorsing bills in that manner, although there was no such person as F. in the firm of H. & Co., the indorsee was held to have a good title. S. C. A partner has no implied authority to indorse a bill in the name of the partnership as security for his private debt ; and the acceptor is not estopped by his acceptance from showing this want of authority. Garland v. Jacomb, L. R., 8 Ex. 216, Ex. Ch. On the disso- lution of a partnership, a power, given to one of the partners to receive and pay debts, does not authorize him to indorse a bill in the name of the partnership ; and, the partnership being dissolved, he has no general authority to do so. Kilgour v. Fialyson, 1 H. Bl. 155. But, a retiring partner may orally give his late partners authority to indorse existing securities ; and a statement by the ex-parcner, that he has left the assets and securities in the hands of the continuing partners, and that he has no objection to their using the partnership name, is evidence from which a jur3 r may infer an authority to indorse. Smith v. Winter, 4 M. & W. 454. The Partnership Act, 1890, 53 & 54 V. c. 39, s. 6, post, p. 556, does not affect any general rule of law relating to the power to indorse. As to indorsement under the J. Act, 1884, s. 14, by a nominee of the court on refusal to indorse, in accordance with an order of court, vide ante, p. 138. Identity of the indorser.'] Vide ante, pp. 125, 135. Date of indorsement.] By sect. 36, "(4) except where an indorsement bears date after the maturity of the bill, every negotiation is prima fade deemed to have been effected before the bill was overdue." A bill is pre- sumed to be issued when dated. Anderson v. Weston, 6 N. C. 296. But the date of an indorsement cannot be inferred from the date of the drawing ; and if it be material, plaintiff should be prepared to prove it, cither directly or by inference from circumstances. Rose v. Rowcroft,4: Camp. 245. See, however, Anderson v. Weston, 6 N. C. 296, post, p. 392. Proof of mesne indorsements.'] All the indorsements that have been stated, though unnecessarily, must (if traversed) be proved as against acceptor. Waynam v. Bend, 1 Camp. J75. But, an offer by the acceptor to the holder to give another bill was held by Ld. Ellenborough an admission of the holder's title, and of the defendant's liability, and bo dispensed with proof of the mesne indorsements, /'osam/iirf. v. Anderson, 6 Esp. 43. By sect. 8 (4), ante, p. 369, where a bill of exchange is nut drawn payable to bearer, it now only becomes so when the last, <>i only indorsement is in 374 Action on Bills of Exchang* — Indorsee against Acceptor. blank ; hence it is not, as it formerly was, sufficient to prove an indorse- ment in blank, if there is a subsequent special indorsement. See Smith v. Clarke, Peake, 225 ; Walker v. Macdonald, 2 Exch. 527. In an action by the indorsee of a bill agaiust the acceptor, the first count stated all the indorsements ; the second count an indorsement by the payee to the plaintiff; Abbott, C.J., said that all the indorsements must be proved or struck out, though not stated in the declaration ; and this need not be done before the trial. Cocks v. Borrodale, Chitty on Bills, 11th ed. 409. Indorsements may be struck out, even after the bill has been read in evidence and objected to on the ground of the omission to state them in the statement of claim. Mayer v. Jadis, 1 M. & Eob. 2-47. By striking out intermediate indorse- ments, the plaintiff loses the security of those indorsers. Title of the plaintiff as indorsee.] Sects. 21, 29 and 30, ante, pp. 353, 354, define the conditions necessary to .entitle the plaintiff to sue as indorsee. When a bill is indorsed in blank, possession is sufficient primd facie title; and several plaintiffs, suing as indorsees, need not prove that they are in partnership, or, that the bill was indorsed to them jointly. Ord v. Portal, 3 Camp. 239 ; Rordasnz v. Leach, 1 Stark. 446 ; Attwood v. Ratten- bury, 6 B. Moore, 579. But, where it is specially indorsed to a firm, the partnership must be proved to consist of the plaintiffs. 3 Camp. 240, n. Where the plaintiffs sue in a particular capacity, as trustees of a bankrupt, and allege an indorsement to them as such trustees, they must prove that the bills were indorsed to them in that capacity. Bernasconi v. Argyle, Dk. of, 3 C. & P. 29. On a traverse of the indorsement to the plaintiff, the defendaut may show that the right to sue on it as indorsee is in other persons, and not in the plaintiff, though the indorsement is in blauk. Machell v. Kinnear, 1 Stark. 499. In that case the plaintiffs were trustees of the estate of H., an insolvent; two of them were partners in the firm of L. & Co., but one was a stranger ; the defendant sent the bill indorsed by him in blank to L. & Co., on account of H.'s estate; on objection being taken, Ld. Ellenborough held that, on these circumstances being shown, it was necessary for the plaintiffs to show that L. & Co. had transferred the bill to the plaintiffs, or had authorized them to sue. The defendant might also show that, though indorsed in blank, it was never delivered to the plaintiff as indorsee, but only as agent for another; Adams v. Jones, 12 Ad. & E. 455; or, had been delivered to the plaintiff on a condition which had not been complied with. Bell v. Jngestre, Ld., 12 Q. B. 317 ; Daivson v. Tsle, (1906) 1 Ch. 633. So, on a traverse of a previous indorsement by A. to B., it might have been shown that A. had delivered it to B. as agent only, and B. had indorsed it in fraud of the true owner, with the plaintiff's privity. Marsion v. Allen, 8 M. & W. 494. Again, where the payee indorsed specially to M., and handed it to him to get discounted, and he indorsed it to plaintiff without value when overdue, it was held on a traverse of the indorsement from the payee to M., that the defendant was entitled to the verdict. Lloyd v. Howard, 15 Q. B. 995; 20 L. J., Q. B. 1. But, in many of the above cases the defence must now be pleaded specially. See Rules, 1883, O. xix. r. 15, ante, p. 309. And, where the plaintiff was a bond fide holder for value, on a traverse of the indorsement by A., the payee, to a previous indorser, B., the defendant could not show that A. delivered the bill for a particular purpose, and B. fraudulently negotiated it. Hayes v. Caidfield, 5 Q. B. 81. So, where E. indorsed a bill in blank, and delivered it to B. to get discounted, and he deposited it with T. for value received by himself, it was held that this proved an indorsement from E. to T. ; Barber v. Richards, 6 Exch. 63 ; 20 L. J., Ex. 135 ; for, if the holder put his name on the back of a bill, and deliver it to his agent for a particular Drawer against Acceptor, 375 purpose, and he deliver it to a third person for value, that is an indorse- ment from the holder to such third person. Per Parke, B., Ibid. Nor, is it any answer, on a denial of the indorsement, that it was indorsed to the plaintiff by the directors of a company (intermediate indorsees), who had no authority to indorse ; for, it is enough if the indorsement give a title to the bill, though the company may not be bound by such indorsement. Smith v. Johnson, 3 H. & N. 222 ; 27 L. J., Ex. 363. See also Denton v. Peters, L. E., 5 Q. B. 477, 479. An indorsement in blank by the maker of a note, and a delivery by his executor to the plaintiff, is no indorsement to the plaintiff so as to give him a title to sue. Bromage v. Lloyd, 1 Exch. 32. As to restricting the negotiability of a bill by the acceptance, see Decroix v. Meyer, ante, p. 364. Evidence under money claims.] Although an acceptance has been said to be evidence of money had and received by the acceptor to the use of the holder (Bayley on Bills, Gth ed. 363), yet, on principle, it can be available upon the money claims only where there is privity ; as, where the parties on the record are immediate parties on the bill, or, there has been a promise to pay, an account actually stated, or, acknowledgment of liability ; and, the later authorities are to that effect. Waynam v. Bend, 1 Camp. 175 ; Eales v. Dicker, M. & M. 324 ; and the cases cited ante, p. 369. Drawer against Acceptor. When a bill, though not payable on the drawer's own order, has been dishonoured by the acceptor, and taken up by the drawer, he may sue the acceptor ; Simmonds v. Parminter, 1 Wils. 185 ; and in such action may be obliged by proper defences to prove, 1. The acceptance, as to proof of which, see ante, pp. 362 et seq. ; 2. The presentment to the defendant, as to proof of which, see post, pp. 376 et seq., and his refusal to pay, which may be done by calling the person who presented the bill, or by proving a promise by the defendant to pay, which dispenses with proof of the presentment ; and 3. The return of the bill to, and payment thereof by the plaintiff. To prove the latter fact, it has been held not sufficient to produce the bill with a general receipt on the back of it from the then holder ; for the receipt prima facie imports that the bill was paid by the acceptor. Scholey v. Walsby, Peake, 25. But, the legitimacy of this last presumption is doubtful ; per cur. in Phillips v. Warren, 13 M. & W. 379. Payee or Indorsee against Drawer. In an action by the payee or indorsee against the drawer, the plaintiff may have to prove, 1. The drawing of the bill ; 2. Presentment to the drawee for acceptance or to acceptor for payment; 3. His default; 4. Due notice to the defendant of the default or dishonour; and 5, in the case of an indorsee, the indorsements, as to proof of which see ante, pp. 371 et seq. Drawing.— Statute.] By sect. 55, " (1.) The drawer of a bill by drawing it — (a.) Engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken." Sect. 16. "The drawer of a bill, and any indorser, may insert therein an expresR stipulation — "(1.) Negativing or limiting his own liability to the holder : " (2.) Waiving as regards himself souk; or all of the holder's duties." 376 Action on Dills of Exchange. — Payee or Indorsee against Drawer. By sect. 72 (1), ante, p. 355, when a bill is payable abroad, tbe obligations of the acceptor, and therefore of the drawer and indorsers, are regulated by lex loci of performance of contract. Proof of the drawing.'] The drawing of the bill, when traversed, must be proved by evidence of the drawer's handwriting ; or, if drawn by an agent, by proving the authority of the agent and his handwriting. A farm bailiff, intrusted to pay and receive money, has not any implied authority to bind his principal by drawing bills. Davidson v. Stanley, 2 M. & Gr. 721; and see further as to authority of agent, ante, pp. 3G6, 367. If drawn in the name of a partnership, the partnership must be proved, and the handwriting of the partner who drew the bill. See further, Proof of acceptance of partners, ante, p. 364. As to proof of partnership, see post, Action for goods sold j- delivery to partner, post, pp. 555 et sea. Presentment to drawee for acceptance. — Statute^] Sect. 39. " (1.) Where a bill is payable after sight, presentment for acceptance is necessary in order to fix the maturity of the instrument. "(2.) Where a bill expressly stipulates that it shall be presented for acceptance, or where a bill is drawn payable elsewhere than at the residence or place of business of the drawee, it must be presented for acceptance before it can be presented for payment. "(3.) In no other case is presentment for acceptance necessary in order to render liable any party to the bill. " (4.) Where the holder of a bill, drawn payable elsewhere than at the place of business or residence of the drawee, has not time, with the exercise of reasonable diligence, to present the bill tor acceptance before presenting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance before presenting it for payment is excused, and does not discharge the drawer and indorsers." Sect. 40. "(1.) Subject to the provisions of this act" (vide sect. 41 (2), infra), " when a bill payable after sight is negotiated, the holder must either present it for acceptance or negotiate it within a reasonable time. " (2.) If he do not do so, the drawer and all indorsers prior to that holder are discharged. "(3.) In determining what is a reasonable time within the meaning of this section, regard shall be had to the nature of the bill, the usage of trade with respect to similar bills, and the facts of the particular case." Sect. 41. "(1.) A bill is duly presented for acceptance which is presented in accordance with the following rules: — " (a.) The presentment must be made by or on behalf of the holder to the drawee or to some person authorized to accept or refuse accept- ance on his behalf at a reasonable hour on a business day and before the bill is overdue : " (b.) Where a bill is addressed to two or more drawees, who are not partners, presentment must be made to them all, unless one has authority to accept for all, then presentment may be made to him only : "(c.) Where the drawee is dead, presentment may be made to his personal representative : "(d.) Where the drawee is bankrupt" (vide sect. 2, ante, p. 350), " presentment may be made to him or to his trustee : "(e.) Where authorized by agreement or usage, a presentment through the post office is sufficient. " (2.) Presentment in accordance with these rules is excused, and a bill may be treated as dishonoured by non-acceptance — Presentment for Acceptance. 377 "(a.) Where the drawee is dead or bankrupt, or is a fictitious person, or a person not having capacity to contract by bill : " (b.) Where after the exercise of reasonable diligence, such presentment cannot be effected : "(c.) Where, although the presentment has been irregular, acceptance has been refused on some other ground. "(3.) The fact that the holder has reason to believe that the bill, on presentment, will be dishonoured, does not excuse presentment." Sect. 42. "(1.) When a bill is duly presented for acceptance, and is not accepted within the customary time, the person presenting it must treat it as dishonoured by non-acceptance " {vide sect. 48, post, p. 380). " If he do not, the holder shall lose his right of recourse against the drawer and iodorsers." As to protesting a bill not returned by the drawee, vide sect. 51 (8), post, p. 386. Sect. 43. "(1.) A bill is dishonoured by non-acceptance — " (a.) when it is duly presented for acceptance, and such an acceptance as is prescribed by this act" (vide sect. 17 (2), ante, p. 362), "is refused or cannot be obtained ; or " (b.) when presentment for acceptance is excused and the bill is not accepted. "(2.) Subject to the provisions of this act, when a bill is dishonoured by non-acceptance, an immediate right of recourse against the drawer and indorsers accrues to the holder, and no presentment for payment is necessary." Sect. 44. " (1.) The holder of a bill may refuse to take a qualified accept- ance (vide sect. 19 (2), ante, p. 362), " and if he does not obtain an unqualified acceptance may treat the bill as dishonoured by non-acceptance. "(2.) Where a qualified acceptance is taken, and the drawer or an indorser has not expressly or impliedly authorized the holder to take a qualified acceptance, or does not subsequently assent thereto, such drawer or indorser is discharged from his liability on the bill. " The provisions of this sub-section do not apply to a partial acceptance " (vide sect. 19 (2) (b), ante, p. 362), " whereof due notice has been given. Where a foreign bill has been accepted as to part, it must be protested as to the balance. " (3.) When the drawer or indorser of a bill receives notice of a qualified acceptance, and does not within a reasonable time express his dissent to the holder, he shall be deemed to have assented thereto." Presentment to drawee for acceptance^ Where a bill, presentment of which for acceptance is not required by sect. 39, ante, p. 376, has been presented and acceptance refused, due notice of such refusal must be given ; Blessard v. Hirst, 5 Burr. 2070; Ooodall v. Dolley, 1 T. R. 712; and all parties entitled to notice are discharged by want of it; S. CO.; and are not liable on a subsequent refusal of the drawee to pay ; Moscow v. Hardy, 12 East, 434; and see sect. 42, supra. But by sect. 48 (1), post, p. 380, the drawer is not discharged by want of notice of non-acceptance, as against a subsequent bolder in due course. It may be observed that what is said by the drawee on the bill being presented is evidence lor the plaintiff of want of assets, but not what passed between the drawee and the holder afterwards. Prii/.fiui.i: v. <'of/ier, '.I Stark. 57. The bill must be left with the drawer for 24 hours, unless during that time he either accept or refuse to do so ; Bayley on Bills, 6th ed. 228; Marius, 3rd ed. 15; Van Diem-ail's Land, Bank of, v. Victoria, Bank of, L. K., 3 P. C. 526, 543. The drawee may revoke and cancel his aceei fcanoe before be parts with the bill. Cox v. Troy, 5 B. & A. 474. 378 Actio// on Hill* of Exchange. — Payee or Indorsee against Drawer. It is not sufficient to show that the bill was presented to some person on the drawee's premises without connecting him with the drawee. Cheek v. Roper, 5 Esp. 175. \Yhere the payee delayed for eight months to present a bill drawn in Calcutta to the drawee at Hong Kong, payable sixty days after sight, the drawer was held discharged ; Mullick v. Badakissen, 9 Moo. P. C. 46 ; although no actual loss or damage had been caused by the delay, and the parties to it continued solvent. S. C. The holder may, however, put the bill into circulation without presenting it. Muilman v. D'Eguino, 2 H. Bl. 565. And the question in such cases is, whether, looking at the situation and interests of each holder and drawer, there has been any unreasonable delay on the part of the former in forwarding the bill for acceptance or putting it into circulation. Hellish v. Bawdon, 9 Bing. 416. In that case, a delay of nearly five months on a foreign bill was allowed, the exchange having fallen against the plaintiff immediately after the purchase by him of the bill. See also Chartered Mercantile Bank of India, &c. v. Dickson, L. R., 3 P. 0. 574. With regard to bills payable after sight, drawn by bankers in the country on their correspondents in London, " It does not seem unreasonable," says Ld. Tenterden, " to treat bills of this nature as not requiring immediate presentment, but as being retainable by the holders for the purpose of using them, within a moderate time (for indefinite delay, of course, cannot be allowed), as part of the circulating medium of the country." Shute v. Robins, M. & M. 136. Presentment for payment. — Statute.'] Sect. 45. " Subject to the provisions of this act a bill must be duly presented for payment. If it be not so presented, the drawer and iudorsers shall be discharged. " A bill is duly presented for payment which is presented in accordance with the following rules : — "(1.) Where the bill is not payable on demand, presentment must be made on the day it falls due " (vide sect. 14, ante, p. 361). " (2.) Where the bill is payable on demand, then, subject to the provisions of this act, presentment must be made within a reasonable time after its issue in order to render the drawer liable, and within a reasonable time after its indorsement, in order to render the indorser liable." As to when a bill is payable on demand, see sect. 10, ante, p. 352. " In determining what is a reasonable time, regard shall be had to the nature of the bill, the usage of trade with regard to similar bills, and the facts of the particular case. " (3.) Presentment must be made by the holder or by some person authorized to receive payment on his behalf at a reasonable hour on a business day, at the proper place as hereinafter defined, either to the person designated by the bill as payer, or to some person authorized to pay or refuse payment on his behalf if with the exercise of reason- able diligence such person can there be found. " (4.) A bill is presented at the proper place : — " (a.) Where a place of payment is specified in the bill and the bill is there presented. " (6.) Where no place of payment is specified, but the address of the drawee or acceptor is given in the bill, and the bill is there presented. " (c.) Where no place of payment is specified and no address given, and the bill is presented at the drawee's or acceptor's place of business if known, and if not, at his ordinary residence if known. " (d.) In any other case if presented to the drawee or acceptor wherever Presentment. 379 he can be found, or if presented at his last known place of business or residence. " (5.) Where a bill is presented at the proper place, and after the exercise of reasonable diligence no person authorized to pay or refuse payment can be found there, no further presentment to the drawee or acceptor is required. " (6.) Where a bill is drawn upon, or accepted by two or more persons who are not partners, and no place of payment is specified, presentment must be made to them all. " (7.) Where the drawee or acceptor of a bill is dead, and no place of pay- ment is specified, presentment must be made to a personal representa- tive, if such there be, and with the exercise of reasonable diligence he can be found. "(8.) Where authorized by agreement or usage a presentment through the post office is sufficient." Sect. 52. " (4.) Where the holder of a bill presents it for payment, he shall exhibit the bill to the person from whom he demands payment, and when a bill is paid the holder shall forthwith deliver it up to the party paying it." By sect. 72 (3), ante, p. 356, presentment of a bill payable abroad must be according to the law of the foreign country. Presentment for payment.'] Presentment must be proved, although the acceptor has become bankrupt or insolvent. Russel v. Langstaffe, 2 Doug. 514; Esdaile v. Sowerby, 11 East, 114. And, where he is dead, it must be made to a personal representative, sect. 45 (7), supra ; or, if there be noue, at the house of the deceased. Molloy, b. 2, c. 10, s. 34 ; Chitty on Bills, 11th ed. 256. See Smith v. N. S. Wales, Sank of, L. E., 4 P. C. 194, 206, 207. But, if the bill be accepted payable at a particular place, a presentment at that place, though the acceptor is dead, is enough to charge the drawer. Philpott v. Bryant, 3 C. & P. 244, and see sect. 45 (4, 7), ante, p. 378, et supra. Where a bill is accepted by an agent, the drawee being abroad, presentment to the agent must be proved. Philips v. Astling, 2 Taunt. 206. A bill, payable at a banker's, must be presented within banking hours ; Parker v. Gordon, 7 East, 385 ; Elford v. Teed, 1 M. & S. 28 ; but, if pre- sented after, and a servant at the banking-house returns for answer "no orders," it is sufficient ; Oarnett v. Woodcock, 6 M. & S. 44 ; Henry v. Lee, 2 Chitty, 124. Presentment at 8 p.m. at the private residence of a merchant is good. Barclay v. Bailey, 2 Camp. 527. So, at the place where the bill is made payable (not being the banker's) between 7 and 8 p.m., though no one be there. Wilkins v. Jadis, 2 B. & Ad. 188. Presentment to a banker's clerk at the clearing-house is a presentment at the banker's. Reynolds v. Chettle, 2 Camp. 596 ; Harris v Packer, 3 Tyr. 370, n. Where the bill is directed to a drawee by a certain address and accepted generally, it is enough to present it to an inmate of the house at such address, though the drawee has in the meantime removed. Buxton v. Jones, 1 M. & Gr. 83. Presentment— proof of.] A part payment ( Vaughan v. Fuller, Stra. 1246), or a promise to pay after the bill is due, is prima facie evidence, as an admission that the bill was duly presented. Lundie v. Robertson, 7 East, 231 ; Croxon v. Worthen, 5 M. & W. 5. Presentment delayed or excused. — Statute.] By sect. 46, "(1.) Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder " (vide sect. 2, ante, p. 350), 380 Action on Bills of Exchange. — Payee or Indorsee against Drawer. " and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate, presentment must be made with reasonable diligence. " (2.) Presentment for payment is dispensed with, — "(«.) Where, after the exercise of reasonable diligence, presentment, as required by this act, cannot be effected. " The fact that the holder has reason to believe that the bill will, on presentment, be dishonoured, does not dispense with the necessity for presentment. " (b.) Where the drawee is a fictitious person. " (c.) As regards the drawer where the drawee or acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if presented. " (d.) As regards an indorser, where the bill was accepted or made for the accommodation of that indorser, and he has no reason to expect that the bill would be paid if presented. "(el) By waiver of presentment, express or implied." Dishonour by non-payment. — Statute.'] Sect. 47. "(1.) A bill is dis- honoured by non-payment — "(a.) When it is duly presented for payment and payment is refused or cannot be obtained ; or " (b.) When presentment is excused and the bill is overdue and unpaid. " (2.) Subject to the provisions of this act, when a bill is dishonoured by non-payment, an immediate right of recourse against the drawer and iudorsers accrues to the holder." Vide sects. 65 to 68, post, pp. 389, 390, as to acceptance, and payment for honour. Notice of dishonour and effect of non-notice. — Statute.] Sect. 48. " Sub- ject to the provisions of this act " (vide sect. 50, post, pp. 383, 387), "when a hill has been dishonoured by non-acceptance or by non-payment, notice of dishonour must be given to the drawer and each indorser, and any drawer or indorser to whom such notice is not given is discharged ; Provided that — " (1.) Where a bill is dishonoured by non-acceptance, and notice of dishonour is not given, the rights of a holder in due course " (vide sect. 29, ante, p. 354), "subsequent to the omission, shall not be prejudiced by the omission. " (2.) Where a bill is dishonoured by non-acceptance, and due notice of dishonour is given, it shall not be necessary to give notice of a subsequent dishonour b} r non-payment unless the bill shall in the meantime have been accepted." Notice of dishonour — when sufficient. — Statute.] Sect. 49. " Notice of dishonour, in order to be valid and effectual, must be given in accordance with the following rules: — " (5.) The notice may be given in writing or by personal communication, and may be given in any terms which sufficiently identify the bill, and intimate that the bill has been dishonoured by non-acceptance or non-payment. " (6.) The return of a dishonoured bill to the drawer or an indorser is, in point of form, deemed a sufficient notice of dishonour. " (7.) A written notice need not be signed, and an insufficient written notice may be supplemented and validated by verbal communication. Notice of Dishonour. 381 A misdescription of the bill shall not vitiate the notice unless the party to whom the notice is given is in fact misled thereby." Notice of dishonour — when sufficient."] Proof of knowledge of dishonour is not equivalent to proof of notice. See Burgh v. Legge, 5 M. & W. 418 ; and Solarte v. Palmer, 7 Bing. 530; 1 N. 0. 194, D. P. Where H. is secretary to two companies, whether information he receives as secretary to one com- pany is notice to him as secretary to the other depends on whether it "comes to him under such circumstances that it is his duty to communicate it to the other company." Deep Sea Fishery Co.'s claim, (1902) 1 Ch. 507. Repeated calls at the drawee's house without effect are not evidence of notice, but may excuse notice altogether, and should be pleaded in excuse. Allen v. Edmundson, 2 Exch. 719. If the presentment and notice of dishonour, as proved, be sufficient, the allegations in the statement of claim will be amended by the judge at the trial to meet the facts proved; as where the presentment for payment was stated to have been to the acceptor, aud notice of dishonour to the defendant, the judge may amend, by stating — the death of the acceptor, that the defendant was his executor, and a presentment to the defendant for pay- ment ; Gaunt v. Tlwmpson, 7 C. B. 400 ; or, the claim may be amended by alleging a waiver of notice; Killby v. Bochussen, 18 C. B., N. S. 357 ; Cordery v. Colville, 14 C. B., N. S. 374 ; 32 L. J., C. P. 210, cited post, p. 387. By whom notice should he given. — Statute.] By sect. 49, " (1.) The notice must be given by or on behalf of the holder " (see sect. 2, ante, p. 350), " or by or on behalf of an indorser who, at the time of giving it, is himself liable on the bill. " (2.) Notice of dishonour may be given by an agent either in his own name or in the name of any party entitled to give notice, whether that party be his principal or not. " (3.) Where the notice is given by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior indorsers who have a right of recourse against the party to whom it is given. "(4.) Where notice is given by or on behalf of an indorser entitled to give notice as hereinbefore provided, it enures for the benefit of the holder and all indorsers subsequent to the party to whom notice is given." " (13.) Where a bill when dishonoured is in the hands of an agent, he may either himself give notice to the parties liable on the bill, or he may give notice to his principal." By irhom notice should be given.] A bill was drawn by A., indorsed by him to B., and by him to plaintiff, in whose hands it was dishonoured; plaintiff's attorney gave note of dishonour to A. in due time, either for plaintiff or B., but by mistake stated he applied for payment on behalf of 15. (from whom he had no authority), aud it was held that the notice was sufficient notwithstanding the misrepresentation. Jlnrrison v. lluscoe, 15 M. & W. 231. And, after a bill has in fact been dishonoured, an unequivocal notice that it has been dishonoured is good, if given by a party to the bill, though he had at the time no certain knowledge of the fact. Jennings v. Roberts, 4 E. & B. 015; 24 L. J., Q. B. 102. A notice by the holder's solicitor, not stating on whose behalf the notice is given, is sufficient. Woodthorpe v. Lawes, 2 M. & W. 109. To whom notice should be given — Statute] By sect. 49, " (8.) Where 382 Action on Bill* of Exchange.— Payee or Indorsee against Drawer. notice of dishonour is required to be given to any person, it may be given either to the party himself, or to his agent in that behalf. "(9.) Where the drawer or indorser is dead, and the party giving notice knows it, the notice must be given to a personal representative if such there be, and with the exercise of reasonable diligence he can be found. " (10.) Where the drawer or indorser is bankrupt, notice may be given either to the party himself or to the trustee. "(11.) Where there are two or more drawers or indorsers who are not partners, notice must be given to each of them, unless one of them has authority to receive such notice for the others." " (13.) Where a bill when dishonoured is in the hands of an agent, he may either himself give notice to the parties liable on the bill, or he may give notice to his principal. If he give notice to his principal, he must do so within the same time as if he were the holder, and the principal upon receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder." By sub-sects. (3, 4), ante, p. 381, notice given by the holder or indorser enures for the benefit of other persons having remedies on the bill. To whom notice should be given.'] Where the drawers are in partnership, a notice to one is notice to all ; and therefore where a bill is drawn by a firm upon one of that firm, and dishonoured, notice of the dishonour need not be given to the firm. Porthouse v. Parker, 1 Camp. 82. See also 53 & 5i V. c. 39, s. 16, post, p. 559. But, it seems that notice to a member of a public compauy or quasi-corporation is not notice to the company. Steward v. Dunn, 12 M. & W. G64, per Parke, B. ; Powles v. Page, 3 C. B. 16. The indorser of a dishonoured bill was abroad, but had a house in Englaud, and the bill was shown to his wife there, and payment demanded, and she was also informed of the non-paynieut : held sufficient. Cromivell v. Hynson, 2 Esp. 511 ; Housego v. Cowne, 2 M. & W. 348. Where a substituted bill has been given and dishonoured, and the plaintiff sues on the first bill, he need not give notice of the dishonour of the substituted bill, the defendant being no party to it. Bishop v. Eowe, 3 M. & S. 362. Presentation at the banking-house where a bill is made payable "in need" by the indoisee is not notice of dishonour to the indorsers. Expte. Prange, L. R., 1 Eq. 1. Time within which notice must he given. — Statute.] By sect. 49, " (12.) The notice may be given as soon as the bill is dishonoured, and must be given within a reasonable time thereafter. "In the absence of special circumstances notice is not deemed to have been given within a reasonable time unless — " (a.) Where the person giving and the person to receive notice reside in the same place, the notice is given or sent off in time to reach the latter on the day after the dishonour of the bill. " (6.) Where the person giving and the person to receive notice reside in different places, the notice is sent off on the day after the dishonour of the bill, if there be a post at a convenient hour on that day, and if there be no such post on that day, then by the next post thereafter." (13.) supra, regulates the time within which notice must be given by an agent in whose hands a bill of exchange is dishonoured. " (14.) Where a party to a bill receives due notice of dishonour, he has, after the receipt of such notice, the same period of time for giving notice to antecedent parties that the holder has after the dishonour." Sect. 50. " (1.) Delay in giving notice of dishonour is excused where the delay is caused by circumstances beyond the control of the party giving Notice of Dishonour. 383 notice, and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate, the notice must be given with reasonable diligence." By sect. 49 (15), post, p. 384, delay caused by miscarriage in the post office is excused. By sect. 92, " Where, by this act, the time limited for doing any act or thing is less than three days, in reckoning time, non-business days are excluded. "Non-business days for the purposes of this act mean — (a.) Sunday, Good Friday, Christmas Day: (6.) a bank holiday under the Bank Holidays Act, 1871, or acts amending it : (c.) a day appointed by Royal proclamation as a public fast or thanksgiving day." " Any other day is a business day." By sect. 72 (3), ante, p. 356, the necessity for and sufficiency of a notice of dishonour are determined by the law of the place where the bill is dishonoured. As to excuse for delay under sect. 50 (1), ante, p. 382, on the ground that the holder does not know the address of the drawer or indorser, vide post, p. 389. As to what are holidays under the Bank Holidays Acts, vide ante, p. 361. Time within which notice must be given.'] The principle when there are several indorsements is that each indorser has his own day to give notice, but, the holder has not as many days to give notice to the drawer, or prior indorser, as there are intermediate indorsers. He can sue the drawer upon a notice given by the last indorser only if each and every prior indorser has in due time given notice of dishonour to the next preceding indorser. A single default breaks the chain of notices and disqualifies the holder from suing any indorser prior to the defective link, unless a direct and immediate notice has been given by the plaintiff to the person sued. Rowe v. Tipper, 13 C. B. 249 ; 22 L. J., C. P. 135 ; Turner v. Leech, 4 B. & A. 451 ; Marsh v. Maxwell, 2 Camp. 210, n. Where the holder employs a solicitor to ascertain the residence of a prior indorser, the latter has, after he has received it, a day before giving notice of dishonour. Firth v. Thrush, 8 B. & C. 387. When a bill has passed through several branch banks of the same establishment, each is to be considered as a separate party, so as to be entitled to the usual time for giving notice of dishonour, though the bill may have passed by delivery without indorsement. Clode v. Bayley, 12 M. & W. 51. So, where, in the ordinary course of business, it has passed through several independent banks. Prideaux v. Criddle, L. R., 4 Q. B. 455. In Fielding v. Corry, (1898) 1 Q. B. 268, C. A., it was held (by A. L. Smith and Rigby, L.JJ., diss. Collins, L.J.) that where the day after dishonour notice thereof had been posted, but directed to the wrong branch bank, and the following day notice of dishonour, not in itself sufficient {vide Id., p. 275), was telegraphed to the right bank, the notice was sufficient. Sed qucere. If the notice of dishonour, sent to the drawer of a bill, arrives too late through misdirection, it is for the jury to say whether the holder used " due diligence" to find the drawer's address; diggers v. Brown, 1 M. & Rob. 520; and, if the delay arose from the bill having been sent to a wrong person through a mistake caused by the indistinctness of the drawer's writing on the bill, he is not discharged. Hewitt v. Thomson, Id. 543. Notice, proof of, by admission.] Admission of liability is evidence of notice; as, by a promise to pay; for this admits everything done to entitle the plaintiff to sue ; Lundie v. Robertson, 7 East, 231 ; Croxon v. Worthcn, 5 M. & W. 5 ; even though it is proved or admitted that notice was not in fuct given. Killby v. Rochussen, 18 C. B., N. S. 357. So, a declaration by 384 Action on Bills of Exchange. — Payet or Indorsee against Drawer. the defendant made to a party to, but not the bolder of the bill, of his inten- tion to pay the bill, "and not to avail himself of the informality of notice," is evidence of due notice. Brownell v. Bonney, 1 Q. B. 39. So, where defendant knew that the bill was unpaid, and only objected to pay it on the ground of fraud in the holder, Lord Tenterden, C.J., held this evidence of due notice. Wilhins v. Jadis, 1 M. & Rob. 41. A promise to pay, though conditional as to the mode of payment, is sufficient. Campbell v. Webster, 2 C. B. 258. So, where the drawer of a foreign bill, on being told it was dishonoured, said that his affairs are deranged, but that he would be glad to pay it as . \. Sects. 55 (2), 56 apply only to a bill which is perfect at the time of the indorsement. Jenkins v. Ooomber, (1898) 2 Q. B. 168. By sect. 20 (1), ante, p. 353, a simple signature on blank stamped paper delivered by the signer in order to be converted into a bill, operates as a •"iMl* Action on Bills of Exchange. pri ma facie authority to fill it up to any amount the stamp will cover, using the signature as that of the drawer, or the acceptor, or an indorser. But if a .signature be fraudulently obtained on the back of a bill without any intention in the writer to indorse the bill, he will not, unless he has been guilty of negligence, be liable as indorser, even at the suit of a bond fide holder of the bill ; and this defence has been held to arise on a traverse of the indorsement. Foster v. Mat-Lin nan, L. R., 4 C. P. 704. In this case the indorsement of the defendant, a very old man, was obtained on the back of a bill, which he was induced to sign under the fraudulent misrepresentation that it was a guarantee, and the court held that the defendant was not liable, if he had been guilty of no negligence. The Rules, 1883, 0. xix. r. 15, ante, p. 309, would probably now require the defences above stated to be specially pleaded. By sect. 36 (4), ante, p. 373, a bill is in general presumed to have been indorsed before it became due. A bill being drawn and indorsed in the name of the firm under which defendant and another carried on business, a question arose whether the indorsement was before or after the dissolution of the partnership had been advertised. The bill was dated before the advertise- ment, but the indorsement was not dated. Held, that the date was prima facie the true date, and that it was properly left to the jury to say whether it was indorsed before or after the advertisement ; and that, as it was drawn payable to the defendant's own order, the jury might reasonably infer that it was indorsed shortly after the drawing. Anderson v. Weston, 6 N. C. 296. As to indorsement by one of several partners after dissolution, see ante, p. 373. An indorsement in the form, " pay J. S., or order, value in account with H. C. D.," was, in an action by a subsequent indorsee against the indorser, held not to be a restrictive indorsement ; it merely means that value has been received in a certain manner and has the same effect as if this were stated on the face of the bill. Buckley v. Jackson, L. R., 3 Ex. 135. In suing an indorser on non-payment of the bill by the drawee, it is unnecessary to state an acceptance ; and, if stated, it need not be proved ; Tanner v. Bean, 4 B. & C. 312. It is only necessary to prove a presentment for payment at the place, if any, pointed out in the acceptance. Parks v. Edge, 1 Cr. & M. 429. The rules with regard to the presentment of the bill and notice of dishonour are, in general, the same in this action as in an action by the payee against the drawer. See ante, pp. 375 et sea. No evidence of a demand upon the drawer or prior indorsers is necessary. Bromley v. Frazier, Str. 441 ; Ilcylyn v. Adamson, 2 Burr. 669. By sect. 50, "(2.) Notice of dishonour is dispensed with. . . . " (d.) As regards the indorser in the following cases, namely, (1) where the drawee is a fictitious person or a person not having capacity to con- tract, and the indorser was aware of the fact at the time he indorsed the bill ; (2) where the indorser is the person to whom the bill is presented for payment ; (3) where the bill was accepted or made for his accommodation." As to the meaning of "a fictitious person," vide ante, p. 361. As to " person," vide sect. 2, ante, p. 360. Proof of notice of dishonour will be dis- pensed with by a promise of the defendant to pay ; Wilkes v. Jacks, Peake, 202 ; provided it be an unambiguous one ; thus, the following letter from the indorser was held not to waive the proof of notice : " I cannot think of remitting till I rpceive the draft ; therefore, if you think proper you may return it to Trevor & Co., if you think me unsafe." Borradaile v. Lowe, 4 Taunt. 93. A promise to pay not made to the plaintiff, but to another person who was holder of the bill at the time, will be sufficient. Potter v. Rayworth, 13 East, 417. Ho, allowing judgment to go by default in an action brought Damages generally. 393 by the then holder of the same bill dispenses with proof of notice of dishonour. Eabey v. Gilbert, 6 H. & N. 536 ; 30 L. J., Ex. 170. And see further, ante, pp. 387 et seq., as to what will dispense with proof of notice of dishonour. By sect. 37, ante, p. 354, where a bill is negotiated back to a prior indorser, such person is not in general entitled to enforce payment of the bill against any intervening party to whom he was previously liable. But circumstances may be specially pleadea, showing that the defendant could not sue the plaintiff on his indorsement. Wilders v. Stevens, 15 M. & W. 208 ; Wilkin- son v. Unwin, 7 Q. B. D. 636, 0. A. And, in an action by indorsee against indorser, where the issue was only on the want of notice to the defendant of non-payment by drawee, defendant was not permitted to show that the plaintiff (who had given due notice) and the drawer were one and the same person ; the defence should have been specially pleaded. Williams v. Clarke, 16 M. & W. 834. Although a prior indorser is prima facie liable to indemnify a subsequent one, yet the whole circumstances of the making, &c, of the note or bill may be referred to in order to show the true relation of the parties inter se, and the relative position of the parties may be thereby altered. Thus, where three directors of a company, in order to become sureties for the company to a bank, successively indorsed three notes of the company, it was held that they were not liable to indemnify each other in accordance to the priority of their indorsements, but, were only liable to contribute equally inter se. Macdonalal v. Whitfield, 8 Ap. Ca. 733, J. C. Evidence under money claims.'] An indorsement is prima facie evidence of money lent by the indorsee to his immediate indorser. Kesseboiver v. Tims, Bayley on Bills, 6th ed. 363. But where the indorser told his in- dorsee, just befo re presentment, that the bill would not be paid, that notice need not be sent to him, and that he would send the money on a future day, this was held no evidence on an account stated; it being no proof of a debt due from the indorser at the time of the promise, but only a conditional promise in a certain event. Burgh v. Legge, 5 M. & W. 418. Though as between indorser and his indorsee the bill is evidence of an account stated, this may be rebutted by showing that the defendant indorsed in blank, and delivered it to F., who carried it to the plaintiff to be discounted. Burmester v. Hogarth, 11 M. & W. 97. Damages Generally. Statute.] By sect. 57, " Where a bill is dishonoured, the measure of damages, which shall be deemed to be liquidated damages, shall be as follows : — "(1.) The holder may recover from any party liable on the bill, and the drawer who has been compelled to pay the bill may recover from the acceptor, and an indorser who has been compelled to pay the bill may recover from the acceptor or from the drawer, or from a prior in- dorser — (a) The amount of the bill ; (b) Interest thereon from the time of presentment for payment if the bill is payable on demand, and from the maturity of the bill in any other case ; (c) The expenses of noting, or, when protest is necessary, and the protest has been extended, the expenses of protest. " (2.) In the case of a bill which has been dishonoured abroad, in lieu of the above damages, the holder may recover from the drawer or an indorser, and the drawer or an indorser who has been compelled to pay the bill may recover from any party liable to him, the amount of the re-exchange with interest thereon until the time of payment. 394 A B. & Ad. 660. A note so altered as to avoid it may be used by the payee Defences. — Failure of Consideration. 397 as evidence of an account stated by the maker at tbe time it was given. Gould v. Coombs, 1 C. B. 543. Failure or want of consideration.'] Sect. 27, ante, p. 354, defines valuable consideration for a bill and a holder for value. Sect. 28. "(1.) An accommodation party to a bill is a person who has signed a bill as drawer, acceptor, or indorser, without receiving value therefor and for the purpose of lending his name to some other person. " (2.) An accommodation party is liable on the bill to a holder for value ; and it is immaterial whether, when such holder took the bill, he knew such party to be an accommodation party or not." Want of consideration alone is only a defence, when the parties to the action are the parties as between whom there was the alleged want of consideration, or as between parties who are in privity with them. A bona fide holder for value is not affected by any want of consideration as between antecedent parties to the bill or note. Formerly, any facts or circumstances which invalidated the original consideration of a bill or note were admitted in support of a general plea of want of consideration ; see Mills v. Oddy, 2 C. M. & R. 103, cited post, p. 398; but it would seem that the facts relied on should now be specially pleaded. Rules, 1883, 0. xix. r. 15, ante, p. 309. Where a debt is due on a judgment between the parties, there is a good consideration, as the taking the security imports a promise on the part of the judgment debtor to suspend proceedings on the judgment till the maturity of the bill or note ; Baker v. Walker, 14 M. & W. 465 ; the same principle applies where there is a debt from the third person to the payee. Fopleivell v. Wilson, Str. 264. A solicitor's bill, though not delivered according to law, is a good consideration. Jeffreys v. Evans, 14 M. & W. 210. In an action by payee against the acceptor of a bill at three months, drawn in consideration of money to be paid in one month by payee to drawer, and accepted for the accommodation of the drawer, if the money be not paid, the consideration fails, and the plaintiff cannot recover. Astley v. Johnson, 5 H. & N. 137; 29 L. J., Ex. 161. A note given by the defendant on the faith of a misrepresentation by the plaintiff of either matter of fact or of law, though made without fraud, may be impeached as for want of consideration. Southall v. Bigg, and Forman v. Wright, 11 C. B. 481; 20 L. J., C. P. 115. So, a note given for past gratuitous services, and in consideration for future services, as to which there was no binding contract. Raise v. Htdse, 17 C. B. 711 ; -!5 L. J., C. P. 177. But the compromise of a claim, made bund Jhlr, though unfounded, and known by the defendant to be so, but for which the claimant threatened to sue, is a good consideration. Cook v. Wright, 1 li. & S. 559 ; 30 L. J., Q. B. 321. See Callisher v.JBischoffsheim, li. I!., 5 Q. B. 419; and Miles v. New Zealand Alford Estate Co., 32 Oh. D. 266, C. A., dissenting from the observations of Brett, L.J., in Ex pte. Banner. 17 Ch. D. 480, 490. So is forbearance by the plaintiff, at the defendant's request, to sue A., although there was no contract by the plaintiff to abstain from suing. Crears v. Hunter, 19 Q. B. D. 341, C. A. In an action by indorsee against acceptor, it is not even prima facie evidence of want of consideration between the defendant and the drawer, to show that the drawer, on the day before the bill became due, procured all the indorsements to be made without consideration, in order that the action might be brought by the indorsee, and on the understanding that the money should be divided between one of the indorsees and the drawer. Whitaker v. Edmunds, 1 Ad. & B. 638. Where the defence to an action on a note states an executory consideration for it, which was never executed, 398 Action on Bills of Exchange. the defendant is not precluded from proving his defence, although the note professes, on the face of it, to be founded on a past consideration. Abbott v. Hendricks, 1 M. & Gr. 791. And generally the consideration or alleged " value received " apparent on the face of a note may be contradicted, but not the contract or promise itself. Easter v. Jolly, 1 C. M. & K. 703 ; and see ante, p. 19. In general, the declarations of a former holder of a bill are not admissible to prove the want of consideration. Shaw v. Broom, 4 D. & Ry. 730. But where the plaintiff and the party whose declarations are offered in evidence, are identified in title ; as where the plaintiff took the bill from him after it became due ; such declarations are admissible. Benson v. Marshall, cited Id. 732 ; Beauchamp v. Parry, 1 B. & Ad. 89. So, where the plaintiff, though he did not take the bill after it was due, sues as agent for the party who made the declarations. Wehtead v. Levy, 1 M. & Rob. 138. Fraud."] See sect. 29 (2, 3), and observations thereon, ante, p. 354. Fraud, which makes the contract void or voidable as against the defendant, must be specially pleaded. Rules, 1883, 0. xix. r. 15, ante, p. 309. Formerly, when the effect of the fraud was that the defendant never made the contract sued on, the defence arose on a traverse of the indorsement or acceptance, as the case might be. Foster v. Machinnon, L. R., 4 C. P. 704, vide ante, p. 392. So, when the fraud was one which avoided the consideration, it might be given in evidence under a general plea denying the consideration. Mills v. Oddy, 2 C. M. & R. 103. But a special defence would be required now, under r. 15, supra. The maker of a note pleaded that it was made and delivered to W. only to get it discounted, and that W. fraudulently indorsed it to the plaintiff, who gave no consideration and knew of the fraud : replica- tion de injuria; letters written by W., while holder of the note, are not admissible against the plaintiff to prove the fraud, without first establishing, aliunde, a privity between the plaintiff and him. Phillips v. Cole, 10 Ad. & E. 106. A knowledge by the plaintiff indorsee, of fraud in the con- coction of a bill, is no defence if he received it for good consideration from an innocent indorser. May v. Chapman, 16 M. & W. 355. As to how far a company are affected by knowledge of their director, from whom they have bought bills which had been fraudulently obtained by him, see Ex pte. Oriental Commercial Bank, L. R., 5 Ch. 358. The holder without indorsement of a draft payable to order, though taken by him bond fide and for value, has no better title than the person from whom he took it; and such holder is affected by fraud of which he has notice before he obtains the formal indorsement. Whistler v. Forster, 14 C. B., N. S. 248 ; 32 L. J., C. P. 161. Forgery.] See sect. 24, ante, p. 358. Forgery of the defendant's signature is, of course, evidence under a traverse of the making, &c. ; but, for the purpose of proving the forgery, the defendant cannot be permitted to prove that other bills, with forged signatures of his, had been in the hands of the plaintiff and circulated by him. Criffits v. Payne, 11 Ad. & E. 131. As to the acknowledgment by the defendant of a forged signature, so as to render himself liable thereon by estoppel or ratification, vide ante, pp. 367, 368. Cancellation so imperfectly effected that the bill is still apparently uncancelled, affords no answer as against a bond fide holder. Therefore, where the acceptor of a bill tore it in two for the purpose of destroying it before circulation, and the drawer fraudulently rejoined the pieces, and passed the bill to a bond fide holder for value, the acceptor was held liable, whether the fraud amounted to forgery or not. Ingham v. Primrose, 7 C. B., N. S. 82 ; 28 L. J., 0. P. 294. The decision in this case was, Defences. — Illegality. — Want of Consideration. 399 however, dissented from by Brett, L.J., in Baxendale v. Bennett, 3 Q. B. D., 525, 532, 533, C. A. As to the alteration of the figures in the margin of a bill accepted in blank, see Garrard v. Lewis, ante, p. 368. Illegality.'] See Defences to Actions on Simple Contracts, — Illegality, post, pp. 665 et seq. Where a bill has been accepted for good consideration, it seems that in an action against the acceptor, it is no defence that the plaintiff took the bill for illegal consideration. Flower v. Sadler, 10 Q. B. D. 572, 575 ; per Brett and Cotton, L.JJ. Want of consideration. — Onus probandi.'] Sect. 27, ante, p. 354, defines valuable consideration and who is a holder for value. Sect. 30. " (1.) Every party whose signature appears on a bill is prima facie deemed to have become a party thereto for value. "(2.) Every holder of a bill is prima facie deemed to be a holder in due course" (vide sect. 29, ante, p. 354); "but if in an action on a bill it is admitted or proved that the acceptance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or illegality, the burden of proof is shifted, unless and until the holder proves that, subse- quent to the alleged fraud or illegality, value has in good faith been given for the bill." In a case alleged to fall within the latter part of sect. 30 (2), supra,, the judge is not bound to decide whether fraud has been proved in order to throw this burden on the plaintiff, but only whether there is any evidence of fraud for the jury. Harvey v. Towers, 5 Exch. 658 ; 20 L. J., Ex. 318 ; Berry v. Alderman, 14 C. B. 95 ; 23 L. J., C. P. 34. When the plea alleged that the bill was founded on a wager, and that the indorsements were without value, proof of a wager, void but not unlawful, was held to show only want of consideration and not illegality, and to raise no pre- sumption that the plaintiff was not a bond fide holder for value; it lay on the defendant, therefore, to prove this. Fitch v. Jones, 5 E. & B. 238 ; 24 L. J., Q. B. 293. Where fraud or illegality, &c, is admitted or proved, the plaintiff must prove that value has been given, in good faith and without notice of the fraud. Tatam v. Haslar, 23 Q. B. D. 345. In cases prior to the J. Acts and B. of Ex. Act, 1882, it was held that an admission of fraud or illegality on the record tbrows on the plaintiff the burthen of proof as to consideration, but not as to absence of notice of the fraud or illegality, though the reason of the distinction is not very clear. The cases in support of this proposition are collected ante, pp. 77, 78; but it is very doubtful if, especially having regard to the terms of sect. 30 (2), supra, they would now be followed. In Hogg v. Skeen, 18 C. B., N. S. 426; 34 L. J., C. P. 153, some of the defendants, acceptors, pleaded non-acceptance : held that proof under this issue, that the acceptance was by one of the defendants, who had let judgment go by default, in fraud of the others, his partners, but without showing the plaintiff's privity, obliged the plaintiff to show that he gave value for the bill ; in this case Miisgrare v. Drake, 5 Q. B. 185, was dis- tinguished. It would seem that Rules, 1883, 0. xix. r. 15, ante, p. 309, would require this defence to be specially pleaded. A bill was sent to the plaintiff by a clerk with a message, which, if delivered, would have shown that the plaintiff had such notice as would have made him not a bond fide holder for value ; the bill was delivered, but the clerk was not called, and it was not proved whether the message had been given or not : held, in an action of trover, that the evidence was not sufficient to rebut the pre- sumption that plaintiff was :i bona lid, bolder. Middleton v. Barned, 4 Exch. 241. 400 Action on Bills of Exchange. Illegality of consideration ; bona fides uf holder. - ] See Defence in actions on si, ii /ilc contracts — Illegality, post, pp. 665 et seq. See sect. 29 (2), ante, p. 1554, and sect. 30 (2), ante, p. 399, and sect. 90, ante, p. 350. Where a stolen note was for full value and bona fide changed by the plaintiff, a money- changer, who had then no knowledge that it had been stolen, although he had received notices a year previously of this and other stolen notes, and kept such notices filed in his office, but did not examine them, he was, not- withstanding this negligence, held entitled to recover. Raphael v. Bank of England, 17 C. B. 161 ; 25 L. J., C. P. 33 ; Bengal, Bank of v. Macleod, 7 Moo. P. C. 35. See also L. Joint Stock Bank v. Simmons, (1892) A. C. 201, D. P. Gross negligence may, however, be evidence of mala fides, though not equivalent to it. Goodman v. Harvey, 4 Ad. & E. 870. Buying the bill at a considerable undervalue, with a wilful avoidance of inquiry about it, may be evidence of notice of fraud in the concoction of the bill. Jones v. Gordon, 2 Ap. Ca. 616, D. P. Where the bill was given for money lost by gaming, or upon an usurious contract, or to secure money paid to induce a bankrupt's creditors to sign his certificate, various statutes made it a void security, even in the hands of a bona, fide holder ; but, by 5 & 6 W. 4, c. 41, so much of the former statutes as made the securities void was repealed, and it was enacted that they should be deemed to have been given for an illegal consideration. So much of sects. 1, 2, as relates to stat. 9 A. c. 19 (which applies to gaming and betting) was not repealed by the Stat. Law Rev. Act, 1874 ; and under these sections where a cheque drawn by H. was given by him to A. in pay- ment of wagers lost on horse races, and indorsed by A. to W. for value, with notice of its original consideration, W. canuot recover thereon. Woolf v. Hamilton, (1898) 2 Q. B. 337, C. A. But the payee of a promissory note given him in repayment of money paid by him at the request of the maker, L., in satisfaction of L.'s gaming debts, might have recovered thereon. Ex pte. Pyke, 8 Ch. D. 754, 0. A. Since stat. 55 & 56 V. c. 9, s. 1, post, p. 591, however, there would be no consideration for the note. Before the repeal of 5 & 6 W. 4, c. 41, the defendant accepted a bill of exchange to secure a loan at usurious interest; after the repeal, he accepted fresh bills for the amount of the loan and the usurious interest, and it was held (Martin, B., diss.) that there was good consideration for the new bills. Flight v. Reed, 1 H. & C. 703 ; 32 L. J., Ex. 265. In Rimini v. Van Praagh, infra, Cockburn, C.J., intimated that the judgment of Martin, B., in this case, was right. A cheque given in France for gaming debts, and valid there, cannot be sued on here. Moults v. Owen, (1907) 1 K. B. 746, C. A. Where the defence was usury in the indorsement, the usury must have been proved ; suspicion is not sufficient to put the plaintiff to proof of consideration ; thus, in an action by indorsee against one who had indorsed the bill for the accommodation of the drawer, it was shown that one J., a relation of the plaintiff, got the bill discounted for the drawer, and although it appeared that usurious discount was deducted by J., it was held that, whatever suspicion there might be against the plaintiff, this did not prove usury as against him. Bassett v. Dodgin, 10 Bing. 40. The earlier Bankruptcy Acts are now repealed, and the Bank- ruptcy Acts, 1883, 1890, contain "no provision avoiding a security given to induce a creditor to forbear opposing the bankrupt ; the consideration, however, for such a security is illegal ; vide post, p. 671. See Rimini v. Van Praagh, L. R., 8 Q. B. 1. A promissory note given in consideration of the payee's forbearing to prosecute a charge of misdemeanor against the maker cannot be enforced. Clubb v. Hutson, 18 O. B., N. S. 414. See also Brook v. Hook, L. R., 6 Ex. 89. Mere wagers, not made unlawful by any statutes against gaming, &c, are made void, by 8- & 9 ¥. c. 109, s. 18, which avoids all contracts, parol Defences. — Agreement at variance ivith Bill. — Payment. 401 or in writing, " by way of gaming or wagering." But, the act does not in terms avoid a security «iven to pay a wager ; it would, therefore, be only without consideration. See Fitch v. Jones, ante, p. 399, and Beeston v. Beeston, 1 Ex. D. 13. On issue taken on a defence that a note was given for an illegal con- sideration, the plaintiff is not bound to produce the note as part of his own case. Bead v. Gamble, 10 Ad. & E. 597, n. By sect. 30 (2), ante, p. 399, illegality in the concoction or transfer of a bill, as well as fraud, felony, &c, will, if proved, put the holder on proof of consideration. See cases cited ante, p. 399. Agreement at variance with the MllJ] The terms of a bill or note cannot be varied by oral evidence to contradict it, even as between original or immediate parties to it ; as by an agreement to renew the bill at maturity. New London Credit Syndicate v. Neale, (1898) 2 Q. B. 487, C. A. But it may be varied by a contemporaneous memorandum in writing, whether on the same or a separate paper. Leeds v. Lancashire, 2 Camp. 235 ; Bower- bank v. Monteiro, 4 Taunt. 844. The two together may thus form one agreement, and must be treated as such. The defence need not allege that the contemporaneous agreement was in writing; Young v. Austen, L. R., 4 C. P. 553 ; Corkling v. Massey, L. R., 8 C. P. 395 ; but it will not be proved unless an agreement in writing is given in evidence in support of it at the trial. Young v. Austen, supra ; Abrey v. Crux, L. R., 5 C. P. 37. In order that the agreement and promissory note may form one agree- ment, the agreement or memorandum must be between the same parties, and not merely collateral. Thus, in a suit by payee against maker, it is no answer that by an independent contemporary written agreement between the plaintiff on one side, and the defendant and others on the other side, it was agreed that the note should not be payable except in a certain con- tingency. Webb v. Spicer, 13 Q. B. 894; 3 H. L. C. 510. Where a plea alleged a subsequent agreement to vary a note, it could be supported only by proof of an agreement founded on good consideration. McManus v. Bark, L. R., 5 Ex. 65. Payment.] Sect. 33. " Where a bill purports to be indorsed condition- ally the condition may be disregarded by the payer, and payment to the indorsee is valid whether the condition has been fulfilled or not." Sect. 59. " (1.) A bill is discharged by payment in due course by or on behalf of the drawee or acceptor. " ' Payment in due course ' means payment made at or after the maturity of the bill to the holder thereof in good faith " (vide sect. 90, ante, p. 350) "and without notice that his title to the bill is defective. " (2.) Subject to the provisions hereinafter contained, when a bill is paid by the drawer or an iudorser it is not discharged ; but " (a.) Where a bill payable to, or to the order of, a third party is paid by the drawer, the drawer may enforce payment thereof against the acceptor, but may not re-issue the bill : " (b.) Where a bill is paid by an iudorser, or where a bill payable to drawer's order is paid by the drawer, the party paying it is remitted to his former rights as regards the acceptor or antecedent parties, and he may, if he thinks fit, strike out his own and subsecpuent indorse- ments, and again negotiate tlie bill. " (3). Where an accommodation bill is paid in due course by the party accommodated the bill is discharged." See sect. 60, jwst, p. 406, as to the payment by the banker on whom it ia drawn, of a bill payable on demand. B. VOL. I. I) D 402 Action on Hi/Is of Exchange. Sect. 71 (3), ante, p. 355, relates to the payment of bills drawn in sets. " (5.) When the acceptor of a bill drawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a holder in due course, he is liable to the holder thereof. " (6.) Subject to the preceding rules, where any one part of a bill drawn in a set is discharged by payment or otherwise, the whole bill is discharged." Payment or satisfaction must be specially pleaded. For presumptive evidence in support of such plea, see the cases cited ante, pp. 36 et seq. Payment of the exact sum due on a note by the defendant in full satisfaction of debt and damages is sufficient, and entitles the defendant to a verdict, and the jury are not bound to give interest, or even nominal damages, for the detention of the debt. Beaumont v. Greathead, 2 C. B. 494. This was an action of debt ; but in an action by indorsee against acceptor, a plea, puis darrein continuance, that an earlier indorser had paid to plaintiff, then the holder, who accepted the full amount of the bill, and also interest thereon, in full satisfaction of the bill, and all moneys due in respect thereof, not mentioning damages or costs, was bad. Goodwin v. Cremer, 18 Q. B. 757 ; 22 L. J., Q. B. 30 ; see also Ash v. Pouppeville, L. R., 3 Q. B. 86. Satisfaction to one of several partners is a satisfaction to all. Jacaud v. French, 12 East, 317 ; see also 53 & 54 V. c. 39, s. 5, post, p. 556. And, payment by one, not sued, of several joint and several makers of a promissory note, is payment by the defendant. Beaumont v. Greathead, supra. So, renewal of a joint and several note by one of the makers, and payment of such renewed note, is payment by all of the first note. Thome v. Smith, 10 C. B. 659; 20 L. J., C. P. 71. But, the mere acceptance by the paj ee, from one of two joint and several makers of a note, of a mortgage and covenant to pay the amount of the note, is no defence to an action against the other ; for the securities are not co-extensive ; and proof that the mortgage was given to secure the saiue debt does not prove that it was accepted in lieu and satisfac- tion of the note. Ansell v. Baker, 15 Q. B. 20. A judgmentand execution, without satisfaction, against a subsequent party to a bill, will be no discharge of a prior party ; it is only an extinguishment between the parties to the judgment. Hayling v. Mullhall, 2 W. Bl. 1235 ; as explained in English v. Barley, 2 B. & P. 62. So, the acceptor was liable at the suit of an indorsee, although judgment had been obtained against the acceptor on the bill at the suit of a subsequent indorsee, and he had been taken in execution on that judgment. Woodward v. Pell, L. R.,4 Q. B. 55. But, a composition with the acceptor, and the taking of a third person's note as a security for it, operates as a satisfaction of the bill. English v. Barley, supra ; Lewis v. Jones, 4 B. & C. 506. Where the plaintiff paid money to A. for a bill accepted by a third party and indorsed in blank ; the plaintiff intending to buy the bill arid be the holder thereof, and A. believing he was paying the amount for the acceptor; the court held, that if the plaintiff did not make the payment in order to discharge the acceptor, nor by his expressions and conduct led A. so to suppose, he might recover on the bill. Lyon v. Maxwell, 18 L. T. 28 ; Ex. 11. T. 1868. Where the first bill is " renewed " by a second, no action can be maintained during the currency of the latter. Keudrick v. Lomax, 2 C. & J. 405. But, where the plaintiff held a bill accepted by defendant, who, when it became due, asked for time, and three months afterwards gave plaintiff another bill for the same amount, plaintiff telling him at the same time that something was due for interest, and continuing to hold the first bill ; and the second bill was paid after it became due ; it was held that the plaintiff was entitled to sue on the first Defences. — Payment . 403 bill to recover the interest. Lumley v. Musgrave, 4 N. C. 9. Where one of tliree partners, after a dissolution of partnership, undertook, by deed, to pay a partnership debt on two bills of exchange drawn by them, and the owner consented to take the separate notes of the one partner for the amount, reserving Ms right against all three, and retaining possession of the original bills; it was held that, the separate notes having proved unproductive, he might resort to his remedy against the other partners, and that the taking of the separate notes, and afterwards renewing them several times suc- cessively, did not amount to satisfaction of the joint debt. Bedford v. Deakin, 2 B. & A. 210. So, where, on a bill of exchange being dishonoured, the acceptor transmitted a new bill for a larger amount to the payee, but had not any communication with him respecting the first; and the payee discounted the second bill with the holder of the first, which he received back as part of the amount, and afterwards, for a valuable consideration, indorsed it to the plaintiff; it was held that the second bill was merely a collateral security, and that the receipt of it by the payee did not exonerate the drawer of the first. Pring v. Clarkson, 1 B. & C. 14 ; see also Adams v. Bingley, 1 M. & W. 192. The principle of sect. 59 (2), ante, p. 401, applies to a part payment, and to cases in which the bill is not strictly an accommodation bill. Cook v. Lister, 13 C. B., N. S. 543 ; 32 L. J., C. P. 121. But, where an accommoda- tion acceptor pleaded payment by the drawer in an action by an indorsee, proof that the drawer had handed a forged acceptance to the indorsee for the purpose of retiring the outstanding bill, and that the indorsee, being his banker, had credited the drawer for the amount in his banking account, was held insufficient to prove payment, the forged acceptance being, in fact, no payment at all. Bell v. Buckley, 11 Exch. 631 ; 25 L. J., Ex. 163. Pay- ment by drawer, who is also payee, to the plaintiff himself, his indorsee, is no answer to an action against the acceptor for value, if the bill were left in the plaintiff's hand, to sue on it as trustee for the drawer ; Williams v. James, 15 Q. B. 498 ; 19 L. J., Q. B. 445 ; nor, if he sue against the will of the drawer. Jones v. Broadhurst, 9 C. B. 173. If the acceptor discount his own acceptance for the drawer, this is not payment so as to bar an action on the bill against the drawer by a bond fide indorsee for value, who has taken under an indorsement by the acceptor. Attenboi-ough v. Mackenzie, 25 L. J., Ex. 224. " Retiring " a bill by acceptor is equivalent to payment, and stops the circulation ; but retiring by an indorser only takes it out of circulation as regards himself, and he retains the same remedies as if he had paid his indorsee in due course. Elsam v. Denny, 15 C. B. 87 ; 23 L. J., C. P. 190. Where B., a banker or other agent, is employed by H., the holder of a bill, to receive payment of it from the acceptor, and receives payment from him clogged with a condition, without assent to which H. is not entitled to retain the money paid, B. is not entitled to treat such conditional payment as if it were an absolute payineut, and to cancel the bill as paid, before he has received H.'s assent to the condition. Bank of Scotland v. Dominion Bank {Toronto), (1891) A. C. 592, D. P. If before receiving such assent, B. allow the bill to be cancelled, he is liable to H. for the damage he thereby sustains. S. (J. On a defence of payment, neither the plaintiff nor the defendant is bound to produce the security ; and where a plea stated, by way of introduction to an allegation of payment, that the note was given in lieu of a former one, and the plaintiff replied de injuria generally, it was held enough to show payment without proving the superfluous introductory statement. Shearm v. Bnrnard, 10 Ad. & E. 593. But, if on a special defence of satisfaction, it become necessary for the defendant to prove the bill or note, he cannot dd2 404 Action on Bills of Exchange. give secondary evidence of it without having given notice to produce it. Goodered v. Armour, 3 Q. B. 956. By sect. 24, ante, p. 358, a person claiming under a forged indorsement cannot give a discharge lor the bill, except under sect. 60, post, p. 406, in the case of a hanker. Voluntary discharge and waiver.] Sect. 61. "When the acceptor of a bill is or becomes the holder of it at or after its maturity, in his own right, the bill is discharged." "In his own right " here means "having a right not subject to that of any one else but his own — good against all the world," and is not used in contradistinction to a right in a representative capacity. Nash v. Be Freville, (1900) 2 Q. B. 72, 89, C. A. Sect. 62. " (1.) When the holder of a bill at or after its maturity absolutely and unconditionally renounces his rights against the acceptor, the bill is discharged. " The renunciation must be in writing, unless the bill is delivered up to the acceptor. " (2.) The liabilities of any party to a bill may in like manner be re- nounced by the holder before, at, or after its maturity ; but nothing in this section shall affect the rights of a holder in due course without notice of the renunciation." Sect. 63. " (1.) Where a bill is intentionally cancelled by the holder or his agent, and the cancellation is apparent thereon, the bill is discharged. " (2.) In like manner any party liable on a bill may be discharged by the intentional cancellation of his signature by the holder or his agent. In such case any indorser who would have had a right of recourse against the party whose signature is cancelled, is also discharged. " (3.) A cancellation made unintentionally, or under a mistake, or without the authority of the holder is inoperative ; but where a bill or any signature thereon appears to have been cancelled the burden of proof lies on the party who alleges that the cancellation was made unintentionally, or under a mistake, or without authority." A promissory note payable on demand with interest, is " at maturity," within sect. 62, as soon as it is given. Ediuards v. Walters, (1896) 2 Ch. 157, C. A. ; In re George, 44 Ch. D. 627. The provision in sect. 62 (1), as to the renunciation being in writing, is new. It must itself be the record of an absolute and unconditional renuncia- tion of rights, not a mere note of the renunciation, or of an intention to renounce : S. C. As to signature, vide, S. C. Id. 632. The renunciation must be unequivocal : — Thus, a declaration by the holder, that " he should look to the drawer for payment, and that he wanted no more of the acceptor than another debt not connected with the bill," will not be sufficient to discharge the acceptor. Parker v. Leigh, 2 Stark. 228 ; Adams v. Gregg, Id. 531. Delivery up of the bill to the devisee of the acceptor is not within sec. 62. Edwards v. Walters, supra. iSemble, delivery to his personal representative is sufficient. S. C. Alteration of the position of the parties, giving time, &c.~] Giving time to or releasing a principal discharges a surety, vide post, p. 484 ; and therefore giving time to the acceptor discharges the drawer and indorsers. English v. Barley, 2 B. & P. 61. So, giving time to any prior party discharges sub- sequent ones. Hall v. Cole, 4 Ad. & E. 577. This defence must be pleaded specially; so that the pleadings on the record sufficiently apprise the parties of the nature of the requisite proofs. There must be a binding agreement founded on a good consideration, on which an action would lie, if broken. Action on Cheques. , 405 Moss v. Hall, 5 Exch. 40. An agreement between the drawer of an accom- modation bill, and the holder for its renewal does not discharge the acceptor who refuses to accept a bill in renewal thereof. Torrance v. Bank of British N. America, L. R., 5 P. C. 246. Forbearance to sue the acceptor is not of itself equivalent to giving time. Walwyn v. St. Quintin, 1 B. & P. 652 ; English v. Barley, supra ; Price v. Kirkham, 3 H. & C. 437 ; o4 L. J., Ex. 35. An agreement between the plaintiff and a stranger to give time to the acceptor, will not discharge an indorser, unless the acceptor, the principal debtor, was party to the agreement. Lyon v. Holt, 5 M. & W. 250 ; Fraser v. Jordan, 8 E. & B. 303 ; 26 L. J., Q. B. 288. Taking a cognovit from the acceptor, after action brought, by which the time of obtaining judgment against him is not deferred, is not a giving of time. Jay v. Warren, 1 C. & P. 532; Lee v. Levy, 4 B. & C. 390. It is a good equitable defence, that the defendant made the note jointly with A. as surety only for him, of which the plaintiff had notice at the time and that the plaintiff s;ave time to A. without the defendant's knowledge ; Pooley v. Harradine, 7 E. & B. 431 ; 26 L. J., Q. B. 156 ; Taylor v. Burgess, 5 H. & N. 1 ; 29 L. J., Ex. 7 ; Greeaough v. M'Cleland, 30 L. J., Q. B. 15, Ex. Ch. ; even though, although the plaintiff knew the defendant was only surety, he did not agree, nor did the defendant stipulate, that he should be treated by the plaintiff as surety only, or otherwise than as a maker of the note. S. C. So, in equity, giving time to the drawer or indorser of an accommodation acceptance, with notice that it is such, releases the acceptor. Bailey v. Edwards, 4 B. & S. 761 ; 34 L. J., Q. B. 41 ; Edwin v. Lancaster, 6 B. & S. 571. It is sufficient if the plaintiff knew the position of the defendant before time is given, though he did not know it at the time of the contract. Oriental Financial Cor. v. Overend, Ourney & Co., L. R., 7 Ch. 142 ; L. R., 7 H. L. 348. If, however, the agreement for giving time to or releasing the principal be qualified by a reservation of remedies against the surety, the surety is not discharged. Bateson v. Gosling, L. R., 7 C. P. 9 ; Muir v. Crawford, L. R., 2 H. L. Sc. 456 ; and cases cited post, pp. 484, 485. The indorser of a bill of exchange who has paid it at maturity is entitled to the benefit of any securities deposited to secure tbe payment thereof by prior parties thereto. Duncan v. N. & 8. Wales Bank, 6 Ap. Ca. 1, D. P. Vide post, p. 485. Infancy.] — An acceptance given by an infant, even for necessaries, is void. Williamson v. Watts, 1 Camp. 552. And by 55 & 56 V. c. 4, s. 5, post, p. 676, any instrument, negotiable or other, given by an infant, after he has come of age, to secure payment of money which in whole or part represents a loan made to him during infancy, shall, so far as represents such loan, be void absolutely against all persons whomsoever. Action on Cheques. Statute.] The general provisions of the B. of Ex. Act, 1882, relating to cheques are as follows : — Sect. 73. "A cheque is a bill of exchange drawn on a banker" (vide sect. 2, ante, p. 350) " payable on demand. "Except as otherwise provided in this Part" (i.e. Part III. comprising sects. 73 to 82), " the provisions of this Act applicable to a bill of exchange payable on demand apply to a cheque." These provisions of the Act will be found under appropriate headings, ante, pp. 350 et seq. 406 Action on Cheques. Sect. 74. "Subject to the provisions of this Act — "(1.) Where a cheque is Dot presented for payment within a reasonable time of its issue, and the drawer or the person on whose account it is drawn had the right at the time of such presentment as between him and the banker to have the cheque paid and suffers actual damage through the delay, he is discharged to the extent of such damage, that is to say, to the extent to which sucb drawer or person is a creditor of such banker to a larger amount than he would have been had such cheque been paid. " (2.) In determining what is a reasonable time regard shall be had to the nature of the instrument, the usage of trade and of bankers, and the facts of the particular case. "(3.) The holder of such cheque as to which such drawer or person is dis- charged shall be a creditor, in lieu of such drawer or person, of such hanker to the extent of such discharge, and entitled to recover the amount from hi?n." Sect. 75. " The duty and authority of a banker to pay a cheque drawn on him by his customer are determined by — "(1.) Countermand of payment: " (2.) Notice of the customer's death." Sect. CO. " When a bill payable to order on demand is drawn on a banker, and the banker on whom it is drawn pays the bill in good faith and in the ordinary course of business, it is not incumbent on the banker to show that the indorsement of the payee, or any subsequent indorsement, was made by or under the authority of the person whose indorsement it purports to be, and the banker is deemed to have paid the bill in due course, although such indorsement has been forged or made without authority." The Stat. 16 & 17 V. c. 59, s. 19, also provides " that any draft or order drawn upon a banker for a sum of money payable to order on demand which shall, when presented for payment, purport to be indorsed by the person to whom the same shall be drawn payable, shall be a sufficient authority to such banker to pay the amount of such draft, or order to the bearer thereof; and it shall not be incumbent on such banker to prove that such indorse- ment, or any subsequent indorsement, was made by or under the direction or authority of the person to whom the said draft or order was or is made payable either by the drawer or any indorser thereof." This provision, which is still in force, has been extended to any document issued by the Paymaster-General, in pursuance of Stat. 35 & 36 V. c. 44, which authoiizes the payment of money. Id., s. 11. These sections apply to bankers only. Halifax Union v. Wheelwright, L. R., 10 Ex. 183. An indorsement "per proc." or "as agent," is within them. Charles v. Blackwell, 1 C. P. D. 548 ; 2 C. P. D. 151, C. A Where a banker, A., has two customers, B. and C, a cheque drawn by B. on A., and indorsed by C. without authority, and paid by him to his account with A., and credited by A. to C, is paid by A. to C. within these sections. Bissell v. Fox, 53 L. T. 119, E. T., 1885, C. A. ; Gordon v. L. City & Midland Banking Co., 1902, 1 K. B. 242, C. A. ; affirm, on this point, (1903) A. C. 240, D. P. They protect only the banker on whom the cheque is drawn, and the drawer may, in an action for money had and received, recover the amount of the cheque from any person who has obtained payment thereof, through a forced indorsement. Oyden v. Benas, L. R., 9 C. P. 513; Bohbett v. Pinkett, 1 Ex. D. 368 ; Gt. W. By. Co. v. L. & County Banking Co., post, p. 411. So might the owner of a cheque ; even against a banker who bad received the money for a customer. Arnold v. Cheque Bank, 1 C. P. D. 578 ; Gordon v. L. City & Midland Banking Co., supra. See also Lacave v. Credit Lyonnais, (1897) 1 Q. B. 148. Now, however, by sect. 82, post, Payee, Bearer, or Indorsee against Draiver. 407 p. 410, where the cheque is crossed, " a binker who has in good faith and without any negligence received payrneut for a customer," is protected in such a case. Matthiessen v. L. & County Bank, 5 C. P. D. 7, decided, on 39 & 40 V. c. 81, s. 12. A banker's draft addressed by one branch of a bank to another branch is a draft or order within 16 & 17 V. s. 59, s. 19, supra. Gordon v. L. City & Midland Banking Co., ante, p. 406, in D. P. reversing C. A. on this point. The only effect of the initialling of a cheque by the drawer's banker is to show " on the face that it is drawn in good faith on funds sufficient to meet its payment," and to add the credit of the bank. Gaden v. Newfoundland Savings Bank, (1899) A. C. 281, J. C. There is now no restriction on the amount of a cheque for the Stat. 48 G. 3, c. 88, s. 2, is repealed by the B. of Ex. Act, 1882, s. 96. A cheque is not invalid by reason of being ante- or post-dated, see sect. 13 (2), ante, p. 353. Nor is it now illegal, under the stamp laws, to post- date a cheque, whether payable to bearer or order ; vide ante, p. 238 ; but a partner in a non-trading firm cannot bind his firm by drawing a post- dated cheque in the name of the firm. Forsfer v. Mackreth, L. K., 2 Ex. 163. It may be mentioned that the drawer thereof is under no obligation for the benefit of a third person to stop its payment before it is due. Ex. pte. Bichdale, infra. As to a banker's liability with respect to post-dated cheques, vide post, p. 409. As to effect of taking an overdue cheque, see sect. 36 (2, 3), ante, p. 394. See also L. & County Banking Co. v. Groome, 8 Q. B. D. 288. Payee, bearer, or indorsee against drawer.] The plaintiff may be put to prove the drawing and the presentment to, and non-payment by, the banker, and also notice to the drawer of the non-payment, unless the facts excuse such notice. The evidence necessary in support of the plaintiff's case will be gathered from what has been said under the head of Bills of exchange, ante, pp. 361 et seq. A banker who has carried to the credit of his customer's account the amount of a cheque handed to him for that purpose becomes a holder thereof for value, and may sue the drawer thereon, whether the account is over- drawn ; Carrie v. Misa, L. R., 10 Ex. 153, Ex. Ch. ; affirmed on another ground, in D. P., 1 Ap. Ca. 554 ; M l Lean v. Clydesdale Banking Co., 9 Ap. Ca. 95 ; or not ; Ex pte. Bichdale, 19 Ch. D. 409, C. A. The banker may recover the full amount of the cheque from the drawer, although on its dis- honour he debited his customer's account with the amount. B. Bank of Scotland v. Tottenham, (1894) 2 Q. B. 715, C. A. Sect. 45 (2), ante, p. 378, provides that presentment must be within a reasonable time after issue, having regard to the usage of trade and particular circumstances. As between holder and drawer mere delay in presenting for payment, short of six years, is no answer, unless the defendant has been prejudiced by it; as by the failure of the bank after the drawing of the cheque. Robinson v. Ilawksford, 9 Q. B. 52 ; Laws v. Band, 3 C. B., N. S. 442 ; 27 L. J., C. P. 76 ; in which case the drawer is released from liability ; sect. 74 (1), ante, p. 406. The reasonable time under sect. 74 (1, 2), ante, p. 406, for presentation in order to avoid this risk, is the day following the day of receipt. Moule v. Brown, 4 N. C. 266 ; Alexander v. Burchfield, 7 M. & Gr. 1061. But, if the holder of the cheque do not live in the same place with the drawee, he may send it to his banker or other agent by the post of the next day after he received it, and the agent should present it not later than the day after he received it; Pick ford v. 1,'idge, 2 Camp. ">:;7 ; Bare v. Ilcnty, 10 C. B., N. S. 05 ; 30 L. J., C. P. 302 ; Prideanx v. ( 'riddle, 4os Action on Cheques. L. R., 4 Q. B. 455; and this holds good as between banker nnd customer. S. CC. ; Bailey v. Bodenham, 16 C. B., N. S. 288; 33 L. J., C. P. 262. In re Boyse, 33 Ch. D. 612, it was held that a delay in presentment exceeding six years was no answer. The process of presenting cheques through the banker's clearing house, is described in the special verdict, in Warwick v. Rogers, 5 M. & Gr. 340, 348. Such presentment has been held to be good, vide ante, p. 379. Pre- sentment of a cheque to a banker through the post is a proper mode of presentment. Heywood v. Pickering, L. R., 9 Q. B. 428, following Prideaux v. Griddle, L. R., 4 Q. B. 455, 461. If so presented and the banker delay to return the cheque or to remit the money, any loss thereby occasioned will, as between the holder and the drawer, fall on the latter. Heywood v. Pickering, supra. By sect. 50 (2) (c), (4), ante, p. 387, notice of dishonour is excused where the banker is as between himself and the drawer under no obligation to pay the cheque, or (5), where the drawer has countermanded payment. See Carew v. Duckworth, L. R., 4 Ex. 313. A person taking a cheque payable to order, but without indorsement, has no better title than the person from whom he took it, although he took it bond fide and without notice; and he is affected by that person's fraud, of which he had notice before he obtained a formal indorsement. Whistler v. Forster, 14 C. B., N. S. 248 ; 32 L. J., C. P. 161. See sect. 31, ante, p. 369, and sect. 29, ante, p. 354. Indorsee against indorser.] Where the cheque has been indorsed, and the indorser is sued by the holder, the plaintiff is bound to show due diligence in endeavouring to obtain payment, and giving notice of non-payment to the defendant. By sect. 45 (2), ante, p. 378, the cheque must be presented within a reasonable time or the indorser will be discharged. As to reasonable time, see Moule v. Brown, and other cases cited ante, p. 407. By sect. 56, " wbere a person signs a bill otherwise than as drawer or acceptor, he thereby incurs the liabilities of an indorser to a holder in due course." As to a holder in due course, see sect. 29, ante, p. 354. Banker's liability in respect of cheques."] Although by sect. 53 (1), ante, p. 355, " a bill of itself does not operate as an assignment of funds in the hands of the drawer available for payment thereof, and the drawee of a bill who does not accept as required by this Act, is not liable" thereon, yet there is an implied contract by a banker with his customer to cash cheques within a reasonable time after he has effects ; Marzetti v. Williams, IB. & Ad. 415 ; and the customer, if a trader, is entitled to temperate damages on his cheque being, under such circumstances, dishonoured, without showing special damage ; Rolin v. Steward, 14 C. B. 595 ; 23 L. J., C. P. 148 ; but evidence of special damage, that is, loss of credit and custom from particular individuals, cannot be recovered unless alleged in the claim. Fleming v. Bank of New Zealand, (1900) A. C. 577, J. C. A banker who had been in the habit of cashing cheques of the plaintiff when there were securities of his at the bank, though the cash balance was against him, was held liable for dishonouring his cheques. Gumming v. Shand, 5 H. & H. 95 ; 29 L. J., Ex. 129. So, where the customer placed in his bankers' hands a sum to meet a particular bill, and the bankers, instead of meeting the bill, placed it to the credit of an overdrawn account, it was held that the bankers were liable for the amount of the bill. Hill v. Smith, 12 M. & W. 618. But the bankers may, unless they have agreed otherwise, without notice to their customer, combine accounts he has with several branches of the bank, and dishonour his cheques, if on the whole state of account he have not sufficient Banker's Liability. — Grossed Cheques. — Bills of Exchange Act, 1882. 409 assets ; Qarnett v. McKewan, L. E., 8 Ex. 10 ; for such branches form but one bank ; Prince v. Oriental Bank Cor., 3 Ap. Ca. 325, J. C. ; except for the purpose of honouring cheques drawn on a particular branch ; Woodland v. Fear, 7 E. & B. 519 ; 26 L. J., Q. B. 202 ; and, of calculating the time for giving notice of dishonour. Clode v. Bayley, 12 M. & W. 51, ante, p. 383. Where all debts of a customer, R., in the hands of his banker, W., have been attached under Rules S. C, 1883, 0. Ixv. r. 1, to answer the judgment debt of H. against R., W. is not bound to honour any cheque drawn on him by R., although R.'s balauce in W.'s hands exceeds the judgment debt. Rogers v. Whiteley, (1892) A. C. 118, D. P. Secus, after W. has paid into court the amount of the judgment debt. Yates v. Terry, (1902) 1 K. B. 527, C. A. As to what amounts to the closing of a customer's account, see Berry v. Halifax, &c, Banking Co., (1901) 1 Ch. 188. Where A. hands his banker, B., a cheque drawn by C. on B., with directions to place it to A.'s account, B. takes the cheque as agent for A., to be dealt with as a cheque upon another banker, and if B. dishonours the cheque and gives A. notice in due course, B. is not liable. Boyd v. Emmerson, 2 Ad. & E. ] 84. Secus, if B. on receiving the cheque had agreed to cash or give credit for it. S. C, Id. 200, 202. A customer is bound by the custom of bankers. Emanuel v. Robarts, 9 B. & S. 121. In this case, bankers were, on this ground, held justified in dishonouring a cheque which had been previously presented at the bank before it was due, and then marked " post-dated " by them. In con- sequence, however, of the repeal of the enactments prohibiting the post- dating of cheques (vide ante, p. 238) this custom no longer exists, and a banker will now pay a cheque, when due, although it has been marked " post-dated." Crossed cheques. — Statute.'] Sect. 76. "(1.) Where a cheque bears across its face an addition of — "(a.) The words 'and company' or any abbreviation thereof between two parallel transverse lines, either with or without the words ' not negotiable ' ; or "(6.) Two parallel transverse lines simply, either with or without the words ' not negotiable ' ; that addition constitutes a crossing, and the cheque is crossed generally. " (2.) Where a cheque bears across its face an addition of the name of a banker, either with or without the words ' not negotiable,' that addition constitutes a crossing, and the cheque is crossed specially, and to that banker." Sect. 77. " (1.) A cheque may be crossed generally or specially by the drawer. "(2.) Where a cheque is uncrossed, the holder may cross it generally or specially. "(3.) Where a cheque is crossed generally the holder may cross it specinlly. "(4.) Where a cheque is crossed generally or specially, the holder may add the words ' not negotiable.' " (5.) Where a cheque is crossed specially, the banker to whom it is crossed may again cross it specially to another banker for collection. " (6.) Where an uncrossed cheque, or a cheque crossed generally, is sent to a banker for collection, he may cross it specially to himself." Sect. 78. " A crossing authorized by this Act is a material part of the cheque ; it shall not be lawful for any person to obliterate or, except as authorized by this Act, to add to or alter the crossing." Sect. 79. "(1.) Where a cheque is crossed specially to more than one 410 Action on Cheques. banker except when crossed to an agent for collection, being a banker, the banker on whom it is drawn shall refuse payment thereof. " (2.) Where the banker on whom a cheque is drawn which is so crossed, nevertheless pays the same, or pays a cheque crossed generally, otherwise than to a banker, or if crossed specially, otherwise than to the banker to whom it is crossed, or his agent for collection, being a banker, he is liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid. " Provided, that where a cheque is presented for payment which does not at the time of presentment appear to be crossed, or to have had a crossing which has been obliterated, or to have been added to, or altered otherwise than as authorized by this Act, the banker paying the cheque in good faith, and without negligence shall not be responsible, or incur any liability, nor shall the payment be questioned by reason of the cheque having been crossed, or of the crossing having been obliterated or having been added to or altered otherwise than as authorized by this Act, and of payment having been made otherwise than to a banker or to the banker to whom the cheque is or was crossed, or to his agent for collection being a banker, as the case may be." Sect. 80. " Where the banker, on whom a crossed cheque " (vide sects. 76, 77, ante, p. 409) " is drawn, in good faith and without negligence pays it, if crossed generally, to a banker, and if crossed specially, to the banker to whom it is crossed, or his agent for collection being a banker, the banker paying the cheque, and, if the cheque has come into the hands of the payee, the drawer, shall respectively be entitled to the same rights and be placed in the same position as if payment of the cheque had been made to the true owner thereof." Sect. 81. " Where a person takes a crossed cheque which bears on it the words * not negotiable,' he shall not have and shall not be capable of giving a better title to the cheque than that which the person from whom he took it had." Sect. 82. " Where a banker in good faith and without negligence receives payment for a customer of a cheque crossed generally or specially to himself, and the customer has no title or a defective title thereto, the banker shall not incur any liability to the true owner of the cheque by reason only of having received such payment." Sect. 95. " The provisions of this Act as to crossed cheques shall apply to a warrant for payment of dividend." The above sections replace the Crossed Cheques Act, 1876 (39 & 40 V. c. 81), which was in very similar terms. By the Eevenue Act, 1883 (46 & 47 V. c. 55), s. 17, the above sections, 76 — 82, " shall extend to any document, issued by a customer of any banker, and intended to enable any person or body corporate, to obtain payment from such banker, of the sum mentioned in such document, and shall so extend, in like manner, as if the said document were a cheque"; it does not, however, " render such document a negotiable instrument." It applies to such documents drawn on the Paymaster-General by public officers. The holder who may cross a cheque or add a special crossing to a general one under sect. 77 (3), ante, p. 409, need not be a holder for value. Akrokerri Mines v. Economic Bank, post, p. 411. As the crossing is by sect. 78, ante, p. 409, a material part of the cheque, any alteration thereof will in general (see sect. 64 (1), ante, p. 395) avoid the cheque. The above sections do not affect the negotiability of a cheque, whether crossed generally or specially, unless also marked " not negotiable." See Smith v. Union Bank of London, L. R., 10 C. P. 291 ; 1 Q. B. D. 31, C. A. Crossed Cheques. 411 Hence it seems that the bond fide holder for value of a cheque crossed only, without the addition of the words " not negotiable," is the true owner thereof, to whom the banker paying the cheque otherwise than as directed by the crossing is liable under sect. 79 (2), ante, p. 410, and, that the payee or other person who was formerly holder, but lost the cheque while in a negotiable state, has no remedy given him by the section. See S. C. If, however, the cheque is also marked " not negotiable," then, although it continues to be transferable so that the holder for the time being can sue thereon, yet, by sect. 81, the holder can have no better title than his transferor had. Gt. W. By. Co. v. L. & County Banking Co., infra. A banker, however, who bond fide and without negligence collects such a cheque for a customer is protected by sect. 82. See S. C. ; Matthiessen v. L. & County Bank, 5 C. P. D. 7. The protection of sect. 82 applies although the customer's account is over- drawn when the cheque is paid in. Clarke v. L. & County Banking Co., (1897) 1 Q. B. 552. But it extended only to a cheque paid in for collection ; where the banker B. at once credited the customer C. with the amount and allowed him to draw against it, before the cheque was cleared, B. was not protected by sect. 82. Gordon v. L. City & Midland Banking Co., (1902) 1 K. B. 242, C. A. ; (1903) A. C. 240, D. P. Where however, B., although at once crediting C. in his ledger, did not enter it in C.'s pass-book or allow C. to draw against it until it had been cleared, B. was protected. Akrokerri Mines v. Economic Bank, (1904) 2 K. B. 465. And now by 6 E. 7, c. 17, s. 1, "a banker receives payment of a crossed cheque for a customer within the meaning of" sect. 82, "notwithstanding that he credits his customer's account with the amount of the cheque before receiving payment thereof." There is no protection in respect of the collection of cheques paid by C. to his account with B., uncrossed, and which are afterwards crossed by B. Gordon v. L. City & Midland Banking Co., supra. As to what is negligence within sect. 82, see Bissell v. Fox, 51 L. T. 663 ; affirm, on this point in C. A. 53 L. T. 119, E. S. 1885. " The character in which a bank received payment of a cheque is a question of fact," per Ld. Macnaghten, (1903) A. C. 244. Sect. 82 applies only to the case of a customer of the bank. Lacave v. Credit Lyonnais, (1897) 1 Q. B. 148. Whether a person is such customer is a question ol fact. Gt. W. By. Co. v. L. & County Banking Co., (1899) 2 Q. B. 172 ; (1900) 2 Q. B. 464, 472, per A. L. Smith, M.R. The decision in this case was reversed in D. P. on the ground that the person was not a customer. S. C, (1901) A. C. 414. To make a person A., a customer of a banker B., there must be some sort of account between them, either a deposit account, or a current account, or some similar relation. Id. 420, per Ld. Davey. The habitual lodging of cheques by A. with 15. for presentation on behalf of A. and, when h<,».) Where the policy is made ' interest or no interest,' or ' without further proof of interest than the policy itself,' or ' without benefit of salvage to the insurer,' or subject to any other like term : " Provided that, where there is no possibility of salvage, a policy may be effected without benefit of salvage to the insurer.'' This section is general in its terms and replaces (see sect. 92 and Sched. II.) stat. 19 G. 2, c. 37, s. 1, which applied only to British ships and goods or effects laden or to be laden thereon. A policy without further proof of interest than the policy itself is known as a "P. P. I." or "honour" policy. Interest is not in issue uoless traversed. The Court will not, however, enforce a policy which contravenes the statute, although the defence of absence of interest in the plaintiff has not been raised. Cedge v. Ii. Exch. Assur., (1900) 2 Q. B. 214. Sect. 5. " (1.) Subject to the provisions of this Act, every person has an insurable interest who is interested in a marine adventure. " (2.) In particular a person is interested in a marine adventure where he stands in any legal or equitable relation to the adventure or to any insurable property at risk therein, in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss, or by damage thereto, or by the detention thereof, or may incur liability in respect thereof." As to the definition of marine adventure, see sect. 3, ante, p. 417. A mere Marine Insurance Act, 1906. — Insurable Interest and Value. 423 agent, who has not possession, nor any lien on the goods, has no insurable interest in them. Seagrave v. Union Marine Insur. Co., L. K., 1 C. P. 305. Sect. 6. "(1.) The assured must he interested in the subject-matter insured at the time of the loss, though he need not be interested when the insurance is effected : Provided that where the subject-matter is insured ' lost or not lost,' the as>ured may recover although he may not have acquired his interest until after the loss, unless at the time of effecting the contract of insurance the assured was aware of the loss, and the insurer was not. " (2.) Wht-re the assured has no interest at the time of the loss, he cannot acquire interest by any act or election after he is aware of the loss." Sect. 7. " (1.) A defeasible interest is insurable, as also is a contingent interest. " (2.) In particular, where the buyer of goods has insured them, he has an insurable interest, notwithstanding that he might, at his election, have rejected the goods, or have treated them as at the seller's risk, by reason of the latter's delay in making delivery or otherwise." The question whether A. has an insurable interest in goods contracted to be sold to him depends on whether he is liable for the price whether they be lost or not. Anderson v. Morice, L. R. ( 10 C. P. 609, Ex. Ch. ; 1 Ap. Ga. 713, D. P. ; Stock v. Inglis, 12 Q. B. D. 564, C. A.; 10 Ap. Ca. 263, D. P. See also Colonial Insur. Co. of New Zealand v. Adelaide Marine Insur. Co., 12 Ap. Ca. 128, J. C. In Stockdale v. Dunlop, 6 M. & W. 224, it was held that the buyer of goods at sea had no insurable interest unless the contract of sale was enforceable under the Statute of Frauds, s. 17. Now, however, see Taylor v. Gt. E. By. Co., (1901) 1 K. B. 774, post, p. 527. Sect. 8. " A partial interest of any nature is insurable." Sect. 9. " (1.) The insurer under a contract of marine insurance has an insurable interest in his risk, and may re-insure in respect of it." See Mackenzie v. Whitworth, ante, p. 419. " (2.) Unless the policy otherwise provides, the original assured has no right or interest in respect of such re-insurance." Sect. 10. "The lender of money on bottomry or respondentia has an insurable interest in respect of the loan." In a contract of bottomry there is a loan repayable by the owner or master with interest on the safe arrival of the ship, and the lender has a maritime lien for the amount due. Respondentia is a similar loan on the cargo. In either case the loan is at sea risk, and therefore insurable. So the lender L., of money for the repairs of a ship, has an insurable interest where he has a right under 3 & 4 V. c. 65, s. 6, to sue for advances by an action in rem, and for that purpose to arrest the ship. Morgan, Galloway & Go. v. Uzielli, (1905) 2 K. B. 555. Where there is an absolute mortgage of the ship to L. for his loan, L. has no insurable interest for the loan is not at sea risk. Stainbank v. Fenning, 11 C. B. 51 ; 20 L. J., C. P. 226 ; accord. Id. v. Shepard, 13 C. B. 418 ; 22 L. J., Ex. 341, Ex. Ch. Sect. 11. " The master or any member of the crew of a ship has an insurable interest in respect of his wages." Sect. 12. " In the case of advance freight, the person advancing the freight has an insurable interest, in so far as such freight is not repayable in case of loss." Vide post, p. 468. Sect. 13. "The assured has an insurable interest in the charges of any insurance which he may effect." Sect. 14. "(1.) Where the subject-matter insured is mortgaged, the mort- gagor has an insurable iuterest in the full value thereof, and the mortgagee has an insurable interest in respect of any sum due or to become due under the. mortgage. " (-.) A mortgagee, consignee, or other person having an iuterest in the [24 Action on Policy of Marine Insurance. Bubject-matter insured may insure on behalf and for the benefit of other persons interested as well as for his own benefit. " (3.) The owner of insurable property Las an insurable interest in respect of I lie full value thereof, notwithstanding that some third person may have agreed, or be liable, to indemnify him in case of loss." \ mortgagor may recover although the assignment is in terms absolute. Ward v. Beck, 13 C. B., N. S. 668 ;>2 L. J., C. P. 113. Sect. 15. " Where the assured assigns or otherwise parts with his interest in the subject-matter insured, he does not thereby transfer to the assignee his rights under the contract of insurance, unless there be an express or implied agreement with the assignee to that effect. But the provisions of this section do not affect a transmission of interest by operation of law." By sect. 50, vide ante, p. 421, the assignee, after loss, of the policy of insurance, may recover in his own name. Insurable value is defined by — Sect. 16. " Subject to any express provision or valuation in the policy, the insurable value of the subject-matter insured must be ascertained as follows: — " (1.) In insurance on ship, the insurable value is the value, at the com- mencement of the risk, of the ship, including her outfit, provisions and stores for the officers and crew, money advanced for seamen's wages, and other disbursements (if any) incurred to make the ship fit for the voyage or adventure contemplated by the policy, plus the charges of insurance upon the whole: " The insurable value, in the case of a steamship, includes also the machinery, boilers, and coals and engine stores if owned by the assured, and, in the case of a ship engaged in a special trade, the ordi- nary fittings requisite for that trade: " (2.) In insurance on freight, whether paid in advance or otherwise, the insurable value is the gross amount of the freight at the risk of the assured, plus the charges of insurance : " (3.) In insurance on goods or merchandise, the insurable value is the prime cost of the property insured, plus the expenses of and incidental to shipping and the charges of insurance upon the whole : " (4.) In insurance on any other subject-matter, the insurable value is the amount at the risk of the assured when the policy attaches, plus the charges of insurance." As to the meaning of " freight," see sect. 90, ante, p. 417, and Sched.J. r. 16, ante, p. 420. As to the nature of insurance thereon, see Potter v. Rankin, L. R, 6 H. L. 83 ; in this case the insurance was of specific chartered freight, to be earned on a future voyage, against perils to be incurred in the current one. See further Asfar v. Blundell, (1896) 1 Q. B. 123, C. A. In a valued policy, the Court will inquire of what freight insured consisted, to ascertain whether the claim has been satisfied or not. Williams v. N. China Insur. Co., 1 C. P. D. 757, C. A. ; Ue Main, (1894) P. 320. By the Merchant Shipping Act, 1894 (57 & 58 V. c. 60), insurance effected (sect. 335) against liabilities arising under Part III. of the Act, or (sect. 506) " against the happening, without the owner's actual fault or privity, of any or all of the events in respect of which the liability of owners is limited under," Part VIII. of the Act (vide post, pp. 474, 787), " shall not be invalid by reason of the nature of the risk." Interest in the ship, how proved."] The interest in the ship, as stated in the claim, may be proved, prima facie, by evidence of possession of the ship ; or, as acts of ownership, as directing the loading of the ship, purchasing tin.- stores, paying the peojjle employed, &c. Amery v. Eogers, 1 Esp. 209; Thomas v. Foyle, 5 Esp. yy. A common mode of proof is to call the master, Marine Insurance Act, 1906. — Proof of Interest. 425 who will prove that he was appointed and employed by the parties in whom the interest is averred ; and, though it should appear on cross-examination, that the plaintiff claims under a bill of sale, it is not, on that account, necessary for him to produce the bill, or the ship's register, unless such further evidence should be rendered necessary in support of the prima facie proof of ownership, in consequence of proof to the contrary. Robertson y. French, 4 East, 136; Pirie v. Anderson, 4 Taunt. 652. Where the interest is averred in persons who have never been in possession of the ship, it may be proved by showing the ownership of the persons under whom such parties claim, and the derivative title from them — viz., the bill of sale ; but now, by the Merchant Shipping Act, 1894 (57 & 58 V. c. 60), s. 64 (2), ante, p. 130, the register, or an examined or certified copy thereof, may be used as prima, facie proof of ownership. See also Effect of ship's register, ante, p. 218. Interest in goods, how proved — Bill oflading.~] The interest in goods may be proved prima facie like the interest in the ship, by evidence of possession and acts of ownership. It is also frequently proved by the production of the bill of lading. A bill of lading directing the delivery of the goods to the consignee is evidence of interest in him, the captain proving that he received the goods under it ; M l Andrew v. Bell, 1 Esp. 373 ; and where the goods are made deliverable to the consignor, the bill indorsed by him, either specially or in blank, is evidence of interest in the indorsee, or holder: Liclcbarrow v. Mason, 2 T. R. 71 ; but such evidence is prima facie only, and not conclusive. Seagrave v. Union Marine Insurance Co., L. R., 1 C. P. 305. The signature of deceased master to the bill of lading, as it has the effect of charging himself, is evidence of the interest of the consignee; but, if the master qualifies his acknowledgment by the words " contents unknown," it is then no evidence per se. Haddow v. Parry, 3 Taunt. 303. Where, to prove property in a cargo by purchase beyond seas, the plaintiff produced a bill of parcels of one G., at Petersburg, with his receipt to it, and proved his hand, Lee, C.J., admitted it as evidence against the insurers. Russel v. Boheme, Str. 1127. Inception and end of risk.'] By sect. 30 (2), ante, p. 419, and Sched. I. where the context does not otherwise require, the following rules are to apply to the construction of the policy : — R. 1. " Where the subject-matter is insured ' lost or not lost,' and the loss has occurred before the contract is concluded, the risk attaches unless at such time the assured was aware of the loss, and the insurer was not." R. 2. "Where the subject-matter is insured 'from' a particular place, the risk does not attach until the ship starts on the voyage insured." R. 3. " (a.) Where a ship is insured ' at and from ' a particular place, and she is at that place in good safety when the contract is concluded, the risk attaches immediately. " (b.) If she be not at that place when the contract is concluded the risk attaches as soon as she arrives there in good safety, and, unless the policy otherwise provides, it is immaterial that she is covered by another policy for a specified time after arrival. "(c.) Where chartered freight is insured ' at and from ' a particular place, and the ship is at that place in good safety when the contract is concluded the risk attaches immediately. If she be not there when the contract is concluded, the risk attaches as soon as she arrives there in good safety. " (d.) Where freight, other than chartered freight, is payable without special conditions and is insured 'at and from' a particular place, the risk attaches pro rata as the goods or merchandise are shipped ; provided that 126 Action on Policy of Marine Insurance. if there be cargo in readiness which belongs to the shipowner, or which some other person has contracted with him to ship, the risk attaches as soon as the ship is ready to receive such cargo." Sect. 42. "(I.) Where the subject-matter is insured by a voyage policy ' at and from ' or ' from ' a particular place, it is not necessary that the ship should be at that place when the contract is concluded, but there is an i in plied condition that the adventure shall be commenced within a reasonable time, and that if the adventure be not so commenced the insurer may avoid the contract. "(2.) The implied condition may be negatived by showing that the delay was caused by circumstances known to the insurer before the contract was concluded, or by showing that he waived the condition." A voyage policy is defined in sect. 25 (1), ante, p. 419. Sect. 43. " Where the place of departure is specified by the policy, and the ship, instead of sailing from that place, sails from any other place, the risk does not attach." Sect. 44. "Where the destination is specified in the policy, and the ship, instead of sailing for that destination, sails for any other destination, the risk does not attach." Sect. 45. "(1.) Where, after the commencement of the risk, the desti- nation of the ship is voluntarily changed from the destination contemplated by the policy, there is said to be a change of voyage. " (2.) Unless the policy otherwise provides, where there is a change of voyage, the insurer is discharged from liability as from the time of change, that is to say, as from the time when the determination to change it is manifested ; and it is immaterial that the ship may not in fact have left the course of voyage contemplated by the policy when the loss occurs." Where the insurance is at and from a port, the risk begins as soon as the ship is geographically within the port; Haughton v. Empire Marine Insur. Co., L. E., 1 Ex. 206. The words " port or ports of loading " in the province of B. A. include, not merely those places technically called ports, but all places to which ships are accustomed to resort for the purpose of taking in cargo. Harrower v. Hutchinson, L. R., 4 Q. B. 523. It makes no difference that by the regulations of the province a vessel which has loaded at such port cannot proceed direct homewards. S. C. The judg- ment was reversed on other grounds, but these points were affirmed by majority of the Ex. Ch., L. R., 5 Q. B. 584, 589. The term "port" must be understood in its popular or commercial sense. Hunter v. N. Marine Insur. Co., 13 Ap. Ca. 717, D. P. ; and see Price v. Livingstone, and Sailing Ship Garston Co. v. Hickie, cited post, p. 468. By a charter-party, a vessel, after discharging her outward cargo for owner's benefit, was to proceed to G. or I., as ordered at 0. or S. by the charterer's agents, and there load a cargo, and therewith proceed home- wards, and discharge at a port in the United Kingdom, and so end the voyage ; it was held that the voyage commenced from the period of the discharge of the outward cargo. Bruce v. Nicolopulo, 11 Exch. 129; 24 L. J., Ex. 321. See Valente v. Oibbs, 6 C. B., N. S. 270; 28 L. J., C. P. 229. A charter-party, with the usual clause against sea perils during the voyage, stipulated that a certain steamer at N., being tight, &c, and fitted for the voyage, should proceed to the usual place of loading at N. (or as near thereto as could safely be got), and there load and proceed to A.; it was held, that the voyage commenced from her starting from her then berth for the loading place, and that the exception applied to that portion of the voyage. Barker v. M l Andrew, 18 C. B., N. S. 759 ; 34 L. J., C. P. 191. See also Nottebohn v. Bichter, 18 Q. B. D. 63, 0. A. In the case of a time policy (i.e., an insurance within certain dates Marine Insurance Act, 1906. — Inception and End of Risk. 427 without regard to a particular voyage, vide sect. 25 (1), ante, p. 419), the risk begins at the first date. See Staffordshire Tramways Co. v. Sickness, &c, Assur., post, p. 455. Where the vessel is lost in the course of a voyage for which she is insured, some proof of the inception of the voyage, or risk, must be given. Koster v. Innes, Ry. & M. 333. This may be proved by some of the crew; or proof of a particular destination by charter-party will afford a presumption that she sailed on the chartered voyage; so, proof of her clearing out for a particular port would be evidence that she set sail for that port; per Ld. Ellenborough, C.J. Cohen v. Einckley, 2 Camp. 52. So, proof of a convoy- bond for a particular port, signed by the captain, coupled with the testimony of the custom-house officer that a certificate and other papers for such a voyage would, in the regular course of office, be delivered to the captain before he sailed, together with proof of his sailing, is prima facie evidence of the ship having sailed on such voyage. S. C. A licence for the port mentioned in the policy is prima facie evidence to the same effect. Marshall v. Parker, 2 Camp. 69. If the statement of claim aver that the ship sailed after the making of the policy, but in fact it was before, the variance is not material. Peppin v. Solomons, 5 T. R. 496. The risk in the case of a voyage policy on the ship to a port without any provision as to her safety there, terminates when she is anchored at the port in the usual place for discharge of her cargo. Stone v. Marine Insur. Co. &c, 1 Ex. D. 81. But, the policy usually extends in terms to the end of a period of 24 hours after mooring in safety in port, and the underwriters are not liable for a seizure after the 24 hours, though for smuggling committed on the voyage ; Lockyer v. Offley, 1 T. R. 252 ; but, where during the 24 hours the ship is compelled to go back for performance of quarantine, the risk continues ; Waples v. Eames, 2 Str. 1243. A ship was insured from L. to certain ports and during 30 days' stay in her last port of discharge, and in another part of the policy the risk was stated to continue until she had moored at anchor 24 hours in good safety ; held that the 30 days did not begin to run till the expiration of the 24 hours. Mercantile Marine Insur. Co. v. Titherington, 5 B. & S. 765; 34 L. J., Q. B. 11 ; Gambles v. Ocean Marine Insur. Co., 1 Ex. D. 141, C. A. Where the risk was "at and from A. to B., and for 30 days after arrival," " upon the ship, &c, until she hath moored at anchor 24 hours in good safety," it was held, that after the expiration of 30 days from the arrival and mooring of the vessel, and her having remained as a vessel, though not sound, for 24 hours, the underwriters were not responsible for a subsequent total loss. Lidgett v. Secretan, L. R., 5 C. P. 190. In the case of a policy similar, but omitting " 24 hours " the " 30 days " are reckoned as 30 consecutive periods of 24 hours, from the hour of the safe mooring of the vessel. Cornfoot v. S. Exch. Assur. Cor., (1904) 1 K. B. 40, C. A. As to re-insurance by one insurance company under a running policy with another company, see Cledstanes v. R. Exch. Ins. Co., 5 B. & S. 797 ; 34 L. J., Q. B. 30 ; such policy is good, although the subject-matter of the insurance was declared after notice to all parties of the loss of the vessel, and it was not then known that the insurers had any insurable interest therein. S. C. In the case of goods, the risk depends on the agreement of the parties, but it usually begins with the loading on board, and ends with the safe discharge, including their passage to the shore by usual means. Tierney v. Etherington, citetl per Cur.,1 Burr. 348; 3 Kent, Com. 309 ; see Australian Agricultural Co. v. Sounders, L. R., 10 0. P. 668; and Colonial Insurance Co. of New Zealand v. Adelaide Marine Insur. Co., 12 Ap. Ca. 128, J. C. By Sched. I. r. 4. "Where goods or other moveables are insured 'from ^28 Action on Policy of Marine Insurance. the loading thereof,' the risk does not attach until such goods or moveables are actually ou board, and the insurer is not liable for them while in transit from the Bhore to the ship." R. 5. " Where the risk on goods or other moveables continues until they are 'safely landed,' they must be landed in the customary manner and within a reasonable time after arrival at the port of discharge, and if they are not so landed the risk ceases." As to "reasonable time," see sect. 88, ante, p. 418. Where the insurance was on goods "at and from a given port, beginning the adventure from the loading at as above," a constructive loading at the port is sufficient; as, if the goods had been partially reloaded, or there had been a material alteration in the ownership of the goods or the voyage on the arrival of the ship at the port with the goods already aboard. Carr v. Montefiore, 5 B. & S. 408, 425 ; 33 L. J., Q. B. 57, 256. See also Joyce v. Realm Marine Insur. Co., L. R., 7 Q. B. 580. It seems that evidence of brokers and merchants is admissible to prove what is the custom as to when the outward bound risk determined, in order to show when the homeward bound risk commenced. Camden v. Coivhy, 1 W. Bl. 417. The risk may include land transit. Rodocanachi v. Elliott, L. R, 8 C. P. 649; L. R., 9 C. P. 518, Ex. Cb. But not unless the policy for the voyage attaches. Simon v. Sedg- wick, (1893) 1 Q. B. 303, C. A. A policy including "all risk of craft until the goods are discharged and safely landed," does not cover the risk to the goods while waiting ou lighters at the port of discharge for delivery on an export vessel. Eoulder v. Merchants' 1 Marine Insur. Co., 17 Q. B. D. 354, C. A. Shipment of the goods.} The shipment of goods on board is usually proved by the captain; and, if he be dead, the production of the bill of lading, and proof of his handwriting, will be evidence of the shipping as well as of the interest, but not if he add " contents unknown ; " Haddow v. Parry, 3 Taunt. 303 ; nor, if he be alive ; Dickson v. Lodge, 1 Stark. 226. The copy of an official report, made in pursuance of the Customs Acts, 12 C. 2, by the searcher of the customs, containing an account of the cargo exported, has been admitted to prove the shipping, without calling the searcher. Johnson v. Ward, 6 Esp. 48. In an action upon a policy on freight, the assured must show that some freight would have been earned, either by proving that some goods were put on board, or that there was some contract for doing so. Flint v. Flemyng, 1 B. & Ad. 45 ; Devaux v. J' Anson, 5 R. C. 419. Compliance with warranties.'] Sect. 33. "(1.) A warranty, in the following sections relating to warranties, means a promissory warranty, that is to say, a warranty by which the assured undertakes that some particular thing shall or shall not be done, or that some condition shall be fulfilled, or whereby he affirms or negatives the existence of a particular state of facts. " (2.) A warranty may be express or implied. " (3.) A warranty, as above defined, is a condition which must be exactly complied with, whether it be material to the risk or not. If it be not so complied with, then, subject to any express provision in the policy, the insurer is discharged from liability as from the date of the breach of warranty, but without prejudice to any liability incurred by him before that date." Sect. 34. "(1.) Non-compliance with a warranty is excused when, by reason of a change of circumstances, the warranty ceases to be applicable to the circumstances of the contract, or when compliance with the warranty is rendered unlawful by any subsequent law. "(2.) Where a warranty is broken, the assured cannot avail himself of Marine Insurance Act, 1906. — Compliance ivith Warranties. 429 the defence that the hreach has heen remedied, and the warranty complied with, before loss. " (3.) A hreach of warranty may be waived by the insurer." Sect. 35. " (1.) An express warranty may be in any form of words from which the intention to warrant is to be inferred. "(2.) An express warranty must be included in, or written upon, the policy, or must be contained in some document incorporated by reference into the policy. " (3.) An express warranty does not exclude an implied warranty, unless it be inconsistent therewith." Where the policy contains an express warranty, and the defence raises the point of non-compliance therewith, a literal and strict compliance with it must be proved ; it is not sufficient to show something tantamount to a performance, unless it be a waiver or dispensation of performance, which must be pleaded as such, and not as a compliance. Pawson v. Watson, Cowp. 785; 2 Wms. Saund. 201, 201 a (1); Croockewit v. Fletcher, 1 H. & N. 893 ; 26 L. J., Ex. 153. But an amendment to admit evidence of such a defence would be allowed in a proper case, vide ante, pp. 291 et sea. A warranty may be waived by a memorandum on the policy without a stamp, under the Stamp Act, 1891, s. 96 (ante, p. 268) ; Hubbard v. Jackson, 4 Taunt, 169 ; Weir v. Aberdeen, 2 B. & A. 325 ; decided under 35 G. 3, c. 63, s. 13. A warranty of " no iron . . . exceeding the net registered tonnage " is broken by a shipment of steel beyond that amount. Hart v. Standard Marine Insur. Co., 22 Q. B. D. 499, C. A. Warranty of sailing.'] To satisfy a warranty " to depart " on or before a particular day, the vessel must be out of port on or before that day; Moir v. R. Exch. Assur. Co., 3 M. & S. 461 ; 6 Taunt. 241 ; but a warranty " to sail " is satisfied by the ship breaking ground and getting under way ; S. C. ; Lang v. Anderdon, 3 B. & C. 495. Where the insurance was from an inland port, as Lyons, and the ship left that port before the day, without her masts and heavy tackle, which she afterwards took in at Marseilles (this being the usual course) without unreasonable delay, but did not sail thence till after the day ; it was held that, looking at the nature of the voyage, and the mercantile usage in similar adventures, she had complied with the warranty to sail by the given day, and with the implied warranty of seaworthiness. Bouillon v. Lupton, 15 C. B., N. S. 113 ; 33 L. J., C. P. 37 ; and see Dixon v. Sadler, post, p. 431. But, unless the ship is unmoored, the warranty to sail is not complied with. Nelson v. Salvador, M. & M. 309. Sailing before the vessel has got her clearances, and is equipped for the voyage, is not a sailing within the warranty. Ridsdale v. Neiunham, 3 M. & S. 456. So, if the ship leave the harbour on the day without a sufficient crew on board, though the remainder of the crew are engaged and ready to sail. Graham v. Barras, 5 B. & Ad. 1011. Where a vessel sailed from St. Anne's, Jamaica, within the time of warranty with her cargo and clearances on board, and called at another usual port in Jamaica for convoy, where she was detained by an embargo until after the time of warranty, it was held that this was a sufficient sailing from Jamaica. Bond v. Nutt, Cowp. 601 ; Thellusson v. Fergusson, 1 Dong. 360. A warranty to sail from Q. on or before November 1st, contained in a policy on a vessel "at and from" New York to Q., and thence to England, is confined to the part of the voyage from Q. to England, and the insurer is therefore liable for a loss occurring after November 1st, on the voyage from New York to Q. Baines v. Holland, 10 Exch. 802 ; 24 L. J., Ex. 20*. In a time policy a warranty not to sail for a particular country after a certain day is complied with I. lo Action on Policy of Marine Insurance. by getting out of the dock, and endeavouring to leave the harbour in the prosecution of the voyage; it might be otherwise if the warranty were to sail from some particular terminus. Cochrane v. Fisher, 1 C. M. & E. 809, Ex. Oh. So where the ship, when ready for sea, left the wharf, anchored 500 yards off and sailed away next day, the day of sailing depended on the intention with which she was so manoeuvred. Sea Insur. Co. v. Blogg, (1898) 2 Q. 15. 398, C. A. A ship having been proved to have sailed under convoy, to prove the time of sailing the log-book of the commander of the convoy is evidence. D' Israeli v. Jowett, 1 Esp. 427. Warranty of neutrality.'] Sect. 36. "(1.) Where insurable property, whether ship or goods, is expressly warranted neutral, there is an implied condition that the property shall have a neutral character at the commence- ment of the risk, and that, so far as the assured can control the matter, its neutral character shall be preserved during the risk. " (2.) Where a ship is expressly warranted ' neutral ' there is also an implied condition that, so far as the assured can control the matter, she shall be properly documented, that is to say, that she shall carry the neces- sary papers to establish her neutrality, and that she shall not falsify or suppress her papers, or use simulated papers. If any loss occurs through breach of this condition, the insurer may avoid the contract." See Hohbs v. Ilenning, post, p. 440. Warranty of flag.] On a policy on goods, in order to prove a warranty that the ship insured was Danish, proof of her carrying the flag of that nation at times when she was free from the danger of capture, and that the captain addressed himself to the consul of that nation in a foreign port, was held prima facie evidence. Arcangelo v. Thompson, 2 Camp. 620. By sect. 37, " There is no implied warranty as to the nationality of a ship, or that her nationality shall not be changed during the risk." Warranty of good safety.] Sect. 38. " Where the subject-matter insured is warranted 'well' or 'in good safety' on a particular day, it is sufficient if it be safe at any time during that day." Implied warranties.] There are also certain implied warranties, the breach of which will prevent the insured from recovering. Such implied warranties are : — that there shall be no deviation from the voyage insured ; that it shall be commenced without unreasonable delay ; that all material circumstances should be disclosed to the underwriters ; and that the ship shall be sea- worthy ; and a breach of these conditions entitles the insurer to avoid the policy whether there be fraud or not. Small v. Oibson, 16 Q. B. 158 ; 20 L. J., Q. B. 158, Ex. Oh., per Cur. Warranty of seaworthiness.] Sect. 39. " (1.) In a voyage policy there is an implied warranty that at the commencement of the voyage the ship shall be seaworthy for the purpose of the particular adventure insured. " (2.) Where the policy attaches while the ship is in port, there is also an implied warranty that she shall, at the commencement of the risk, be n asonably fit to encounter the ordinary perils of the port. " (3.) Where the policy relates to a voyage which is performed in different stages, during which the ship requires different kinds of or further preparation or equipment, there is an implied warranty that at the commencement of each stage the ship is seaworthy in respect of such preparation or equipment f( >r t he purposes of that stage. Murine Insurance Act, 1906. — Warranty of Seaworthiness. 431 "(4.) A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured." A "voyage policy " is de6ned by sect. 25 (1), ante, p. 419. By being seaworthy " is meant that the ship shall be in a fit state as to repairs, equipment, and crew, and in all other respects, to encounter the ordinary perils of the voyage insured, at the time of sailing upon it. If the assurance attaches before the voyage commences, it is enough that the state of the ship be commensurate to the then risk ; and, if the voyage be such as to require a different complement of men, or state of equipment in different parts of it, as if it were a voyage down a canal or river and thence across to the open sea, it would be enough if the vessel were, at the commencement of each stage of the navigation, properly manned and equipped for it. But the assured makes no warranty to the underwriters that the vessel shall continue seaworthy, or that the master or crew shall do their duty during the voyage, and their negligence or mis- conduct is no defence to an action on the policy where the loss had been immediately occasioned by the perils insured against." Per Parke, B., in delivering judgment of the Court in Dixon v. Sadler, 5 M. & W. 414 ; cited and approved by the Court in Biccard v. Shepherd, 14 Moo. P. C. 494 ; Bouillon v. Lupton, 15 C. B., N. S. 113 ; 33 L. J., C. P. 37, cited ante, p. 429; Davidson v. Burnand, L. I!., 4 C. P. 117; Hedlcy v. Pinhney & Sons SS. Co., (1894) A. C. 222, D. P. ; and Quebec Marine Insur. Go. v. Com- mercial Bank of Canada, L. K., 3 P. C. 234. An exception from loss from "rottenness, inherent defects, and other unseaworthiness " does not restrict the implied warranty ; to have this effect, the exception must be plainly expressed. S. C. Where the ship is not seaworthy when she -sails on her voyage, this is not remedied by her becoming so afterwards and before loss. S. C. Now see sect. 34 (2), ante, p. 428. Where, from its length, the voyage of a steamship is divided into stages for coaling purposes, the ship must be seaworthy at the commencement of each stage by then having enough coal on board for that stage. Greenock S.S. Co. v. Maritime Insur. Co., (1903) 2 K. B. 657, following The Vortigern, (1899) P. 140, C. A. See sect. 39 (3), ante, p. 431. By sect. 40. " (2.) In a voyage policy on goods or other moveables there is an implied warranty that at the commencement of the voyage the ship is not only seaworthy as a ship, but also that she is reasonably fit to carry the goods or other moveables to the destination contemplated by the policy." See Biccard v. Shepherd, supra ; Sleigh v. Tyser, (1900) 2 Q. B. 333. In a policy on deck cargo, it is insufficient that the ship is fit safely to encounter weather, only because the deck cargo can be readily jettisoned. Daniels v. Harris, L. It., 10 C. P. 1. In Biccard v. Shepherd, supra, there was an insurance on cupper ore "at and from the anchorages of II. and N. to S., to commence from the loading at and from the above ports ; " the ship was seaworthy at H., but became unseaworthy at N.l>v reason of overloading, and was lost after sailing from N. ; and it was held that the insured could recover for the ore shipped at II. but not for that shipped at N. See also Bouillon v. Lupton, supra. On an insurance of goods until safely lauded, including all risk to and from the ship, their is no warranty that the lighters employed to land the cargo shall be seaworthy. Lane v. Nixon, L. I:., 1 C P. 412. By sect. 40. "(1.) In a policy on goods or other moveables there is no implied warranty that the goods or moveables are seaworthy. Prima facie a ship is presumed to be seaworthy ; Parker v. Potts, 3 Dow, 23; and the onus of proving she is not seaworthy lies on the defend- ants; Davidson v. Burnand, supra; but where the inability of the ship to 132 Action on Policy of Marine Insurance. 1 mi form the voyage becomes evident in a short time after sailing, the presump- tion is that it arises from causes existing before her setting sail on the voyage, and that the ship was not then seaworthy ; and the onus frdbandi in such cases rests with the assured, to show that the inability arose from causes subsequent to the commencement of the voyage. Per Ld. Eldon, in Watson v. Clark, 1 Dow, 344 ; explained by the C. A. in Pickup v. Thames & Mersey Marine Insur. Co., 3 Q. B. D. 594, C. A. ; Douglas v. Scougall, 4 Dow, 269. A ship is not fit for a voyage unless she sails with a crew competent for the voyage, considering its length and the circumstances under which it is undertaken. Therefore, where, on a voyage from Mauritius to London, there was no one on board competent to supply the captain's place in case of illness, Lord Tenterderj, C.J., left it to the jury whether the vessel was seaworthy, and the jury found in the negative. Clifford v. Hunter, M. & M. 103. Kent (3 Com. 287, n.) observes that this ruling will hardly apply to short coasting voyages, and cites an American case to that effect. But where the assured has once provided a sufficient crew, the negligence of the crew at the time of the loss is no breach of the implied warranty ^ Bask v. is!. Exch. Assur. Co., 2 B. & A. 73 ; Dixon v. Sadler, ante, p. 431. There is an implied warranty of seaworthiness in a voyage policy, though the insurance be on an abandoned ship and cargo in the interest of the salvor's lien. Knill v. Hooper, 2 H. & N. 277 ; 26 L. J., Ex. 377. But " seaworthiness " is a relative term ; and it is for the jury to say whether the ship was reasonably able to perform the voyage : S. C. ; as it depends on the nature of the ship as well as of the voyage insured for ; and in an action on a policy (in the usual form), evidence of these facts is admissible to show the amount of seaworthiness implied. Therefore, on a policy " on the Ganges steamer from the Clyde to Calcutta," a vessel constructed for river navigation (as was disclosed when the policy was effected), and which, although unfit for ocean navigation, had been made as seaworthy as her size and construction would admit ; it was held the underwriters were liable. Purges v. Wickham, 3 B. & S. 669 ; 33 L. J., Q. B. 17 ; accord. Clapham v. Langton, 5 B. & S. 729; 34 L. J., Q. B. 46, Ex. Ch. See also Bouillon v. Lupton, ante, p. 429. As to evidence of unseaworthiness, see Merchants' Trading Co. v. Universal Marine Co., cited L. R., 9 Q. B. 596 : Anderson v. Morice, L. R., 10 C. P. 58, 609, Ex. Ch. ; affirm, on this point, i Ap. Ca. 713, D. P. Hossen & Co. v. Union Marine Insur. Co., (1901) A. C. 362, J. C. It is not a statutory unseaworthiness if a sbip sail with a deck cargo in contravention of 57 & 58 V. c. 60, s. 451. See Wilson v. Rankin, L. R., 1 Q. B. 162, Ex. Ch. By sect. 39. "(5.) In a time policy there is no implied warranty that the sbip shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, tho insurer is not liable for any loss attributable to unseaworthiness." A " time policy" is defined by sect. 25 (1), ante, p. 419. Where a question arises as to the seaworthiness of a ship, ship-builders, though they have never seen the ship, may state their opinion on examining a survey taken by others, it being a matter of skill and science. Beckwith v. Sydebotham, 1 Camp. 117 ; Tlwmton v. R. Exch. Assur. Co., Peake, 25, vide ante, p. L76. Where the policy expressly admits seaworthiness, the underwriter cannot dispute it, even where the loss was by reason of unseaworthiness. Parfitt v. Tftompson, 13 M. & W. 392. Deviation and delay.] Sect. 46. "(1.) Where a ship, without lawful excuse, deviates from the voyage contemplated by the policy, the insurer Marine Insurance Act, 1906. — Deviation and Delay. 433 is discharged from liability as from the time of deviation, and it is immaterial that the ship may have regained her route before any loss occurs. " (2.) There is a deviation from the voyage contemplated by the policy — "(a.) Where the course of the voyage is specifically designated by the policy, and that course is departed from ; or " (b.) Where the course of the voyage is not specifically designated by the policy, but the usual and customary course is departed from. " (3.) The intention to deviate is immaterial ; there must be a deviation in fact to discharge the insurer from his liability under the contract." Sect. 47. "(1.) Where several ports of discharge are specified by the policy, the ship may proceed to all or any of them, but, in the absence of any usage or sufficient cause to the contrary, she must proceed to them, or such of them as she goes to, in the order designated by the policy. If she does not there is a deviation. "(2.) Where the policy is to 'ports of discharge,' within a given area, which are not named, the ship must, in the absence of any usage or sufficient cause to the contrary, proceed to them, or such of them as she goes to, in their geographical order. If she does not there is a deviation." By Sched. I. r. 6, "In the absence of any further licence or uaage, the liberty to touch and stay ' at any port or place whatsoever ' does not authorize the ship to depart from the course of her voyage from the port of departure to the port of destination." Sect. 48. " In the case of a voyage policy, the adventure insured must be prosecuted throughout its course with reasonable dispatch, and, if without lawful excuse it is not so prosecuted the insurer is discharged from liability as from the time when the delay became unreasonable." Sect. 49. " (1.) Deviation or delay in prosecuting the voyage contem- plated by the policy is excused — " (a.) Where authorized by any special term iu the policy ; or " (b.) Where caused by circumstances beyond the control of the master and his employer ; or " ( c Where reasonably necessary in order to comply with an express or implied warranty ; or " (d.) Where reasonably necessary for the safety of the ship or subject- matter insured ; or " (e.) For the purpose of saving human life, or aiding a ship in distress where human life may be in danger ; or " (/•) Where reasonably necessary for the purpose of obtaining medical or surgical aid for any person on board the ship; or "((/•) Where caused by the barratrous conduct of the master or crew, if barratry be one of the perils insured against. "(2.) When the cause excusing the deviation or delay ceases to operate, the ship must resume her course, and prosecute her voyage, with reasonable dispatch." By sect. 88, ante, p. 418, what is "reasonable dispatch" is a question of fact. It is a deviation avoiding the policy to slacken sail for the purpose of acting as convoy to a prize; Lawrence v. Sydebotliani, 6 East, 45; or, to take a vessel in tow for the mere purpose of saving property. Scaramanga v. Stamp, 5 0. P. D. 295, C. A. All deviations by reason of inevitable accident or stress of weather, to obtain needful provisions, or do needful ri-pairs, or avoid capture, are implied exceptions to tin' warranty. 3 Kent, Com. 316, .'!17; per cur., in Urquhart v. Barnard, 1 Taunt. 156; O'Reilly v. Oonne, 4 Camp. 249. See further, Phelps v. Hill, (1891) 1 Q. B. 605, 0. A. A deviation does not discharge the insurer from liability for previous loss, but only from loss accruing alter the deviation. Green v. Young, 2 B. — VOL. I. j,< p 1 •"■■I Action on Policy oj Marine Insurance. Ld. Ray in. 8-lo ; 'J Sulk. III. Where the policy was " at and from B. A. and port or ports of loading in the province of B. A.," and the vessel went I" B. in the province to load, and not getting a cargo there, returned to B. A. to complete her cargo, and on the voyage there was lost; it was held that there had been no deviation ; though it would have been otherwise had the vessel once started from L. on her way home. Harrower v. Hutchinson, L. R., 4 Q. B. 523. The judgment was reversed on other grounds; L. II., 5 Q. B. 584, Ex. Cb. In case of a seeking ship, much greater latitude for the seeking adventure must be allowed. Phillips v. Irving, 7 M. & Gr. 325. See further as to deviation, Hyderabad (Deccaii) Co. v. Willoughby, (1899) 2 Q. B. 530. Sect. 45, ante, p. 426, defines and declares the effect of a "change of voyage." See also sects. 43, 44, ante, p. 426, as to the alteration of the place of departure or of destination. Full disclosure.'] See post, pp. 449# et seq., Non-disclosure. Other implied warranties.] There is no implied warranty on the part of the owner of goods insured, that the ship shall be in all respects properly documented ; therefore, where the captain neglected to mention the goods in the ship's manifest, as required by 13 & 14 0. 2, c. 11, &c, this was held no defence by the underwriter against the owner of the goods. Car- ruthers v. Gray, 3 Camp. 142. Nor does the owner of goods warrant that the ship shall not change her nationality, although the loss is occasioned by such change. Dent v. Smith, L. B., 4 Q. B. 414. See sect. 37, ante, p. 430. Goods must be properly stowed ; but lading them on deck is not necessarily improper. Milward v. Hibbert, 3 Q. B. 120 ; Apollinaris Co. v. Nord Deutsche lnsur. Co., (1904) 1 K. B. 252. As to the implied warranty as to legality of the adventure, see sect. il,post, p. 449t. Licence.] Where the voyage has been legalized by a licence, such licence must be produced unless lost, when oral evidence of its contents is admis- sible. Kensington v. Inglis, 8 East, 288. But, where a licence was granted by the Secretary of State in this country pursuant to 48 G. 3, c. 126, oral evidence was excluded on the ground that there must have been some register of it preserved in the office of the Secretary of State, which would be better than oral evidence. Rhind v. Wilkinson, 2 Taunt. 237. By the above-mentioned statute a duplicate of the Order in Couucil, authorizing the grant of the licence, is to be annexed to it ; where, therefore, the licence was lost, examined copies of the Order in Council from the Council books and of the licence in the office of the Secretary of State were held to be the only proper evidence. Eyre v. Palsgrave, 2 Camp. 605. Proof that a vessel warranted to carry a French licence remained at Bordeaux a month after the inspection of a document purporting to be a French licence, and of other documents, by the officers of the French Government, is prima facie evidence that the document is genuine. Everth v. Tunno, 1 Stark. 508. Where the licence is general, some evidence must be given to apply it to the voyage in question. Barlow v. M'Intosh, 12 East, 311. On proof that goods, which cannot be exported without a licence, were duly entered for exportation at the custom-house, it was presumed, in action against the shipowner, that there was a licence to export them. Van Omeron v. Dowick, 2 Camp. 44. 1' roof of loss.] Sect. 55. "(1.) Subject to the provisions of this Act, and unless the policy otherwise provides, the insurer is liable for any loss proxi- mately caused by a peril insured against, but, subject as aforesaid, he is not Marine Insurance Act, 1906. — Proof of Loss. 435 liable for any loss which is not proximately caused by a peril insured against. " (2.) In particular — («.) The insurer is not liable for any loss attributable to the wilful rniscouduct of the assured, but, unless the policy other- wise provides, he is liable for any loss proximately caused by a peril insured against, even though the loss would not have happened but for the misconduct or negligence of the master or crew ; "(6.) Unless the policy otherwise provides, the insurer on ship or goods is not liable for any loss proximately caused by delay, although the delay be caused by a peril insured against ; " (c.) Unless the policy otberwise provides, the insurer is not liable for ordinary wear and tear, ordinary leakage and breakage, inherent vice or nature of the subject-matter insured, or for any loss proximately caused by rats or vermin, or for any injury to machinery not proxi- mately caused by maritime perils." Sect. 3, ante p. 417, defines " maritime perils." As to insurance "lost or not lost," see sect. 6 (1), ante, p. 423. Proof of loss by perils of the seas.] By sect. 30 (2) & Sched. I. (vide ante, p. 419), rule 7, "The term ' perils of the seas' refers only to fortuitous accidents or casualties of the seas, it does not include the ordinary action of the winds and waves." "Every accidental circumstance not the result of ordinary wear and tear, delay, or the act of the assured, happening in the course of the navigation of the ship and incidental to the navigation and causing loss to the subject- matter of insurance," is a peril of the sea. Hamilton v. Thames & Mersey Marine Insur. Co., 12 Ap. Ca. 484, 492, per Ld. Bramwell, approving also the definition of Lopes, L.J., in Pandorf v. Hamilton, 16 Q. B. D. 629, 633, that" in a seaworthy ship damage to goods caused by the action of the sea during transit, not attributable to the fault of anybody," is damage from perils of the sea. Accord. The Bedouin, (1894) P. 1, 7, C. A. See also Blackburn v. Liverpool Brazil, &c, S. Nav. Co., post, p. 474. The proximate and not the remote cause of loss is to be regarded, and any loss caused immediately by the perils of the sea is within the policy, though it would not have occurred but for the concurrent actions of some other cause which is not within it. Dudgeon v. Pembroke, 2 Ap. Ca. 284, D. P. ; see also Hamilton v. Pandorf, 12 Ap. Ca. 518, D. P. cited, post, p. 473. But, where the insurance is against perils of the sea, and mischief is occasioned by the sea, the natural and unavoidable consequence of which is to cause a further mischief, this consequential injury is also a peril of the sea ; as, where the sea-water damages part of a cargo, which thereby becomes putrid, so as to injure another part of the cargo in contact with it. Montoyu v. London Assur. Co., 6 Exch. 451 ; 20 L. J., Ex. 254. Where, however, the goods were not actually damaged, but sold for less because they had formed part of a cargo of goods which were damaged: this loss was held not to be within the policy. Cator v. (II. IK Insur. Co. of New York, L. K., 8 0. P. 552. There is a loss by perils of the sea where the ship was damaged by negligent loading, and became leaky, and was run ashore to prevent sinking. Redman v. Wilson, II M. & W. 476. See also Reiecher v. Borutick, (1894) 2 Q. B. 548, C. A. A loss, occasioned by running loul of another vessel by misfortune, is a loss by the perils of the seas. Butter v. Fisher, •'! Esp. r,7. So, if the ship were run down by another ship, though through gross negligence on the part of the other ship. Smith v. IScott, 4 Taunt. 126; see also The Xantho, 12 Ap. Ca. 503, D. P., cited post, p. 473. So, even where the master is part owner and the loss is caused ff2 136 Action nn Policy of Murine Insurance. by his negligent navigation, not being wilful. Trinder v. Thames, &c, Tnsur. Co., (1898) 2 Q. 15. 114, C. A. Where a portion of the goods was saved from the wreck and got on shore, but they were plundered by tbe natives and never came to the hands of the owners, this is a loss by perils of ilic sea. Bondrett v. Jlentigg, Holt, N. P. 149. So, where the insurance was on gold, and the ship was stranded abroad, and the gold was taken charge of by the foreign authorities ; expense was incurred in vainly en- deavouring to get tbe ship oil', and the authorities having apportioned the expense between the parties, refused to give up the gold until tbe share of expense due from the plaintiffs had been paid ; it was held that the amount so paid by them was a loss by perils of tbe seas, for whether the charge was legal or not, a vis major prevented the plaintiffs obtaining the gold without paying the sum, and this was the immediate consequence of the wreck. Dent v. Smith, L. K., 4 Q. B. 414. So, on an insurance on goods, where the ship was stranded and utterly disabled from proceeding, and while she lay in the sand was seized and confiscated by the foreign authorities. Hahn v. Corbett, 2 Bing. 205. Where, however, the ship is merely temporarily disabled, and afterwards seized, this is a total loss by capture, and if this be an excepted risk, the insured cannot recover for the previous partial loss by perils of the sea. Livie v. Janson, 12 East, 648. Several thousand bags of coffee were insured against perils of the sea, with warranty against capture, and all the consequences of hostilities ; the captain, misled by the extinction of a light, owing to hostilities betweeu two neighbouring states, ran the ship ashore, and she was lost ; 120 bags of the coffee were saved by salvors, and 1000 bags more would have been saved but for the interference of one of the hostile parties, after which the ship went to pieces : it was held that the underwriters were liable for a partial loss ; for that the cause of tbe wreck was perils of the sea, and that the putting out the light, though an act of hostility within the exception, was too remotely connected with the loss to be taken as the cause ; but that the loss of the 1000 bags was within the exception, lonides v. Universal Marine Ass., 14 C. B., N. S. 259 ; 32 L. J., C. P. 170. Where the insurance was on cattle warranted free from mortality, and they in the course of the voyage were killed by the rolling of the ship in a storm ; this was held a loss by the perils of the seas. Lawrence v. Aberdein, 5 B. & A. 107. So, under a similar policy, where the horses, owing to a storm, broke down the partitions, &c, between them, and so kicked and injured each other that they died. Oabay v. Lloyd, 3 B. & 0. 793. By sect. 55 {2b.), ante, p. 435, any loss proximately caused by delay is not recoverable although the delay be caused by a peril insured against. Thus, where the voyage is retarded by tempestuous weather, and the delay so occasioned causes the insured cargo to become putrid, so that it is necessarily thrown overboard, this is not a loss occasioned by " perils of the sea," or by " other perils." Taylor v. Dunbar, L. 11., 4 C. P. 206. Accord. Pink v. Fleming, 25 Q. B. D. 396, C. A. See also Tatham v. Hodgson, 6 T. R. 650. So damages for delay occasioned by repairs, necessary owing to injury from perils insured against, are not recoverable. Shelbourne v. Law Investment, &c, Cor., (1898) 2 Q. B. 626, 629. A transport was insured for 12 months, during which she was ordered into a dry harbour, the bed of which was uneven, where, the tide having left her, she received damage from an unusual sea swell ; this was held a loss by perils of the sea. Fletcher v. Inglis, 2 B. & A. 315. But, if the damage be occa- sioned merely by the ship taking the ground on the ordinary reflux of the tide, this is not a peril of the sea. Magnus v. Buttemer, 11 C. B. 876 ; 21 L. J., C. P. 119. So, where a ship was hove down upon a beach within the Marine Insurance Act, 1906. — Proof of Loss. 437 tideway to repair, anil the tide rising, she was bilged and damaged ; it was held not to be a loss by the perils of the seas. Thompson v. Whitmore, 3 Taunt. 227 ; Phillips v. Barber, 5 B. & A. 161. The following decisions illustrate the cases in which the insurer is not liable under sect. 55 (2c), ante, p. 435, by reason of the nature of the subject- matter of insurance. Thus where a ship sinks from her own inherent weakness, and not from any external violence, this is not a loss by perils of the sea. Merchants' Trading Co. v. Universal Marine Co., cited L. R., 9 Q. B. 596. See also Anderson v. Morice, ante, p. 432, and Dudgeon v. Pembroke, 2 Ap. Ca. 284, D. P. So, where a ship became so injured by worms during her voyage as to be unable to proceed, and was condemned as irreparable, this is not a loss by perils of the seas. Bold v. Parr, 1 Esp. 445. An insurance against "perils of the sea" does not cover an injury resulting from the ordinary chemical action of the sea-water upon an article exposed to the action in such a state as inevitably to receive injury from it ; Paterson v. Harris, 1 B. & S. 336 ; 30 L. J., Q. B. 354 ; nor from damage arising from the nature and collocation of the cargo ; The Freedom, L. R., 3 P. C. 594. But where owing to tempestuous weather it was necessary to close the ventilators of a steamship, and the cargo thereby sustained damage, this was held to have been caused by "accidents of the sea." The Thrunscoe, (1897) P. 301. As to the words " all risks by land or water," see Schloss v. Stevens, (1906) 2 K. B. 665. Where two ships were injured by collision, and the owners of one were in consequence compelled by a Court of Admiralty to pay damages, this was held not a loss by perils of the seas ; nor could they recover the extra expense of maintaining the crew whilst the ship was uuder repair owing to damage by the sea. De Vaux v. Salvador, 4 Ad. & E. 420. It has, in consequence, become the frequent practice to add what is called a collision clause in modern policies, making the underwriters liable for any damages that the shipowner may have to pay, owing to the ship having come into collision with another ship. See The N. Britain, (1894) P. 77, C. A., approved in The Engineer, (1898) A. C. 382, D. P. This clause does not, however, extend to the costs the shipowners incur in successfully defending a collision suit brought against them ; Xenos v. Fox, L. R., 3 C. P. 630; in Ex. Ch., L. R., 4 C. P. 665 ; nor, to liability for personal injury, occasioned on board the other ship, unless expressly so extended ; Taylor v. Dewar, 5 B. & S. 58; 33 L. J., Q. B. 141; see further Burger v. Indemnity, &c, Assur. Co., (1900) 2 Q. B. 348, C. A. And where both vessels are to blame for the collision, and, in accordance with the rule in the Admiralty Court, the damages are adjusted on the basis that each receives from the other half the damage she sustained; there is only one liability, and tin' owner of the vessel who receives a balance on this adjustment can recover nothing uuder the collision clause. L. SS. lnswr. Co. v. Grampian SS. Co., 24 Q. B. D. 32, 663, 0. A. Where a ship, N., insured, is in tow, the collision clause covers damages recovered against the N. by the owners of the V. in respect of a collision of the tug with the V. M'Cowam v. Baine, (1891) A. C. 401. Where goods are lost through a collision occasioned by negligence of the crew, this is not a loss by perils of the sea, or by barratry of masters or mariners, accident, or damage of the seas. (I rill v. General Iron Screw Colliery Co., L. R., 3 C. P. 476, Ex. Ch. See further, post, p. 473. The cost of disposing of a cargo rendered worthless by sea peril is not recoverable on a policy on the ship. Field 88. <'<■■ v. Burr, (1898) 1 Q. B. 821; (1899) 1 Q. B. 579, C. A. Where a ship was disabled by perils of the seas from pursuing her voyage, and the master, having no other means of defraying the expense of repair, 438 Action on Policy of Murine Insurance. sold part of the goods insured, and applied the proceeds towards the expense, it, was held that this was not a loss of the goods hy perils of the seas. Powell v. Gudgeon, 5 M. & S. 431 ; Sarquy v. Hobson, 2 B. & C. 7 ; S. C. in Ex. Ch. 1 Biu<\ 131 ; 1 Y. & J. 347. So, when in a like case the master, in order to repair, raised money on a bottomry bond, which the owner of the goods was forced to pay in order to avoid their being sold. Greer v. Poole, 5 Q. B. D. 272 ; see also Philpot v. Swann, 11 C. B., N. S. 270 ; 30 L. J., C. P. 358, cited post, p. 445. A ship was wrecked, sunk, and sold by the owner and master after a survey by captains approved by the agent of Lloyd's : two days afterwards she was got clear off by the purchaser and repaired, but at great expense, and she might then have returned to England in ballast, or with certain kinds of cargo. Ld. Tenterden held, that not only must the owner act honestly, but that the underwriters were not liable unless he formed the best and soundest judgment that could be formed under the circumstances, and, that if the ship could have been brought to England, even in ballast, so as to have" repaid the money expended in repairs, they ought to have been made by the captain ; and he left it to the jury to say, whether the captain exercised a sound judgment, as well for the benefit of the underwriters, as for the owners. Doyle v. Dallas, 1 M. & Bob. 48. See Gardner v. Salvador, Id. 116, and Cdbequid Marine lnsur. Co. v. Barteaux, L. R., 6 P. C. 319. The question is, whether he actually exercised a sound judgment ; and proof of his inability to do so by reason of habits of drunken- ness or otherwise, is legitimate evidence. Alcock v. B. Exch. Assur. Co., 13 Q. B. 292. If a ship, agreed to be seaworthy, is damaged by a storm, so that the expense of repair will exceed the value of the ship when repaired, it is a total loss by perils of the seas, though the ship was an old and partially decayed one, and the expense would, on that account, be increased. Phillips v. Nairne, 4 C. B. 343. See Grainger v. Martin, and other cases, post, p. 445. By sect. 58. " Where the ship concerned in the adventure is missing, and after the lapse of a reasonable time no news of her has been received, an actual total loss may be presumed." What time is reasonable is a question of fact ; sect. 88, ante, p. 418. It is sufficient to prove that the ship has not been heard of in the country from which she sailed, without calling witnesses from the port of destination to prove that she never arrived there. Twemlow v. Oswin, 2 Camp. 85. The time within which a missing ship will be presumed lost must depend on the circumstances of the case. In Boustman v. Tliornton, Holt, N. P. 242, a ship which had sailed on a seven weeks' voyage, and had not been heard of for eight or nine months, was presumed to be lost. Where it was proved that the vessel (a foreign one, and trading between foreign ports) sailed on the voyage insured with the goods on hoard, but had never arrived at her port of destination, and that a report prevailed at the place whence she sailed that she had foundered at sea, but that the crew were saved — this was held sufficient prima facie evidence of a loss by the perils of the seas, and the plaintiff was held not bound to call any of the crew, or to show that he was unable to procure their attendance. KosUr v. Reed, 6 B. & C. 19. Where a power to the charterer, for certain causes at his discretion, to retain freight due, is lawfully exercised by him on account of the happening of a sea peril, the freight is not thereby lost by perils of the sea. Inman Steamship Co. v. Bischoff, 7 Ap. Ca. 670, D. P. Where, however, the pay- ment of hire of a ship is to cease during detention caused by want of repair, the damage having been caused to the ship by perils insured against, the payment ceased for a certain period, it was held that on a policy on freight in the usual terms, this loss of hire was recoverable. Tlie Alps, (1893) P. 109 ; Accord. The Bedouin, (1894) P. 1, C. A. See further as to the loss of charter Marine Insurance Act, 1906. — Proof of Loss. 439 freight, BranMow SS. Co. v. Canton Insur. Office, (1899) 2 Q. B. 178, C. A. ; affirm sub nom. Williams & Co. v. Id., (1901) A. 0. 462, D. P. Proof of loss by fire.'] Proof that the ship was burned by the captain to prevent her falling into the hands of tbe enemy, is evidence of a loss by fire. Gordon v. Rimmington, 1 Camp. 123. So, though the ship was burned by the negligence of tbe master and mariners, this is a loss by fire. Btisk v. R. Exch. Assur. Co., 2 B. & A. 73. But, on an insurance on goods, if the goods are burnt in consequence of being put on board in bad condition, this, being occasioned by tbe insurer's own act, would not be a loss by fire within the policy. Boyd v. Dubois, 3 Camp. 133. Where a fire insurance was on a ship described as "lying in the V. Docks, with liberty to go into a dry dock and light the boilers once or twice during the currency of the policy ; " it was held that the ship was not covered while she was in the river for any other purpose than to pass from the V. Docks to a dry dock, and vice versa. Pearson v. Commercial Union Assur. Co., 1 Ap. Ca. 498, D. P. See also Australian Agricultural Co. v. Saunders, L. R., 10 C. P. 668, Ex. Ch. ; Win- gate v. Foster, 3 Q. B. D. 582, C. A. Where a ship is " warranted free from average under 3 per cent, unless general or the ship be . . . burnt," the excep- tion from the warranty applies only where the injury by fire constitutes a sub- stantial burning of the ship as a whole. The Glenlivet, (1894) P. 48, C. A. Proof of loss by capture?^ Where a vessel is driven by a gale of wind on an enemy's coast without damage, and there captured, it is a loss by capture ; Green v. Elmslie, Peake, 212 ; see Ionides v. Universal Marine Ass., ante, p. 436 ; aliter, if lost by stranding before the capture ; Hahn v. Corbett, ante, p. 436. The books at Lloyd's have in some cases been received as evidence of a capture, but not of notice of the loss to the underwriter. Abel v. Potts, 3 Esp. 242 ; Foiuler v. English, &c, Insur. Co., infra. A foreign sentence of condemnation is not evidence of a capture ; but, after other proof of a capture, it is evidence to show the grounds of condemnation. Marshall v. Parker, 2 Camp. 69. If a ship after capture, without abandonment, is restored so as to be in a condition to pursue the voyage insured, and is afterwards lost on another voyage, the plaintiff cannot recover for a total loss by capture. Kulen Kemp v. Vigne, 1 T. R. 304. A re-capture may convert a total into a partial loss; Tltellusson v. Shedden, 2 N. R. 228, 230; unless after notice of abandonment and after action. Buys v. R. Exchange Assur. Cor., (1897) 2 Q. B. 135. See also Fowler v. English, <&c, Insur. Co., 18 C. B., N. S. 919 ; 34 L. J., C. P. 253. Proof of a capture by collusion with the captain will support an averment of loss by capture. Arcangelo v. Tfiompson, 2 Camp. 620. Insurance of a French ship in England during peace will not avail against British capture after war declared with France. Furtado v. Hodtjers, 3 B. & P. 191. Whether the words "capture or seizure" occur in the policy or in a warranty excepting them, capture by a foreign force under error is within the words; and the fact that the ship is sunk by the captor's guns does not make it less a capture. Poioell v. Hyde, 5 E. & B. 607 ; 25 L. J., Q. B. 65. So, where a ship is seized and detained for smuggling;, amounting to a barratrous act of the master. Cory v. Burr, 9 Q. B. D. 463, C. A. ; 8 Ap. Ca. 393. So, a warranty " free from capture and seizure, and the consequences of any attempt thereat," includes a piratical carrying away of the ship by passengers. Kleinwort v. Shepard, 1 E. & E. 447 ; 28 L. J., Q. B. 147. So, a seizure of the ship by savages for the purposes of plunder. Johnston v. Hogg, 10 Q. B. D. 432. A warranty against capture, seizure, or detention protects the insurer on a policy otherwise similar to that iu Jansou v. Drie/ontein, &c, Mines,post, p. 440, against seizure under circumstances like those in that case. Robinson Gold Mining Co. v. Allium-, Assur. Co., (1902) 440 Action on Policy of Marin*: Insurance. 2 K. B. 489, C. A.; (1904) A. C. 359, D. P. So against delay caused by the ordinary municipal law. Miller v. Law Accident Insur. Co.,infra. Loss is total, if the assured can only avert a sale ordered by a prize court, pending an appeal, by giving bail which a prudent uninsured owner would not have given. Stringer v. English Insur. Co., L. E., 5 Q. B. 584, Ex. Ch. As to a breach of neutrality and the evidence thereof, see Hobbs v. Ifenning, 17 C. B., N. S. 791 ; 34 L. J., C. P. 117. Proof of loss by restraint of princes, &c] By Sched. I., r. 10, " The term 'arrests, &c, of kings, princes, and people' refers to political or executive acts, and does .not include a loss caused by riot or by ordinary judicial process." The effect of these words in the body of the policy is annulled by a warranty against " capture, seizure, and detention." Miller v. Law Accident Insur. Co., ubi infra. In an insurance in the usual form against the restraint of all princes, &c, is included a loss consequent on a seizure, under an embargo for a temporary purpose by the government of the country of the assured, that country and the country of the assurer being at peace, and the embargo being unconnected with any hostility existing or expected between the two countries ; for the assured is not so identified with the acts of the government of his country as to make their acts his own ; Aubert v. Gray, 3 B. & S. 163 ; 32 L. J., Q. B. 50 ; Ex. Ch., overruling Conway v. Cray, 10 East, 536 ; sed quaere, whether if the act of seizure were a lawful act under the municipal law of the country of the assured, the seizure would as against him be within the insurance. The operation of the ordinary municipal law of a country affecting the delivery of the insured goods is within this clause. Miller v. Law Accident Insur. Co., (1903) 1 K. B. 712, C. A. Where an insurance had been effected by a subject of a foreign government, on treasure which was seized by that govern- ment in contemplation of war, afterwards declared by it against this country, and for the prosecution thereof, the insurance may be enforced after the restoration of peace. Janson v. Driefontein, &c, Mines, (1902) A. C. 484, D. P. A wrongful seizure, as a slaver, comes within this clause, and notice of abandonment makes the loss total; and though after long litigation and judgment of restitution, the goods still remain in specie, a reasonable man could not be expected to be willing to retain possession, and therefore the loss remains total. Lozano v. Janson, 2 E. & E. 160 ; 28 L. J., Q. B. 337. A ship was to be loaded with corn at I., under a charter-party, with usual exception of the restraint of princes, &c. ; it was proved that no corn had been exported from I. during the vessel's stay, and evidence was given to show that W., where I. was situate, was invaded by the Prussians, and their general, G., had refused to allow grain to be exported, and had referred the applicant elsewhere ; evidence was also tendered of copies of placards in the name of G., posted on the walls of I., at the period of the ship's arrival, prohibiting the exportation of grain; it was held that such evidence was admissible, and proved a plea of the exception. Bruce v, Nicolopulo, 11 Exch. 129 ; 24 L. J., Ex. 321. This exception in a bill of lading for goods shipped in a Russian port, on board a Mecklenburg ship, for a port in this country, meant at least the enemies of the Duke of Mecklenburg, the sovereign of the carrier. Russell v. Niemann, 17 C. B., N. S. 163 ; 34 L. J., C. P. 10 ; The Heinrich, L. R., 3 Adm. 424. The act of closing the ports by an enemy is " a prohibition of export preventing loading." Adamson v. Newcastle, &c, Insur. Assoc, 4 Q. B. D. 462. The hostile detention of goods within a besieged town is a restraint of princes. Rodocanachi v. Elliott, L. R., 8 C. P. 649 ; L. R., 9 C. P. 518, Ex. Ch. Siege and blockade are within the same principle in this respect. S. C. ; Geipel v. Smith, L. R. } 7 Q. B. 404. The exception includes a Marine Insurance Act, 1906. — Proof of Loss. 441 reasonable fear of seizure of the goods as contraband of war. Nobel's Explosives Co. v. Jenkins, (1896) 2 Q. B. 326. As to delay by civil disturbance, see Smith v. Bosario Nitrate Co., (1894) 1 Q. B. 174, C. A. Proof of loss by barratry.] By Sched. I., r. 11, " The term ' barratry ' includes every wrongful act wilfully committed by the master or crew to the prejudice of the owner, or, as the case may be, the charterer." Therefore, the act of the owner is not barratry. Evidence that the person who was described in the policy and acted as master of the ship, carried her out of her course for fraudulent purposes of his own, is prima facie evidence of barratry without negative proof that he was not the owner. Boss v. Hunter, 4 T. R. 33. Where, however, the whole ship is let, the freighter is owner pro hac vice, and barratry may then be committed, even with the consent of the general owner. Vallejo v. Wheeler, Cowp. 143; Soares v. Thornton, 7 Taunt. 627. Smuggling by the captain on his own account, will be evidence of barratry. Lockyer v. Offley, 1 T. R. 252 ; Cory v. Burr, ante, p. 439. But if by the gross negligence of the owner, the mariners barra- trously carry smuggled goods on board, the underwriters are not liable. Pipon v. Cope, 1 Camp. 434. Proof that prisoners of war rose and confined all the crew and put them on shore except one, who was heard on the deck in conversation with them, is evidence of barratry. Hucks v. Tlwrnton, Holt, N. P. 30. Where a ship is lost through the negligent steering of the master, whereby she was run into and sunk, this is not barratry. Orill v. General Iron Screw Colliery Co., L. R., 3 C. P. 476, Ex. Ch. Proof of loss by " other #en7s."] By Sched. I., r. 12, " The term ' all other perils' includes only perils similar in kind to the perils specifically mentioned in the policy." Thus the case of a vessel sunk by an English ship of war firing into her by mistake, was held to be a loss within the general words. Cullen v. Butler, 5 M & S. 461, 465. The general words do not, however, cover cases of ordinary wear and tear, or damage resulting from ordinary occurrences of a sea voyage, such as loss of anchors, friction of rocks, leakage, worms, rats, &c, for these are not the extra- ordinary and fortuitous perils of the sea. 3 Kent, Com. 300 ; Kay v. Wheeler, L. R., 2 C. P. 302. Of this kind is the damage done to a ship in harbour by the ordinary flux or reflux of the tide; Maynus v. Buttemer, 11 C. B. >S7(i ; 21 L. J., C. P. 119 ; unless occasioned by an unusual swell or other accident. Phillips v. Barber, 5 B. & A. 161 ; see ante, pp. 436, 437. Nor do the general words extend to damage to the machinery of a steamer occasioned by the accidental or negligent displacement of some part thereof, not occasioned by perils of the sea; Hamilton v. Thames and Mersey Marine Tnswr. Co., 12 A 1 1. Oa. 484, 1). P. ; nor to damage caused to her by the explosion of her boiler ; S. f craft, &c, the stranding of a lighter conveying the goods from the ship will not make the insurers liable. Hoffman v. Marshall, 2 N. C. 383. Proof of loss; total or partial.} Sect. 56. "(1.) A loss may be either total or partial. Any loss other than a total loss, as hereinafter defined, is a partial loss. ■114 Action on Policy of Marine Insurance.. " (2.) A total loss may be either an actual total loss, or a constructive total loss. " (3.) Unless a different intention appears from the terms of the policy, an insurance against total loss includes a constructive, as well as an actual, total loss. " (4.) Where the assured brings an action for a total loss and the evidence proves only a partial loss, he may, unless the policy otherwise provides, recover for a partial loss. " (5.) Where goods reach their destination in specie, but by reason of obliteration of marks, or otherwise, they are incapable of identification, the loss, if any, is partial, and not total." As to this case, see Spence v. Union Marine Insur. Co., post, p. 4496. Sect. 57. " (1.) Where the subject-matter insured is destroyed, or so damaged as to cease to be a thing of the kind insured, or where the assured is irretrievably deprived thereof, there is an actual total loss. " (2.) In the case of an actual total loss no notice of abandonment need be given." Sect. 59. " Where, by a peril insured against, the voyage is interrupted at an intermediate port or place, under such circumstances as, apart from any special stipulation in the contract of affreightment, to justify the master in landing and re-shipping the goods or other moveables, or in transhipping them, and sending them on to their destination, the liability of the insurer continues, notwithstanding the landing or transhipment." Sect. 60. " (1.) Subject to any express provision in the policy, there is a constructive total loss where the subject-matter insured is reasonably abandoned on account of its actual total loss appearing to be unavoidable, or because it could not be preserved from actual total loss without an expenditure which would exceed its value when the expenditure had been incurred. " (2.) In particular, there is a constructive total loss — "(i.) Where the assured is deprived of the possession of his ship or goods by a peril insured against, and (a) it is unlikely that he can recover the ship or goods, as the case may be, or (b) tbe cost of recovering the ship or goods, as the case may be, would exceed their value when recovered ; or " (ii.) In the case of damage to a ship, where she is so damaged by a peril insured against that the cost of repairing the damage would exceed the value of the ship when repaired. " In estimating the cost of repairs, no deduction is to be made in respect of general average contributions to those repairs payable by other interests, but account is to be taken of the expense of future salvage operations and of any future general average contri- butions to which the ship would be liable if repaired ; or " (iii.) In the case of damage to goods, where the cost of repairing the damage and forwarding the goods to their destination would exceed their value on arrival." Sect. 61. " Where there is a constructive total loss the assured may either treat the loss as a partial loss, or abandon the subject-matter insured to the insurer and treat the loss as if it were an actual total loss." By sect. 27 (4), " unless the policy otherwise provides, the value fixed by the policy is not conclusive lor the purpose of determining whether there has been a constructive total loss." The case of stranding may be taken as an illustration of constructive total loss. Thus stranding is not a total loss, and may not be the foundation of any claim at all ; but, if the ship become thereby unnavigable, by reason of the impossibility of getting her afloat, or the great expense of doing so, the loss may be converted into a total one by abandonment. 3 Kent, Com. 323. Marine Insurance Act, 1906. — Loss, total or partial. 445 If a ship and cargo be sunk in deep water, so that the cargo could only be saved by raising the ship, in calculating the expense of raising the ship in order to ascertain whether there is a constructive total loss, the general average contribution to be made by the cargo must be deducted from such expense. Kemp v. Halliday, L. R., 2 Q. B. 520 ; 6 B. & S. 757, Ex. Ch. See also Marine Insurance Co. v. China, &c, Steamship Co., 11 Ap. Ca. 573, D. P. In some cases of damage by sea the owners maybe justified in selling the ship and claiming for total loss ; in such cases the question for the jury will be, whether the sale was justi6ed by necessity, and was for the benefit of all parties, and the net amount of the sale becomes money received for the insurer. S. CC. ; Doyle v. Dallas, 1 M. & Rob. 48 ; Gardner v. Salvador, Id. 116 ; vide ante, p. 438. Where the ship is of an exceptional size, the price she would fetch in the market when repaired is not the test of her real value, in order to make out a constructive total loss. Grainger v. Martin, 2 B. & S. 456 ; 31 L. J., Q. B. 186 ; S. C, in Ex. Ch., 4 B. & S. 9. See also Young v. Turing, 2 M. & Gr. 593. And where a wreck is repaired the cost of repairs alone must exceed the insured value, taken by the policy to be the "repaired value," in ascertaining whether the vessel was a con- structive total loss ; and the value of the wreck is not to be added to such cost. Angel v. Merchants' Marine Insur. Co., (1903) 1 K. B. 871, C. A., correcting dictum of Ld. Abinger, C.B., at 2 M. & Gr. 601. In the case of insurance on freight, where the ship was disabled before she had completed her lading, and the master went to a distant place for repairs, and finding he could not get them done there, sailed on to the port of destination without returning for the rest of the cargo, acting throughout as a prudent owner, uninsured, would have done, — it was held that the freight was not lost by perils of the seas. Philpot v. Swann, 11 C. B., N. S. 270 ; 30 L. J., C. P. 358, citing and approving Mordy v. Jones, 4 B. & C. 394, and Moss v. Smith, 9 C. B. 94 ; 19 L. J., C. P. 225. In case of sale by the master of a ship or goods in specie, there must be a clear case of extreme necessity to constitute an actual loss without abandonment. Where the thing insured exists in specie, the loss is constructive only, and the assured can only found a claim for total loss by abandonment. Knight v. Faith, 15 Q. B. 649 ; 19 L. J., Q. B. 509. There is no total loss of freight, merely because there was an injury to the ship by perils of the sea, which cost more to repair than the amount of freight, if the ship itself was worth repairing. Moss v. Smith, supra. See also Assicurazioni Generali v. 88. Bessie Morris Co., (1892) 2 Q. B. 652, C. A., cited post, p. 474. See further as to what amounts to a total loss of freight, Potter v. BanJcin, L. R., 6 H. L. 83 ; Allison v. Bristol Marine Insur. Co., 1 Ap. Ca. 209, D. P. ; Asfar v. Blundell, (1896) 1 Q. B. 123, C. A. Where a cargo was partially lost by sea perils insured against, and the residue sold, by order of the Court of Admiralty, in course of proceedings instituted by the salvors, the whole proceeds being absorbed in payment of costs, it was held that there was no total loss, the sale being too remote a consequence of the sea perils. De Maltos v. Saunders, L. R., 7 C. P. 570. But where a sinking derelict vessel has been towed into port by salvors, and sold by order of the Admiralty Court for less than the actual cost of the salvage services, the Bale was held to constitute an actual total loss. Cossman v. West, 13 Ap. Ca. 160, J. C. Where freight is eventually earned, although paid to the obligees of a bottomry bond (by a decree of the Admiralty), which the master has been obliged to enter into in order to get money necessary for repairs, the shipowner cannot claim cither for total or partial loss of freight. Unison v. Chajnnan, 8 C. B. 950; 2 II. L. C. 696. A loss, which by abandonment might become total, may become a partial loss only by subsequent events, as by recapture, release from detention, &c, before action. 2 Wrns. Saund. 203 *'(/)• t46 Action on Policy of Murine Insurance. The W. Co. insured a ship and re-insured part of the risk with the E. Co. " subject to the same terms and conditions as the original policy, and to pay as may be paid thereon ; " the ship sustained a loss for which the W. Co. was liable ; it was held they could recover against the E. Co. before they had paid the amount. Ex pte. W. Insurance Co., (1892) 2 Ch. 423. As to loss, where the insurance is effected on special adventures, e.g., the successful laying of a submarine telegraph cable, see Wilson v. Jones, L. K., 2 Ex. 139, Ex. Ch. ; or the transmission of stock certificates abroad to be returned with new sheets of dividend coupons, see Baring Bros. v. Marine Insur. Co. 10 Times L. R. 276, C. A., reversing S. C. (1893) W. N. 164. An insurance " against total loss only " does not exclude a constructive total loss. Adams v. Mackenzie, 13 C. B., N. S. 442 ; 32 L. J., C. P. 92. But the doctrine of constructive total loss does not apply to a bottomry bond ; Broomsfield v. S. Insur. Co., L. R., 5 Ex. 192 ; for the doctrine does not apply so as to avoid the bond. The Great Pacific, L. R., 2 P. C. 516. In the case of loss to goods, not in its inception total, the claim to indemnity does not arise until it can be ascertained what is the amount of the injury sustained. Browning v. Provincial Insur. Co. of Canada, L. R., 5 P. C. 263. Proof of loss.— Abandonment.] Sect. 62. "(1.) Subject to the provisions of this section, where the assured elects to abandon the subject-matter insured to the insurer, he must give notice of abandonment. If he fails to do so the loss can only be treated as a partial loss. "(2.) Notice of abandonment may be given in writing, or by Avord of mouth, or partly in writing and partly by word of mouth, and may be given in any terms which indicate the intention of the assured to abandon his insured interest in the subject-matter insured unconditionally to the insurer. "(3.) Notice of abandonment must be given with reasonable diligence after the receipt of reliable information of the loss, but where the information is of a doubtful character the assured is entitled to a reasonable time to make inquiry. "(4.) Where notice of abandonment is properly given, the rights of the assured are not prejudiced by the fact that the insurer refuses to°accept the abandonment. " (5.) The acceptance of an abandonment may be either express or implied from the conduct of the insurer. The mere silence of the insurer after notice is not an acceptance. "(6.) Where notice of abandonment is accepted the abandonment is irrevocable. The acceptance of the notice conclusively admits liability for the loss and the sufficiency of the notice. " (7.) Notice of abandonment is unnecessary where, at the time when the assured receives information of the loss, there would be no possibility of benefit to the insurer if notice were given to him. " (8.) Notice of abandonment may be waived by the insurer. "('.).) Where an insurer has re-insured his risk, no notice of abandonment need be given by him." Sect, 63. " (1.) Where there is a valid abandonment the insurer is entitled to take over the interest of the assured in whatever may remain of the subject-matter insured, and all proprietary rights incidental thereto. " ( 2 -) yP on tlie abandonment of a ship, the insurer thereof is entitled to any freight in course of being earned, and which is earned by her subsequent to the casualty causing the loss, less the expenses of earning it incurred after the casualty ; and, where the ship is carrying the owner's goods, the insurer is entitled to a reasonable remuneration for the carriage of them subsequent to the casualty causing the loss." Marine Insurance Act, 1906. — Abandonment. 447 Sect. 60, ante, p. 444, defines constructive total loss. This, in general, requires notice of abandonment, sect. 62, ante, p. 446. The cases in which abandonment is necessary have been thus described : — There may be a capture which, though prima facie a total loss, may be followed by re-capture. There may be a forcible detention, which may speedily terminate, or may last so long as to end in the impossibility of bringing ship or goods to their destination. There may be some other peril which renders the ship un- navigable, without reasonable hope of repair, or by which goods are partly lost, or so damaged as not to be worth the expense of bringing them to their destination. In these or similar cases, if a prudent man, not insured, would decline any further expense in prosecuting the adventure, a party insured may, for his own benefit, as well as that of the underwriter, treat the case as one of total loss. But, if he elects to do so, the principle of 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 intelligence of the accident. ... In all these cases the thing assured, or part of it, is supposed to exist in specie, and there is a possibility, however remote, of its arriving at its destination, or of its value beiug in some way affected by the measures that may be adopted for the recovery or preservation of it. Roux v. Salvador, 3 N. C. 286, Ex. Ch. per cur. See also Sailing Ship Blairmore Co. v. Macredie, infra. " A mere loss of the adventure by retardation of the voyage, without loss of the thing insured, either by its being actually taken from the ship or spoiled, does not constitute a total loss under a policy of insurance, unless by the aid and effect of an abandonment." Naylor v. Taylor, 9 B. & C. 723, per cur. In order to justify an abandonment, there must have been that in the course of the voyage which, at the time, con- stituted a total loss ; thus, the desertion of a ship, necessitated at the time by stress of weather, coupled with a notice of abandonment, constitutes a total loss, though the ship be afterwards saved. Holdsworth v. Wise, 7 B. & Co. 794. Where a cargo of hides, in consequence of a leak, began to putrify, and was sold at an intermediate port for less than a fourth of their value, and it appeared that, if not sold, they could not have arrived at the end of the voyage as hides, it was held to be a total loss without an abandon- ment. Roux v. Salvador, 3 N. C. 266, Ex. Cb. See also Cossman v. West, cited ante, p. 445 ; Farmvorth v. Hyde, L. R., 2 C. P. 204, Ex. Ch. ; Potter v. Rankin, L. R., 6 H. L. 83. In this last case, the policy was on freight to be earned on a subsequent voyage, and the decision is explained by the C. A. in Kaltenbach v. Mackenzie, 3 C. P. D. 467. See further Trinder v. TJiames, &c, Insur. Co., (1898) 2 Q. B. 114, C. A. The mere loss of the voyage, by delay or otherwise, will not warrant the abandonment of ship or cargo, if either remain in specie. Anderson v. Wallis, 2 M. & S. 240 ; Falkner v. Ritchie, Id, 290; Hunt v. R. Exch. Assur. Co., 5 M. & S. 47. But, where goods are hostilely detained in a besieged town, they may be abandoned. Rodocanachi v. Elliott, ante, p. 440. Matter arising after action will not defeat an abandon- ment made before action, but must be dealt with according to the rights of the parties under the abandonment. Buys v. Jl. Exch. jlssur. Cor., (1897) '_' Q. B. 135, 141, citing S. C. And where a ship has been sunk in deep water, the underwriters cannot after notice of abandonment convert the loss into a partial one by raising her. Sailing Ship Blairmore Co. v. Macredie, (1898) A. C. 593, D. P. The express terms of sect. (>2(2),anle,\). 4 16, render unnecessary reference to the numerous cases decided on the sufficiency of particular notices of abandon- ment. By sect. 88, ante, p. 418, what is "reasonable time" or "reasonable diligence," is a question of fact. An informality or inaccurate statement in the notice will not vitiate it. Dean v. Hornby, 3 E. & B. 180. It must apply to the entire subject of insurance, and not to part only. 2 Wm. Saund. IIS Action on Policy of Marine Insurance. 203 g (19); 3 Kent, Com. 329. Where the insurer has, upon receiving the notice, taken possession of the subject-matter insured, he is bound thereby, and cannot afterwards rely on a breach of warranty of which he had notice. Provincial Insur. Co. of Canada v. Leduc, L. K., 6 P. C. 224, per cur. A party, jointly interested in the subject-matter of the insurance, and who lias effected the insurance, may give notice of abandonment for all. Hunt v. It. Exch. Assur. Co., 5 M. & S. 47. But the person with whom a policy on a ship has been simply deposited as a security for a loan to the shipowner has no implied authority to give notice of abandonment to the underwriters ; and, a notice given by such persons cannot enure for the benefit of the shipowner, so as to enable him to recover upon a constructive total loss. Jardine v. Leatldey, 3 B. & S. 700 ; 32 L. J., Q. B. 132. Where the assured has elected, see sect. 61, ante, p. 444, to treat a seizure as a partial loss, he loses the right of abandoning on the same state of facts, relative to the extent and degree of the operation and effects of the perils insured against. Stringer v. English Insur. Co., L. E. 4 Q. B. 676, 689 ; L. R. 5 Q. B. 599, Ex. Ch. Proof of amount of loss. — Adjustment.'] If the liability be not disputed, and the policy be an open one, the parties usually proceed to adjust the amount, and this adjustment is an admission of the facts on which the claims are founded, and is evidence against the underwriter of the amount due. It is proved by evidence of his signature, or that of his agent, with proof of the authority of the latter ; and it seems that an agent, who has authority to subscribe a policy, has also authority to sign an adjustment of the loss. Bichardson v. Anderson, 1 Camp. 43, n. But, an adjustment is only prima facie evidence against the underwriter, and does not bind him, unless there was a full disclosure of the circumstances of the case ; Shepherd v. Chewier, Id. 274 ; and fraud opens an adjustment ; Christian v. Coombe, 2 Esp. 489. A clause may be inserted in the policy, requiring the loss to be adjusted before an action can be maintained on the policy. Tredwen v. Holman, 1 H. & C. 72 ; 31 L. J., Ex. 398. Where the policy provides for payment of losses "as per foreign statement," the parties are bound by the statement made up according to the foreign law. Harris v. Scaramanga, L. R., 7 C. P. 481 ; Mavro v. Ocean Marine Insur. Co., Id. 595 ; L. R. 10 C. P. 414, Ex. Ch. ; He Hart v. Compania, &c, " Aurora," (1903) 2 K. B. 503, C. A. See also Stewart v. W. India, &c, Steamship Co., L. R. 8 Q. B. 88, 362. An adjustment does not require a stamp. Wiebe v. Simpson, 2 Selw. N. P., 13th ed., 921. Loss, how to be calculated.] Sect. 64. " (1.) A particular average loss is a partial loss of the subject-matter insured, caused by a peril insured against, and which is not a general average 1< iss. " (2.) Expenses incurred by or on behalf of the assured for the safety or preservation of the subject-matter insured, other than general average and salvage charges, are called particular charges. Particular charges are not included in particular average." By Sched. I., r. 13, " the term ' average unless general ' means a partial loss of the subject-matter insured other than a general average loss, and does not include ' particular charges.' " Sect. 65. "(1.) Subject to any express provision in the policy, salvage charges incurred in preventing a loss by perils insured against may be recovered as a loss by those perils. " (2.) ' Salvage charges ' means the charges recoverable under maritime law by a salvor independently of contract. They do not include the expenses of services in the nature of salvage rendered by the assured or his agents, or any person employed for hire by them, for the purpose of averting a peril insured against. Such expenses, where properly incurred, may be recovered Marine Insurant* Act, 1906. — Loss, how to be calculated. 440 as particular charges or as a general average loss, according to the circum- stances under which they were incurred." Sect. 66. "(1.) A general average loss is a loss caused by or directly consequential on a general average act. It includes a general average expenditure as well as a general average sacrifice. " (2.) There is a general average act where any extraordinary sacrifice or expenditure is voluntarily and reasonably made or incurred in time of peril for the purpose of preserving the property imperilled in the common adventure. " (3.) Where there is a general average loss, the party on whom it falls is entitled, subject to the conditions imposed by maritime law, to a rateable contribution from the other parties interested, and such contribution is called a general average contribution. "(4.) Subject to any express provision in the policy, where the assured has incurred a general average expenditure, he may recover from the insurer in respect of the proportion of the loss which tails upon him ; and, in the case of a general average sacrifice, he may recover from the insurer in respect of the whole loss without having enforced his right of contribution from the other parties liable to contribute. "(5.) Subject to any express provision in the policy, where the assured has paid, or is liable to pay, a general average contribution in respect of the subject insured, he may recover therefor from the insurer. "(6.) In the absence of express stipulation, the insurer is not liable for any general average loss or contribution where the loss was not incurred for the purpose of avoiding, or in connexion with the avoidance of, a peril insured against. " (7.) Where ship, freight, and cargo, or any two of those interests, are owned by the same assured, the liability of the insurer in respect of general average losses or contributions is to be determined as if those subjects were owned by different persons." Sect. 67. "(1.) The sum which the assured can recover in respect of a loss on a policy by which he is insured, in the case of an unvalued policy to the lull extent of the insurable value, or, in the case of a valued policy to the full extent of the value fixed by the policy, is called the measure of indemnity. " (2.) Where there is a loss recoverable under the policy, the insurer, or each insurer if there be more than one, is liable for such proportion of the measure of indemnity as the amount of his subscription bears to the value lixed by the policy in the case of a valued policy, or to the insurable value in the case of an unvalued policy." Sect. / Action on Policy of Murine /insurance. also to be indemnified for tlic reasonable depreciation, if any, arising from tbe unrepaired damage, provided tliat the aggregate amount shall not exceed the cost of repairing the whole damage, computed as above : " (3) Where (lie ship has not been repaired, and has not been sold in her damaged slate during the risk, the assured is entitled to be indemnified for the reasonable depreciation arising from the unrepaired damage, but not exceeding tlic reasonable cost of repairing such damage, computed as above." If the claim he on repairs of a ship, the full costs of repair will not he allowed, because the owner substitutes new for old materials. Poimjdestrev. I!. Exch. Assur. Co., Ry. & M. 378. The usage is, in such case to deduct a third from the cost of repair; S. 0. ; Aitchison v. Lohre, 4 Ap. Ca. 755, 7(>2, D. P. ; unless the ship be on her first voyage ; Pirie v. Steele, 3. M. & Rob. 49, see Byrne v. Mercantile Insur. Co., 4 H. & C. 506. The assured may recover this proportion of the cost of repair, although such cost amount to more than total loss with benefit of salvage. Aitchison v. Lohre, supra. In the case of iron vessels there is a different scale as to deductions. See Chalmers and Owen on Marine Insurance Act, 190G, (1907) p. 154. Expenses common to repairs necessary from a risk insured against, and to other repairs are to be apportioned. Marine Insur. Cor. v. China, &c, Steamship Go. {The Vancouver), 11 Ap. Ca. 573, D. P.; distinguished in Ruabou SS. Co. v. /,. Assur., (1900) A. C. G, D. P. ; see further The Hauersham Grange, (1905) P. 307, C. A. Sect. 70. " Subject to any express provision in the policy, where there is a partial loss of freight, the measure of indemnity is such proportion of the sum fixed by the policy in the case of a valued policy, or of the insurable value in the case of an unvalued policy, as the proportion of freight lost by the assured bears to the whole freight at the risk of the assured under the policy." On a policy on freight, the ship having actually earned full freight, though not that intended for her, the assured cannot recover for the delay and expense as a partial loss. Brocklebank v. Sugrue, 1 M. & Rob. 102. Sect. 71. " Where there is a partial loss of goods, merchandise, or other moveables, the measure of indemnity, subject to any express provision in the policy, is as follows : "(1) Where part of the goods, merchandise or other moveables insured by a valued, policy is totally lost, the measure of indemnity is such proportion of the sum fixed by the policy as the insurable value of the part lost bears to the insurable value of the whole, ascertained as in the case of an unvalued policy : " (2) Where part of the goods, merchandise, or other moveables insured by an unvalued policy is totally lost, the measure of indemnity is the insurable value of the part lost, ascertained as in case of total loss : " (3) Where the whole or any part of the goods or merchandise insured has been delivered damaged at its destination, the measure of indemnity is such proportion of the sum fixed by the policy in the case of a valued policy, or of the insurable value in the case of an unvalued policy, as the difference between the gross sound and damaged values at the place of arrival bears to the gross sound value : " (4) ' Gross value ' means the wholesale price or, if there be no such price, the estimated value, with, in either case, freight, landing charges, and duty paid beforehand ; provided that, in the case of goods or merchandise customarily sold in bond, the bonded price is deemed to be the gross value. ' Gross proceeds ' means the actual price obtained at a sale where all charges on sale are paid by the sellers." Sect. 72. " (1) Where different species of property are insured under a Marine Insurance Act, 1906. — Loss, how to be calculated. 449S single valuation, the valuation must be apportioned over the different species in proportion to their respective insurable values, as in the case of an unvalued policy. The insured value of any part of a species is such proportion of the total insured value of the same as the insurable value of the part bears to the insurable value of the whole, ascertained in both cases as provided by this Act. "(2) Where a valuation has to be apportioned, and particulars of the prime cost of each separate species, quality, or description of goods cannot be ascertained, the divisiou of the valuation may be made over the net arrived sound values of the different species, qualities, or descriptions of goods." Where the plaintiff's goods, by the perils insured against, are damaged, aud get so mixed with the similar goods of other persons that they cannot be identified, the owners become tenants in common of the goods in the proportion of the respective quantities they each had, and there is no actual or constructive total loss. Spence v. Union Marine Insur. Co., L. E., 3 C. P. 427. Sect. 73. " (1) Subject to any express provision in the policy, where the assured has paid, or is liable for, any general average contribution, the measure of indemnity is the full amouut of such contribution, if the subject- matter liable to contribution is insured for its full contributory value; but, if such subject-matter be not insured tor its full contributory value, or if only part of it be insured, the indemnity payable by the insurer must be reduced in proportion to the underinsurance, and where there has been a particular average loss which constitutes a deduction from the contributory value, and for which the insurer is liable, that amount must be deducted from the insured value in order to ascertain what the insurer is liable to contribute. " (2) Where the insurer is liable for salvage charges the extent of his liability must be determined on the like principle." Sect. 74. " Where the assured has effected an insurance in express terms against any liability to a third party, the measure of indemnity, subject to any express provision in the policy, is the amount paid or payable by him to such third party in respect of such liability." Sect. 75. " (1) Where there has been a loss in respect of any subject- matter not expressly provided for in the foregoing provisions of this Act, the measure of indemnity shall be ascertained, as nearly as may be, in accordance with those provisions, in so far as applicable to the particular case. " (2) Nothing in the provisions of this Act relating to the measure of indemnity shall affect the rules relating to double insurance, or prohibit the insurer from disproving interest wholly or in part, or from showing that at the time of the loss the whole or any part of the subject-matter insured was not at risk under the policy." As to double insurance, see sect. .'12, post, p. 44'Jc. In open policies the assured must prove the extent of his loss; but in valued policies, if the loss be a total one, he is only bound to prove .some interest in the ship or goods, in order to take the case out of sect. I, ante, p. 122; for, the valuation fixed in the policy stands, unless the defen- dant can show that the plaintiff had a colourable interest only, or, that he has greatly overvalued the goods. But, where the loss is partial, it opens a valued policy; aud the plaintiff is as much bound to prove the value of the goods that have been lost, and to ascertain the damage he has BUStained by the loss, as in the ease of an open policy. 2 Wins. Sauiid. 2<>l /, (8); Truing v. Manning, 1 H. L. C. 287; see further 88. Balmoral ' '«. v. Marten, (1902) A. C. 511, D. P. A ship was iusured on a valued time policy: she had, when the policy was made, but unknown to the parties, licen so injured by a storm that the expense of repairs would have exceeded the value when repaired ; during the continuance of the risk, the vessel was lost ; it was held that the underwriters were bound to pay the full amount. Barker v. Janson, P. R., •"> 0. P. 701. So, where two valued policies were effected with the H'.ir Action on Policy oj Marine Insurance. same underwriters on a ship, one (A.) on an outward, and the other (B.) on t lie homeward voyage; and, on the outward voyage, the ship sustained damage, which was not entirely repaired, and, after the expiration of the policy A., and while the policy B. was running, was totally destroyed hy fire, it was held that the assured might recover, under policy A., the partial loss as it would have hecn estimated at the expiration of policy A. ; and also, under policy B., the value as a total loss. Lidgett v. Secretan, L. R., 6 C. P. 616. See alsi i 1 1 oodside v. Globe Marine Insur. Co., (1896) 1 Q. B. 105. Sect. 77. " (1.) Unless the policy otherwise provides, and subject to the provisions of this Act, the insurer is liable for successive losses, even though tin' total amount of such losses may exceed the sum insured. " (2.) Where, under the same policy, a partial loss, which has not been repaired or otherwise made good, is followed by a total loss, the assured can only recover in respect of the total loss: Provided that nothing in this section shall affect the liability of the insurer under the suing and labouring clause." See sect. 78, post, p. 449e. Where a policy contained a clause, " the said ship, &c, goods, merchandise, &c, lor so much as concerns the assured by agreement between the assured and assurers in the policy, are and shall be valued as under," the two last words being added in writing ; and, some way further down in the policy was written 1300/., and in the budy, "on freight free from capture, seizure, &c. ; " it was held this was not a valued policy. Wilson v. Nelson, 5 B. & S. 354; 33 L. J., Q. B. 220. In a valued policy, the risk on the goods was to commence on the loading thereof 24 hours alter ship's arrival at the coast of Africa; a considerable part of the cargo was not shipped at the time of a total loss, and the part shipped was not equal to the value put upon the goods in the policy — it was held that the valuation was opened, and that the assured was only entitled to recover a projxirtion calculated on the part of the cargo shipped at the time of the loss. Bickman v. Carstairs, 5 B. & Ad. 651. A similar principle was adopted in Tobin v. Harford, 18 C. B., N. S. 528 : 34 L. J., C. P. 37, Ex. Ch. ; and Denoon v. Home and Colonial Assur. Co., L. R., 7 C. P. 341 ; and applied to a valued policy on freight in The Main, (1894) P. 320. A certificate of an agent of Lloyd's is not admissible to prove the amount of damage sustained by goods, though the defendant is a subscriber to Lloyd's. Drake v. Marryat, 1 B. & C. 473. Sect. 32. " (1.) Where two or more policies are effected by or on behalf of the assured on the same adventure and interest or any part thereof, and the sums insured exceed the indemnity allowed by this Act, the assured is said to be over-insured by double insurance. "(2.) Where the assured is over-insured by double insurance — " (a.) The assured, unless the policy otherwise provides, may claim payment from the insurers in such order as he may think fit, provided that he is not entitled to receive any sum in excess of the indemnity allowed by this Act; " (b.) Where the policy under which the assured claims is a valued policy the assured must give credit as against the valuation for any sum received by him under any other policy without regard to the actual value of the subject-matter insured ; " (c.) W'here the policy under which the assured claims is an unvalued policy he must give credit, as against the full insurable value, for any sum received by him under any other policy; " (d.) Where the assured receives any sum in excess of the indemnity allowed by this Act, he is deemed to hold such sum in trust for the insurers, according to their right of contribution among them- selves." See Bruce v. Jones, 1 H. & C. 769 ; 32 L. J. Ex. 132. Marine Insurance Art, 1906. — Loss, hoiv to be calculated. 449d Where by one policy a ship was insured from B. to C, and for 30 days after mooring at C. ; and the owners, on hearing the ship had arrived at C., effected another insurance at and from C. to B. ; and the ship was during the currency of both policies totally lost at C. ; it was held that the second policy was in substitution of the first. Union Marine Insur. Co. v. Martin, 35 L. J., C. P. 181. Where there is an insurance of cargo against jettison, and goods are jettisoned, the underwriters must pay the whole amount insured, without deducting the general average contributions the insured is entitled to receive from the owners of the ship and the rest of the cargo. Dickenson v. Jar-dine, L. R., 3 C. P. 639. Sect. 79. "(I.) Where the insurer pays for a total loss, either of the whole, or in the case of goods of any apportionable part, of the subject- matter insured, he thereupon becomes entitled to take over the interest of the assured in whatever may remain of the subject-matter so paid for, and he is thereby subrogated to all the rights and remedies of the assured in and in respect of that subject-matter as from the time of the casualty causing the loss. "(2.) Subject to the foregoing provisions, where the insurer pays for a partial loss, he acquires no title to the subject-matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the assured in and in respect of the subject-matter insured as from the time of the casualty causing the loss, in so far as the assured has been indemnified, according to this Act, by such payment for the loss." Sect. 80. "(1.) Where the assured is over-insured by double insurance, each insurer is bound, as between hirmelf and the other insurers, to con- tribute rateably to the loss in proportion to the amount for which he is liable under his contract. "(2.) If any insurer pays more than his proportion of the loss, he is entitled to maintain an action for contribution against the other insurers, and is entitled to the like remedies as a surety who has paid more than his proportion of the debt." Sect. 81. " Where the assured is insured for an amount less than the insurable value or, in the case of a valued policy, for an amount less than the policy valuation, lie is deemed to be his own insurer in respect of the uninsured balance." Where the assured is owner of both ship and cargo, see sect. 66 (7) ante, p. 44U, and Montgomery v. Indemnity Mutual Murine Tnsur. Co., (1H02) 1 K. B. 74 1, C. A. Where a ship A. has been lost by a collision with a ship B., and the underwriters have paid the full amount of a valued policy on A., they are entitled to receive the damages recovered in the Court of Admiralty against the owners of B. for the loss of the ship; N. of England Assur. Assoc, v. Armstrong, L. 11., 5 Q. B. -II; see also Commercial Union Assur. C<>. v. Lister, L. B. '.» Ch. 483; Simpson v. Thomson, '■'> Ap. Ca. 279, I). I'., and cases cited post, p. 4f>8 ; hut not the damages recovered tor the loss of freight; Sea Insur. Co. v. Eadden, 13 Q. B. D. 706, I '. A.; though it is otherwise where the insurance is on the freight. Dufourcet v. Bishop, 18 Q. B. D. 373. Where a sum is given to the shipowner lor tie' damage he has sustained, as a mere gift, the underwriter cannot claim it. Burnand v. Uodocanachi, 6 Q. B. D. 6::."., G. A. ; 7 Ap. < !a. 333, D. I". Under a policy, effected by the plaintiffs, on their lighters in the Thames, to include all losses, damages, and accidents amounting to 20Z. and upwards in each craft to goods carried by the plaintiffs as lightermen, and from which losses, &c, the plaintiffs might be liaUe to the owners thereof; the under- writer is liable to pay the whole loss, without regard to the value of the property at risk. Joyce v. Kennard, L. I!., 7 Q. l'>. 7s. Life salvage payable under the Merchant Shipping Act, L894, s. 524, is ! | ( ,i, Action on Policy of Marine Insurance. not recoverable on an ordinary Lloyd's Policy. Nourse v. Liverpool &c. Assoc, (1896) 2 Q. B. 16. Suing and labouring Clause.'] Sect. 78. " (1.) Where the policy contains a suing and labouring clause, the engagement thereby entered into is deemed to be supplementary to the contract of insurance, and the assured may recover from the insurer any expenses properly incurred pursuant to the clause, notwithstanding that the insurer may have paid for a total loss, or that the subject-matter may have been warranted free from particular average, c ither wholly or under a certain percentage." Vide infra. " (2.) General average losses and contributions and salvage charges, as defined by this Act, are not recoverable under the suing and labouring clause. " (3.) Expenses incurred for the purpose of averting or diminishing any loss not covered by the policy are not recoverable under the suing and labouring clause. " (4.) It is the duty of the assured and his agents, in all cases, to take such measures as may be reasonable for the purpose of averting or mimimising a loss.' 1 Under this clause the whole expense is recoverable from the insurers in propi n't ion to the several amounts insured. Dixon v. Wlritworth, 4 C. P. D. 371 ; reversed in C. A. on another point, W. N., 1880, p. 43, E. S. But not the expense of a refit to eoable the ship to complete the voyage. S. C. The freight of goods was insured, and the goods were necessarily removed from the ship to allow of repairs being made to her, and they were then forwarded to their destination by rail ; the goods might have been transhipped at a much less cost ; it was held, that the probable expense of such tranship- ment was recoverable under the suing and labouring clause. Lee v. S. Lnsur. Co., L. B., 5 C. P. 397. As to effect of suing and labouring clause in the case of a re-insurance, see Uzielli v. Boston Marine Lnsur. Co., 15 Q. B. D. 11, C. A. ; see further as to the applicability of this clause. W. Assur. Co. of Toronto v. Poole, (1903) 1 K. B. 376; Cunard SS. Co. v. Marten, (1903) 2 K. B. 511, C. A. Excepted risks "free from average" &c.~\ We have incidentally seen that there are often clauses excepting certain risks. Thus, there is ordinarily a ' memorandum by which certain goods are "warranted free from average," {i.e., partial loss), "unless general," (vide. Sched. I. r. 13, ante, p. 448), "or the ship be stranded," (ante, p. 442), or burnt (ante, p. 439). Sect. 76. " (1.) Where the subject-matter insured is warranted free from particular average, the assured cannot recover for a loss of part, other than a loss incurred by a general average sacrifice, unless the contract contained in the policy be apportionable ; but, if the contract be apportionable, the assured may recover for a total loss of any apportionable part. " (2.) Where the subject-matter insured is warranted free from particular average, either wholly or under a certain percentage, the insurer is neverthe- less liable for salvage charges, and for particular charges and other expenses properly incurred pursuant to the provisions of the suing and labouring clause," vide supra, " in order to avert a loss insured against. " (3.) Unless the policy otherwise provides, where the subject-matter insured is warranted free from particular average under a specified percentage, a general average loss cannot be added to a particular average loss to make up the specified percentage. "(4.) For the purpose of ascertaining whether the specified percentage has been reached, regard shall be had only to the actual loss suffered by the subject-matter insured. Particular charges and the expenses of and incidental to ascertaining and proving the loss must be excluded." Marine Insurance Act, 1906. — Excepted Bisls. 449/" "Particular average," and "particular charges" are defined by sect. 64, ante, p. 448, and " general average" by sect. 66, ante, p. 449. An insurance with a warranty, " free from particular average," is equivalent to an insurance against total loss and general average, only ; and in such a case, if a ship be disabled from continuing her voyage owing to a peril insured against, and the subject of insurance be forced to be landed, and expense is properly incurred in sending it on by another ship; that is particular average, and the insured cannot recover. Gt. Indian Peninsula By. Co. v. Saunders, 1 B. & S. 41 ; 30 L. J., Q. B., 218 ; 2 B. & S. 266 ; 31 L. J., Q. B. 206, Ex. Ch. ; Booth v. Qair, 15 C. B., N. S. 291 ; 33 L. J., C. P. 99. But the warranty does not prevent a recovery, under the suing and labouring clause, of expenses incurred in preserving the subject-matter of insurance, aud averting a loss ; sects. 78 (1), 76 (2), ante, p. 449e. See Kidston v. Empire Marine Insur. Co., L. R., 1 C. P. 535 ; L. R., 2 C. P. 375, Ex. Ch. Where the insurance was on a ship and cargo, with a warranty "free from average or claim from jettison or leakage, unless consequent ou stranding, sinking, or fire," and the ship, during the voyage, by bad weather, became leaky, and having put into port was unable to proceed, and the ship and goods were sold, the assured was held entitled to recover as an average loss. Carr v. R. Exch. Assur. Co., 5 B. & S. 433 ; 33 L. J., Q. B. 63. There is not a total loss of part, but only particular average, where some bales of insured silk were so damaged as to make it prudent to sell them, if a portion of each bale might have been saved and sent home at a moderate expeuse, retaining its saleable character as silk. Navone v. Haddon, 9 C. B. 30; 19 L. J., C. P. 161. And where memorandum goods of the same species are shipped, whether in bulk, or in packages, not expressed by distinct valuation, or otherwise, in the policy to be separately insured, aud there is do general average nor stranding, the ordinary memorandum exempts the under- writers from liability for a total loss or destruction of part only, though one or more entire packages be entirely destroyed. Balli v. Janson, 6 E. & B. 422; 25 L. J., Q. B. 300, Ex. Ch., in which case the earlier decisions were reviewed. See Spence v. Union Marine Insur. Co., L. 1!., 3 C. P. 427 ; cited ante, p. 449i. Where, however, goods essentially different in nature and kind are insured under a general description as " masters' effects," the warranty is divisible, and means that the insurers will be liable for a total loss only of any of the specific artieles insured under that description. Dttfl' v. Mackenzie, 3 C. B., N. S. 16 ; 26 L. J., C. P. 313 ; Wilkinson v. Hyde, 3 C. B., X. S. 30; '11 L. J., C. P. 116. And, where the policy was on a ship and machinery in it, which were separately valued, and there was the clause "average payable on the whole or upon each as if separately insured," with the usual memorandum, and the ship caught fire aud was damaged, bui not the machinery, it was held that the expense of putting out the tin' was not a particular average of the hull, but ought to be apportione 1 between the hull and the machinery, being an expenditure for the benefit of both equally. Oppenheim v. Fry, 5 B. & S. 348; 33 L. J., Q. B. 267, Ex. Ch. Where the warranty is " free from average under ■'! percent, unless general, &C.," distinct successive losses, each less, hut in the aggregate more than :: pei- cent., are not within the exception, provided they occur during the same voyage; Blackett v. J!. Exch. Ass. Co., 2 < '. & .1. 244; Stewart \. Merchants' Marine Insur. Co., l»i Q. B. I>. 619, C. A. ; but not otherwise. S. 0. But by sect. 76(3), ante, p. I I9e, where a particular average loss P. is under .". per cent., and a general average loss (I. has also risen, then, although P. and (I. together exceed 3 per cent., P. is not recoverable. See Price v. .11 Ships Small Damage Insur. Ass., 22 Q. B. I». 580, C. A. As to apportionment of expenses in calculating the average, see Marim Insur. Co. v. ('hind, dbc, 88. Co., and Ruabon 88. Co. v. /.. Aseur. Cor., cited ante, p. 1 19a. •M!t,/ Actiov on Policy of Marine Insurance. A usage that underwriters are not liable, under the ordinary form of policy, to general average on account of the jettison of timber stowed on the deck, is a valid custom, and not inconsistent with the terms of such policy. Mill, r v. Tetherington, 6 H. & N. 278 ; 30 L. J., Ex. 217 ; 7 H. & N. 954 ; 31 L. J., Ex. 363, Ex. Cb. As to exception of "claim consequent on loss of time," see Bensaude v. Thames, &c, Tnsur. Co., (1897) A. C. 609, D. P.; Turnbull &c. v. Hull Underwriters' Assoc, (1900) 2 Q. B. 402. Damages.'] By 3 & 4 W. 4, c. 42, s. 29, the jury may, if they think fit, give damages in the nature of interest, over and above the money recoverable in all actions on policies of assurance ; but this does not apply in respect of a delay in payment, occasioned only by there being no person entitled to give a discharge for the amount. Webster v. British Empire &c. Assur. Co., 15 Ch. D.' 169, C. A. Mutual Insurance.] Sect. 85. " (1.) Where two or more persons mutually agree to insure each other against marine losses there is said to be a mutual insurance. " (2.) The provisions of this Act relating to the premium do not apply to mutual insurance, but a guarantee, or such other arrangement as may be agreed upon, may be substituted for the premium. " (3.) The provisions of this Act, in so far as they may be modified by the agreement of the parties, may in the case of mutual insurance be modified by the terms of the policies issued by the association, or by the rules and regulations of the association. "(4.) Subject to the exceptions mentioned in this section, the provisions of this Act apply to a mutual insurance." A contract of marine insurance must be expressed in a policy specifying certain particulars. In re Arthur Average Assoc, ante, p. 267; sects. 22, 23, ante, p. 418. See further as to mutual policies, Ocean Iron SS. Insur. Assoc, v. Leslie, 22 Q. B. D. 722, n. Defence. Under Rules, 1883, O. xix. rr. 17, 20, ante, p. 310, a denial of the con- tract operates as a denial of the making thereof in point of fact only, and not its sufficiency in point of law. Hence, au insufficient subscription of the policy by the defendant, within the Stamp Act, 1891, s. 93, ante, p. 267, which avoids the policy, must now be specially pleaded. As to defences arising from want of stamp or alterations avoiding the policy under that Act, vide ante, pp. 266 et seq. The two companies incorporated by 6 G. 1, c. 18, viz., the London Assnrauce and the R. Exchange Assurance, are empowered by 11 G. 1, c. 30, s. 43, to plead in a uereral form, and this privilege is not taken away by 5 & 6 V. c. 97, s. 3. Carr v. B. Exch. Assur. Co., 1 B. & S. 956 ; 31 L. J., Q. B. 93. Nor, it would seem, is it affected by the J. Acts. See Qarnett v. Bradley, •"> A p. Ca. 970, per Ld. Blackburn, cited ante, p. 296. See also Rules, L883, O. xix. r. 12, ante, p. 309, which, however, reserves the right to plead " not guilty by statute," only. In an action brought under sect. 50 (2), ante, p. 421, by the assignee of a ] ml icy, the defendant cannot set off or counter-claim a debt or claim accruing to him from the assured prior to his assignment of the policy. See Pellas v. Neptune Marine Insur. Co., 5 C. P. I). 34, C. A., decided on 31 & 32 V. c. 86, s. 1. Non-disclosure j misrepresentation; fraud.] Sect. 17. "A contract of Marine Insurance Act, 1906.— Defence — Non-disclosure, &c. 449/j marine insurance is a contract based upon tbe utmost good faith, aud, if the utmost good faith be not observed by either party, the contract may be avoided by the other party." Sect. 18. " (1.) Subject to the provisions of this section, the assured must disclose to the insurer, before the contract is concluded, every material cir- cumstance which is known to the assured, and the assured is deemed to know every circumstance which, in the ordinary course of business, ought to be known by him. If the assured fails to make such disclosure, the insurer may avoid the contract. " (2.) Every circumstance is material which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk. " (3.) In the absence of inquiry the following circumstances need not be disclosed, namely : — " (a.) Any circumstance which diminishes the risk ; " (b.) Any circumstance which is known or presumed to be known to the insurer. The insurer is presumed to know matters of common notoriety or knowledge, and matters which an insurer in the ordinary course of his business, as such, ought to know ; " (c.) Any circumstance as to which information is waived by the insurer ; " (d.) Any circumstance which it is superfluous to disclose by reason of any express or implied warranty. " (4.) Whether any particular circumstance, which is not disclosed, be material or not is, in each case, a question of fact. "(5.) The term 'circumstance' includes any communication made to, or information received by, the assured." Sect. 19. " Subject to the provisions of the preceding section as to circum- stances which need not be disclosed, where an insurance is effected for the assured by an agent, the agent must disclose; to the insurer — " (a.) Every material circumstance which is known to himself, and an agent to insure is deemed to know every circumstance which in the ordinary course of business ought to be known by, or to have been communicated to him ; aud "(&.) Every material circumstance which the assured is bound to disclose, unless it come to his knowledge too late to communicate it to the agent." Sect. 20. "(1.) Every material representation made by the assured or his agent to the insurer during the negotiations for the contract, and before the contract is concluded, must be true. If it be untrue the insurer may avoid the contract. "(2.) A representation is material which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk. "(3.) A representation may be either a representation as to a matter of fact, or as to a matter of expectation or belief. "(4.) A representation as to a matter of fact is true, if it be substantially correct, that is to say, if the difference between what is represented and what is actually correct would Dot be considered material by a prudent insurer. " (5.) A representation as to a matter of expectation or belief is true if it be made in good faith. "(6.) A representation may bo withdrawn or corrected before the contract is concluded. "(7.) Whether a particular representation be material or not is, in each case, a question of fact." I t9t Action on Policy of Marine Insurance. Sect. 21, ante, p. IIS, defines when the contract is to be deemed to he concluded. By sect. 18(1, 2),ante, ]>. 149A, it' the assured do not disclose any material fact which relates to the risk insured tlie policy may be avoided by the insurer; and this even though the fact was once known to the latter, if it were not present to his mind at the time of effecting the insurance. Bates v. Hewitt, L. II., 2 Q. B. 595. If a principal effect an insurance in ignorance of a material fact which ought to have been communicated to him by an agent having charge of the subject-matter of insurance ; Fitzherbert v. Mather, 1 T. R. 113; Proudfoot v. Montefiore, L. R., 2 Q. B. 511; or by an agent employed to effect an insurance, although he commence only, but do not conclude the negotiation ; Blackburn, v. Haslam, 21 Q. B. D. 144 ; the insurance is voidable by the insurer. See sect. 19, ante, p. 449/i. But when the negotia- tion by the agent was in such a case broken off, and fresh negotiations opened by the principal, leading to the insurance, the policy was held valid. Blackburn v. Vigors, 12 Ap. Ca. 531, D. P. Where the agent without fraud neglects to communicate to the owner damage done to the vessel, this damage is expected out of the policy. Gladstone v. King, 1 M. & S. 35. To prove the defence of concealment of a material fact, it lies on the defendant to prove, not only the fact, and the plaintiff's knowledge, but also the non- communication of it to the defendant; but slight evidence is enough, and the mere subscribing of the policy may be evidence of it, where the sup- pressed fact is one which would have prevented a reasonable man from subscribing ; as that the ship had been so long abroad, on her voyage, as to be a missing ship. Elhin v. Janson, 13 M. & W. 663. It is sufficient to communicate/acfe, without the opinion or conclusion founded upon those facts. Bell v. Bell, 2 Camp. 479. It has been said that loose rumours or general news in the newspapers open to all need not be stated. 3 Kent, Com. § 285 ; sec Durrell v. Bederley, Holt, N. P. 2S3, 285, per Gibbs, C.J. By sect. 18 (3b), ante, p. 449/«, facts which the underwriter is presumed to know need not be communicated, e.g. that a ship, classed Al at Lloyd's, will be struck off the list unless re-surveyed, in the fourth year from the registration ; Gaudy v. Adelaide Marine Assur. Co., L. R., (i Q. B. 740 ; or that a charterparty which is a time charter as to freight, has a " 24 hours' clause." The Bedouin, infra. But in cases not with sect. 18 (3b), the effect of sect. 18 (4 & 5), ante, p. 449A, must be carefully considered. Thus the peculiar danger of a new port at which the ship is insured by the policy, and the existence of which was unknown to the underwriter, must be disclosed. Harrower v. Hutchinson, L. R., 5 Q. B. 584, Ex. Ch. As to the admissibility of the evidence of an underwriter or other witness, as to his opinion of the materiality of a fact concealed,or of whether the fact, if known, would have altered the terms of insurance, vide ante, p. 176. By sect. 19 (1), ante, p. 449/t, there must be no misrepresentation of any material fact. Such misrepresentation will avoid the policy, though the actual loss is unconnected with the fact misrepresented or concealed, and though there is no fraud intended by the insurer. Seaman v. Fonereau, Str. 1183. The question, as stated by Kent (3 Com. 283), is " Whether there was, under all circumstances, a lair representation or a concealment; if the misrepresentation or concealment was designed, whether it was fraudulent ; and, if not designed, whether it varied materially the object of the policy, and changed the risk understood to be run. If the representation was by fraudulent design, it avoids the policy, without stay- ing to inquire into its materiality ; and if it was caused by a mistake or oversight, it does not affect the policy, unless material, and not true in substance." See The Bedouin, (1894) P. 1, 12, per Ld. Esher, M.R. So a mis-statement as to the name or age of the ship avoids the policy. Ionides v. Pacific Jnsur. Co., L. R., 6 Q. B. 674 ; L. R., 7 Q. B. 517, Ex. Cb. But Marine Insurance Act, 1906. — Defence — Non-disclosure, &c. 419/r in tbe case of an open policy on goods, in ships to be afterwards declared, a mistake as to the description of the ship made in the declaration is Dot material. S. C. In Anderson v. Thornton, 8 Exch. 425, it was held that a plea alleging a material mis-statement as to the time of sailing, fraudulently made, may be supported by proof of material mis-statement, but without fraud. It is sufficient, however, if a representation be substantially correct, and it need not, like a warranty, be strictly and literally complied with. Pawsonv. Watson, Cowp. 785. See as to life policies, and the distinction between marine and life policies, Wheelton v. Hardisty, 8 E. & B. 232 ; 26 L. J., Q. B. 2G5 ; cited jyost, p. 452. In the case of insurance of chartered freight, the non-disclosure of a power in the charterer to cancel the charter- party is fatal. Meramtik SS. Co. v. Tyser, 7 Q. B. D. 73. By sect. 20 (5), ante, p. WMi, "a representation as to a matter of expectation, or belief, is true if made in good faith." See Barber v. Fletcher, 1 Doug. 305 ; Bowden v. Vaughan, 10 East, 415; Anderson v. Pacific, &c, Insur. Co., 21 L. T. 408, J. C. ; see Ionides v. Pacific Insur. Co., ante, p. 449e. By sect. 21, ante, p. 418, the coutract of insurance is concluded when the proposal of the assured is accepted by the insurer, and for this purpose reference may be made to the unstamped slip. See also sect. 89, ante, p. 418. The slip, though not admissible in evidence as a contract, by reason of Stamp Act, 1891, s. 93, is, by mercantile usage, treated as the contract for insurance, vide ante, p. 268. Hence, under sect. 18 (1), ante, p. 449/*, facts coining to the knowledge of the assured after the slip is signed, but before the policy is delivered out, need not be disclosed to the underwriter. See Lishman v. N. Maritime Insur. Co., L. R., 8 C. P. 216 ; L. R., 10 C. P. 179, Ex. Oh. ; and Cory v. Patton, L. R., 7 Q. B. 304 ; and L. R., 9 Q. B. 577. So, where the assured conceals from the underwriter a material fact, when the slip is signed, and the under- writer delivers out the policy in conformity with the slip after the fact has come to his knowledge, it is a question for the jury whether the underwriter elected to go on with the policy; if not, the policy does not bind him; Morrison v. Universal Marine Insur. Co., L. R., 8 Ex. 197, Ex. Ch.; and where the underwriter stated, when he issued the policy, that he should rely on the concealment, it was held that he might do so ; Nicholson v. Power, 20 L. T. 580, Ex. Ch., E. T. 1869. In an action against a second or subsequent underwriter, it has been the practice to admit evidence of representations to the first underwriter, on a presumption that the subsequent underwriter gave credit to them. Pawson v. Watson, Barber v. Fletcher, supra; Marsden v. Iteid, 3 East, 572. This rule is confined to representations made to the first underwriter, that is, the first on the policy. S. C. ; Bell v. Carstairs, 2 Camp. 543. The principle of the rule was questioned by Ld. Ellenborough, C.J., in the last case, and in Forrester v. Pigou, 1 M. & S. 13. If goods insured are over-valued with intent to defraud the underwriters, the contract is void, and the assured cannot recover, even for the value actually on board; /high v. Vela Cow, 3 Camp. 319; and, even without fraud, an excessive over-insurance may be a material fact, and, if concealed from the underwriter, the policy be void; Ionides v. Pender, L. It., 9 Q. B. 531. So where there were successive open policies, on g Is to be declared, and the assured fraudulently declared the goods al risk at an imder-value on the earlier policies, the policies effected subsequently to Buch false declarations were held void, and were ordered to lie cancelled. llivaz v. Gerusn, 6 Q. B. D. 222, C. A. Illegality.'] Sect. 41. " There is an implied warranty that the adventure insured is a lawful one, and that, so far as the assured can control the matter, the adventure shall be carried out in a lawful manner." 449Z Action on Policy of Marine Insurance. A contravention of law by the assured, having direct relation to the subject of the risk, will vitiate the policy. Thus, where a ship was loaded in contravention of the 16 & 17 V. c. 107, forbidding a whip to sail from certain ports at certain times in the year with any of the cargo on deck, and the plaintiff insured the cargo with the express knowledge of the mode of loading, it was held that the plaintiff could not recover for any part of the cargo ; Canard v. Hyde, 2 E. & E. 1 ; 29 L. J., Q. B. G ; aliter, if the assured had no knowledge of the mode of loading ; S. C, E. B. & E. 070 ; 27 L. J., Q. B. 408. If the master so loaded, without the knowledge of his owner, the owner may recover on an insurance of freight. Wilson v. Rankin, L. R., 1 Q. B. 1G2, Ex. Ch. So the owner may recover where the master has, without his knowledge, in contravention of the Merchant Shipping Act, 1894, s. 271 (1 b), taken passengers on board without a certificate. See Dudgeon v. Pembroke, L. R., 9 Q. B. 581, decided on 17 & 18 V. c. 104, s. 318. As to insurance of the property of an alien enemy. See Janson v. Driefontein, it v., Mines, cited ante, p. 440, and authorities collected in that case. As to insurance on British goods in the enemy's country seized by the enemy after declaration of war, see Nigel Gold Mining Co. v. Hoade, (1901) 2 K. B. 849. Payment.] By sect. 50 (1), ante, p. 420, where the policy is effected on behalf of the assured by a broker, the insurer is, unless otherwise agreed, directly responsible to the assured lor the amount of losses payable. It is, however, a good defence to show a custom that credit taken between the insurance broker and underwriter should be taken as payment to the assured by the underwriter, after the amount has been adjusted between him anel such broker. Stewart v. Aberdcin, 4 M. & W. 211. But the assured is not bound by such a custom, if he had no knowledge of it. Sweeting v. Pearce, 9 C. B., N. S. 534 ; 30 L. J., C. P. 109, Ex. Ch. As to payment to the assignee of the policy, see Swan and Clelands &c. Co. v. Maritime Insur. Co., (1907) 1 K. B. 116. An adjustment indorsed on the policy produced by the assured, with the elefendant's name struck out of it,'is not evidence for the defendant that the amount so adjusted has been paid. Adams v. Sanders, M. & M. 373. Return of Premium. A claim for a return of premium is often added to a claim on a policy; and the question of the right to recover arises on the failure of the plaintiff to establish his case on the policy. WJien plaintiff entitled to a return.'] Sect. 82. " Where the premium, or a proportionate part thereof is, by this Act, declared to be returnable — " (a.) If already paid, it may be recovered by the assured from the insurer ; and "(b.) If unpaid, it may be retained by the assured or his agent." Sect. 83. " Where the jiolicy contains a stipulation for the return of the premium, or a proportionate part thereof, on the happening of a certain event, and that event happens, the premium, or, as the case may be, the proportionate part thereof, is thereupon returnable to the assured." Sect. 84. " (1.) Where the consideration for the payment of the premium totally fails, and there has been no fraud or illegality on the part of the assured or his agents, the premium is thereupon returnable to the assured. " (2.) Where the consideration for the payment of the premium is appor- tionable and there is a total failure of any apportionable part of the considera- tion, a proportionate part of the premium is, under the like conditions, thereupon returnable to the assured. " (3.) In particular — («.) Where the policy is void, or is avoided by the insurer as from the commencement of the risk, the premium is return- able, provided that there has been no fraud or illegality on the part of Marine Insurance Act, 1906. — Return of Premium. 449w the assured ; but if the risk is uot apportionable, and has once attached, the premium is not returnable : " (b.) Where the subject-matter insured, or part thereof, has never been imperilled, the premium, or, as the case may be, a proportionate part thereof, is returnable: Provided that where the subject-matter has been insured 'lost or not lost' and has arrived in safety at the time when the contract is concluded, the premium is not returnable unless, at such time, the insurer knew of the safe arrival" ; see Bradford v. Symondson, 7 Q. B. D. 456, C. A. " (c.) Where the assured has no insurable interest throughout the currency of the risk, the premium is returnable, provided that this rule does not apply to a policy effected by way of gaming or wagering ; "(d.) Where the assured has a defeasible interest which is terminated during the currency of the risk, the premium is not returnable ; "(e.) Where the assured has over-insured under an unvalued policy, a proportionate part of the premium is returnable ; "(/.) Subject to the foregoing provisions, where the assured has over- insured by double insurance, a proportionate part of the several premiums is returnable : Provided that, if the policies are effected at different times, and any earlier policy has at any time borne the entire risk, or if a claim has been paid on the policy in respect of the full sum insured thereby, no premium is returnable in respect of that policy, and when the double in- surance is effected knowingly by the assured no premium is returnable." If the risk has never commenced there must be a return ; as if the ship never sailed, or, the policy is avoided by failure of warranty without fraud. 3 Kent, Com. 341. But if the risk has ouce commenced, or the policy be void for illegality, or for any fraud of the assured, there is no return. Id. ; Allkins v. Jupe, 2 C. P. D. 375 ; and see Stone v. Marine Assur. Co., (fee, 1 Ex. D. 81. As to double insurance, see sect. 32, ante, p. 44 l Jc. By sect. 53 (1.), ante, p. 420, where the policy is effected by a broker on behalf of the assured, the insurer is, unless otherwise agreed, directly respon- sible to the assured for returnable premium. Proof must be given of the payment of the premium, unless this is admitted. By sect. 54, " Where a marine policy effected on behalf of the assured by a broker acknowledges the receipt of the premium, such acknowledgment is, in the absence of fraud, conclusive as between the insurer and the assured, but not as between the insurer and broker." The defendant having paid the amount of premium into court, the plaintiff afterwards obtained a verdict on the policy for a sum less than the sum assured; the Court directed that judgment should be entered only for the amount of the verdict, less the sum taken out of Court. Oarr v. Monlr- fwre, 5 B. & S. 941 ; 34 L. J., Q. B. 21. LIFE INSURANCE. Many of the cases and authorities on marine policies apply equally to policies on lives and against fire; but the contract of life assurance is, in consideration of a lump sum or of periodical payments, to pay a sum certain upon the death of a given life, and is not a contract of indemnity, like that of marine and fire policies. The pleadings sufficiently point out the nature of the required evidence. As to the necessity for English probate to the assured'* estate, see 52 & 53 V. c. 42, s. 19, ante, p. 118. Form of policy.'] It does not appear ever to have been decided thai an agreement for life insurance need be expressed in a policy >>r reduce. 1 to writing. The stat. 14 G. 3, c. 48, s. 2, enacts that il shall not be lawful E. — VOL. I. U O * 450 Action on Policy of Life Insurance. to make any policy on the life of any person or other event, without inserting in such policy the person's name interested therein, or for whose use, benefit, or on whose account such policy is so made or underwrote. But this applies only to a written document. Carlill v. Carbolic Smoke Ball Co., (1892) 2 Q, B. 484, 493, per Hawkins, J. The Stamp Act, 1891, s. 100, requires every person receiving or taking credit for any premium or consideration for any contract of insurance, to make out and execute a stamped policy of such insurance, within one calendar month from the receipt of the premium, under a penalty of 50?. This section was passed for the better securing the payment of the stamp duty, and rather negatives the idea that 14 G. 3, c. 48, s. 2, supra, was intended to avoid agreements for life insurance not in writing. By the Married Women's Property Act, 1882 (45 & 46 V. c. 75), s. 11, a married woman may effect a policy on her own life, or the life of her husband for her separate use, and a policy effected by any man on his own life, and expressed to be for the benefit of his wife or of his children, or any of them, or by any woman on her own life, for the benefit of her husband or of her children, or any of them, shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of the insured, or be subject to his or ber debts. The insured may appoint a trustee or new trustees of the policy by a memorandum in writing and the receipt of a trustee duly appointed, or in default of notice to the office, the receipt of the legal personal representative of the insured, shall be a discharge to the office. See Holt v. Everall, 2 Ch. D. 26G, C. A.; In re Seytori, 34 Ch. D. 511. In re Browne's Policy, (1903) 1 Ch. 188 ; In re Griffith's Policy, Id. 739 ; In re Parker's Policies, (1906) 1 Ch. 526. The policy forms part of the assured's estate, where the objects of the trust have been performed, or have become impossible, as where the wife in whose sole favour the policy was effected murdered her husband. Cleaver v. Mutual, &c, Life Ass., (i892) 1 Q. B. 147, C. A., vide post, p. 454. Where, after the proposal for insurance has been accepted by the insurance office, on the terms that no insurance shall take effect until the premium is paid, and before it is tendered there has been a material alteration in the health of the proposer, the office is not bound to issue a policy. Canning v. Farquhar, 16 Q. B. D. 727. As to the payment of the premiums after the death of the assured, see Stuart v. Freeman, (1903) 1 K. B. 47, C. A., and cases there cited. As to stamp duties, vide ante, p. 268. Assignment of policy. ] The Policies of Assurance Act, 1867 (30 & 31 V. c. 144), s. 1, enacts that " any person or corporation now being or here- after," vide infra, " becoming entitled by assignment or other derivative title to a policy of life assurance, and possessing, at the time of action brought, the right in equity to receive and the right to give an effectual discharge to the assurance company liable under such policy for moneys thereby assured or secured, shall be at liberty to sue at law in the name of such person or corporation to recover such moneys." By sect. 3, " no assignment made after the 20th August, 1867, of a policy of life assurance shall confer on the assignee therein named, his executors, administrators, or assigns, any right to sue for the amount of such policy, or the moneys assured or secured thereby, until a written notice of the date and purport of such assignment shall have been given to the assurance company liable under such policy at their principal place of business for the time being, or, in case they have two or more principal places of business, then at some one of such principal places of business, either in England Assignment of Policy. — Interest. 451 or Scotland or Ireland, and the date on which such notice shall be received shall regulate the priority of all claims under any assignment ; and a payment bond fide made in respect of any policy by any assurance com- pany, before the date on which such notice shall have been received, shall be as valid against the assignee giving such notice as if this act had not been passed." By sect. 4, assurance companies are, in policies issued after 30th Septem- ber, 1867, to specify the principal place or places of business at which notices of assignment may be given. By sect. 6, every assurance company to whom notice of the assignment of any policy shall have been duly given shall deliver an acknowledgment in writing, under the hand of the manager, secretary, treasurer, or other principal officer of the assurance company, of their receipt of such notice ; and every such written acknowledgment, if signed by a person being dejure or de facto the mauager, &c, of the assurance company whose acknow- ledgment it purports to be, shall be conclusive evidence, as against such assurance company, of their having duly received the notice to which sucli acknowledgment relates. An agreement for assignment is not an assignment within this act. Spencer v. Clarke, 9 Ch. D. 137. Sect. 3 regulates the priority of claims as between the company and persons interested in the policy, and does not affect the rights of those persons inter se. Newman v. Newman, 28 Ch. D. 674. Where there is a condition against assignment in the policy, it is still assignable in equity as before the statute. In re Turcan, 40 Ch. T>. 5, C. A. The J. Act, 1873, s. 25 (6), ante, p. 307, contains a general provision with reference to the assignment of choses in action. Interest.'] By stat. 14 G. 3, c. 48, ss. 1, 2, a policy on lives or other events is unlawful and void, unless the person on whose account the insurance is made has an interest, and the name of the person interested, or for whose use or benefit, or on whose account, it is made, be inserted therein. If A., having no interest in B.'s life, cause him to effect an insurance in his own name, but at A.'s expense, and for A.'s benefit, this is a fraudulent evasion, and the policy is void under sect. 1. Wuinon-ighf v. Bland, 1 M. & Rob. 481 ; Shilling v. Accidental Death Insur. Co., 2 H. & N. 42; 26 L. J., Ex. 266. See also S. C, 27 L. J., Ex. 16. Everyone is presumed to have an insurable interest in his own life, and if he insures, whether for life or a limited time, his executor is not bound to show any interest beyond this. Wainewright v. Bland, supra. So, it is said, where a wife insures her husband's life. Reed v. R. Exch. Assur. Co., Peake, Add. Ca. 70; and now see 45 & 46 V. c. 75, s. 11, ante, p. 450. But where a wife was entitled to a legacy on attaining 21, and her husband insured her life in her name, to secure the amount of the legacy, which was then advanced to him, it was held that the policy was void, as it did not state that the husband was the person having the present interest therein, although the ultimate benefit might be for the wife. Evans v. Bignold, L. R., 4 Q. B. 622. A creditor has an insurable interest in his debtor's life. Anderson v. Edie, Park, Ins., 8th ed. 1(14-15. And, in general the interest which the insurer is required to have in the life of the assured, under 14 G. 3, c. 48, s. 1, must be a pecuniary interest ; and, therefore, the insurance by a father in his own name on the life of his son, without any pecuniary interest in it, is void. Halford v. Kymer, 10 B. & C. 724. But where B. maintained her half-sister, A., a child 10 years old, B. was held to have an insurable interest in A.'s life. Barnes v. L. Edinburgh, articular policy ; and, the false and fraudulent statements of the person whose life is insured, and of the medical referee, will not vitiate the policy, as against an innocent person, who effected the insurance, there being no condition that the untruth of the statement, contained in the proposal, should avoid the policy. Wheelton v. Eardisty, Ex. Ch., ante, p. 452. As to the insurance company being affected by knowledge of their agent who sent them the proposal for the insurance, see Bawden v. L. Edinburgh & Glasgow Assur. Co., and Biggar v. Rock Life Assur. Co., post, p. 455. As to effect of change in the health of the proposer, between the acceptance of proposal for insurance and payment of premium, see Canning v. Farquhar, 16 Q. B. D. 727, cited ante, p. 450. Suicide, Murder, (fee] Clauses avoiding a policy if the person, whose life is insured, "commits suicide," or "dies by his own hands," are construed to include all voluntary self-destruction, though not felonious ; and consequently the unsoundness of the person's mind is not material. Clift v. Schivabe, 3 C. B. 437 ; Dormay v. Borradaile, 5 C. B. 380. Where the policy was conditioned to be valid, notwithstanding suicide, to the extent of any bond fide interest acquired by any person, by virtue of an equitable lien or security on it, on proof of such interest, to the satisfaction of the directors of the company : proof of the policy being held by the trustees of the wife of the assured, by way of marriage settlement, was held to support the alleged lien. Moore v. Woolsey, 4 E. & B. 243; 24 L. J., Q. B. 40. Proof of the above facts was reasonable evidence for the directors, by which tiny were bound to be satisfied. S. C. ; see also Braunstein v. Accidental Dfidh Insur. Co., post, p. 454. The clause is, in the absence of fraud, for the benefit of the assured. Solicitors' & General Life Assur, hoc v. Lamb, 1 II. & M. 71r by legal or equitable lien for a valuable consideration, or as a security for money. Jackson v. / rster, 1 E. & E. 463; 28 L. J., Q. I'-. L66; 1 E. & E. 170; L".t L. .J., y. B. 8, Ex. Ch. On the application by P. for a policy on his own life for the benefit of his creditor E., P. warranted that he would not commit suicide, whether sane or insane, within one year: the policy was granted thereon, 454 Action mi Policy of Life Insurance. and F. committed suicide within the year, it was held that the policy was i hereby avoided even as against E. Ellinger v. Mutual Life Insur. Co. of New York, (1905) 1 K. B. 31 C. A. Where F., having insured his life, assigned the policy to B., and was executed for forgery, it was held that B. could not recover on the policy, F.'s death being the result of his own criminal act. Amicable Assur. Soc. v. Bollanal (Fauntleroifs Case), 2 Dow, & C. 1 ; 4 Bli. N. S. 194. On a similar principle, if B., being interested in a policy on A.'s life, murders A., neither B. nor his assignees can take anv benefit under the policy. Cleaver v. Mutual, &c, Life Assur., (1892) 1 Q. B. 147. INSURANCE AGAINST PERSONAL ACCIDENTS. In a policy of insurance effected against injury caused by accident or violence, provided the same should be caused by some outward and visible means, of which satisfactory proof should be furnished to the insurers, is meant such proof as the insurers may reasonably require, and not such as they may capriciously demand. Braunstein v. Accidental Death Insur. Co., 1 B. & S. 782 ; 31 L. J., Q. B. 17. See Moore v. Woolsey, supra, and Trew v. By. Passengers' Assur. Co., 6 H. & N. 839 ; 30 L. J., Ex. 317, Ex. Ch. Where there was an exception in the policy, of death from certain specified diseases, or any other disease or cause within the system of the assured before or at the time or following such accidental injury; it was held that one of the specified diseases, brought on solely by the accident, was not within the exception. Fitton v. Accidental Death Insur. Co., 17 C. B., N. S. 122 ; 34 L. J., C. P. 28 ; Mardorf v. Accident Insur. Co., 1903, 1 K. B. 584, C. A. Where, however, the exception extends to secondary causes, the insurers are not liable. Smith v. Accident Insur. Co., L. B., 5 Ex. 302. Where the policy excepted injury caused by natural disease or weakness, or exhaustion consequent on disease, and the assured while fording a stream was seized with an epileptic fit, and fell into the stream and was drowned, this was held not to be within the exception. Winspear v. Accident Insur. Co., 6 Q. B. D. 42, C. A ; see also Laiorence v. Accidental Insur. Co., 7 Q. B. D. 216. A policy against "death from the effects of injury caused by accident," includes death from a disease which was the natural consequence of an injury caused by accident. Isitt v. Bailway Passengers' Assur. Co., 22 Q. B. D. 504. See Dunham v. Clare, (1902) 2 K. B. 292, C. A.; Fenton v. J. Thorley & Co., (1903) A. C. 443, D. P. ; and Brintons v. Turvey, (1905) A. C. 231, decided under stat. 60 & 61 V. c. 37, post, p. 808. In a policy of insurance against " any bodily injury caused by violent accidental external and visible means," with a proviso excepting injuries arising from " natural disease or weakness or exhaustion consequent on disease," the word " external " must be taken in contradistinction to internal causes of injury such as diseases. Hamlyn v. Croivn Accidental Insur. Co., (1893) 1 Q. B. 750. Death from heart failure induced by intentional physical exertion is not a death from the effects of an injury by accident. In re Scarr v. General Accident Assur. Cor., (1905) 1 K. B. 382. Nor is death by sunstroke. Sinclair v. Maritime Passengers' Assur. Co., 3 E. & E. 478 ; 30 L. J., Q. B. 77. As to a nervous shock 'pro- duced by fright and excitement, see Pugh v. L. Brighton, &c, By., (1896) 2 Q. B. 248, C. A. Where death occurs from a risk which was either obvious to the assured, or would have been obvious to him if he had been paying reasonable attention to what he was doing, it falls within an exception in the policy, of accident caused by "exposure of the deceased to obvious risk." Cornish v. Accident Insur. Co., 23 Q. B. D. 453, C. A. The insurance company is affected by the knowledge of its agent, Q., who sent to them the proposal for insurance, of special facts relating to the Accident Insurance. — Fire Insurance. 455 assured, B., whereby the risk was increased. Bawden v. L. Edinburgh & Glasgow Assur. Co., (1892) 2 Q. B. 534, C. A. Thus, where Q., knowing that B. was a one-eyed man, made no note thereof on the proposal on which the policy was issued, the company were held liable on the loss of B.'s remaining eye to pay compensation' as for total loss of sight. S. C. But where Q. filled up the proposal form which B. signed without reading or knowing that several of the answers were false, its truthfulness being the basis of the proposal, the policy was held void, because B. must be taken to have read and approved of the answers, and that in filling in the answer, Q. was acting as B.'s agent and not that of the insurance office. Biggar v. Rock Life Assur. Co., (1902) 1 K. B. 516. A policy for 12 months, from Nov. 24th, 1888, covers an accident on Nov. 24th, 1889. South Staffordshire Tramways Co. v. Sickness, &c., Assur. Co., (1891) 1 Q. B. 402. As to whether injury caused to several persons by the same negligence, is one accident or more, vide S. C, in C. A., Id. Whether a term of the policy requiring notice of death within 7 days is a condition precedent depends on the construction of the whole policy. Stoneham v. Ocean, &c, Accident Insur. Co., 19 Q. B. D. 237. As to stamp duties, vide ante, p. 269. FIRE INSURANCE. The fundamental principle of fire insurance is that, like an open marine policy, it is a contract of indemnity. Castellian v. Preston, 11 Q. B. D. 380, C. A. A policy which has lapsed becomes renewed by the payment of the premium. Kirkpatrick v. S. Australian Insur. Co., 11 Ap. Ca. 177, J. C. Policies of tire insurance are within the stat. 14 G. 3, c. 48, cited ante, p. 451. As to their form, vide ante, pp. 449m, 450. A fire policy was nut generally assignable, at law, except with the consent of the insurer ; 3 Kent, Com. 375; Park, Ins., 8th ed. 978; but this is now altered by the J. Act, 1873, s. 25 (6), ante, p. 307. Where the policy requires the assured to deliver a certificate of the minister and churchwardens, as to the character of the assured, and the bond fides of the loss; Worsleij v. Wood, 6 T. R. 710; or particulars of loss within a certain time of the fire; Mason v. Harvey, x Excb. 819 ; 22 L. J., Ex. 336 ; it is a condition precedent. See Feamley v. L. Guarantee Co., 5 A p. Ca. 911, D. P. As to whom the notice of loss may bo given under a similar clause, sec Marsden v. City . 361. Where issued at Lloyd's, it is not subject to an implied condition that the policy should be put forward within a reasonable time. S. 0. As to stamp duties, vide ante, p. 269. Interest^ Vide ante, p. 451. It is necessary to show an interest in the subject insured at the time of insuring and of the fire. Lynch v. DalzeU, 1:56 Action on Policy of Fire Insurance. 4 Bro. P. 0., 2nd ed. 431 ; Saddlers' Co. v. Badcoclc, 2 Atk. 554. The unpaid vendor of a house may recover the full value thereof, if it be burnt before the conveyance is executed, though after the contract of sale. Cottingridge v. B. Exchange Assur. Co., 3 Q. B. D. 173. This interest need not be the absolute property ;' thus, an insolvent might insure a house, &c, to which his assignees were entitled, he being in possession and responsible to the real owners. Harks v. Hamilton, 7 Exch. 323 ; 21 L. J., Ex. 109. Warehousemen and wharfingers may insure their customers' goods in their custody, and may recover the whole value under a policy on goods " held in trust or on commission." Waters v. Monarch Assur. Co., 5 E. & B. 870; 25 L. J., Q. B. 102. And, a carrier, who so insures, may recover the whole value of goods lost by tire, although the owner of the goods may be disabled from recovering from the carrier by reason of the value not being declared under the Carriers Act. L. & N. W. By. Co. v. Glyn, 1 E. & E. 652 ; 28 L. J., Q. B. 188. See also Ebsworth v. Alliance Marine Insur. Co., L. B., 8 0. P. 596. But it is otherwise where the further words, " for which they " (the assured) " are responsible," are added. N. British Insur. Co. v. Moffatt, L. R., 7 C. P. 25. As to the claim of the general owner to the insurance money, when received by the assured, see Martineau v. Kitching, L. R., 7 Q. B. 436, and Ebsworth v. Alliance Marine Insur. Co., supra. Goods delivered by A. to B., who is to return to A. an equivalent quantity of similar goods, but not necessarily the identical goods delivered to B., are to be insured as the goods of B., and not as the goods held by B. in trust ; for the transaction amounts to the sale of the goods to B. S. Australian Insur. Co. v. Bandell, L. R., 3 P. C. 101. Premises of sufficient value were mortgaged to A., and then to B., and A. insured them in one office in a sufficient sum to cover his loan, and B. in another office to cover his loan, and they were burnt down ; A. recovered enough on his policy to reinstate them, but did not do so, and the premises not reinstated were insufficient to cover B.'s security ; it was held that B. was entitled to recover on his policy to the extent of his loss ; Westminster Fire Office v. Glasgow Provident Investment Society, 10 Ap. Ca. 699, D. P. ; but not for loss of rent of the premises. S. C. Description of the articles insured ; alteration in premises, ost, p. 458. Where a fire policy contained an exception of liability for loss or damage by explosion, except for such loss or damages as should arise from explosion by gas, and an inflammable vapour caught fire, exploded, and caused a further fire, it was held that gas meant only ordinary cual gas ; and that the exception included not only the effects of the explosion, but also the further fire caused thereby. Stanley v. Western Insur. Co., L. R., 3 Ex. 71. The policy covers a loss by fire owing to the negligence of the assured himself, if there be no fraud. Shaw v. Bobberds, 6 Ad. & E. 75. Wilful misrepresentations of the value of the property destroyed will, under the usual clause against fraudulent claims, defeat and vitiate the whole claim. Britton v. B. Insur. Co., 4 F. & F. 905 ; see also Chapman v. Pole, supra. As to condition to render account of loss, see Iliddle v. National, &c, Insur. Co. of New Zealand, (1896) A. C. 372, J. C. A condition "that if, at the time of any loss happening to any property hereby insured, there be any other subsisting insurances, whether effected by the assured or any other person, covering the same property," the insurer shall not be liable to pay more than his rateable proportion of such loss, applies only where the same property is the subject-matter of insurance, and the interests are the same. N. Brilisli & Mercantile Insur. Co. v. L. Liverpool & Globe Insur. Co., 5 Ch. D. 569, C. A. See further as 1:58 Action on Policy of Fire Insurance. to double insurance, Australian Agricultural Co. v. Saunders, L. R., 10 C. P. 6SS, Ex. Ch. Where A. is insured by B., and A. can also recover the loss from C, B. may, when he has made good A.'s loss, recover in A.'s name the amount over from C. Mason v. Sainsbury, 3 Doug. 61; N. British & Mercantile Insur. Co. v. L. Liverpool & Globe Insur. Co., ante, p. 457. And, so if, after B. has paid A. the amount of his loss, C, under a legal obligation, also makes it good, B. can recover the amount from A., whether A.'s right of action against 0. is founded on tort (Darrell v. Tibbitts, 5 Q. B. D. 560, C. A.), or arises out of contract. Castellain v. Preston, 11 Q. B. D. 380, 0. A. And if A., instead of receiving this sum from C, released his right against him, B. may recover from A. the value of this right to which he was entitled to be subrogated. W. of England Fire Insur. Co. v. Isaacs, (1897) 1 Q. B. 226, C. A. See also Phoenix Assur. Co. v. Spooner, (1905) 2 K. B. 753, and cases cited ante, p. 449'i. INSURANCE AGAINST ACCIDENTS TO CHATTELS, BURGLARY, &C. By a policy of insurance, plate glass in the plaintiff's shop front was insured against " loss or damage originating from any cause whatsoever, except fire," &c. ; a fire broke out ou premises adjoining the plaintiffs, but did not approach his shop front ; a mob attracted by the fire tore down the plaintiff's shop shutters, and broke the plate glass for the purpose of plunder ; it was held that the proximate cause of the damage was the lawless act of the mob, and not fire. Marsden v. City and County Assur. Co., L. R., 1 C. P. 232. Where after a proposal by the plaintiff to the defendant company for an insurance of his goods against burglary, the defendants sealed the policy which contained a clause that no insurance would be considered in force until the premium had been paid, after, but without notice of a loss by burglary, it was held that though no premium had been paid and the defendants retained the policy they were liable thereon. Roberts v. Security Co., (1897) 1 Q. B. 110, C. A. As to what constitutes a loss under such a policy, see In re George and Goldsmiths', &c, Insur. Assoc, (1899) 1 Q. B. 595, C. A. As to stamp duties, vide ante, p. 269. INSURANCE OF DEBTS AND SOLVENCY. An insurance company entered into a policy whereby they guaranteed to the assured, the plaintiff, the payment of a sum of money deposited by her in a bank in Australia, if the bank should make default in paying the same; the bank made such default and entered under a colonial statute into a scheme of arrangement with its creditors which was binding on the plaintiff, although she did not assent thereto. The company was held to remain liable to the plaintiff, but on payment was entitled to be subrogated to the plaintiffs rights under the scheme. Dane v. Mortgage Insur. Co., (1894) 1 Q. B. 54, C. A. ; Finlay v. Mexican Investment Co., (1897) 1 Q. B. 517. A contract of insurance of the solvency of a surety is avoided by the concealment of material facts. Section v. Heath, (1899) 1 Q. B. 782, C. A. ; reversed in D. P. sub nom. Seaton v. Burnand, (1900) A. C. 135, on the ground that the facts concealed were not material to the risk. Action on Contract of Affreightment. — Bill of Lading. 459 ACTION ON CONTRACT OF AFFEEIGHTMENT. This action lies by or against a shipowner, whether the ship be general or chartered. The contract need not be under seal. In the case of a general ship, the bill of lading, or in the case of a chartered ship, the charter-party, is the proof of the contract. As the pleadings and proofs are substantially the same, whether the contract be or be not under seal, the following cases are to be taken as applicable to actions on contracts between shipper and shipowner, whatever the technical form of action may be, unless otherwise specified. As to the admissibility of oral evidence to explain charter-parties, bills of lading, or other like contracts, see ante, pp. 21 et seq. Greater weight is to be given to the words inserted in writing than to the printed form. Margetsen v. Glynn, ante, p. 420. A charter-party, or memorandum in the nature of one, commonly contains clauses on the part of the shipowner, for seaworthiness, the reception and delivery of the cargo, and performance of the voyage, with an exception of certain perils. On the part of the charterer or freighter, the clauses are to load in a given time, and to pay freight and demurrage. As to stamp duties thereon, vide ante, p. 247. As to bills of lading, vide infra. The captain or master of a ship is an agent of the owners with larger powers than an ordinary agent. As between him and third persons, he is personally liable on contracts, made in the course of his ordinary employ- ment, in his own name, or as agent of the owner, and he is able to sue on contracts so made. So, where like contracts are made by him, whether he sign expressly as agent or not, the owner may sue or be sued on them. Hence, he may sign a charter-party or bill of lading in his own name, and thereby bind his owners. 3 Kent, Cora. §§ 1G1 — 1G4 ; Story on Agency, §§ 116 — 123. And, he may sue in his own name for freight ; Shields v. Davis, 6 Taunt. 65; unless it appear from the charter-party and bill of lading that he signed the latter as agent^only. Repetts v. Millar's Karri, &c., Forests, (1001) 2 K. B. 306. The master can bind the owners by his bill of lading only when he is their servant, and not when they have, although without the knowledge of the shipper, parted with the possession and control of the ship to the charterers. Baummo/l MaunJ'ar.tnriiig Go. v. Furness, (18D3) A. C. 8, D. P. This rule is not altered by the owner being registered as such, and also as managing owner, under 57 & 58 V. c. 60, s. 59. S. 0. The law of the country to which the ship belongs is prima facie that which binds the parties to a contract of affreightment; Lloyd v. Guiberf, L. K., 1 Q. B. 115, Ex. Ch. ; The Gaetano & Maria, 7 V. D. 137, C. A. ; The August, (18!)1) P. 328; but this rule will be modified where the parties show a different intention. Chartered Mercantile Bank <>/' India v. Sellur- lands India St 'earn Navigation Co., 10 Q. B. D. 521, 529, 540 ; The Industrie, < L894) P. 58, C. A. See further as to the master's authority to bind his owners, post, pp. 553, 586. Bill of lading."] A bill of lading contains a receipt for and description of the goods received on board, the names of the shipper and COnaigDee, the place of delivery (certain perils excepted) and the freight; and it is signed (in three parts) by the master, as agent of the shipowners. It is the contract of carriage between the shipowner and merchant; Leduc v. Ward, 20 Q. B. D. 475, C. A. ; and its terms cannot be varied by oral evidence. 8. C. Even where there is a charter-party and a sub-charter, the contract 160 Art ion mi Contract of Affreightment. is with tlic shipowner, unless there is a demise of the ship, or the shipowner has parted with possession of the ship. Wehner v. Dene SS. Co., (1905) 2 K. B. '.»L'. The shipowner must deliver all the goods described in the bill of lading, unless he can prove that they were not shipped. Smith v. Bedouin S. Navigation Co., (1896) A. C. 70, D. P. The words "or assigns" are usually added to the name of the consignee, and it is questionable whether it be transferable by indorsement, unless the words be subjoined; see Henderson v. Comptoir d'Escompte de Paris, L. R., 5 P. C. 253; except, perhaps, in the case of special custom in certain foreign trades ; see Benteria v. Ending, M. & M. 511. But the omission of the words " or assigns" does not of itself give notice that the person in whose name the bill is made out is entitled to deal with the goods absolutely. Henderson v. Comptoir d'Escompte de Paris, supra. Where the terms of the charter-party and bill of lading are inconsistent, those of the former prevail as between shipowner and charterer, and the latter is only a receipt for the goods. Bodocanachi v. Milium, 18 Q. B. D. 67, C. A. But as between the shipowner and the indorsee of the bill of lading, the latter prevails. See Serraino v. Campbell, (1891) 1 Q. B. 283, 290, 291, and Temperley SS. Co. v. Smyth, (1905) 2 K. B. 791, 802, C. A. A clause in the charter-party giving power to the master to sign bills of lading " without prejudice to this charter " means " that it is a term in the contract between the charterers and the shipowner, that notwithstanding any engagements made by the bills of lading, that contract shall remain unaltered." Turner v. Haji, &c, Azam, (1904) A. C. 826, J. C. As to the effect of discrepancy between these documents, see Mod Tryvan Ship Co. v. Kreuger, (1907) 1 K. B. 809, C. A. Although the indorsement of a bill of lading transferred the property in the goods, at common law, it conveyed no right of action to or against the indorsee in his own name as upon the original contract. Thompson v. Dominy, 14 M. & W. 403 ; Howard v. Shepherd, 9 C. B. 297 ; 19 L. J., C. P. 249. And, the receipt of the goods by the indorsee was only evidence for a jury of a new contract to pay freight in consideration of the delivery, on which he might be sued. Kemp v. Clark, 12 Q. B. 647. But, by the Bills of Lading Act, 1855 (18 & 19 V. c. Ill), s. 1, " every consignee of goods named in a bill of lading, and every indorsee of a bill of lading to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or indorsement shall have transferred to, and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods, as if the contract contained in the bill of lading had been made with himself. But by sect. 2, " nothing herein contained shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper or owner, or any liability of the consignee or indorsee by reason or in consequence of his being such consignee or indorsee, or of his receipt of the goods by reason or in consequence of such consignment or indorsement." The consignee or indorsee of a bill of lading may deprive the unpaid vendor of his right to stop the goods in transitu by indorsing it for valuable consideration, although the goods are not paid for, provided the indorsee for value has acted bond fide and without notice. The Marie Joseph, L. R., 1 P. C. 219, 227; The Argentina, L. R., 1 Adm. 370. A past debt is sufficient consideration. Leash v. Scott, 2 Q. B. D. 376, C. A.; overruling Bodger v. Comptoir d'Escompte de Paris, L. R., 2 P. C. 393. See further, Action for conversion of goods — Defence — Stoppage in transitu — how defeated, post, p. 992. The indorsee has transferred to him the same rights and liabili- ties in respect of the goods as if the contract in the bill of lading had been made with him. The Helene, B. & L. 415. Hence, actions now lie on the original contract by or against the indorsee of the bill of lading, and the ship- owner or master may sue him for freight, although he received the goods Bill of Lading. 461 under circumstances which negative any intention or undertaking to pay. And the shipowner may also be liable to the indorsee by estoppel on a representation made in tbe bill of lading. Compania Naviera, &c. v. Churchill, post, p. 478. It seems that a person taking a bill of lading by indorsement after a breach, by a wrongful delivery of the goods to a stranger, can maintain an action by virtue of sect. 1. Short v. Simpson, L. R., 1 C. P. 248, and at 252, 255, per Willes, J. See also Bristol, &c, Bank v. Midland By. Co., (1891) 2 Q. B. 653, C. A. The first indorsee of one part of a bill of lading, drawn in a set, " one of which being accomplished the others to stand void," gets the property in the goods, though he take no steps to enforce his rights. Meyerstein v. Barber, L. R., 4 H. L. 317. But the master is justified in delivering the goods to the consignee, to whom they are by such a bill of lading made deliverable, on production of one part of the bill, although there has been a prior indorsement for value of another part, provided the master had no notice thereof and the delivery was bond fide. Glyn v. E. & W. India Dock Co., 7 Ap. Ca. 591, D. P. See further as to bills of lading in sets, Sanders v. Maclean, 11 Q. B. D. 327, C. A. The Act does not seem to render any bill of lading negotiable which would not have been so before the Act. See Henderson Comptoir d'Escompte de Paris, ante, p. 460. The shipper, A., of goods, does not, by simply indorsing the bill of lading to B., and delivering it to him by way of pledge for a loan, " pass the property in the goods " to B., so as to make B. liable to the ship- owner for freight under sect. 1. Sewell v. Burdick, 10 Ap. Ca. 74, D. P. See further sect. 3 (cited post, p. 477), as to the effect of a bill of lading. By the Sale of Goods Act, 1893 (56 & 57 V. c. 71), s. 19 (2), " Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve the right of disposal." See Ogg v. Shuter, 1 C. P. D. 47, C. A. ; Mirabita v. Imperial Ottoman Bank, 3 Ex. D. 164, 172, C. A. (3.) "Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him." This is in accordance with the principle laid down in Shep- herd v. Harrison, L. P., 5 H. L. 116 ; Ex parte Banner, 2 Ch. D. 278, C. A. ; Mirabita v. Imperial Ottoman. Bank, supra. And the rule applies notwith- standing a statement in the invoice, that the goods are shipped on account and at the risk of the consignee. Shepherd v. Harrison, supra. The con- signee may, however, although he has not accepted the bill of exchange, confer a good title on an innocent buyer. Calm v. Pocketfs Bristol, . L82, C. A. Delay, caused by the expected perils, when so great as to put an end 464 Action on Contract of Affreightment. in a commercial sense to the speculation, entered into between the ship- owner and charterers, exonerates the charterer from loading; Jackson v. Union Marine Insur. Co., L. E., 8 C. P. 572: L. E., 10 C. P. 125, Ex. Oh.; such delay has not, however, this effect under any other circumstances ; Burst v. Usborne, ante, p. 163 ; Tarrabochia v. Hickie, 1 H. & N. 183 ; 26 L. J., Ex. 26 ; Jones v. Holm, L. P., 2 Ex. 335 ; but gives only an action for damages. MacAndrew v. Chappie, L. P., 1 C. P. 643, 648, per Willes, J. Where the ship was not chartered for any particular cargo, and a small loss of freight was all the loss occasioned by the delay : it was held, that the stipulation that the ship should with all convenient speed proceed to E., and there load a full cargo was not a condition precedent. S. C. A statement of tonnage is not a warranty, or condition precedent. Barker v. Windle, 6 E. & B. 675 ; 25 L. J., Q. B. 349, Ex. Ch. See Pust v. Bowie, 5 B. & S. 20 ; 32 L. J., Q. B. 179 ; 5 B. & S. 33 ; 34 L. J., Q. B. 127, Ex. Ch. To an action by shipowner, A., against skipper, B., for contributions to general average, it is no answer that the ship was not seaworthy, unless it be shown tbat its unseaworthiness at the commencement of the voyage caused the loss, in which case it is a good defence, in order to avoid circuity of action. Schloss v. Heriot, 14 C. B., N. S. 59 ; 32 L. J., C. P. 211. So A. cannot claim contribution in respect of jettison rendered necessary by the wrongful acts of himself or his servants. Strang v. Scott, 14 Ap. Ca. 601, J. C. If the ship be not fit to carry a reasonable cargo of the kind for which the ship was chartered, the charterer is not bound to load. Stanton v. Richardson, L. E., 7 C. P. 421 ; L. P., 9 0. P. 390, Ex. Ch. The question as to what representation amounts to a condition precedent, or to a warranty, depends entirely on the intention of parties, as apparent on the contract itself; there is no general rule that representations in a charter- party are equivalent to warranties, or to conditions precedent. Croockewit v. Fletcher and Bentsen v. Taylor, ante, p. 463 ; see MacAndrew v. Chappie, supra. Bemurrage.] It is usual for the merchant to undertake to load and unload within a certain number of days, called lay days, with liberty to delay the ship for a longer speci6ed period on payment of a daily sum, which, as well as the delay itself, is called demurrage. If the charter-party contains a fixed number of demurrage days, as well as lay days, and the ship is, by the fault of the merchant, delayed beyond them both, that is a detention, and is to be compensated for by damages ; but, where no demurrage days are mentioned, all detention beyond the lay days is demurrage. Sanguinetti v. Pacific Steam Nav. Co., 2 Q. B. D. 238, 251, per Brett, L.J. ; Harris v. Jacobs, 15 Q. B. I). 247, C. A. The days are, at the places of loading and unloading respectively, in the absence of contrary usage, to be taken as con- secutive or " running " days ; Brown v. Johnson, 10 M. & W. 331 ; but, by the custom of the port of London, the days in the clause of demurrage mean working days, which exclude Sundays and holidays at the custom house. Cochran v. Betberg, 3 Esp. 121. And, by usage, there may be other breaks in the calculation of running days. Nielsen v. Wait, 14 Q. B. D. 516; 16 Id. 67,0. A. A running day is a calendar day, from midnight to midnight. Ihe Katy, (1895) P. 56, 0. A. For the purpose of a demurrage or despatch money (vide infra), clause, a day is to be taken as of its natural length of 24 hours. Lang v. Bollway, 3 Q. B. D. 437, 442, C. A. A fraction of a day counts as a day. Commercial SS. Co. v. Boulton, L. P., 10 Q. B. 346 ; unless, as in Yeoman v. Bex, (1904) 2 K. B. 420, C. A., this is con- trolled by special terms in the charter-party. But the charterer is entitled to whole days for lay days. The Katy, supra ; Houlder v. Weir, (1905) 2 K. B. 267. As to the calculation of " weather-working days," see Branckelow Shipowner against Charterer, &c. — Demurrage. 465 SS. Co. v. Lamport, (1897) 1 Q. B. 570. Dispatch money is payable on the difference between the time allowed by the charter and that actually occupied by the loading and discharge. Tlie Ole.ndevon, (1893) P. 269. The lay days, allowed for loading or discharge, begin to run when the vessel arrives at the usual place of loading or discharge, and not at the port merely. Brereton v. Chapman, 7 Bing. 559 ; Bastifell v. Lloyd, 1 H. & C. 388 ; 31 L. J., Ex. 113 ; Nelson v. Bah!, p>ost, p. 467 ; Leonis SS. Co., v. Bank, (1907) 1 K. B. 344. Where the place of discharge is a wharf or a berth at a dock, the clays ran from the time the ship reaches her appointed berth for loading or discharge. Murphy v. Coffin, 12 Q. B. D. 87 ; Cood v. Lsaacs, (1892) 2 Q. B. 555, C. A. ; TJiarsis Sulphur, &c, Co. v. Morel, (1891) 2 Q. B. 647, C. A. Where the vessel was to proceed to " Tyne dock to such ready quay berth as ordered by the charterers," it was held that the charterers must name a berth ready to receive the vessel, aud that in default of so doing they were liable under the demurrage clause. Harris v. Jacobs, 15 Q. B. D. 247, C. A. See also Pyman v. Dreyfus, 24 Q. B. D. 152. And the liability continues, in the absence of default by the shipowner, till the completion of the loading. Tyne, &c., Shipping Co. v. Leach, (1900) 2 Q. B. 12. Where, however, the charterer has, in a charter-party containing a strike clause, the choice of several named places of discharge, of which he has selected R., he is not bound to name any other place, on knowing that a strike of porters had arisen at R., which rendered discharge there within the time limited impossible. Bulman v. Fenwick, (1894) 1 Q. B. 179, C. A. Where the ship is to unload at S., or " so near thereto as she may safely get at all times of the tide and always afloat," and the charterers are to pay demurrage for delay, and she cannot, on account of the tide, reach S. until 4 days after she had arrived at K. R., the nearest point where she could float ; it was held that demurrage was payable from the arrival at K. R. Horsley v. Price, 11 Q. B. D. 244. When the ship has reached her place of discharge, the lay days continue to run, unless the unloading was prevented by the act of the master ; Budgett v. Binnington, (1891) 1 Q. B. 35, C. A. ; even although a strike prevented him from carrying out the share of the work of unloading for which he was responsible. S. C. So, although excepted perils caused delay in unloading. Thiis v. Byers, 1 Q. B. D. 244. The days ruu, although the con- signee cannot take his goods away, owing to the default of the consignees of other goods in not removing their goods. Straker v. Kidd, and Porteus v. Watney, 3 Q. B. D. 223; Jd. 534, C. A. As to damages for detention, see Jones v. Adamson, 1 Ex. D. 60. The lay days allowed for loading and unl fil- ing are usually to be kept distinct. See Marshall v. Bolckow, 6Q. B. 1>. '_'•". 1. When the charter-party is silent as to the time of loading, reasonable time under the circumstances as they actually exist at the time of leading is implied, and not that which would be a" reasonable time under ordinary circumstances. Carlton SS. Co. v. Castle Mail Packets Co., (1898) A. C. 486. See also Hick v. Baymond,post, p. 466, dissenting from the opinions expressed on this point in Adams v. B. Mail Co., 5 C. B., N. S. 492; 28 L. J., C. P. 33. In the absence of special circumstances, as to which see Jones v. Green & Co., ami other cases cited, post, p. 466; it is the duty of the freighter to have his cargo in readiness for shipment, and the question of reasonable time for loading applies only to a cargo so ready; Anion S.S. Co. v. Weir & Co., (1905) A. C. 501, 1). P., vide Adams v. B. Mail Co., 5 C. B., N. S. 494, per Williams and Byles, .Id. Thus, a strike in the collieries, whence the freighter was to get his cargo, is no excuse for delay. S. C. So, where a cargo was to be loaded with " usual dispatch," this was held not to excuse a merchant, who had been prevented, by frost, from bringing his cargo to the place of loading. Kearon v. Pearson, 7 II. & N. 386; 31 L. J., Ex.1. But the risk of strikes may he thrown on the shipowner B. — VOL. I. " ll 466 Action on Contract of Affreightment. by the terms of the charter-party; see Dobell v. Green, (1900) 1 Q. B. 526, 0. A. An exception for "strikes, lock-outs, accidents to railway," and " other causes beyond the charterer's control " is confined to cases ejusdem generis with the specific exception. In re Richardson & Samuel, (1898) 1 Q. B. 261, C. A. With regard to unloading, where no time is expressed, a reasonable time under such circumstances as actually exist at the time and port of unloading and are beyoud the control of the consignee, is implied ; thus the merchant is not responsible for delay there caused by the strike of labourers, Hick v. Raymond, (1893) A. C. 22, D. P.; or by the crowded state of the docks, Hulthen v. Stewart, (1903) A. C. 389, D. P. Both the shipowner and merchant are bound to use reasonable diligence, with regard to all the circumstances. Ford v. Ootesworth, L. R., 1 Q. B. 127 ; L. R., 5 Q. B. 544, Ex. Ch. And neither party can sue the other for delay arising from a cause over which the latter had no control. S. C. ; Cunningham v. Dunn, 3 C. P. D. 443, C. A. As to the respective duties of the parties where the discharge is a joint act, see Petersen v. Freehody, (1895) 2 Q. B. 294, C. A. An option given to the shipowner of landing the goods, in default of their being taken by the consignees from the ship on arrival, does not divest him of any other remedy. Tlie Arne, (1904) P. 154. The parties are bound by the custom of the port or dock, whether this be expressed in the charter-party ; Good v. Isaacs, ante, p. 465; or not; Tlie Jaederen, (1892) P. 351, following Postlethwaite v. Freeland, 5 Ap. Ca. 613, per Ld. Blackburn ; see, however, hereon, Hick v. Raymond, (1893) A. C. 30, per Ld. Herschell, C. Thus, the question as to whether the defendant has loaded or unloaded within a reasonable time where the contract is "to be ready to load or unload in regular turns," is to be governed by the usage of the port as to the turns or order of loading or unloading. Leidemann v. Schultz, 14 C. B. 38; 23 L. J., C. P. 17; see Shadforih v. Cory, 32 L. J., Q. B. 379, Ex. Ch. ; Bastifell v. Lloyd, ante, p. 465 ; Lawson v. Burness, 1 H. & C. 396 ; Cawthorn v. Trickett, 15 C. B., N. S. 754 ; 33 L. J., C. P. 182 ; and Postlethwaite v. Freeland, 5 Ap. Ca. 599, D. P., where the earlier cases are collected and reviewed. See also Barque Quilpue v. Brown, (1904) 2 K. B. 264, C. A., and other cases, ante, pp. 22 et seq. The custom may be excluded by the terms of the contract. Brenda SS. Co. v. Green, (1900) 1 Q. B. 518, C. A. When the charter-party is entered into by the shipowner with full know- ledge of all the circumstances under which the cargo is to be obtained and loaded, delay in getting the cargo may be an excuse. Jones v. Green & Co., (1904) 2 K. B. 275, C. A., following Harris v. Dreesman, 9 Exch. 485; 23 L. J., Ex. 210. So, where the charter-party provided that "detention by ice should not be reckoned as laying days," it was held that this must be construed with reference to the particular nature of the place of export, S., and, as there were no warehouses there, and the cargo had to be brought down to S. in boats for loading, a detention of these boats by ice was within the exception of the charter-party. Hudson v. Ede, L. R., 2 Q. B. 566 ; L. R., 3 Q. B. 412, Ex. Ch. See also Smith v. Rosario Nitrate Co., (1893) 2 Q. B. 323; (1894) 1 Q. B. 174, C. A. So, where time lost by strikes was not to count as part of the time allowed for discharge, a strike of labourers, who would have discharged the lighters which conveyed the cargo from the ship to the place of discharge, was held to be within the clause. The Alne Holme, (1893) P. 173. But the exception does not in general apply to delay caused by ice before the cargo has reached the limits of the place of loading. Kay v. Field, 10 Q. B. D. 241, C. A.; Grant v. Coverdale, 9 Ap. Ca. 470, D. P. As to detention by ice caused bv breakdown of steamer, see In re Traae and Lennard & Sons, (1904) 2 K. B. 377, C. A. The defendant, an English subject, chartered the plaintiffs ship to take Shipowner against Charterer, &r. — Freight and Damages. 467 on board a cargo at Odessa, a port of Russia, 45 running days being allowed for loading and unloading. When there, the defendant's agent told the master that there was no cargo for him and urged him to sail ; the master refused; and continued to demand a cargo until, tbe running days not having expired, war was declared between England and Russia: held, that no action would lie against the defendant, as the refusal by his agent, not having been accepted by the master as a renunciation of the contract, there had been no breach of contract by tbe defendant, when the war put an end to it. Avery v. Bowden, 5 E. & B. 714 ; 25 L. J., Q. B. 49 ; 6 E. & B. 962 • 26 L. J., Q. B. 3, Ex. Ch. ; Reid v. Eoskins, 5 E. & B. 729 ; 25 L. J., Q. B. 55 ; 6 E. & B. 953 ; 26 L. J., Q. B. 5, Ex. Oh. Where the charter allows lay days for loading and demurrage days, and makes " the charterer's liability to cease when the ship is loaded, the captain having a lien upon the cargo for freight and demurrage," the charterer is discharged from liability incurred for demurrage during the loading ; Francesco v. Massey, L. R., 8 Ex. 101 ; Kish v. Gory, L. R., 10 Q. B. 553, Ex. Ob.; Sanguinetti v. Pacific Steam Navigation Co., 2 Q. B. D. 238, 0. A.; and the term "demurrage" will include damages for detention, not strictly demurrage. S. 0., and Harris v. Jacobs, cited ante, p. 465. The clause extends to all liability under the charter arising after the ship is loaded. French v. Oerber, 1 0. P. D. 7.17 ; 2 O P. D. 247, 0. A. Where, however, the only provision as to loading is that the ship is to load " in the customary manner" and discharge her cargo in a certain number of days, paying demurrage after that time, the charterer is not released from liability in respect of delay in loading. Lockhart v. Falk, L. R., 10 Ex. 132; Dunlop v. Balfour, (1892) 1 Q. B. 507, C. A.; Clink v. Radford, (1891) 1 Q. B. 625, 0. A. The main principle to be deduced from the cases is that the cesser clause is inapplicable to the particular breach complained of if, by construing it otherwise, the shipowner would be left unprotected in respect of that particular breach, unless the cesser clause is expressed in terms that prohibit such a conclusion. S. 0. ; Hansen v. liar mid, (1894) 1 Q. B. 612, C. A. As to when demurrage is chargeable on goods delivered under a bill of lading, on the ground that the bill of lading incorporates the provisions of the charter-party, vide post, pp. 476, 477. Freight and damages.} Freight is regulated by the contract, or, if none, by usage, or a quantum meruit, or by the course of former dealing between the parties. As a general rule, no freight is due until tin' guilds be carried to the destined port, without alteration of their nature by perils of the sen. Duthie v. Hilton, L. R., 4 C. P. 138; Asfar v. Ill a ml, II, (1896) 1 Q. 1'.. 1L'.:, 0. A. Where charter-party freight is payable on unloading and right delivery of the cargo the freight is not earned until the unloading and delivery of the whole cargo has been completed. Brown v. Tanner, L. II., 3 Oh. 597. The delivery and payment are concurrent acts. Paynter v. James, L. R., 2 0. P. 348; W. N. 1868, p. 141, Ex. Oh. Where a ship is to proceed to certain "docks or as near thereto as she may safely get," it is not sufficient for her to go to the dock gates only; Nelson v. Dahl, 12 Ch. D. 568; 6 A.p. < 'a. 38, I >. I'.; if she cannot enter on arrival there, by reason of the docks being full, her obligation to wait to cuter depends on the question of fact, whether, under all the circumstances, it is reasonable that she should so wait; if it lie not reasonable, Hie charterer must take delivery as near to the dock as the ship can Bafely get. S. 0. See on the construction of the words in a charter-party "as near thereto as she may safely get," the judgment of Ld. Blackburn in S. O, Id. pp. 50, 51, and cases there cited. Where i ship is to go to a safe |„, r t. or so near thereto as she may safely get, and "always lie and discharge. H II 2 168 Action on Contract of Affreightment. afloat," the master is not bound to discharge at a port where she could qoI so lie without being lightened. The Alhambra, 6 P. D. 68, C. A. See also Horsley v. Price, 11 Q. B. D. 244, ante, p. 465. Where by the charter-party a ship was to proceed with a cargo to a port, "to discharge in a dock as ordered on arriving if sufficient water, or so near thereunto as she may safely get always afloat," it was held she was only bound to discharge in a dock named if there were sufficient water when the order was given. Allen v. Coltart, Id. 783. See also The Curfew, (1891) P. 131. Where the shipowner carries the cargo to the port of destination, but from the nature of the cargo is unable to land it there, the freight becomes payable; and, if the prudent course for the master to adopt is to bring the cargo home again he is entitled to be paid back-freight as well as the expenses incurred in endeavouring to land the cargo. Cargo ex Argos, L. K., 5 P. C. 134, 155. So, freight is payable where the cargo is delivered at a port included in a charter-party, but not at the port named by the charterer, that port having become dangerous for the ship, a foreign one, by reason of war having broken out. The Teutonia, L. R., 4 P. C. 171. The freight is sometimes made wholly or partly payable at the port of loading. If part of it be made payable on the " fiual sailing " of the ship from the port of loading, or " from her last port in the United Kingdom," it is not payable if the ship be wrecked in an artificial canal within the limits of the port on its way out to sea, with the clearances on board, and all ready fur sailing; Eoelandts v. Harrison, 9 Exch. 444 ; 23 L. J., Ex. 169 ; Sailing ^hij) Oarston Co. v. Hickie, 15 Q. B. D. 580, C. A. : and where the ship has got out of port and cast anchor some miles off, but was not in a condition to proceed on her voyage, the shipowner was held not entitled to freight payable " on sailing." Thompson v. Gillespie, 5 E. & B. 209 ; 24 L. J., Q. B. 340. But it is otherwise where the ship has once left the port in a state ready for the voyage, and it is immaterial that she has been driveu back into the port by stress of weather. Price v. Livingstone, 9 Q. B. D. 679, C. A. The term " port " in a charter-party must be understood in its popular or commercial sense. S. C. ; Sailing Ship Oarston Co. v. Hickie, supra ; ace. Hunter v. N. Marine Insur. Co., 13 Ap. Ca. 717, D. P. See further, ante, p. 426. Pay- ments made in advance, on account of freight, cannot be recovered back, though the ship be lost. Anon., 2 Show. 283 ; Byrne v. Schiller, L. R., lli< ry Co., L. I!., 9 Ex. 74. As to the freight payable where the weight or bulk of the goods when delivered differs from that when shipped, see S. CO.; Goulthiirst v. Sweet, L. R., 1 C. P. 649; Fully v. Terry, L. R., 8 C. I\ 679. Lump freight is a sum payable for the use of the ship, and is payable though part of the cargo is lost by the excepted perils. Robinson v. Kiiujhis, L. R., "> Ions dead weight as a lump freight, with a pro rata deduction it' the guarantee "ere not fulfilled, and by a memorandum on the chattel- party, or otherwise, the charterer has represented the nature of the cargo, and the ship cannot carry 2,000 tons of cargo tendered, owing to its not being according to the repre- sentation, the charterer cannot claim any deduction from the freight. MackUl v. Wright, 14 Ap. Ca. L06, D. P. The charterer has no right to fill the cabins as well as the carrying part 17o Action on Contract of Affreightment. of the ship, and if permitted by the master to do so, he is liable to pay the current rate for it, and cannot insist on paying only the charter price. Mitcheson v. Nicol, 7 Exch. 929; 21 L. J., Ex. 323. So on the other hand, under a voyage charter to load a full and complete cargo of wheat, the ship- owner may not carry bunker coal for a subsequent voyage. Darling v. Ecu hum, (1906) 1 K. 13. 573 ; (1907) 1 K. 13. 846, C. A. II croods of the consignor, and carried at his risk, be delivered to the consignee, and he do not pay the freight, the consignor is liable, even though the bill of lading express that the goods are to be delivered to the consignees "paying freight for the same," this clause being inserted merely for the benefit of the shipowner. Domett v. Bedford, 5 B. & Ad. 521; see also Gt. W. By. Co. v. Bagge, 15 Q. B. D. 625. This right to claim freight from the shipper is expressly reserved by the Bills of Lading Act, 1855 (18 & 19 V. c. Ill), s. 2, ante, p. 460. The circumstances may, however, rebut the inference of freight being payable, arising merely from the goods having been (arried in the plaintiffs ship under bills of lading signed by the master. Smidt v. Tiden, L. R., 9 Q. B. 446. Though freight may not be payable in respect of goods shipped by A. in his own ship, yet if by the bills ot lading he make the goods deliverable to the order of B., who has advanced him money on the security of the goods, freight becomes payable to C, to whom A. assigned the freight, to be earned by the ship. Weguelin v. Cellier, L. R., 6 H. L. 286. As to right of mortgagee, abandonee, or other transferee of the ship to freight, see Keith v. Burroivs, 2 Ap. Ca. 636, D. P.; The Med Sea, (1896) P. 20, C. A. ; Shillito v. Biggart, (1903) 1 K. B. 683. The measure of damages for not loading any cargo is the amount of freight which would have been carried, deducting expenses and any profit earned during the time covered by the charter; but semb., the shipowner is not bound to take on board another cargo in order to reduce the damage. Smith v. M'Guire, 3 H. & N. 554; 27 L. J., Ex. 465; Morris v. Levison, 1 C. P. D. 155, 158. The shipowner cannot sue the merchant for not loading, when the loading was prevented by want of notice to him, that the ship was ready to receive the cargo. Stanton v. Austin, L. R. 7 C. P. 651. Freight pro rata.'] If the shipper accept part of the goods, though carried under an entire contract for freight, Mitchell v. Darthez, 2 N. C. 555; or accept the goods before the completion of the voyage, Vlierboom v. Chapman, 13 M. & W. 238; The Soblomsten, L. R. 1 Adm. 293; a new contract to pay pro rata may be inferred. But, as a general rule, unless the goods be carried to the destined port, no freight is due. S. C; Metcalfe v. Britannia Iron Works Co., 1 Q. B. D. 613; 2 Q. B. D. 423, 0. A. Thus, if the master justifiably sell part at an intermediate port, he is not entitled to recover freight, pro rata, for the goods sold. Hopper v. Burness, 1 C. P. D. 137 ; Bill v. Wilson, 4 C. P. D. 329. A fortiori, if the master sell the goods unjustifi- ably. Acatos v. Bums, 3 Ex. D. 282, C. A. If the master be disabled from carrying the goods further, he may tranship them, and upon safe delivery at their destination, he is entitled to the whole freight as on the old contract, without reference to the contract with the new ship. Shipton v. Tliornton, 9 Ad. & E. 314. The master has a reasonable time for re-shipment, and if lie be prevented by default of the owner of the cargo from forwarding the car^n from an intermediate port to its destination, the whole freight is payable. Chary v. M Andrew, 2 Moo. P. C, N. S. 216; The Soblomsten, pra. The master, while afloat, or in a foreign port where there is no agent "I the shipper, becomes, ex necessitate, his agent as to the goods, as well of the shipowner as to the ship and freight ; and he must do what in the exercise of a sound discretion is best for both parties; and in such a case, and not otherwise, the shipper is bound by his acts, so as to be liable for ireight Shipowner, against Charterer, &c.—Lien for Freight, &t. 471 on a contract made by the master. Matthews v. Gibbs, 3 E. & E. 282 ; 30 L. J., Q. B. 55. Lien for freight, &c] In addition to his remedy by action, the shipowner has a lien on the goods for height ; and where the charterer puts goods of his own on board under a hill of lading, there is a lien on the goods for the chartered freight, and this lien holds good against any one taking the bill of lading with knowledge of the terms of the charter-party. Kern v. Deslandes, 10 C. B., N. S. 205 ; 30 L. J., G. P. 297. The terms of the bill of lading may, however, be such as to waive the lien for the freight, in whole or part, as when it is payable at the port of lading, or by the shipper at a given time after sailiu?, ship lost or not lost. Kirchuer v. Venus, 12 Moo. P. C. 3G1 ; following How v. Kirchuer, 11 Moo. P. G. 21, accord. Tamvaco v. Simpson, L. R., 1 C. P. 363, Ex. Ch. A lien cannot be exercised on freight in the hands of the ship's agents for charter-party here accruing, but not then due. Wehner v. Dene S.S. Co., (1905) 2 K. B. 92. A lien on sub-freight given to a shipowner by a charter-party can only be exercised before the sub- freight has been paid to the charterer of the ship: the shipowner cannot follow it subsequently. Tagart Beaton & Co. v. Fisher, (1903) 1 K. B. 391, C. A.; see further Turner v. Haji, &c.,Azam, (1904) A. G. 826, J. C. As to lien for demurrage, vide post, pp. 476, 477. Where goods upon which the master of a ship has a lien, are deposited in the king's warehouse in pursuance of the requisition of an Act of Parlia- ment, the lien is not thereby waived. Per Ld. Kenyon, G.J., Ward v. Felton, 1 East, 512 ; Wilson v. Kymer, 1 M. & S. 157. So, where the consignee refuses to take the goods, the master may, it seems, place them in a warehouse under the exclusive control of himself, or the shipowner, without losing his lieu. Mors-le- Blanch v. Wilson, L. R., 8 C. P. 227. Under the provisions of many local and personal Acts, general wharves, called " sufferance wharfs," were appointed where goods might be landed and stowed, the shipowner retaining the right of lien lor freight ; and now, generally, by the Merchant Shipping Act, 1894 (57 & 58 V. c. 60), Part VII., certain powers are given to shipowners to land and enter goods from foreign ports in default of the owner, and to retain the lien for freight by giving notice to the owner of the wharf, iVo. Sec Derrcsf'ord v. Montgomerie, 17 G. B., N. S. 379; 34 L. J., G. P. 41; Wilson v. London, Italian and Adriatic S. Navigation Co., L. R., 1 C. P. 61 ; Meyerstein v. Barber, L. 1!., 2 G. P. 317, 330, 331 ; L. II., 4 II. L. 32s, 330; The Energie, I,. R, 6 C. P. 306; Qlyn v. E. & W. India Bock Co., 7 A p. Ca. 591, D. P.; h'mness, Withy & Co. v. W. N. White & Co., (1895) A. G. 40, D. P. A shipowner has no lieu on goods shipped for unliquidated damages by Teason of the charterer failing to load a full cargo. Phillipav. Bodie, 15 East, 547; Gray v. Carr, L. R., 6 Q. B. 522, fix. Ch. Where, however, the rate of freight and ship's tonnage lias lieen agreed to, the claim is then a liquidated one for which the snipowner has a lien. McLean v. Fleming, L. R., 2 II. L. Sc. 128; better, L. II, 6 Q. B. 558, n. The shipowner's claim in these cases is known as "dead freight," a term, however, properly applicable only where the claim is liquidated. Implied contracts on part of charterer or shipper."] Where by a charter- party a ship is to proceed to "a safe port," to be aa '1 by charterers, they are not entitled to name a port, safe by nature, but closed by the local government, so that a vessel entering it withoul a permit would bo liable to confiscation; and, having named such a port, they are liable for a breach of the contract implied on their part to name a safe porl within a reasonable time. Ogden v. Graham, 1 B. & S. 773; 31 L. J., . & L. 404. Where the exception is " of thieves," the shipowners must prove that the theft was committed by some one external to the ship. Taylor v. Liverpool eft Qt. W. Steam Co., L. R., 9 Q. B. 546. An exception againal loss by "pirates, robbers, or thieves of whatever kind, whether on hoard or not, or by land or Bea," does not include thefts by stevedore's men employed in the service of the ship. Steinman v. Angier Line, (1891) 1 Q. I'.. 619, C. A. ; see Dunn v. fiuc/cnall Pros., (1902) 2 K. B. 61 I, C. A. An exception oi dangers oi the seas does not include: barratry. The Ghasca, L. Et., I A. 1 16. An exception against leakage does not include injury done to other goods by such leakage. 1,1 Action on Contract of Affreightment. Thrift v, Ybule, 2 C. I'. I >. 132. An exception of damage caused by naviga- tion or management does not include damage caused by improper stowage. Eayn v. Culliford, I C. P. D. 182, C. A.; The Ferro, (1893) P. 38. An exception in favour of jettison dues not extend to goods improperly stowed on deck. /•'. Exchangt Shipping Co. v. Dixon, 12 Ap. Ca. 11, D. P. And loss by the jettison of goods so stowed is not too remote. S.O. A condition '■ ii" claim whatever for damage will be admitted, unless made before goods are removed," covers all damage whether apparent or latent, which could have been discovered at the place of removal by examination with reasonable care and skill. Moore v. Harris, 1 Ap. Ca. 318, J. C. An exception of " any damage to any goods, which is capable of being covered l>y insurance," does not extend to a general average loss sustained by the goods ; Crooks v. Allan, 5 Q. B. D. 38 ; nor does a clause that " the steamer should be provided with a deck load, if required, at full freight, but at merchant's risk." Burton v. English, 12 Q. B. D. 218, C. A. An exception for perils of the seas or navigation caused by negligence, default, or error in judgment of the master engineers or others of the crew extends to damage to cargo caused by sea water let in by a tap being opened by mistake. Blackburn v. Liverpool, Brazil, &c, S. Nav. Co., (1902) 1 K. B. 290, so to a loss by the stranding of the ship through the negligence, not wilful, of the master, who was also part owner. West-port Coal Co. v. MP hail, (1898) 2 Q. B. 130, C. A. ; and to negligence during loading. The < '"iron Park, 15 P. D. 203. See also Baerselman v. Bailey, (1895) 2 Q. B. 301, C. A. As to negligence during unloading, see The Accomac, 15 P. D. 208, C. A.; The Glenochil, (1896) P. 10; see also The Torbry an, (1903) P. 194, where the exception was " of all other accidents caused by negligence." Deviation from the contemplated voyage {vide ante, p. 432), avoids the exception. Thorley (Joseph) v. Orchis S.S. Co., (1907) 1 K. B. 243 ; affirm. Id. 660, C. A. Where the ship has put into a port of refuge for repairs, the shipowner is liable to the charterer for abandoning the voyage at that port, unless, owing to the excepted perils, it was impossible to complete the voyage either from physical causes or in a business sense, as such a course would have been unreasonable. Assicurazioni Generali v. S.S. Bessie Morris < 'o., (1892), 2 Q. B. 652, C. A. As to exceptions under the "Harter Act," see The Rodney, (1900) P. 112 ; Eowson v. Atlantic Transport Co., (1903) 2 K. B. 666, C. A., and McFadden v. Blue Star Line, (1905) 1 K. B. 697. See further, as to the losses which fall within the perils usually excepted, Marine Insurance — Prooj of Loss, ante, pp. 434 et seq. Statutory exemptions from, or limitation of liability, .] The existing pro- visions for limiting the liability of shipowners are comprised in the Merchant Shipping Act, 1894 (57 & 58 V. c. 60), Part VIII., which by sect. 509 applies to the whole of her Majesty's dominions. By sect. 502, the owner of a British sea-going ship, or share therein, shall not be liable to make good any loss or damage that may happen, without his actual fault or privity in the following cases, viz.: (1) where any goods, merchandise, or other things whatsoever taken on board, are lost or damaged by reason of fire on board; or (2) where any gold, silver, diamonds, watches, jewels, or precious stones • mi board, the true nature and value of which have not at the time of ship- meni been 'leclared by the owner or shipper to the owner or master in the hills of lading or otherwise in writing, are lost or damaged by reason of any robbery, embezzlement, making away with or secreting thereof. As to fire, The Diamond, (1906) P. 282. The shipowner may be liable on an Jin plied warranty that the bullion room in which gold is carried is reasonably tit to resist thieves. Queensland National Bank v. Pen insular & Oriental, etc., Merchant against Shipowner, &c. — Implied Contracts. 475 Co., (1898) 1 Q. B. 567, C. A. By sect. 503 (1, 2), the owners of any ship, whether British or foreign, shall not, in casus which occur without their actual fault or privity, be answerable in damages in respect of loss or damage to any goods, merchandise, or other things on board, to an amount exceeding 81. for each ton of the ship's tonnage — registered tonnage of sailing ships, and, by 6 E. 7, c. 48, s. 69, that, with the addition of any engine-room space deducted, in case of steam ships. The section contains provisions for ascertaining a foreign ship's tonnage. The defendant is also liable to pay interest on the amount from the date of collision. Smith v. Kirby, 1 Q. B. D. 131. The section extends to damage caused by delay in delivering goods; see Millen v. Brasch, 10 Q. B. D. 142, C. A., post, p. 639 ; and to the loss of passengers' luggage ; The Stella, (1900) P. 151, 162, n. ; L. & S. W. By. Co. v. James, L. K., 8 Ch. 241 ; but not to delay caused to passengers. S. C. As to what is a ship within this section, vide post, pp. 783, 784. Charterers by demise, are not " owners " within the above sections, see The Hopper, No. 56, (1906) P. 34. By sect. 503 (3), the owner of every sea-going ship is liable for every loss or damage arising on distinct occasions as if no other loss had arisen. See The Bajah, L. K., 3 A. 539 ; The Bernina, 12 P. D. 36 ; and Tlie Sclnvan, (1892) P. 41U, C. A. As to the measurement of ship, see The Franconia,3 P. D. 164, C. A. ; The Zanzibar, (1892) P. 233; The Petrel, (1893) P. 320 ; and cases there cited. Evidence may be given of the real tonnage of the ship, although the registered tonnage is less ; see sect. 82. Tlie Becepta, 14 P. D. 131. By sect. 508, nothing in Part VIII. shall be construed to lessen the liability of any master or seaman, being also owner or part-owner of the ship, to which he is subject as such master or seaman ; or to extend to any British ship which is not recognized as a British ship within the meaning of the Act, i.e. is not registered [sect 2 (2)], except in the case of certain ships under 15 and 20 tons respectively (sect. 3). See further on the above sections, post, p. 787. By sect. 603 (1), neither owner nor master is liable for loss or damage occasioned by the fault or incapacity of a qualified pilot, where the employment of one is compulsory. On the construction of this section, and as to when the employment of a pilot is compulsory, vide Negligent navigation of ships, post, p. 785. The master is not expressly protected in the above provisions, except in relation to loss by employment of a pilot ; and this exception seems to be designed. The previous Acts included him in some cases, and omitted him in others. On one of the previous Acts (26 G. 3, c. 86) it was decided that a loss by a fire on board a public lighter, employed by the shipowner to convey the goods on board, was not within the protection of tin Art, which was in similar terms to tlie present Act. Morewood v. Folio/,-, 1 E. & B. 743 ; 22 L. J., Q. B. 250. Implied contracts on part of shipowner or master.'] The master impliedly contracts that his vessel shall be lit lor the purpose of carrying the particular cargo which he has contracted to carry, or as it is usually expressed that she must be "seaworthy" when she starts upon her voyage; Lyon, v. Metis, 5 East, 428; Bichardson v. Stanton, L. E., 9 C. P. 390, Ex. Oh.; 45 L. .1., 0. P. 78, D. P.; Cohn v. Davidson, 2 Q. B. D. 155 ; Steel v. State J. me S. Ship Co., 3 Ap. Ca. 72, D. P.; Owners of Cargo on 8.S. Maori King v. Hughes, (1895) 2 Q. B. 550, 0. A. ; Rathbone & Co. v. />. !/"<■ !>•,;• & Co., (1903)2 K.B. 378; or at the commencement o\ each Btag the royage, when in the case of a steamship a long eoyage is divided into Btag for coaling purposes; The Yortigern, (1899) P. 140,0. A., vide p. 431; and it is no excuse for the breach of the contract in this caw, that the charterer was to provide the coal ; Mclver v. Talc Steamers, I L903) I K. B. 32, •'. A. The contract is broken if the owner load tlie ship improperly so that she iB I ' I ' Action on Contract of Affreightment. thereby lost. Kopitqff v. IFzV.swi, 1 Q. B. D. 377 : S.S. City of Lincoln v. Smith, (1904) A. C. 250, J. 0. Where there is uo stipulation as to time, the master must sail in a reasonable time, and proceed, without deviation, to the destined port, otherwise he will be liable for any loss to the plaintiff occasioned by the delay ; or, to any loss, whether by perils of the sea, or otherwise, occurring during the deviation; 3 Kent, Com. 209, 210; unless the defendant can prove tbat the loss must have happened had there been no deviation. Davis v. Garrett, 6 Bing. 716; Scaramanga v. Stamp, 4 C. P. D. 316. Deviation is justifiable' to save life, but not merely to save property. S. C. Id., and 5 C. P. D. 295, C. A. See also Phelps v. Hill, (1891) 1 Q. B. 605, C. A. See as to what amounts to deviation, ante, p. 432. A well-founded fear of capture may justify a master in not leaving a port in performance of his contract ; Pole v. Cetcovich, 9 0. B., N. S. 430 ; 30 L. J., C. P. 102; even though the ship alone would be in danger of capture. The Teutonia, L. E., 4 P. C. 171 ; The San Roman, L. R., 5 P. 0. 301. A statement in a charter-party that the ship is "expected to arrive " at a port A. by a given day, is a warranty that she is then in such a position that she may reasonably be expected to arrive there by that day. Corkling v. Massey, L. R., 8 C. P. 395. There is an implied contract that the goods shall be stowed under deck. Royal Exchange Shipping Co. v. Dixon, 12 Ap. Ca. 11, D. P. Upon arrival at the port, the master is bound to deliver to the consignee or order of the shipper, on production of the bill of lading, and payment of freight (and other lawful charges) for which the master has a lien on the goods, unless it appear on the bill of lading tbat freight has been paid, in which case it is an estoppel as against the master or owner. 3 Kent, Com. 214 ; Howard v. Tucker, 1 B. & Ad. 712. Where, by the bill of lading, the goods are to be delivered to S. M. or assigns, the master may not deliver them to S. M. without the production of one of the parts of the bill of lading. The Stettin, 14 P. D. 142. Where there is a charter-party, the provisions of which are binding only as between the shipowner and the charterer, and there is a bill of lading given by the master which gets into the hands of a bond fide assignee for value, he is entitled to have the goods delivered to him upon his fulfilling the terms mentioned in such bill of lading, and is not ordinarily hound to refer to the charter-party. Chappelv. Comfort, 10 C. B., N. S. 802 ; 31 L. J., C. P. 58, per Willes, J. A bdl of lading in the form " on being paid for freight the sum of £ (according to charter-party)," with the memorandum " there are 8 working days for unloading in London," implies no contract on the part of the indorsee for value of the bill to pay demurrage. S. C. So where the form was " he or they paying freight and all other conditions or demurrage (if any should be incurred), for the said goods, as per the aforesaid charter-party," the ennsignee named in the bill of lading was held liable only for demurrage, at the port of loading, during the 10 days at which the ship might under the charter be kept on demurrage at 8Z. a day, and not for damages for further delay in loading, nor for dead freight. Gray v. Carr, L. R., 6 Q. B. 522. See also The Norway, B. & L. 226 ; Russell v. Niemann, 17 C. B., N. S. 3 63; 34 L. J., C. P 10; Fry v. Chartered Mercantile Bank of India, &c., L. R., 1 0. P. 689; Serraino v. Campbell, post, p. 477. As to effect of discrepancy between charter-party and bill of lading, see S. C. and Rodo- canat. hi v. Mill, urn, cited ante, p. 460. Where, however, the bill of Jading states the cargo to have been received as against freight, and other conditions as per charter-party, the assignee of the bill of lading, who accepts the cargo thereunder, is liable for the demurrage provided for iu the charter-party. Porteus v. Watney, 3 Q. B. D. 534, C. A. ; Wegener v. Smith, 15 0. B. 729; 24 L. J., 0. P. 25. But it is otherwise where the property in the goods did not pass to the consignee, Merchant against Shipowner, &c. — Implied Contracts. 477 whom the shipowner knew to be an agent only, and who repudiated liability for demurrage before the cargo was delivered to him. S.S. County of Lancaster v. Sharp, 24 Q. B. D. 158. Where the cargo is deliverable under a similar bill of lading, the shipowner may be bound by the terms of the charter-party, as against an indorsee of the bill. Tlie Felix, L. R., 2 A. & E. 273. Such a clause in the bill of lading incorporates those provisions only of the charter-party which are consistent with the contract in the bill of lading ; Gullischen v. Stewart, 13 Q. B. D. 317, C. A. ; Gardner v. Trech- mann, 15 Q. B. D. 154, C. A., and are to be performed by the consignee of the goods ; Serraino v. Campbell, (1891) 1 Q. B. 283, C. A. ; Diederichsen v. Farquharson, (1898) 1 Q. B. 150, C. A. ; see further Temperley S.S. Co. v. Smyth, (1905) 2 K. B. 791-802, C. A. Thus it does not incorporate an exception in the charter-party limiting the shipowner's liability; S. CC. A bill of lading, signed ODly by the master, is no estoppel as between the ship- owner and the person who has advanced ruone}' on the security of the bill of lading, as to the receipt and shipment of the goods specified in it; Grunt v. Norway, 10 C. B. 665; 20 L. J., C. P. 93; and the shipowner may show that the goods were not shipped ; S. C. ; see also McLean v. Fleming ; Brown v. Powell, &c, Coal Co.; ami Cox v. Bruce, infra; or that the master had given other bills previously for the same goods. Hubbersty v. Ward, 8 Excli. 330 ; 22 L. J., Ex. 113. Where the charter-party provides that the bill of lading shall be " con- clusive evidence against the owners of the quantity of cargo received as stated therein," it is conclusive, except in the case of fraud. Liahman v. Christie, 19 Q. B. D. 333, C. A. And by the 18 & 19 V. c. Ill, s. 3, " every bill of lading, in the hands of a consignee or indorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment, as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice, at the time of receiving the same, that the goods had not been in fact laden on board ; provided that the master or other person so signing may exonerate himself in respect of such misrepre- sentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims." This section only makes the bill of lading conclusive against the person by whom ; Jessel v. Bath, L. II., 2 Ex. 267; or by whose authority ; see Broivn v. Powell, &c, Coal Co., L. R., 10 0. 1'. 562; it was signed. In other cases evidence is admissible that the goods were not shipped; S. C. ; McLean v. Fleming, L. I!., '-' II. I.. Sc. 12S; see also Meyer v. Dresser, 16 C. B., N. S. 646 ; 33 L. J., C. P. 289, ante, p. t72 ; or are not accurately described in the bill of lading; Cox v. Bruce, is Q. B. D. 147, C. A. The section "does not operate to make the bill of lading conclusive as to the statement of marks upon the goods shipped where those marks do not affect or denote substance, quality, or commercial value. Parsons v. New Zvalm,,! Shipping Co., (l'.tOO) 1 K. B. 711, 720, pe* Kennedy, J., affirmed (1901) 1 K. B., 548 C. A. Where by mistake of the mate, a large number of bales were represented as having been shipped than really were, and there was some evidence that this was caused by the fraud of the person putting the goods OD board, who was the shipper or his vendor, the court held that there was evidence that the misrepresentation was caused "wholly by the fraud of the shipper, &C." within this section. Valieri v. Boyland, L. R., 1 C. P. 382. When a ship is chartered, and is put up by the master as a general ship, a merchant who ships a cargo on board under bills of lading signed by the master, and in ignorance of the charter-party, is entitled to look to the 178 Action on Contract of Affreightment. owners, whose servant the master is, for the safe delivery of the cargo. Sande- m-an v Scurr, L. It., 2 Q. B. 86; The Figlia Maggiore, L. R., 2 Ad. 10G ; Eayn v. Culli/ord, 1 C. P. D. 182, 0. A. If the master have hypothecated or sold part of the cargo to raise money for necessary repairs to the ship, he is the agent of the shipowner only, and the shipper is entitled to sue the shipowner on the implied indemnity; Benson v. Duncan, 3 Exch. 644, Ex. Ch.; and he may recover either the actual sum for which the goods were sold; Campbell v. Thompson, 1 Stark. 490; or the price which they would have fetched at the place of delivery; I hill, ft. v. Wigram, 9 0. B. 580; 19 L. J., C. P. 281; but not unless the ship eventually arrived there. Atkinson v. Stephens, 7 Exch. 567 ; 21 L. J., Ex. 329. As to the duty of the master with respect to the cargo, where it has been damaged during the voyage, see Notara v. Henderson, L. R., 5 Q. B. 346; L. R., 7 Q. B. 225, Ex. Ch. He must not sell the cargo, unless in a ease of necessity, and without an opportunity of consulting the owners thereof. Australasian St. Nav. Co. v. Morse, L. R., 4 P. C. 222; Atlantic Mutual Insur. Co. v. Huth, 16 Ch. D. 474, C. A. What is a sufficient delivery of the goods, depends either upon the con- tract or upon the custom and usage. If there be no particular custom, the master must give the consignee reasonable time and opportunity to receive them. Bourne v. Qatliffe, 7 M. & Gr. 850. As to evidence of custom in such cases, see ante, pp. 21 et seq., and p. 466. Mere delivery at a wharf, and there leaving them, without notifying the arrival to the consignee, is not sufficient; and the responsibility continues until actual delivery to a person appointed to receive, or something equivalent to it; or, at least, until proper notice to the consignee has been given, and the goods separated and designated for his use. 3 Kent, Com. 215; see also Petrocochino v. Bott, L. R., 9 C. P. 355. Where the goods are by the charter-party to be unloaded at S., " at the usual place of discharge, and according to the custom of the port," and there is more than one usual place of discharge, the master is hound to obey the orders of the charterer, as to which of the places the ship is to be taken to unload, although the master has previously taken her to another of those places, and thereby incurred expense. The Felix, L. R., 2 Ad. 273. If the goods are sent for by the consignee by lighter, the captain is responsible for the safety of the goods till the lighter is fully laden ; such, at least, is the custom in the port of London. Cathy v. Wintringham, Peake, 150, and Id., n. The clause " shipped in good order and condition " affords evidence that externally, so far as meets the eye, the goods were so shipped. The Peter der Crosse, 1 P. D. 414. It does not constitute a contract, but it is a repre- sentation by which the shipowner V. is estopped, as against a purchaser C, who has altered his position and acted to his prejudice on the faith of it, and V. is liable to him in damages for not delivering to him the goods in good order and condition ; the measure of the damages is the difference between the price paid by C. and the value when delivered, with reasonable expenses incurred on delivery by reason of their damaged condition. Compania Naviera, &c. v. Churchill, (1906) 1 K. B. 237. I >elivery of goods to the servants of the shipowner alongside the vessel is equivalent to delivery on board. British Columbia, &c, Co. v. Nettleship, L. R., 3 C. P. 499. As to lien for freight, vide ante, p. 471. As to damages recoverable against the shipowner, vide Action against carriers — Damages, post, pp. 653 et seq. Where goods carried have sustained a general average loss, the shipowner is bound to take the necessary steps for procuring an adjustment of the general average and securing its payment. Crooks v. Allan, 5 Q. B. D. 38. So where loss has been caused by jettison. Strang v. Scott, 14 Ap. Ca. 601, J. C, Action on Guarantee. 479 ACTION ON GUARANTEE. Warranties and guarantees have acquired distinct technical meanings, and must be separately treated of. The former relate to things; the latter to persons. A guarantee is a contract to answer for the payment of a debt or performance of a duty by another person. As to contribution between co-sureties, vide post, pp. 594, 595. Proof of the contract — Statute of Frauds, . & V. 158; Mount Stephen v. Lakeman, L. I!., 7 Q. B. L96, Ex. Ob.; L. EL, 7 II. L. 17. If the person lor whose use the goods are furnished is liable at all, or if his liability is made the foundation of a contract between the plaintiff and the defendant, and that liability fails, the defendant's promise is void if not in writing. S. 0., L. It., 7 Q. B. 202, per Willes, J. But, until there is some person primarily liable, the section does not apply. S. ('., L. EL, 7 If. L. 24, per Ld. Selboume. The question is, is it a promise to pay the debt of another, for which the other was, and still remains, liable alter the promise is made? If it be, then the statute requires a writing, for it is then a "collateral " and not an original promise. See notes to Forth v. Stanton, I Wins. Saund. 2116. If the effect of the agreement is to extinguish or satisfy the debt of another — as if A. promise to pay the amount of B.'s debl to I !., if 0. will discharge B. from arrest under a ca. su. then, as B.'s debt is discharged, the debt becomes the debl of A. only, and is not within the statute. Goodman v. Chase, 1 B. & A. 297. The statute applies to legal debts only. /" /•- ,)so Action <>>t Gua/rantee. flbyZe, (1893) 1 Ch. 84, r >r Lindley and Bowen, L.JJ. Thus it does not apply to a guarantee given by II. to the firm of which he is a member, for the debt of S. to the firm. S. C. The promise must be made to the original creditor, to be within the statute. Eastwood v. Kcnyon, 11 Ad. & E. 138; Reader v. Kingham, 13 C. B., N. S. 344 ; 32 L. J., C. P. 108 ; Cripps v. Ilartnoll, 4 B. & S. 414 ; .">•_' L. J., Q. B. 381, Ex. Ch. A mere promise of indemnity is not within it, e.g., a promise by A. to B. to put B. in funds to meet bills on which C. is' liable, irrespectively of C.'s making default. Wildes v. Dudloiv, L. K., 19 Eq. 198, and Guild v. Conrad, (1894) 2 Q. B. 885, C. A.; following Thomas v. Cook, 8 B. & C. 728, and Header v. Kinyham, supra ; Batson v. King, 4 H. & N. 739 ; 28 L. J., Ex. 327. As where at defendant's request, and for his accommodation, plaintiff drew a bill on A., which was accepted by A., and indorsed by defendant, defendant promising at the time to indemnify plaintiff; and plaintiff was obliged to pay the bill; held, that he might sue defendant as for money paid, and that no written guarantee was necessary. S. C. In order that a promise should fall within the statute there must be some obligation, implied at least, from the person for whom the surety becomes answerable towards the promisee; S. CC. ; as the obliga- tion of an arrested debtor towards his bail to pay the debt or surrender, iu which case, a promise by a third person to hold the bail harmless was held to be within the statute ; Green v. Cresswell, 10 Ad. & E. 453 ; this case, however, has been doubted ; see Wildes v. Budlow, Guild v. Conrad, Header v. Kinyham, and Cripps v. Ilartnoll, supra; and, it is settled that there is no debt or duty in a person bailed on a charge of misdemeanor towards his bail, and hence a similar promise is not in such case within the statute. S. C. The statute applies only where the person making the promise has no interest in the transaction beyond his promise. Sutton v. Grey, (1894) 1 Q. B. 285, C. A. Thus, an agreement between G. and a stockbroker S., that G. should share half the commission earned by S. on transactions with clients introduced by G., and also half the losses incurred on such trans- actions, is not within the section. S. C. But an " interest to take an agree- ment out of the statute" must be "some species of interest which the law recognizes," Harburg India Rubber Comb Co. v. Martin, (1902) 1 K. B. 778, 791. An agreement by a factor to sell goods on a del credere commission is not within the section; for, though it may terminate in a liability to pay the debt of another, that is not the immediate object for which the factor receives the consideration. Couturier v. Ilastie, 8 Exch. 40 ; 22 L. J., Ex. 97. Vide ante, p. 479. A " forbearing to press for immediate payment" implies giving a " reasonable time," and this, though indefinite, is a sufficient con- sideration for a guarantee by a stranger to pay the debt ; semble, Oldershaw v. King, 2 II. & N. 517 ; 27 L. J., Ex. 120, Ex. Ch. ; questioning Semyle v. Pink, 1 Exch. 74, contra ; see also Coles v. Pack, L. R., 5 C. P. 65, and Fullerton v. Provincial Bank of Ireland, (1903) A. C. 309, D. P. It is not necessary that there should have been a contract by the plaintiff to abstain from suing; forbearance to sue at the defendant's request is sufficient. Crears v. Hunter, 19 Q. B. D. 341, C. A. If the consideration for guaranteeing, by the defendant, the payment of past and future debts by A., to the plaintiffs, ;be the future supplying by them to A. of goods, and there be no agreement binding on them to supply the goods, and no goods are in fact supplied, the guarantee fails for want of consideration. Westhead v. Sp>roson, 6 H. & N. 728 ; 30 L. J., Ex. 265. A guarantee to a bank in consideration of their " lending to A. 1,000Z., for seven days, from this date," does not cover an account overdrawn by numerous cheques, together amounting to 1,000Z., as the advance of 1,000?. is the consideration for the guarantee, and a condition Continuing Guarantee. — Revocation. 481 precedent to its attaching. Burton v. Gray, L. K., 8 Cb. 932. An I U may, since 19 & 20 V. c. 97, s. 3 {ante, p. 479), be shown to have been given as a guarantee, and will be good as such. See R. v. Chambers, L. 11., 1 C. C. 341. As to the form of memorandum and signature thereto, vide ante, p. 314 et seq., and also cases decided on Stat, of Frauds, s. 17, and the Sale of Goods Act, 1893, s. 4, post, p. 531 et seq., and Wallace v. Gibson, (1895) A. C. 354, D. P. Although the signature only of the party to be charged is sufficient, the names of both the contracting parties must appear upon the guarantee ; and therefore a guarantee on which the name of the person to whom it is given does not appear is bad ; Williams v. Lake, 2 E. & E. 349; 29 L. J., Q. B. 1 ; Williams v. Byrnes, 1 Moo. P. C, N. S. 154 ; but it was said that if the promise were accepted in writing by any one who would furnish goods under the guarantee, it would bind. S. C, Id. 198. A letter of defendant to plaintiff, referring to a mortgage not complete, and stating defendant's " willingness to take any responsibility respecting it," is insufficient, there being nothing to explain the transaction referred to, as to amount, interest, or property meant, without oral evidence ; and, though since the l'J & 20 V. c. 97, s. 3, oral evidence may supply the consideration, it cannot also explain the promise. Holmes v. .Mitchell, 7 C. B., N. S. 361 ; 28 L. J., C. P. 301 ; and see Glover v. Halkctt, 2 H. & N. 487 ; 26 L. J., Ex. 416. The recital of a guarantee given by H. in H.'s will is, after his death, a sufficient memorandum to charge his estate. In re Hoyle, (1893) 1 Ch. 84, per C. A. A contract of suretyship arises under the law merchant between the drawer and the indorsee, and between the indorser and subsequent holders of a bill of exchange, vide ante, pp. 375, 391 ; but, the indorser is under no such liability to prior parties to the bill ; and to constitute such liability a written memorandum is required. Jenkins v. Coombcr, (1898) 2 Q. B. 168, dis- tinguishing Steele v. McKinlay, 5 Ap. Ca. 754, D. P.; distinguished in Wilkinson v. Unwin, 7 Q. B. D. 636, C. A. On the admissibility of oral evidence to show that the consideration for a guarantee, ambiguously expressed, is not a past consideration, see ante, p. 19. Continuing guarantee. — Revocation.'] An important point often arises, whether the guarantee is a continuing guarantee — that is, whether the guarantee is confined to one transaction, and is at an end when credit has once been given to the amount guaranteed, or whether it continues in respect of credit given, or debts contracted, from time to time. The answer depends on the language of the instrument, coupled with evidence of the surrounding circumstances, in order to show what was the intention of the parties. Heffield v. Meadows, L. 11., 4 C. 1'. 595; Lawru v. Scholefield, /uy of II."; and it appeared, from the cir- cumstances under which the guarantee was given, that the parties con- templated a continuing supply of stock to Y., in his trade of a butcher. Hi (field v. Meadows, ante, p. 481. See also Laurie v. Scholefield, cited ante, p. 481, aud Nottingham Hide, &c., Co. v. Bottrill, L. R., 8 C. P. 694. A guarantee given to secure the dealings of a single member, A., of a partnership, dues not in general cover transactions of the partnership ; but it will be otherwise, where it appears, from the surrounding circumstances, that the guarantee was intended to include contracts entered into by A. on behalf of his firm. Leathley v. Spyer, L. R., 5 C. P. 595 ; see also Montefiore v. Lloyd, 15 C. B., N. S. 203; 33 L. J., C. P. 49. By the Partnership Act, is; 10 (53 & 54 V. c. 39), s. 18: "A continuing guaranty or cautionary obligation given either to a firm or to a third person in respect of the transactions of a flrni is, in the absence of agreement to the contrary, revoked as to future transactions by any change in the constitution of the iirru to which, or of the firm in respect of the transactions of which, the guaranty or obligation was given." This section appears to be identical in effect with the Mercantile Law Amendment Act, 1856 (19 & 20 V. c. 97), s. 4 ; which was held to be only declaratory of the existing law. Backhouse v. Hall, 6 B. & S. 507; 34 L. J., Q. B. 141. Three persons carried on the business of shipbuilders, under the names of Gr. & W. Hall. No person of that name had been in the partnership for some time, and the plaintiff and defendant being both aware of the constitution of the partnership, the defendant gave the plaintiff the following guarantee : "In consideration that you have, at my request, consented to open an account with the firm of G. & W. Hall, shipbuilders, I hereby guarantee the payment to you of the moneys that at any time may become due, not exceeding 5,000/. : " held, that the guarantee ceased on the death of one of the partners. S. C. The power of a guarantor to withdraw from liability under a guarantee depends on whether the consideration is entire or " fragmentary, supplied from time to time, and therefore divisible." In the latter case, where it is given to secure the balance of a running account at a banker's or for goods .supplied, he may, unless the guarantee provide otherwise, give notice to stop further money or goods being advanced on the guarantee. Lloyds v. Harper, 16 Ch. D. 319, 320, per Lush, L.J. Thus a guarantee by writing, under hand only, for 12 months for the payment of all bills the plaintiff might discount for D., to the extent of 600/., was held revocable by a notice given during the 12 months, although some discount had been made and repaid before notice. Offord v. Davies, 12 0. B., N. S. 748 ; 31 L. J., G. P. 319. And the same principle applied in equity, although the guarantee is under seal. In re Grace, (1902) 1 Ch. 733, 738, per Joyce, J. See further as to withdrawal from a guarantee. Burgess v. Eve, L. R., 13 Eq. 450; and Phillips v. Foxall, L. R., 7 Q. B. 666. But a guarantee, the consideration for which is given once for all, cannot be determined by the guarantor, and dues not cease on his death. Lloyds v. Harper, 16 Oh. D. 290, C. A. ; In re Grace, supra, in the absence of a special provision to that effect. S. C. The death alone of the guarantor does not revoke an engagement to guarantee the balance of a running account until notice. Bradbury v. Morgan, 1 H. & C. 249; 31 L. J., Ex. 462. AVhether in the absence of express provision, it is revoked as to subsequent advances by notice of the guarantor's death alone, is not yet settled, for in Goulthart v. Glementson, 5 Q. B. D. 42, and In re Whdan, (1897) 1 Ir. R. 575, it was held to be so revoked; secus, In re Silvester, (1895) 1 Ch. 573, 577, per Romer, J.; and In re Grace, (1902) 1 Ch. 733, 739, per Joyce, J. A guarantee is not, however, revoked as against the survivor of two joint and several co-sureties. Beckett v. Addy- man, Q. B. U. 783, C. A. See also Harriss v. Fawcelt, L. R., 8 Ch. 866. Defence. — Concealment. 483 See further Rowlatt's Law of Principal and Surety, (1899), pp. 73, et seq. Default of principal debtor.'] The plaintiff must prove the default of the principal debtor, against which lie 'has been guaranteed by the surety. Admissions made by the principal debtor, or a judgment or award obtained against him by the plaintiff, are not evidence against the surety. Ex pte. Young, 17 Ch. D. 668, C. A. Damages.'] A guarantee for payment by the acceptor of a bill of exchange includes interest. Ackerman v. Ehrensperger, 16 M. & W. 99. "We guarantee that 400?. shall be duly paid, in the proportion of 2007. each," signed by two persons, does not make them jointly liable to 400?., but is a separate contract as to 2007. by each. Fell v. Ooslin, 7 Exch. 185; 21 L. J., Ex. 145. An agreement to be answerable for all the costs of, and incidental to, an action to be brought by the plaintiff, entitles him to recover the costs of his own solicitor, though not actually paid at the time of suing on the guarantee. Spark v. Eeslop, 1 E. & E. 563 ; 28 L. J., Q. B. 197. The defendant promised to pay the plaintiffs " 3007. to secure an advance now or hereafter on a banking account with A." They advanced more than 300?. to A., who paid his creditors 16s. in the £ only ; it was held that the defendant's promise was only to repay an advance of 3007., and that he was therefore entitled to the benefit of the dividend thereon. Gee v. Pack, 33 L. J., Q. B. 49; following Bardwell v. Lydall,! Bing. 489; Thornton v. M'Kewcm, 1 H. & M. 525 ; 32 L. J., Ch. 69; Hobson v. Bass, L. R., 6 Ch. 792 ; Gray v. Seckham, L. R., 7 Ch. 680. The surety may, however, waive his right to the share of the composition by the terms of the contract of suretyship; Ex pte. National Provincial Bank of England, 17 Ch. D. 98, C. A. ; Ellis v. Emmanuel, 1 Ex. D. 157, C. A. ; as where the guarantee is given for a limited amount, and is less than the debt, the amount of which is then ascertained. S. C. Where a guarantee given to A. appears to have been so given to him as trustee for B., A. can recover thereon the same damages B. could have recovered if it had been given to B. Lloyds v. Harper, ante, p. 482. Defence. The want of a written memorandum must be pleaded specially. Kulrs, 1883, 0. xix. r. 20, ante, p. 310. The mere omission on the part of the principal creditor to enforce his rights against the principal debtor does not discharge I he surety. Mansfield I r nion v. Wright, 9 Q. B. D. 683, C A. Concealment.] The surety may sometimes rely on the concealment of material particulars by the principal at the time the contract waB made, as a fraud. Lee v. Jones, 14 C. B., \. S. 386; 17 ('. B., N. 8. 482; 34 L. J., C. P. L31, Ex. Ch. So, in the case of concealment during the pendency of a continuing guarantee. Phillips v. FoocaU, I/. It., 7 ',». B. 666; Sanderson v. Aston, L. \l., 8 Ex. 73. See Durham, Mayor of , v. Fowler, post, p. I- 1. The duty of the principal must always ultimately be measured by the jury, but the judge will have to point out what their duty is in this respect; the language in which he ought to do this has not, however, yet been precisely settled. A direction that a concealment muBt be "wilful and intentional, with a view to the advantage they (the principals) were thereby to receive," is wrong. Hail ton v. Mathews, 10 < 1. & P. 934. See further Dairies v. L. & Provincial Marine Insur. Co., 8 Ch, 1). 469, aud Beaton v. Heath, cited ante, i i 2 IS I Action on Guarantee. p. 158. < m the other hand, the creditor is nut bound to communicate every circumstance calculated to influence the discretion of the surety in entering into the required obligation; Owen v. Hainan, 4 H. L. C. 997; for a surety is only entitled to disclosure of any arrangement that may exist between the debtor and creditor that may make his position different from what he would reasonably expect ; and hence, if a person undertake to be responsible for a cash credit given to one of the banker's customers, the banker is not bound voluntarily to communicate that the intention is to apply the credit to an old debt due from the customer to the banker. Hamilton v. Watson, 12 CI. & F. 109, per Ld. Campbell. Accord. N. British Insur. Co. v. Lloyd, 10 Exch. 523 ; 24 L. J., Ex. 14. So where the guarantee was a continuing one, given to a bank to secure advances " not exceeding in the whole 1,000L," it was held no defence to an action to recover 1,000?., on the guarantee that the hank had made advances together exceeding 1,000?. Laurie v. Scholefield, L. R., 4 C. P. 622. Alteration of position of parties. — Giving time, cfcc] Any alteration by a binding agreement in the relative position of the creditor and principal debtor whereby the latter is released or the remedy against him is suspended, or the risk of the surety varied, without the surety's assent, will be a discharge of the guarantee. Polak v. Everett, 1 Q. B. D. 669, C. A. ; Lewis v. Jones, 4 B. & C. 506, and 515, n. ; Cragoe v. Jones, L. R., 8 Ex. 81 ; Bolton v. Buchenham, (1891) 1 Q. B. 278, C. A.; and see cases cited ante, pp. 401, 405. The rule applies where two or more are indebted as principals, and it is afterwards agreed between them that as between themselves one shall be surety only, and the creditor has notice of this. Bouse v. Bradford Banking Co., (1894) A. C. 586, D. P. So any material alteration in the terms of an agreement between the creditor and principal debtor will discharge the surety, provided the agreement forms the basis of the contract of suretyship ; N. W. By. Co. v. Whinray, 10 Ex. 77 ; 23 L. J., Ex. 261 ; but not otherwise ; Sanderson v. Aston, L. E., 8 Ex. 73. See farther Holme v. Brunskill, 3 Q. B. D. 495, C. A. And in order to discharge the surety by such material alteration, e.g., by giving time to the principal debtor, A., there must be a binding enforceable contract ivith A. Clarke v. Birley, 41 Cb. D. 422. Such contract with a third party has no effect. S. C. ; Lyon v. Holt, Fraser v. Jordan, ante, p. 405. " Mere laches of the obligee, or a mere passive acquiescence by the obligee, in acts which are contrary to the conditions of the bond, is not sufficient of itself to relieve the sureties." Durham, Mayor of, v. Fowler, 22 Q. B. D. 394, 417 ; Hull, Mayor, &c, of, v. Harding, (1892) 2 Q. B. 494. Nor is it sufficient that the surety's position has been altered by the conduct of the creditor, where that conduct has been caused by the fraudulent act or omissiou of the principal debtor against which the surety by his contract of suretyship had guaranteed the creditor. S. ( '., Id. 504, 510. The contract of suretyship is sometimes severable, so that it is only discharged as to part by an alteration in the position of the creditor and the principal debtor. Harrison v. Seymour, L. 1!., 1 C. P. 518; Skillett v. Fletcher, L. 1!., 1 C. P. 217; L. R., 2 C. P. 469, Ex. Ch.; Croydon Com- nercial Gas Co. v. Dickinson, 2 C. P. D. 46, C. A. If the rights against the surety be expressly reserved, the latter is not discharged ; Kearsley v. Cole, 16 M. & W. 128 ; Price v. Barker, 4 E. & B. F79 ; 24 L. .)., Q. IS. 130; Bateson v. Gosling, L. R., 7 C. P. 9 ; and if the contract of suretyship contain a special clause allowing the creditor to 1 1 j " Mind with the principal debtor, the surety is not discharged by such compounding. Cvwper v. Smith, 4 M. & W. 519 ; Union, Bank of Manchester v. Beech, 3 II. & C. 672 ; 34 L. J., Ex. 133. The reservation of rights against Defence.— Alteration of Position of Parties. 485 the surety prevents the latter from being discharged, because the principal debtor cannot then complain that the surety, when he has been obliged to pay the debt, immediately claims to be indemnified by the principal debtor, and that this claim makes the discharge of the latter illusory. Kearsley v. Cole, ante, p. 484 ; Nevill's case, L. R., 6 Ch. 43, 47 ; Mttir v. Crawford, L. R., 2 H. L., Sc. 456, 458. As to the admissibility of oral evidence to prove such reservation, vide ante, p. 17. Where the principal debtor is absolutely discharged, as by a novation of debt, the surety is discharged notwithstand- ing a clause in the contract of suretyship, reserving rights against him. Commercial Bk. of Tasmania v. Jones, (1893) A. C. 313, J. C. Where the liabilities of the principal debtor have been changed by statute during the pendency of the guarantee, the surety is discharged ; Pylms v. Qibb, 6 E. & B. 902 ; 26 L. J., Q. B. 41 ; unless the terms of the guarantee show that it is intended the suretyship should continue. Oswald v. Berwick, Mayor of, 5 H. L. C. 856 ; 25 L. J., Q. B. 383. See Skillett v. FUtcfo r, ante, p. 484. As a surety on payment of the debt is entitled to all the securities of the creditor, whether he is aware of their existence or not, even though they were given after the contract of suretyship, if the creditor who has had, or ought to have had, them in his full possession <>r power, lose them or permit them to get into the possession of the debtor, or do uot make them effectual by giving proper notice, the surety to the extent of such security will be discharged; a surety, moreover, will be released if the creditor, by reason of what he has done, cannot, on payment by the surety, give him the securities in exactly the same condition as that in which they formerly stood in his hands. See notes to Bees v. Barrinqton, 2 White & Tudor, L. C. ; Wulff v. Jay, L. R., 7 Q. B. 756. Thus, where the plaint ill held a bill of sale of the debtor's furniture as security for a debt to him for which the defendant was surety, but neglected to register it, and although he had notice of the debtor's insolvency did not seize the furniture uuder it ; and the goods in consequence passed to the debtor's trustee in bankruptcy; it was held that the defendant was discharged to the extent of the value of the goods. S. C. See also Watts v. Shnttleworth, F> II. & N. 235; 29 L. J., Ex. 229 ; Mutual Loan Assoc, v. Sudlow, 5 C. B., N. S. I 19 ; 28 L. J., C. P. 108; and Lawrence v. Walmesley, 12 C. B., N. S. 799; .".1 L. J., 0. P. 143. These rules as to the right of the surety apply as between the acceptor and indorser of a bill where securities had been deposited to secure its payment, and it has been paid at maturity by the indorser, Duncan v. N. &'S. Wales Bank, 6 Ap. Ca. 1, D. P. In Polak v. Everett, I Q. B. D. 669, C. A., the distinction is explained between intentional ads which discharge the claim against the surety altogether, and negligent, acts which discharge it only to the extent to which the surety lias been thereby prejudiced. See also Carter v. White, '-"> Ch. I>. 666, 0. A. The right of a surety to the benefit of a collateral security is uot in abeyance till he pays the debt. Dixon v. Steel, (1901) 2 Ch. 602. The principal creditor is not entitled to the benefit of security given by the principal debtor to the surety. In re Walker, (1892) I Ch. 621. In the case of two sureties, A. and I'.., contracting severally, the creditor dues not by releasing A. thereby break his contract and bo release I!., unless B. can show that he had a right ti> contribution which has been taken away or injuriously atfected. Ward v. National Bank of New Zealand, 8 Ap. Ca. 755, J. C. The release of the principal debtor by discharge in bankruptcy or by arrangement or composition under the Bankruptcy Acts dues nut release i surety [see Bkcy. Acts, 1883, B. 30(4); L890, B. 3 (19)], whether he assents or not. See Ex pte. Jan,!,,, I,. |,\, L0 Cb. 21 I ; Ellis v. Wilmat, L. I!., Id 486 Action on Warranty on Sale of Chattels. Ex. 10. This principle applies to the insurance of the debt of a company which afterwards, under a colonial statute, enters into a scheme of arrange- ment with its creditors. Dane v. Mortgage Insur. Co., (1894) 1 Q. B. 54, 63, 6 1, per Kay, L.J., cited ante, p. 458. A creditor who holds security for ins debt does Dot discharge a surety for the debt by surrendering his security to the trustee in the bankruptcy of the principal debtor, in order to entitle himself to prove for the whole debt. Rainbow v. Juggins, 5 Q. B. D. 138, 422, C. A. The adjudication in bankruptcy under the Bankruptcy Act' 1890, s. 3 (15), of a debtor who has compounded with his creditors, discharges the liability of a surety who has secured the composition and avoids the security. Walton v. Cook, 40 Ch. D. 325. As to termination and revocation of guarantee, vide ante, pp. 481, 482. ACTION ON WARRANTY. A warranty is either express or implied. " Warranties implied by law are for the most part founded on the presumed intention of the parties and ought certainly to be founded on reason, and with a just regard to the' interests of the party who is supposed to give the warranty, as well as of the party to whom it is supposed to be given." Readhead v. Midland Ry. Co., L. R., 4 Q. B. 392, Ex. Ch., per Cur. ; accord. Francis v. Cockrell, L. R., 5 Q. B. 184, 193, per Cur. See The Moorcock, 13 P. D. 64, 68, per Bowen L.J. ; The Beam, (190G) P. 48, C. A. ; Bede SS. Co. v. R. Wear Commrs ' (1907) 1 K. B. 310, C. A. ; and Eamlyn v. Wood, (1891) 2 Q. B. 488, C. A. A warranty may arise from an innocent mis-statement. Low v. Bouverie (1891) 3 Ch. 82, per C. A. Where plans and a specification of a certain work to be done for A. are prepared as the basis of tenders, A. does not warrant that the work can be done under such plans and specification. Thorn v. Mayor of London 1 Ap. Ca. 126, D. P. So, where the architect takes out the quantities, A.' does not warrant their correctness. Scrivener v. Bask, L. R., 1 C P 715 Ex. Ch. ' As to the warranty of the genuineness of a transfer deed of shares, or of a power of attorney for the transfer of stock at the Bank of England, or of the identity of a stockholder, vide post, pp. 494, 1120. The most frequent cases in which an action is brought on a warranty, are on the occasion of the sale of goods, including horses, and of a repre- sentation of authority to enter into a contract on behalf of another person. Action on Warranty on Sale of Chattels. The law of warranty on the sale of goods has been codified and in some respects modified by the Sale of Goods Act, 1893, 56 & 57 V. c. 71 ss. 10-14, 62. By sect. 62. " In this Act unless the context or subject-matter otherwise requires": Warranty "means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated." By sect. 11. (1.) (a.) "Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of such condition as a breach of warranty, in i not as a ground for treating the contract as repudiated." See as to conditions implied by this Act, sects. 13 and 15, post, pp. 540, 541. Warranty of Title. — Warranty of Quality. 487 Warranty of title.'] By sect. 12. " In a contract of sale, unless the circum- stances of the contract are such as to show a different intention, there is — " (1.) An implied condition on the part of the seller that in the case of a sale he has the right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass : " (2.) An implied warranty that the buyer shall have and enjoy quiet possession of the goods : " (3.) An implied warranty that the goods shall be free from any charge or encumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made." At common law there was no warranty of title on the sale by a pawn- broker of an unredeemed pledge at an auction of such pledges ; Morley v. Attenhorough, 3 Exch. 500 ; nor on a sale under an execution, nor on a sale by the purchaser on that occasion to another purchaser privy to the first sale. Chapman v. Speller, 14 Q. B. 021. So, where the defendant hail bought at a public auction a boiler set in brickwork which had been seized as a distress for poor rate ; the plaintiffs bought it of the defendant, with notice of the circumstances under which it had been originally Bold, and were to remove the boiler at their own expense, but were prevented so doing by the mortgagees of the premises: it was held that the seller had not warranted his title to the boiler, or that the plaintiffs would be permitted to remove it. Bagueley v. Hawley, L. R., 2 C. P. G25. Willes, J., dissented, observing that the plaintiffs had purchased a boiler and not a lawsuit. In the above cases the maxim " caveat emptor " was applied. Warranty of quality.'] By sect. 14. "Suhject to the provisions of this Act and of any statute in that behalf, there is no implied warranty or con dition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows : — "(1.) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably tit for such purpose, provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose: "(2.) Where goods are bought by description from a seller who deals in goods of that description (whether lie be the manufacturer or oot), there is an implied condition that the goods shall 1 f merchantable quality; provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examina- tion ought to have revealed : "(3.) An implied warranty or c lition as to quality or fitness for a particular purpose may lie annexed by the usage of trade. "(4.) An express warranty or condition dues not negative a warranty or condition implied by this Act unless inconsistent therewith." Evidence of what took place prior to the written contract of sale is admis- sible to prove that the buyer made known to the seller the particular put | for which the goods were required, so , is to bring the case within Bub-sect. (1). Gillespie v. Cheney, (1896) i' Q. B. 59. The particular purpose may be known to the seller L. by the recognized description by which I'. purchased the article. J'nist. \. Last, < L903) 2 K. P.. 1 is, i '. A. Whether I'. thereby showed that he relied on L.'s skill or judgment is a question of fad under ail Action on Warranty on Sale of Chattels. the circumstances. S. ('. The condition of reasonable fitness applies, although the d( feci was latent and undiscoverable at the time of sale, as in the case of milk sold for consumption. Frost, v. Aylesbury Dairy Co., (1005) 1 K. B. ,;( >' s , C. A. Sect. 14 (2) applies, where a beer-house keeper H. gives a customer W. the particular kiutl of beer in which H. deals and for which W. asks. Wren v. Holt, (1903) 1 K. B. G10, C. A. Sects. 13, 15, post, pp. 540, 541, define the effect of a sale of goods by description or sample. By the Merchandise Marks Act, 1887 (50 & 51 V. c. 28), s. 17, " On the sale, or in the contract for the sale of any goods to which a trade mark, or mark, or trade description has been applied " (see sect. 5), " the vendor shall be deemed to warrant that the mark is a genuine trade mark and not forged or falsely applied, or that the trade description is not a false trade description within the meaning of this Act" (see sect. 3, modified by sect. 18 ; see also 54 & 55 V. c. 15, s. 1), " unless the contrary is expressed in some writing signed by or on behalf of the vendor and delivered at the time of the sale or contract to and accepted by the vendee." This section will apply although the trade description is not physically attached to the goods. See Budd v. Lucas, (1891) 1 Q. B. 408. By the Fertilizers and Feeding Stuffs Act, 1906, 6 E. 7, c. 27 (replacing 50 & 57 V. c. 56), s. 1, invoices required to be given by those sections imply a warrant}'. As to the obligation arising from a contract to supply power, see Bentley Bros. v. Metcalfe, (1906) 2 K. B. 548, C. A. Remedy where there is a warranty.'] By sect. 53, (1.) " Where there is a breach of warranty by the seller, or where the buyer elects, or is compelled, to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods ; but he may (a) set up against the seller the breach of warranty in diminution or extinction of the price ; or (&) maintain an action against the seller for damages for the breach of warranty." (4.) "The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage." See Bostock & Co. v. Nicholson & Sons, post, p. 492. In some special cases, however, the buyer may rescind the contract, and recover the money paid under a claim for money had and received : as, where by the contract the purchaser has the power of returning the article, if not approved ; Towers v. Barrett, 1 T. It. 133 ; or, where the contract is rescinded with assent of the defendant ; per Buller, J., Id. ; and the article is returned within a reasonable time; Compton's case, cited by Buller, J., in 1 T. R. 136 ; Adam v. Richards, 2 II. Bl. 573 ; Street v. Blay, 2 B. & Ad. 456; and, in the same state as sold, and without using the thing sold after the discovery of the breach ; Ilarnor v. Oroves, 15 C. B. 667 ; 24 L. J., C. P. 53 ; Curtis v. Hannay, 3 Esp. 82. But on the purchase of a specific chattel, it is only where there is a con- dition in the contract authorizing the return, or the vendor has received back the horse or other article, and has thereby rescinded the contract, or has been guilty of a fraud which avoids the contract altogether, that the purchaser may thus recover back the price. Street v. Blay, 2 B. & Ad. 462, and the cases there cited ; Qompertz v. Denton, 1 Or. & M. 207. See also Houlds- worth v. City of Glasgow Bank, 5 Ap. Ca. 338, per Ld. Blackburn. If the purchaser sue upon the warranty, he need not return the article sold. Fielder v. Starkin, 1 H. Bl. 17 ; Pateshall v. Tranter, 3 Ad. & E. 103. I' roof of the sale and warranty.'} Where there is no written contract, and Sale and Warranty. 489 the warranty is (as it often is) mentioned in the receipt for the purchase- money, the sale and warranty may be proved by the production of the receipt without an agreement stamp. Shrine v. Elmore, 2 Camp. 407. A sale for the price of 10?. and upwards is within the Sale of Goods Act, 1893, s. 4; but as the breach of warranty is not usually discovered till after delivery and acceptance of the goods sold, the statute is then complied with, and the contract may be proved by oral evidence. The plaintiff must in general prove an express warranty; a high price is not tantamount to an implied warranty. Stuart v. Wilkins, 1 Doug. 20 ; Parkinson v. Lee, 2 East, 322. The word " warranty " is not essential ; but there may be a mere misrepresentation or opinion of the seller without any intention on either side to give or require a warranty, and this will be a question for the jury. Generally, however, a representation made at the sale is part of the contract, and equivalent to a warranty. Wood v. Smith, 5 M. & Ey. 124 ; Salmon v. Ward, infra. But not if the contract be reduced to writing. Pickering v. Dowson, 4 Taunt. 779. But where the evidence of the contract of sale consists of a series of letters which are ambiguous in their terms on the question of warranty, oral evidence of all the surrounding facts and circumstances of the sale is admissible, for the purpose of showing that a warranty was not contemplated between I he parties. Stucley v. Baily, 1 H. & C. 405; 31 L. J., Ex. 483. A mere invoice describing articles sold does not amount to a warranty of quality. Rook v. Hopley, 3 Ex. D. 209. On the sale of pictures, with a bill of parcels having the artist's name attached, it is for the jury to find whether the seller has guaranteed that they are really the works of the artist, or merely intimated his^opinion as to the authorship. Power v. BarJiam, 4 Ad. & E. 473. A., a corn-dealer, sold to B., another corn-dealer, some barley as " seed barley,'' just before bought by sample from a third person. B. knew that A. had so bought it by sample as "seed barley," and that he had not seen it in bulk : held, that this was not evidence of a warranty, but was a mere expression of A.'s belief. Carter v. Crick, 4 H. & N. 412 ; 28 L. J., Ex. 238. Where the plaintiff wrote to the defendant, "You will remember that you warranted a horse as a five year old," Sec, to which the defendant answered, "The horse is as I represented it," it was ruled that this was evidence of a warranty at the time of sale. Salmon v. Ward, 2 C. & P. 211. Where the seller said, " The horse is sound to the best of my knowledge, but / will not warrant it," and the seller knew it to be unsound, lie was held answerable on this qualified warranty, viz., that "it was sound to the best of his knowledge." Wood v. Smith, sui>ra. But i/iurrc, for this seems to lie rather a case of fraud than of qualified warranty. Where the warranty was, " To be sold, a black gelding, five years old; lias been constantly driven in the plough. Warranted," this was held to be only a warranty of soundness. Richardson v. Brown, 1 Bing. 344. So, "Received of B. 10/. for a grey four- year-old colt, warranted sound," is not a warranty of age. Budd v. luu'r- maner, 8 Bing. 48. Where there is a manifest defect, a general warranty of soundness will not be deemed to extend to it. Margetson v. Wright, 7 Bing. *i0.'!. A splint has been held not CO be such a manifest defect ; S. < '., 8 Bing. 454; nor convexity of the cornea .) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery t" the buyer and tho value they would have had if they had answered to the warranty." If a horse has been returned, the plaintiff will !»• entitled to recover the whole price; if kept, the difference between the real value and the price; or the plaintiff may sell the horse for what he can get, and recover the residue of the price paid, in damages. Caswell V. Com;; I Taunt. r,r.i;. If the horse be not tendered to the vendor, the vendee can recover oo damages for the expense of his keep. S. ( '. Hut, if the vendee have tendered the borse, he may recover for the keep, for such time as would be required to sell him to the best advantage. M'Kenzie v. Hancock, Ry. & M. 436. So, where after notice to the vendor that the horse might be taken away.it was resold, the vendor is liable for the keep for a reasonable time, which is a question for a jury. Chesterman v. Lamb, 2 Ad. & E. L29. Where the vendor rescinded the contract, it was held that he was liable for the keep of tho horse from the time of the contract. King v. Price, 2 Chitty, M<;. Where. defendant warranted ahorse to plaintiff, who resold bim with a warranty to C, and the horse proving unsound, C. sued the plaintiff, and he gave notice 492 Action on Warranty on Sale of Chattels. to the defendant of the action, and offered him the option of defending; it, but receiving no answer, he defended the action aud failed; it was held that defendant was liable, in an action on the warranty, for the costs of the action brought by 0. against the plaintiff. Lewis v. Peake, 7 Taunt. 153 ; ami sec Eolph v. Crouch, L. R., 3 Ex. 44. Where B. sold coal to II. as of a particular description, knowing that H. bought it to resell under the same description, and the coal delivered did not answer the description, but this could only be ascertained on use by the sub-vendee, C. ; C. sued H. for breach of warranty, and thereupon II. gave B. notice of the action, but B. insisted that the coal was according to contract. In an action, H. v. B., B. paid the damages recovered in the action C. v. II. into court; it was held that H. could also recover the costs of that action, as it had been reasonably defended by II. Hammond v. Bussey, 20 Q. B. D. 79, C. A. Accord. Aqius v. Qt. W. Colliery Co., post, p. 548. See also The Millwall, (1905) P. 155, C. A. In Cox v. Walker, 6 Ad. & E. 523, n., the plaintiff had bought a horse of the defendant for 100?., and had been offered 140?. for him, but the horse proving unsound, plaintiff had been obliged to give up the bargain and to sell it for 49Z. 7s. Ld. Denman, C.J., directed the jury that the plaintiff was entitled to recover the difference between the price at which he had sold and the actual value of the horse, if it had been sound at the time of such sale ; and he left to the jury as a measure of such value, the price offered for the horse while in the plaintiff's hands. This ruling was questioned, but the case stood over, after argument, for several terms, and was then compromised. The liability of plaintiff for the breach of warranty, given on a resale by him, may be alleged and proved as special damage, though the plaintiff had not actually paid the sub-vendee his demand. Randall v. Raper, E. B. & E. 84 ; 27 L. J., Q. B. 266. See also Josling v. Irvine, 6 H. & N. 512 ; 30 L. J., Ex. 78. Where the defendants broke a warranty in not sending hemp that was merchant- able, the measure of damages was held to be the difference between what the hemp was worth when it arrived, and what the same hemp would have realized if it had been shipped in a proper state. Jones v. Just, L. R., 3 Q. B. 197. Where the defendant sold a diseased cow to a farmer, warranting that she was free from disease, he was held liable for the value of other cows of the plain- tiff which died of the disease, caught from her, if he knew, at the time of the sale, that the plaintiff was a farmer, and might place the cow with others; Smith v. Qreen, 1 C. P. D. 92; for the defendant is liable for such damages as are the natural consequence of the breach of warranty. S. C. ; Randall v. Ncwson, 2 Q. B. D. 102, C. A. Where A. employed B. to discharge a ship, supplying him with all necessary gearing, which was however defective, whereby B.'s servant C. was injured in doing the work ; C. sued B. under the Employers' Liability Act, 1880, post, p. 804, and B. settled the action by paying V,. 125?., which was a proper settlement. It was held that B. could recover tins 125?. from A., as the liability to pay it was the natural con- sequence of the breach of warranty, and might have been within the contemplation of A. and B. when they made it. Mowbray v. Merry weather, (1895) 2 Q. B. 640, C. A. Where N. sold B. sulphuric acid, warranted free from arsenic, and it was not free ; and B. in ignorance of that fact used the acid in making glucose which he sold to a brewer H. for brewing beer ; the beer was thereby rendered poisonous and H. suffered loss for which B. was liable, and the goodwill of B.'s business was damaged, Bruce, J., held that B. could not recover from N. either of these heads of damage, but that he might recover the price of the acid lost, and also the value of other goods spoilt by being mixed with the acid, as the manufacture of glucose was an ordinary use of the acid. Bostock & Co. v. Nicholson & Sons, (1904) 1 K. B. 725. The liability of B. to II. was the full selling value of the beer which had to be destroyed as poisonous. Bolden v. Bostock & Co., 50 W. R. 323, Action on Warranty of Author Uy. 493 H. S. 1902 ; C. A. See further as to the measure of damages, post, pp. 648 et seq., and the notes to Vicars v. Wilcocks, 2 Smith's L. C. 10th ed. 038 et esq. ]n au action for hreach of contract ou the sale of food or drugs, the plaintiff may, under the Sale of Food and Drugs Act, 1875 (38 & 39 V. c. 63), s. 28, recover, as damages, any penalty in which he may have been convicted under the Act in respect of these goods, and the costs paid and incurred by him, if he prove that he innocently sold the goods as he pur- chased them from the defendant ; but the defendant may in answer prove that the conviction was wrong and the costs excessive. As to damages recoverable on breach of warranty of authority, vide infra and post, p. 494. Action on Warranty of Authority. Where A. contracts on behalf of B. as his agent, but without authority from B., A. is in general not liable as principal; Jenkins v. Hutchinson 13 Q. B. 744; Lewis v. Nicholson, 18 Q. B. 503; 21 L. J., Q. B. 311; unless he was such in fact; Carr v. Jackson, 7 Exch. 382; 21 L. J., Ex! 137 ; or, unless B. has no existence. Kelner v. Baxter, L. 11., 2 C. P. 174. See further, ante, p. 92. It ie, however, now settled that A., by con- tracting with C. on behalf of B., impliedly warrants that he has authority from B. to enter into the contract; and if he have not such authority he is liable for a breach of the warranty; CoUcn v. Wright, infra, and Ex pte. Panmure, post, p. 494; and is bound, as far as damages will do it, to place C. in the same position as if he had the authority. S. C. ; Meek v. Wendt, 21 Q. B. p. f -126; (1889) W. N. 14, H. S., C. A.: Hough v. Suart, (1890) AV. N. 213, T. S., C. A. See as to extent of this warranty in the case of a sub-agent signing a contract, S. C. See on the general principle the judgments in Dickson v. Reuters Telegram Co., 3 C. P. D. 1, C. A. Other cases decided on a similar principle are cited below, and these settle the measure of damages applicable to such actions. Thus, if A., bond fide, but falsely, represent to the plaintiff that he is authorized by B. to order goods, and the plaintiff fail in the action against B. for want of such authority, he may iccover the value and the costs of the former action in an action against A. Randell v. Trimen, 18 C. B. 786; 25 L. J., C. P. 307. So, where the defendant's testator, as agent for G., had let land without authority, he was held liable for breach of warranty that he had authority; and in the damages were included the costs of an unsuccessful chancery suit against G. Col/en v. Wright, 8 E. & B. 647; 27 L. J., Q. 15. 215, Ex. Ch. In a similar action it was held that the proper measure of damages was the value of the term agreed for, and the costs of au abortive chancery suit, but not dam igea and costs the plaintiff had been compelled to pay to a third perBon, for the breach of an agreement for a sub-lease of the premises. Spedding v. .Y< mil, \,. \\., ! C. P. 212. See also Simons v. Patchett, 7 E. & B. 568; 26 I-. .1., < v >. B. 195 ; Hughes v. Graeme, 33 L. J., Q. B. 335. P. agreed to sell the plaintiff an estate, representing that lie had authority from his co-owners mi to do; and on the co-owners repudiating the contract, the plaintiff sued them fur breach thereof, and continued his action after they had all sworn in answer to the interrogatories that P. had no authority from them to contract, and was nonsuit ; it was held, that in an action against V. for breach of warranty of authority, the plaintiff could recover the costs of the action againsl the others, down to the time when the answers to the interrogatories had been received and considered, and the difference between the contract price and the market price of the estate, of which latter the price for which tbo estate was subsequently sold was prima facie evidence. Godwin v. Francis, L. !{., 5 C. P. 295. Where, however, the plaintiff must anyhow have failed 494 J '/■ i on Warranty of Authority. in bis previous action by reason of the contract on which he sued being oral only, the co.-ts of that action are nut recoverable from the agent. Pow v. Davis, 30 L. J., Q. B. 257. A. being instructed by B. to apply for shares in A.'s name, in a company C, by mistake applied for shares in a company D., which were accordingly allotted to B., and repudiated by bim ; the company D. had a large number of shares unallotted and the shares were worthless in tbe market : A. was held liable to the company D. for the full amount of the shares for which he had applied. Ex pte. Pan mure, 24 Ch. D. 367, C. A. Where A., a banker, on the faith of a statement made to him by B. and C, the directors of a company, that they had appointed D. manager of the company, and had authorized him to draw on the company's account with A., made advances on cheques so drawn by D. ; B. and C. had no power to confer this authority on D., but acted bond fide; it was held, that B. and C. were liable to A. for the advances so made by him, on the ground that they had warranted to A. that D. had authority to bind the company. Cherry v. Colonial Bank of Australasia, L. E., 3 P. I'. 2d. So, where the plaintiff lent money to a building society, which had no power to borrow money, the directors Mgning the deposit note were held liable to an action on their implied warranty of authority, for the amount of tbe loan, it not appearing that the company was insolvent. Richardson v. Williamson, L. I!.. 6 Q. B. 276 j >ee also Chapleo v. Brunswick Building Soc., 6 Q. B. D. 696, C. A. S . the directors of a railway company were held liable for issuing a debenture exceeding the borrowing powers of the company. Weeks v. Propert, L. R., - C. I'. 427 ; FirbanWs Executors v. Ih'/iqjhreys, 18 Q. B. D. 54, C. A. So, where the directors of a company, incorporated under a private Act of Parliament, which gave them no power to issue bills, accepted a bill for and on behalf of the company, they were held liable to a bond fide holder for value. TT. London Cor, ■' Bank v. Kitson, 12 Q. B. D. 157; 13 Q. B. D. 260. C. A. The plaintiff must however in these cases have relied on the existence of the authority of the agent A., and he cannot do so if A. had disclaimed any present authority. Ealbot v. Lens, (1901) 1 Ch. 344. "Where a stockbroker S. innocently transferred stock at the Bank of England under a forged power of attorney purporting to have been given by the stock- holder 0. to S. and S.'s partner L., it was held that S. must indemnify the Bank against its liability to 0. ; Starke y v. Bank of England, (1903) A. C. 114, D. P., affirming S. C, sub nam. Oliver v. Bank of England, (1902) 1 Ch. 610, C. A. ; but that L. was not liable for merely applying for the form of the power of attorney. S. C, (1901) 1 Ch. 052. So where a stockbroker C, has procured the transfer of stuck out of M.'s name by innocently identify- ing to the Bank as M., a person J., who then forges M.'s signature, C. mu?t indemnify the Bank. Bank of England v. Cutler, (1907) 1 K. B. 889, cor. A. T. Lawrence, J. See also Sheffield Cor. v. Barclay, and A,-G. v. Odell, cited post, p. 1120. The principle of the above cases does not apply where the misrepresenta- tion is not one of fact, but an erroneous representation of law. Beattie v. Ebury, Ld., L. B., 7 Ch. 777 ; affirm, on other grounds, L. C, 7 H. L. 102. See also McCoUin v. Gilpin, 5 Q. B. D. 390; 6 Id. 510, C. A. Nor does it apply where an agent S. employed by his principal B. to enter into a contract for K. with I., untruly tells R. that he has so done : the damages to which S. is liable are those only which B. has in fact sustained in consequence of the misrepresentation, and do not include profits which he might have made if the representation had been true. 5 v. Iiederi Aktieboiag t. dr., '.. ' '.. 302, D. P. Public servants making contracts on behalf of the Crown do not warrant their authority. Dunn v. Macdonaid, (1897) 1 Q. B. 401, 555, C. A. to the effect of the signature of a charter-party by a ship-broker in the Action on Promise of Marriage. 495 form " by telegraphic authority of the charterer as agent," see Lilly v. Smales, (1892) 1 Q. B. -456, cited ante, p. 22. ACTION ON PROMISE OF MARRIAGE. Either a man or a woman may sue for breach of promise of marriage ; Harrison v. Cage, 5 Mod. -ill ; although an attempt was made in that case to resist an action by the former, on the ground that marriage is not an advancement for a man. As an infant may enforce an advantageous contract, although not bound thereby, an infant may sue a person of full age for breach of promise of marriage. Bolt v. Ward, Str. 937 ; per Ld. Ellenborough, C.J.,, in Warwick v. Brace, 2 M. & S. 209. A married man may be sued on a promise of marriage to the plaintiff, although he was married when he promised, provided the plaintiff was ignorant of the fact ; aud the plaintiffs remaining unmarried on the faith of such promise is a sufficient consideration, and the inability of the defendant to marry the plaintiff is a sufficient breach. Mil- word v. Littlewood, 5 Exch. 775; Wild v. Hurts, 7 C. 13. 999. This action tails within the general rule actio personalis moritur cum persona, and cannot be maintained by an executor or administrator; Chamberlain v. Williamson, 2 M. & S. 408 ; unless, perhaps, where a strictly pecuniary loss has accrued to the deceased, and the personal estate been damaged accordingly ; in such case special damage must be stated on the record, for it will not be intended ; per Cur., Id. -416. So the action will not lie against an executor without special damage. F inlay v. Chirney, 2u Q. B. L>. 494, C. A. This must be damage to the property, not the person of the promisee, and be within the contemplation of both parties at the time of the promise ; such damage is alone recoverable, and not special damage. S. (_'. Until recently the parties to this action were not competent as witnesses; see ante, p. 164 ; but now by 32 & 33 V. c. 68, s. 2, " the parties to any action for breach of promise of marriage shall be competent to give evidence in such action ; provided always, that no plaintiff in any action lor breach of promise of marriage shall recover a verdict unless his or her testimony shall be cor- roborated by some other material evidence in support of such promise.'' Evidence of a third person that the plaintiff .-aid to the defendant, that he had promised to marry her, and that the defendant did not deny it. Lb sufficient to satisfy this section. Bessela v. Stem, 2 C. P. D. 265, C. A. The mere fact, however, that the defendant did not reply to letters written to him by the plaintiff, iu which she stated he had promise 1 t<> marry her, is not sufficient. Wiedemann v. Walpole, (1891) 2 Q. B. 534, 0. A. Proof of the contract.'] To maintain this action, the plaint ill must prove, under a traverse, the contract aud promise of the defendant as stated. Tin- promises must be mutual, the reciprocity constituting the consideration. Harrison v. Cage, supra ; 1 RoLAb. 22, pi. U<>. At tir.-l, it was held that mutual promises to marry came within the Stat, of Frauds, s. 1 ; C Dig. Action on the Case upon Assumpsit (F. 3); but in Bull. N. P. 2 contrary doctrine is laid down, and it is now settled that the promises need not be in writing. Cork v. Baker, 1 Str. 34; Harrison v. Cage, 1 Ld. Raym. 387, note at end of case. And, if written evidence of the contract Ikj produced, no stamp is required. Orford \. <'<■!>,- Stark. 351. A promise, on the part of a woman, may be presumed from such circumstano acquiescence, or tokens of approval, as usually attend the acceptance of an oiler of marriage ; her presence when the oiler was made, aud the consent parents asked, without her making any objection; her subsequent reception 196 Action on Promise of Marriage. of the suitor's visits, and concurrence in the arrangements for the wedding; her demeanour as one consenting and approving, &c. Express consent in words is not necessary. Daniel v. Boivles, 2 0. & P. 553; Button v. Mansell, ."> Salk. 16. But to prove a promise by a man more would be necessary ; neither the usages of society nor considerations of delicacy interfering to restrain an explicit declaration on his part. A promise to marry generally is, in law, a promise to marry within a reasonable time ; and although an admission of a special promise to marry at a particular time should be proved in evidence, it may be left to a jury to infer from the circumstances a more general promise. Potter v. Deboos, 1 Stark. 82; Phillips v. Crutchley, 1 Moore & P. 239. But a promise to marry after a certain event will not support a claim on a general promise if the qualifi- cation be properly pleaded in the defence. Atchinson v. Baker, Peake, Add. Ca. 103. Breach.'] To prove the breach of the promise, if denied, evidence must be giveu, either that the defendant has married another person, so that per- formance is no longer possible ; or, that a tender has been made by the plaintiff, followed by a refusal on the part of the defendant. For this purpose it is sufficient that the father of a female plaintiff demanded perform- ance of the defendant. Gough v. Fan; 2 C. & P. 631. Where the defendant has promised to marry the plaintiff on the death of his father, the marriage of the defendant to another woman, during his father's lifetime, gives the plaintiff an immediate right of action. Frost v. Knight, L. K., 7 Ex. Ill, Ex. Ch. See Synge v. Synge, (1894) 1 Q. B. 466, C. A. Damagcs.~\ The affluent circumstances of the defendant are evidence on the question of damages ; and not merely the loss of an establishment in life, but the injury to the plaintiff's feelings, may be considered by the jury ; and, in this respect the measure of damages is different from that which is adopted in the case of other contracts. Smith v. Woodfine, 1 C. B., N. S. 660; Berry v. Da Costa, L. P., 1 C. P. 331. It is no misdirection to tell the jury that, in estimating the damages, they may take into con- sideration the altered social position of the plaintiff, in relation to her home and family, by the defendant's having seduced and deserted her. S. C. It seems doubtful whether evidence of such seduction can be given in aggrava- tion of damages unless it be specially pleaded. See Millington v. Loring, 6 Q. B. D. 190, C. A. Evidence of character.'] Where the defendant, by his defence, sets up a general charge of immodesty, the plaintiff may, in the first instance, give general evidence of good character for modesty and propriety of demeanour ; though this could not be done in the case of a specific charge of immoral acts. Jones v. James, 18 L. T. 243, E. T. 1862, Ex. ; and see Evidence of character, ante, p. 86. Costs.~\ As to plaintiff's right to costs, vide ante, pp. 296 et seq. The county court lias no jurisdiction to entertain an action lor breach of promise of marriage ; 51 & 52 V. c. 43, s. 56. Defence. If, after entering into a contract of marriage, either party discover gross immorality or depraved conduct in the other, it may be pleaded in bar of the action ; thus, brutal and violent conduct in the man, accompanied with threats of ill-usage to the woman, goes to the ground of the action; Leeds v. Cook, 4 Esp. 258; and if a man has made a promise of marriage to one Defence. 497 whom he supposes to be a modest person, and he afterwards discovers her to be a loose and immodest woman, and he on such account refuses to fulfil Ids promise, he is justified in so doing. Irving v. Greenwood, 1 C. & P. 350. To entitle the defendant to a verdict on the ground of the bad character of the plaintiff, it is not sufficient to show that charges (as of pecuniary dishonesty or perjury, &c.) were made against the plaintiff, which plaintiff promised, but failed, to explain : the defendant must show that the charges are well founded. Baddehy v. Mortloch, Holt, N. P. 151. To show the general bad character of the plaintiff, where such evidence is relevant, evidence of general reputation is admissible. Foulhes v. Sell way, 3 Esp. 236. Material misrepresentation of the real circumstances of the family and previous life of the plaintiff may be a good defence to the action; as, where the plaintiffs father and brother told the defendant that she would have property from her father (who was insolvent), and denied that she had ever been (as in fact she had been) a barmaid. Wharton v. Lewis, 1 C. & P. 529. The plaintiff was, in this case, living with the relations who misrepresented her, and was probably presumed to be privy to their statements. Letters written by the plaintiff's father, with her knowledge, are evidence against her, though she would not be answerable for particular expressions in them ; but a false representation, made orally by the father to a third person in the absence of the plaintiff and without her privity, and by such person communicated to the defendant, is not admissible. Foote v. Haijne, 1 C. & P. 546. A pre-contract on the part of the plaintiff to marry another person, which the plaintiff concealed from the defendant at the time of his promise, is no defence to the action, without fraud. Beechey v. Brown, E. B. & E. 796; 29 L. J., Q. B. 105. Nor is bodily infirmity supervening ami rendering it dangerous to the defendant's life to marry. Hall v. Wright, E. B. & E. 746, 765; 27 L. J., Q. B. 345; 29 L. J., Q.B. 13, Ex. Ch. ' So insanity in the plaintiff, existing unknown to the defendant previously to his promise, is no defence. BaJcer v. Gartwrkjht, 10 C. B., N. S. 124; 30 L. J., C. P. 364. An exoneration by the plaintiff of the defendant from his promise, may be implied from the conduct and demeanour of the parties; the total cessation of intercourse and correspondence for two or three years, is evidence for the jury, on a defence of exoneration ; although on the last occasion they were seen together the plaintiff reined to give up the defendant's letters, saying it would be like giving him up altogether. Davis v. Bomford, 6 H. & N. 245; 30 L. .7., Ex. L39. Infancy is a defence to the action, and the contract of marriage is within the Infants' Relief Act, 187! (37 & 38 V. c. 62), cited sub til., Defences— Infancy, post, p. 675, and cannot, therefore, be ratified after full age; Cox- head v. MulUs, 3 C. P. D.439; and evidence of mere ratification dor-, not amount to a fresh promise. S. ('. Where however, the parties continue to associate together after the defendant has attained full age, as they did before, it can rarely happen that there is not some evidence for the jury of a fresh promise. Thus, fixing the wedding day was held to he such evidence. Ditcham v. Worrall, 5 ('. P. D. M<\ diss. Ld. Cole ridge, O.J. The question for the jury is whether what was said or done was intended by the party to be a new promise, or merely a ratification of the old promise. NorthcoU v. Doughty, 4 C. I'. I >. 385; accord. Holmes v. Brierley, (1888) W. X. 158; 36 W.'R. 795, Trin. S., ( '. A. -vol. I. K K ,: ' s Action on an Award. ACTION ON AN AWARD. in an action on an award, the plaintiff must prove the submission and award, and the performance by himself of any conditions precedent put in issue by the pleadings. Where the submission is by a judge's order, which has been made an order of court, it is sufficiently proved by pro- duction of the office copy of the latter order. Still v. Halford, 4 Camp. 17; s, Iby v. Harris, 1 Ld. Raym. 715 ; vide ante, pp. Ill, 112. ' But not when the submission is by deed or written agreement; for the rule or order of court gives it do binding effect, and is, or may be, obtained exparte Berney v. Read, 7 Q. 13. 70. In that case the rule or order was evidently not obtained by the party against whom it was offered. It is necessary to prove the sub- mission of all parties to arbitration, for without such proof it does not appear that the arbitrator had competent authority to decide the question bet ween the parties. Ferrer v. Owen, 7 B. & C. 427; Brazier v. Jones, 8 B. & C. 124. If the time for making the award has been enlarged, and the award made within the enlarged time, the plaintiff must show (if it be put in issue) that the enlargement was duly made according to the terms of the submission, or by the consent of the parlies, or under the powers granted by the Arbitration Act, 1889 (52 & 53 V. c. 49), s. 9, replacing stat. 3 &4 W. I, c. 42, s. 39, and the a L. P. Act, 1854, s. 15. As to the construction of these repealed sections, see cases collected in Day's Common Law Procedure Acts, 4th ml., pp. 256, 257 ; Lord v. Lee, L. R., 3 Q. B. 404; In re Dare Valley By. Co., L. R., 4 Cli. 550, n., and 554; Denton v. Strong, L. R., 9 Q. B. 117. If the enlargement were irregularly made, such irregu- larity is waived by the appearance of the parties having knowledge of it, without objection, before the arbitrator after the enlargement; In re Hick, 8 Taunt. 694; Tyerman v. Smith, 6 E. & B. 719; 25 L. J., Q. B. 359; so if the time had not been enlarged at all ; Lawrence v. Hodgson, 1 Y. & J. 16. Such appearance of the parties may be evidence of a new oral submission, for an award to be made within a reasonable time. Bennett v. Watson, 5 H. & N. 831 ; 29 L. J., Ex. 357. But though the parties appear and take part in the reference, if they protest at the time, the objection is not waived. Bingland v. Lowndes, 17 C. B., N. S. 514; 33 L. J., C. P. 337, Ex. Ch. So the objection is not waived if it go to the jurisdiction of the arbitrator over the subject-matter. Davies v. Price, 34 L. J., Q. B. 8, Ex. Ch. And if the award be not made within the time limited by the sub- mission, and one of the parties, not knowing the fact, take up the award, his so doing will not be a waiver of the conditions as to time stated in the submission. Darnley, El. of, v. L. C. & Dover By. Co., L. R., 2 H. L. 43. I he plaintiff need not prove that the defendant had notice of the award; for he is bound to take notice of the award as well as the plaintiff. 2 AVms. Saund. 62(4). Where the award states a "request" to the defendant to pay, this is equivalent to an order to pay. Smith v. Hartley, 10 C. B. 800; 20 L. J., 0. P. 169. So where, after issue joined, a cause was referred, and' although there was no power to direct a verdict to be entered, the arbitrator ordered that there should be a verdict for the plaintiff for a certain sum : this was held good as an award of that sum to the plaintiff, on which an action for the amount could be maintained; Everest v. Eitchie, 7 H. & N. 698; .'A L. J., Ex. 350; and where an award directs payment to an arbi- trator, or to a stranger, for the use of the plaintiff, the plaintiff may sue on it lor the money. Wood v. Adcoch, 7 Exch. 468; 21 L. J., Ex. 204, Ex. Oh. An award to be made by two arbitrators must be signed by them in the presence of eaeh other, and at the same time and place, and it is no Defence. 499 award unless so signed. Wade v. Bowling, 4 E. & B. 44 ; 23 L. J., Q. B. 302 ; Peterson v. Ayre, 15 C. B. 724 ; 23 L. J., C. P. 129. If the award be by an umpire, or by the arbitrators and an umpire, the appointment of the latter must be proved. Still v. Halford, 4 Camp. 19. In the absence of any clause to the contrary, the arbitrators may make a valid appointment of an umpire after the time for making the award has expired, if it be within the time limited for the umpirage. Harding v. Watts, 15 East, 55G; Holdsworth v. Wilson, 4 B. & S. 1; 32 L. J., Q. B. 289, Ex. Ch. When the arbitrators have agreed on an umpire they need not sign the appointment at the same time, or together. In re Hopper, L. R., 2 Q. B. 367. In practice there is usually a witness to the execution of an award who, if the execution is disputed, is generally called ; but unless the submission require it, attestation is unnecessary ; and in general, therefore, an award may be proved like any other deed or writing, viz., by proof of the arbitrator's handwriting. Under the Arbitration Act, 1889, a submission, unless a contrary intention is expressed therein (sect. 1), is irrevocable, and (sect. 2) is to be deemed to include the provisions set forth in scbed. 1. As to awards of Commissioners under the Tnclosure Acts, see Proof of Awards, ante, p. 153. When the business of a company incorporated under the Companies Act, 1862, and being voluntarily wound up, is transferred to another company, and the amount to be paid by the company to a dissenting shareholder for the purchase of his interest (sect. 161) lias been settled by arbitration (sect. 162), he may maintain an action against the company on the award so made. He Bosaz v. Anglo-Italian Bank, L. R., 4 Q. B. 162. Defence. A denial of the making of the award will now be taken to put in issue its making in point of fact only, and not its validity in law. See Rules, 1883, 0. xix. rr. 15, 20, ante, pp. 309, 310. Adcock v. Wood, 6 Exch. 814; 20 L. J., Ex. 435. Nor could the defendant under such a defence show that it was set aside. See Roper v. Levy, 7 Exch. 55; 21 L. J., Ex. 28. Where an award ordered a sum to be paid by instalments, a defence of an oral agreement to pay a less sum at earlier dates than so ordered, and pay- ment thereunder, is good, by way of accord and satisfaction after breach, hy non-payment of the first instalment ; and is proved, although the payment was made and accepted after the substituted day, if the plaintiff received the payment and made no objection on the ground <>f its being too late. Smith v. Trowsdale, 3 E. & B. 83; 23 L. J., Q. 1'.. 107. Corruption or misconduct of the arbitrators is not matter of defence; at least, where application might have been successfully made to the court to set the. award aside. 1 Wms. Saund. 327 a (3); Wills v. Maccarmich, 'J. WilB. 148; Braddich v. Thompson, 8 East, 344; Brazier v. Bryant, '■'» Bing. L67; Orazebrook v. Davis, 5 B. iv < '. 5:; I; Whitmore v. Smith, 7 II. & N. 509; .".l L. J., Ex. 107. The omission to give one of the parties an opportunity of being heard, is misconduct of the arbitrators, and falls within this rule. Thorburn v. Barnes, L. R., 2 < '. P. 384. Nor can the award be impeached on the ground that the decision of tl rbitrator lias proceeded on a mistake. Johnson v. Durant, 2 B. & A.l. 925. But the defendant may show that it is not conformable to the submission, where the defence is properly pleaded. Although an award is not final if it do no! award costs in b e way, wheie they are in the discretion of the arbitrator, yet if the submission can be K K 2 .".(lu Action on a Solicitor's Bill. made an order of court, the amount need not bo specified, as the taxing- master lias jurisdiction over them ; and the costs need not have been taxed before action brought. Eoldsworth v. Barsham, 4 B. & S. 1 ; 32 L. J., Q. B. 299, Ex. Ch. As to callinc the arbitrator as a witness to show that he has exceeded his jurisdiction in making his award, which was good on the face of it, see Buccleugh, Dk. of, v. Metropolitan Board of Works and O'Bourke v. Com- missioner for Bailways, cited ante, p. 165. It may be observed that, where the amount of compensation to be paid for land compulsorily taken has been fixed by an award under the Lands Clauses Act, 1845, an action for the amount cannot be maintained until a conveyance of the land has been executed. E. London Union v. Metropolitan By. Co., L. E., 4 Ex. 309. ACTION ON A SOLICITOR'S BILL. By the J. Act, 1873, s. 87, the time-honoured name of " attorney-at-law" was abolished, and attorneys and solicitors arc now all called " solicitors of the Supreme Court," vide pout, p. 502. In an action upon a solicitor's bill the plaintiff must prove, when denied, (1) his retainer as solicitor by the defendant ; which may be done bj T showing either an express retainer, or that the defendant attended at his office, and gave directions, or in other ways recognised his employment ; (2) that the business was done ; which may be proved by a clerk, or other agent, who can speak to the existence of the cause, or the business in respect of which the charges are made, and can prove the main items. BetainerJ] Proof of a judge's order, referring the bill to be taxed, and of the defendant's undertaking to pay the taxed costs, and of the master's allocatur, will be sufficient proof both of the retainer and of the business having been done. Lee v. Jones, 2 Camp. 490. In an action against an ordinary corporation, the plaintiff must show a retainer under seal. Arnold v. Poole, Mayor of, 4 M. & Gr. 860; Sutton v. Spectacle Makers' Co., 10 L. T. 411, E. T. 1864, Q. B. But in the case of commercial companies incorporated by Act of Parliament, such as railway companies, there is usually a power to retain solicitors and other like officers without a retainer under seal. So such power is conferred on companies incorporated under the Companies Acts, 1862, 1867, by sect. 37 of the latter Act. And, where, by an Act of Parliament, the directors of a railway company had power to appoint and displace officers, this was held to extend to an attorney, who therefore need not be appointed under the common seal of the company. B. v. Cumberland, Justices of 5 D. & L. 43, n. ; 17 L. J., Q. B. 102. And, where the retainer, by a common law corporation, is by resolution only, such retainer js sufficient to warrant payment by the corporation, though it may not be sufficient to found an action against them. B. v. Licltfield, 10 Q. B. 534. The managing partner of a firm has an implied authority to retain a solicitor to defend an action brought for the price of goods delivered to the firm in its ordinary course of business. Tomlinson v. Broadsmith, (1896) 1 Q. B. 386, C. A. The liquidator of a company is not personally liable to the solicitor employed by him, in a voluntary liquidation, for the costs thereof; In re Trueman's Estate, L. R., 14 Eq. 278; nor in a compulsory liquidation ; Ex pte. Watkin, 1 Ch. D. 130. When several actions against several defendants are consolidated, and are to abide the event of one, the same Retainer. — Admittance, Certificate, &c. 501 solicitor having been retained by each of the defendants, he is entitled to hold all the defendants liable to the costs of the action tried, as on a joint retainer, Anderson v. Boynton, 13 Q. B. 308. A solicitor who has obtained judgment for a client has no authority, without special instructions, to engage in interpleader proceedings. James v. Ricknell, 20 Q. B. D. 164. Although a lessee or mortgagor is usually to pay the expenses of the lease or mortgage, yet he is not directly liable for them to the solicitor of the lessor or mortgagee, who prepared the instruments ; Rigley v. DayTcin, 2 Y. & J. 83 ; but slight evidence is sufficient to show direct liability, as that the solicitor received instructions from the lessee, and was desired by him to send the bill of costs to him ; Smith v. Chgq, 27 L. J., Ex. 300; Webb v. Rhodes, 3 N. C. 732. Under the Mortgagees Legal Costs Act, 1895, 58 & 59 V. c. 25, a solicitor can charge profit costs of a mortgage from a client to himself; or in respect of proceedings relating to the mortgage. See In re Norris, (1902) 1 Oh. 741. Before this act the rule was otherwise. See In re Doody, (1893) 1 Ch. 129, C. A. and cases cited therein. As to the liability of the husband for the costs of preparing a marriage settlement, see Helps v. Clayton, et ux., 17 C. B., N. S. 553 ; 34 L. J., C. P. 1 ; it must, however, be observed that in this case the dicta was made obiter, as the actiou was brought against the husband and wife, upon the retainer of the wife, given dum sola, and that under the Married Women's Property Act, 1882, s. 14, post, p. 1169, a husband is now liable for his wife's antenuptial debts to the extent only thereby defined, and under sec. 13 (post, p. 1176) the wife remains liable in respect of her separate property. As to the liability of the husband, on the retaiuer of his wife, living apart from him, see Wilson v. Ford, and other cases cited post, pp. 555, 556. As to the continuance of such retainer see In re Wingfie/d and Blew, (1904) 2 Ch. 665, C. A. Admittance, Certificate, to act, shall he recoverable in any action, suit, or matter by any person or persons whomsoever." A person is duly qualified lor the purposes of this section if he have a stamped certificate in force, or be appointed solicitor to some public department. By the Stamp Act, 1891, B. 13 (I ), " Every person who in any part of the United Kingdom (a) directly or indirectly acts or practises as a solicitor," &c, in any court, "without having in force at the time a duly stamped certificate; or (6) on applying for his certificate Woes not truly specify the facts and circumstances upon which the amount of duty chargeable upon the certificate depends " : . . . "shall be incapable of maintaining any action or suit for the recovery of any fee, reward, or disbursement on account of or in relation to any actor proceeding done or taken by him in any such capacity." The 37 & 38 V. c. 68, s. 12, applies even where a client has taken out an order of course for taxation of the hill with the usual Bubmission to pay what was found to be due. Xn i S ting, (1898) 1 . Ch. 268. An attorney of one court could nol practi e in i bher courl without signing the roll (6 & 7 V. c. '>'■'>, s. 27), nor could he recover his fees till he had so done. Latham v. Eyde,l Cr. & M. L26 ; Vincent v. Holt, I Taunt. 162. So in an action by several partners, attorneys, for business done in a 502 Ad inn on a Solicitor's Hill. local court, it appearing that only one of the plaintiffs was au attorney of that court, it was held tbat they could not jointly recover. Ardeu v. Tucker, 1 M. & Rob. 191. All the superior courts, except the House of Lords, and the Judicial Committee of the Privy Council, are now con- solidated together and constitute one Supreme Court of Judicature (J. Act, 1ST."., s. 3 : Bky. Act, 1883, s. 93 (1), and all attorneys and solicitors are now solicitors of that court (J. Act, 1873, s. 87). Signature of the roll of that court only will therefore entitle a solicitor to practise in any branch or division of the Supreme Court. Signed bill. — Special agreement.] The last act which requires delivery of a bill before action is (J & 7 V. c. 73. By sect. 37 of that act, no solicitor, nor any executor, administrator, or assignee of any solicitor, shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements for any business done by such solicitor, until the expiration of one [calendar] month after such solicitor, or executor, administrator, or assignee of such solicitor, shall have delivered unto the party to be charged therewith, or sent by the post to, or left for him at his counting-house, office of business, dwelling-house, or last known place of abode, a bill of such fees, &c, which bill shall either be subscribed by the solicitor or by any of the partners, with his own name or with the name or style of the partnership, or of the executor, administrator, or assignee of such solicitor, or be enclosed in or accompanied by a letter subscribed in like manner referring to such bill. Provided that it shall not be necessary in the first instance for such solicitor, &c, to prove the contents of the bill delivered, sent, or left; but it shall be sufficient to prove that a bill, subscribed or enclosed as aforesaid, was delivered, sent, or left; but nevertheless, it shall be competent for the other party to show that the bill so delivered, &c, was not such a bill as constituted, a bond fide compliance with this act. Stat. 38 & 39 V. c. 79 empowers a judge, in certain cases therein specified, to allow the action to be commenced although the month shall not have expired. The case of bills for business in the House of Lords and Commons respectively, is provided for by 12 & 13 V. c. 78, and 10 & 11 V. c. 69, extended by 42 & 43 V. c. 17. The 6 & 7 V. c. 73, repeals 2 G. 2, c. 23, on which many cases were decided, and the present Act is expressed in language, in general sufficiently different, to make must of them inapplicable to it. Those decisions only are here retained which, from the similarity of the language used, are not manifestly useless. One distinction between this Act and the former seems to be that the power of taxing bills now extends to bills for any business done by a solicitor. It is no longer confined to proceedings taken in a court, and the only qualification is one evidently implied, though not expressed, viz., that it should be done as solicitor. In all such cases a bill must be delivered, sent, or left in the manner required by section 37. See Smith v. Dimes, 4 Exch. 32, 40,per cur. By 12 G. 2, c. 13, s. 6, an attorney might sue another attorney for agency business without delivering any bill ; but this Act is repealed, and the present \.-i contains no such exception. It also requires assignees and persona] representatives of solicitors to deliver bills. In some cases (as Ju re Gedye,2 D. & L. 915, and In re Simons, 3 D. & L. 156), it had been held that agency business was virtually excepted out of the 6 & 7 V. c. 73. But in Billing v. Coppoc/e, 1 Exch. 14, where an attorney employed another attorney to defend an indictment, the bill delivered by the latter to the former was held taxable; and it seems to follow that the delivery of the bill is obligatory. Accord. Smith v. Dimes, 4 Exch. 32. i'lic eases on the effect of including taxable and untaxable items in the Signed Bill. — Special Agreement. 503 •same bill are do longer retained, both because all business seems to be now taxable, ami because many of tbe old distinctions were founded on no clear principle, and are not likely to govern the construction of the existing Act. A solicitor's bill cannot be recovered on an account stated without proof of the delivery of the bill, though the amount has been admitted ; Eicke v. Nohes, 1 M. & Rob. 359 ; Brooks v. Bockett, 9 Q. B. 847. But the solicitor may recover on a promissory note given for the amount. Jeffreys v. Evans, 14 M. & W. 210. And if a solicitor S. has a claim against bis client W. for costs, and W. lias a cross claim against S., and they orally agree upon the amounts of their respective claims, and state an account snowing a balance due toS., S. may recover it without proving delivery of a detailed bill. Turner v. Willis, (1905) 1 K/B. 468, C. A. As to setting off a solicitor's bill, see sub tit. Defences — ^et-off, 'post, p. 705. An agreement entered into by a client with his attorney to pay him at a certain special rate for business to be done was not binding, or, at all events, not conclusive upon the client. Drax v. Scroope, '_' B. & Ad. 581. Such an agreement was void, at least to the extent that the attorney could not recover on it a larger sum than the master would allow ou taxation ; and therefore, a bill in which a gross sum is charged by the attorney as per agreement, without giving specific items so as to enable the master to tax them, was not a compliance with the 6 & 7 V. c. 73, s. 37. Philby v. Hazh, 8 C. B., N. S. 647 ; 29 L. J., C. P. 370. But, in the absence of a defence pleaded of no sigued bill delivered, a solicitor might prove and recover a specified sum agreed to be paid. Scarth v. Rutland, L. R., 1 C. P. 642. A solicitor employed as clerk to a public board at a fixed salary can recover his salary, although part of the work be done as a solicitor without having delivered a bill of such part. Bush v. Martin, '1 11. .V < '. 311; 33 L. J., Ex. 17. So an agreement between a solicitor and his client that the former shall be paid a Bxed yearly salary, to be clear of all expenses of his office, and to include all emoluments, he paying to bis client any surplus that may aiise of rei eipts over payments, and undertaking to do no work for any other client, is Legal. Galloway v. London, Cor. of, \j. I.'., 4 Eq. 90. Now by the Attorneys and Solicitors Act, L870(33 & 34 V. c. 28), s. 4, a solicitor "may make- an agreement in writing with his client respecting the amount, and manner of payment," for his fees or disbursements, &c, either by a gross sum, oi commission, or salary, but where the agreement is in respect of business transacted in court, the amount payable thereunder shall not be received by the solicitor until the agreement has been approved hy a taxing officer. A client is not now hound by an oral agreement to pay the solicitor a lump sum in satisfaction of paBt costs. In re Russell, 30 Ch. D. 114. A receipt containing the terms of an agreement assented to by the solicitor, signed by the client only, is sufficient, Ex pte. Baylis, (1894) 1 Q. B. 46L', dissenting from the dictum of Ld. Coleridge. ('..!., in Ex j>/c. Munro, 1 Q. B. D. 724, 726. Hut such a receipl a sented to by the client, signed by the solicitor only, is insufficient. S. 0. The client maj sel up an agreement as to costs, although no! in writing. Clare v. Joseph, (1907) W. N. 1 16, 0. A., reversing S. 0. ( L906) 2 K. B. 592. By sect. 8, no action shall be broughi to enforce an agreemenl made under sect. I, hut the same may be enforced by the court on motion. This section applies only to an action to recover the agreed remuneration, and does not prohibit an action for refusing to allow the wort; to lie .lone. Uees v. Williams, L. \L, 1" Ex. 200. An agreement under this Act obviates (see see. L5) the objection of no signed bill having been delivered, when an action is broughi to enforce a solicitor's charges. Now under the Solicitor.-.' Re aeration Act, L881 in A 15 V. c. II), s. 2, general orders are made a to "the remuneration ol solicitors in respect 50 1 Action on a Solicitor's Bill. of business connected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing, and in respect of other business not being business in any action or transacted in any court, or iu the chambers of any judge or master, and not being otherwise contentious business." See Stan- ford v. Huberts, 'H< Ch. J >. 155; Humphreys Y.Jones, 31 Ch. D. 30, C. A. But by sect. S (1), in respect of such business it shall be competent for a solicitor and client, before or after or in the course of such business, to make an agreement for the remuneration of the solicitor to such amount, and in such manner, as they shall think fit, by a gross sum, or by commission or percentage, or by salary or otherwise. (2) "The agreement shall be in writing, signed by the person to be bound thereby, or by his agent in that behalf." (3) The agreemeut may be made on the terms that the remunera- tion shall or shall not "include all or any disbursements made by the solicitor in respect of searches, plans, travelling, stamps, fees, or other matters." (4) "The agreement may be sued and recovered on or impeached and set aside in like manner and on the like grounds as an agreement not relating to the remuneration of a solicitor." The agreement must be signed by the party seeking to repudiate it. Ex pte. Perrett, (1893) 2 Ch. 284, C. A. As to what is a sufficient agreement, vide S. C, and In re Baylis, (1896) 2 Ch. 107. Where an action is brought on such an agreement, the defence of no signed bill will not be available. By sect. 9, " the Attorneys and Solicitors Act, 1870," ante, p. 503, " shall not apply to any business to which this Act relates." Delivery of the hill, how, and to ivhom.~] Where the non-delivery of a signed bill is pleaded, plaintiff must prove that the bill was not only delivered, but left with the defendant for examination. Brooks v. Mason, 1 H. Bl. 290. Showing and explaining the bill without a regular delivery is not sufficient. Crowder v. Shee, 1 Camp. 437. It has been held not sufficient to prove that the bill was delivered at a particular place not shown to be the defendant's abode, and that the defendant afterwards delivered it to the attorney's clerk : EicJce v. Nohes, M. Sc M. 303 ; unless it appears that the defendant had it in his possession a month before action ; per Alderson, B., Eggington v. Cumberledge, 1 Exch. 271 ; in which case a delivery of a bill by a local attorney to the general attorney of a company, who submitted it to the provisional committee, one of whom present was the defendant, a month before action, was held sufficient. Accord. Phipps v. Daubney, 16 Q. B. 514 ; 20 L. J., Q. B. 273, Ex. Ch. A delivery at the office of'a public company, or to a person representing it, would be sufficient ; but a delivery to one provisional committee-man at his private place of business is not sufficient alone, as against a co-committee-man ; Edwards v. Lawless, 6 C. B. 329. See also Blandy v. De Burgh, Ld., Id. 623. If, however, two be shown to lie joint contractors, the delivery to one is good as against the other. Mant v. Smith, i II. & N. 324; 28 L. J., Ex. 234. The delivery of the bill to the attorney of the party has been held good, where that attorney had obtained the order for delivery of the bill ; Vincent v. Slaymakcr, 12 East, 372 ; or where the party himself afterwards attended the taxation. Warren v. Cunningham, Gow, 71. So, a delivery to one of the retaining persons, who has been authorized to act for the others, is a delivery to all. Finchett v. How, 2 Camp. 277. Thus, where an attorney had been retained jointly by several persons to defend several suits against each, in the subject-matter of which they had a common interest, it was held that the delivery of a hill to one was sufficient to enable the plaintiff i" maintain a joint action against all. Oxcuham v. Lemon, 2 D. & By. 461. Some of the above decisions were under the repealed statute, but they seem to be still applicable, as the wording of the two is very similar; Delivery and Proof of the Bill. 505 for by the 2 Geo c. 23, s. 23, the bill is to be " delivered to tlie party to be charged therewith, or left for him at his dwelling-house or last place of abode." Delivery of the bill, how proved.'] As to proof of delivery of bill by in- dorsement made on a copy by a deceased clerk in the ordinary course of his business, see Champneys v. Peck, 1 Stark. 404, and other cases cited ante, pp. 59 et seq. As to evidence of sending bill by post, see Skilbeck v. Oarbett, 7 Q. B. 846, and other cases cited ante, p. 385. Delivery of the bill at what time.] The bill must be proved to have been delivered one calendar month before the commencement of the action ; 6 & 7 V. c. 73, ss. 37 and 48. See Ryatts v. The Queen, 11 Q. B. 781. The month must have been reckoned exclusively of the days on which the bill is delivered and action brought. See Blunt v. Heslop, 8 Ad. & E. 577 ; and Freeman v. Read, 4 B. & S. 174 ; 32 L. J., M. 0. 226. In calculating the calendar month, the days of the calendar furnish the only guide to follow; e.g., if the bill be delivered on the 28th day of one mouth, the action may be commenced on the 29th day of the following month, without regard to the length of the mouth. S. C. The commencement of the action is determined by the date of the issuing of the writ of summons (Rules, 1883, 0. ii. r. 1); and as this date appears on the statement of claim (see Rules, 1883, Forms, App. C), the plaintiff need now give no further evidence of when he began the action, in order to show that it is not premature. Proof and form of the bill.] The bill may be proved by a copy or duplicate original, without any notice to produce the bill delivered. Anderson v. May, 2 B. & P. 237; Colling v. Treweek, 6 B. & C. 394. But, it is not now necessary in the first instance for the plaintiff to prove the contents; it is enough to prove that a bill of fees, &c, subscribed or inclosed in a signed letter, was duly delivered, and the defendant may show that it was not a bond fide compliance with the Act. See 6 & 7 V. c. 7.'!, s. 37, ante, p. 502. The Act does not prescribe any form of making out the bill, as 2 G. 2, c. 23, s. 23, did. See Reynolds v. Caswell, 4 Taunt, L93, on the old act. And this has not been sufficiently attended to in cases decided since the last act, in which the courts have been influenced too much by the strict requirements of the old one. Thus, it was held that the bill must still show in what court the business had been done; Engleheart v. Moore, L5 M. & W. 548; Martindale v. Falkner, 2 C. B. 7011; but," it is sufficient if the court appear by reasonable inference; S. C. ; Sargent v. Gannon, 7 < '. B. 742. It was, however, decided that, the authority to tax, and the scale in all the superior courts of law being the s.uue, it was prima facit enough if it appeared to be business done in any of those courts, and that the defendant ought t.. have applied lor a. better bill, it it were /„,//,; /id, Decessary; Cozens v. Graham, 12 ('. I', :'.«.»*; L'l L. .1, • '. I'. 206; Cooh v. Qillard, I B. & B. 26; 22 L. J., Q. B. 90; and the eases contra, decided shortly alter the passin the present act, must not be relied on. And now the scale in all the divisions of the Supreme Court (vide ante, p. 502) is the same, [f the cause be sufficiently described to be understood, the technical title need not appear. Anderson v. Boynton, 13Q. B. 308. The bill must show, either by the head- ing or by the accompanying letter or envelope, the party charged. Taylor v Eodqson, •"• 1>. -V L. L15; Lucas v. Roberts, I I E ch. U ; 24 L.J., E: 227; Uridle), v. Ansim, L6 Q. B. 504; Champ v. Stokes, 6 II. & N. 683; 30 L. J., Ex 242 A mistake in the date "I the items, which does Dot mislead, will not vitiate the bill. Williams v. Barber, I Taunt. 806. Bo a mistake in the name of the parties to the cause at the head of the bill, if Dot of a nature 506 Action un a Solicitor's Bill. to mislead, or if the right name appears indorsed. Sargent v." Gannon,, ante, p. 505. If purl of the business wore done in a court, named in the bill, and part in an unnamed one, it has been considered that the plaintiff cannot recover any part. Tvimey v. Marks, 16 M. & W. 843; Dimes v. Wright, 8 ( '. B. 831. But this is the ride where only there is not enough in the bill tu show mi what scale the costs should be taxed; and where a part of the business appeared to have been done in an unnamed superior court of law, but the bulk of it in a named court of law at Westminster, this was held enough. Keene v. Ward, 13 Q. B. 515. The reasoning of the Q. B., in S. C, and Cook v. Gil/ard, ante, p. 505, seems to impugn the doctrine of Tvimey v. Marks, and Dimes v. Wright, supra, that a bill insufficient for part is bad altogether; which is, however, supported in Pigot v. Gadman, 1 H. & N. 837 ; 26 L. J., Ex. 131. On the other hand, Gook v. Gillard, ante, p. 505, and Keene v. Ward, supra, are adhered to, and the cases in the Exchequer dissented from, in Ilaigh v. Ouseg, 7 E. & B. 578; 26 L. J., Q. B. 217. And the Q. B. point out that the C. P. had expressly decided in Waller v. Lacy, 1 M. & Gr. 54, that an attorney may recover for such of the items of his bill as are sufficiently described, although, as to others, the bill is insufficient. Where the solicitor A. who did the work assigned his business and debts to B., it was held that a bill signed by B. was sufficient to entitle him to sue. Penley v. Anstrutlicr, 52 L. J., Ch. 367; Ingle v. McGutchan, 12 Q. B. D. 518. Interest.'] The General Order, cl. 7, made under the Solicitors' Kemu- neration Act, 1881, 44 & 45 V. c. 44 (to take effect after Dec. 31st, 1882), provides that "a solicitor may accept from his client, and a client may give to his solicitor, security for the amount to become due to the solicitor for business to be transacted by him, and for interest on such amount, but so that interest is not to commence till the amount due is ascertained, either by agreement or taxation. A solicitor may charge interest at 4 per cent, per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from demand from the client. And in cases where the same are payable by au infant, or out of a fund not presently available, such demand may be made on the parent or guardian, or the trustee or other person liable." See In re Marsden's Estate, 40 Ch. D. 475. The solicitor is, uuder this order, entitled, after the taxation of his bill, to recover interest on the taxed amount, from one month from the date of the delivery of the bill, although he made no claim for interest until the taxed amount was paid. Blair v. Gordner, 19 Q. B. D. 516, M. B., and L. JJ. Defence. Xon-delivery of hill.'] The defence of non-delivery of a bill must be specially pleaded. Lane v. Ghnny, 7 Ad. & E. 83; see Bules, 1883,0. xix. r. 15, ante, p. 309. Proof that the bill was delivered to a servant of the defendant at his house is prima facie evidence of delivery to the defendant. M'Gregor v. Keily,3 Exch. 794. In the absence of tin; defence, the solicitor may prove and recover a. specific sum agreed to be paid. Scarth v. Rutland, L. K,, 1 C. P. 612. Disputed charges.] Where a bill has been delivered containing taxable items (and almost all items are so now), it was held, under the old act, that the defendanl could not object to the reasonableness of the charges at the trial. Williams v. Frith, 1 Doug. 108; Anderson v. May, 2 B. & P. 237; Lee v. Wilson, 2 Ohitty, 65. The reason seems to have been that the defendanl might have had them taxed by more competent persons than a Defence.— Disputed Charges. — Negligence, (fee, of Plaintiff. 507 jury, and must therefore be taken to have acquiesced in them conclusively. But by the present Act (6 & 7 V. c. 63, s. 37) it is only after a verdict oi writ of inquiry, or the expiration of one year from the delivery of the bill, that the reference to taxation at the request of the party chargeable is not grantable of course ; and in point of practice a verdict is almost always taken subject, as to the amount, to taxation by the proper officer. See Lumsden v. Shipcote Land Co., (1906) 'J K.B.433, C. A., and Lumley v. Brooks, 41 Oh. D. 323, C. A. And even where a testator had retained the bill for 12 months before his death, it was held that this was prima facie evidence only that the charges were reasonable, and certain items objected to by the executor were referred to the taxing master for his report as to whether they were fair and proper to be allowed, and to what amount. In re Park, Id. ;i'J6, C. A. It seems, however, that the plaintiff, is not entitled as of right to have the amount so ascertained. Expte. Ditton, 13 Ch. D. 318, C. A. The delivery of a former bill is conclusive against an increase of charge on auy of the same items contained in a subsequent bill for the same business, and strong presumptive evidence against any additional items ; but errors or real omissions are to be allowed for. Loveridge v. Botham, 1 B. & P. I' 1 - See Lumsden v. Shipcote Land Co., supra. Where the bill had been taxed previously to the signed bill being delivered, the masters allocatur was uot conclusive against the plaintiff on a plea of iium/uam iwlebilatns, but only strong evidence that no more is due; Beck v. Cleaver, 9 Dowl. Ill : there the difference of amount depended on when the retainer of the plaintiff was revoked. It is a good defence that the plaintiff undertook the cause gratis; and the declaration of his clerk to that effect, when he attended to tax costs, is evidence for the defendant. Ashford v. Price, 3 Stark. 185. The Btat. 33 & 34 V.c. 28, ss. 4, 11, does not require that an agreement with the client " to charge him nothing if he lost the action, and to take nothing for costs out of any money that might be awarded to him in such action," should be in writing. Jennings v. Johnson, L. \l, 8 < '. P. 425. I fa solicitor undei I to charge a client only costs out of pocket. " in case the damages or costs should not be recoverable," and the client recovers, but the defendant becomes insolvent, the solicitor is not limited to costs out of pocket. In re Stretton, 14 M. & W. H06. The' plaintiff is prima facie entitled to be paid for profes- sional services; but, where the defendant proves facts which are evidence of gratuitous services, the jury ought not to be told "to find for the plaintifl unless the defendant has established his defence," but Bbould be asked whether, taking all the evidence together, the plaintiff has proved his lnle to payment; for the onus of proof lies on him, and if the matter is made doubtfulitl their minds by the evidence, they ought to find for the defendant. Etngeston v. Kelly, 18 L. J., Ex. 3G0. Negligence or misconduct of plaintiff '.] The plaintiff' ence in the conduct of the business cannol be set upas a defence, if it has pot been such as to deprive the defendant of all benefit ; Temper v. M'LachUin, 2 N. R. L36; but where such lias been thi is where the defendants appeal against the removal of a pauper wholly failed from the plaintifl going to the wrong sessions and wronglv signing the notices himself, the plaintifl ,,r: Huntley v. Bulwer, 6 N. C. Ill ; and if a solicitor conduct in g a suit commits an act of negligence by which all the previi become useless in the result, he can recovei fo part oi Ins business. Bracey v. Carter, L2 Ad. & E. 373. So where an indictment for perjury failed for misnomer of the commissi « before whom it was committed, and the jury found gross negligence, the plaintiff cannot recover; Lewis v. Samuel, 8 <». B. 685; even though the client was only to pay costs out ol pocket, which was all the plaintiff sought to recover. S. C. A BOliCltoi 508 Action on a Solicitor's Bill. cannot recover costs of suit in an inferior court, which, as he ought to have known, had no jurisdiction in the matter, and was restrained by prohibition. See Robinson v. Emanuel, L. K., 9 0. 1'. 415, 41(3. So if a solicitor sue in a court which is without adequate powers to examine material witnesses out of the jurisdiction, and the suit fail accordingly, he cannot recover his costs of the suit; but he may recover the costs of letters before suit demanding the debt. Vox v. Leach, 1 C. B., N. S. (317 ; 20 L. J., C. P. 125. So where a solicitor commences an action on two foreign bills, without having first ascertained whether they had been specially indorsed to his client, which the solicitor knew was necessary by the foreign law, and the action is dis- continued for want of such indorsement, he can recover no costs. Long v. Orsi, 18 C. B. 610 ; 2(3 L. J., C. P. 127. If a solicitor, through inadvertence or inexperience, do useless work, he cannot recover anything for it. Hill v. Featherstonhaugh, 7 Bing. 5(39. And entire items for useless work may be expunged. Shaw v. Arden, 9 BiDg. 287. But if there be other causes conducing to the loss of the benefit besides the plaintiff's negligence, the negligence is no defence. Dax v. Ward, 1 Stark. 409. It was no defence to an actiou for business done in defending a suit, that the plaintiff was instructed to put in a plea for delay, which he neglected to do. Johnson v. Alston, 1 Camp. 176. Nor that the plaintiff refused to go on with a suit in ( 'hancery, if the defendant did not supply him with money ; Rowson v. Earle, M. &. M. 538 ; for though a solicitor cannot suddenly and without notice abandon a cause, yet if he give reasonable notice, he is at liberty to discontinue the conduct of it, on the refusal by the client to supply him with money ; and he may recover for the work done. Vansandau v. Browne, 9 Bing. 402. Where a solicitor prepares for a client a document which turns out to be illegal, but with regard to the legality of which there was reasonable doubt, he is entitled to recover for preparing it. Potts v. Sparrow, 6 C. &. P. 749. The illegality must at all events be pleaded ; S. C, 1 N. C. 594 ; unless it makes the work done wholly useless ; semb. Tabram v. Warren, 1 Tyr. & Gr. 153 ; Roberts v. Barber, Chitty, Preced. 3rd ed. 320. So the misinterpretation of a rule or order (such as a standing order of the House of Lords, by a solicitor acting as a parliamentary agent), the construction of which is doubtful, is not such culpable negligence as to disentitle the plaintiff to recover for his work, although in consequence of the mistake the bill is withdrawn. Buhner v. Gilman, 4 M. & Gr. 108; see also In re Sadd, 34 Beav. 653 ; 34 L. J., Ch. 562. It is a good defence that the plaintiff paid no attention to the defendant's case, but resided at a distance from the place where his business was carried on, and that in fact it was transacted there by another person employed by plaintiff; Taylor v. Glassbrook, 3 Stark. 75 ; Hopkinson v. Smith, 1 Bing. 13 : and this was ruled without reference to the success or miscarriage of the business done. The plaintiffs negligence may now in any case be set up as a counter- claim pro tanto under Piules, 1883, O. xix. r. 3, post, p. 704. Want of certificate, admission, ifc] The defendant may put the plaintiff to prove, under a special defence, that the plaintiff had a certificate; vide ante, p. 501; or was duly admitted. Hill v. Sydney, 7 Ad. & E. 956. By the 23 & 24 V. c. 127, s. 22, the Law List, purporting to be published by the authority of the Commissioners of Inland Revenue, and to contain the names of solicitors who have obtained stamped certificates for the current year (from I'ith November or any later day to 15th November in the next year), on or before the 1st of January in the same year, shall, until the contrary be made to appear, be evidence in all courts, &c, that the persons named in it as such solicitors are so certificated ; and the absence of the name of any person from the List shall be prima facie evidence that he is Action against Solicitor for Negligence. 509 not so qualified to practise as a solicitor under a certificate for the current year ; but in the latter case an extract from the Eoll of Attorneys under the hand of the registrar for the time being (or of the secretary of the Law Society, while that society acts as registrar) shall be evidence of the facts appearing in the extract. See J. Act, 1875, s. 14. Agency business.] Where one solicitor does business for another, the solicitor who does the business universally gives credit to the solicitor who employs him, and not to the client for whose benefit it is done. If the solicitor in such case intends not to be personally responsible, it is bis duty to give express notice that the business is to be done on the credit of the client. Per cur., Scrace v. Whittington, - 13. & 0. 13. But such notice, though it may protect the solicitor from liability, will not necessarily make the client liable. See Bobbins v. Fennell,U Q. B. 248, 256; Bobbins v. Heath, Id. 257, n. ; and Peatfield v. Barlow, L. R., 8 Eq. 61. The usual agency terms are that the agent should be repaid his disbursements, and receive half the profit charges, i.e., charges involving no expenditure, whether they are paid by the client or not; he is not entitled to interest for delay in payment. Ward v. Laivson, 43 Oh. D. 353, C. A. Non-completion of work — Statute of Limitations.] The cou tract of a solicitor to conduct a common law action is entire and can only be determined on reasonable notice that he will not proceed without payment or advances from the client; the solicitor cannot therefore sue for his costs till the action is ended, Underwood v. Lewis, (1894) 2 Q. B. 306, C. A. ; or the client dead, Whitehead v. Lord, 7 Ex. Ch. 691; 28 L. J., Ex. 239. The statute of limitations (six years) does not therefore run as to any items of the hill until the happening of one of those events. S. ('.; Harris v. Osboum, 2 Or. & M. 629; Harris v. Quine, L. R., 4 Q. B. 653. In cases, however, other than a common law action, as a suit for administration or proceedings in bankruptcy which may extend over a considerable time, and in which breaks may occur, at the conclusion of separate and distinct parts of the transaction, the solicitor may sue for the costs of each such parts. Li re Hall and Barker, 9 Ch. D. 538. As to an arbitration see In re Homer and Haslam, (1893) 2 Q. B. 286, 0. A. And the principle as to the contract being entire does not extend to miscellaneous work done by a solicitor. Beck v. Pierce, 23 Q. B. D. 316, C. A. The statute runs in each case from the completiou of the work in respect of which the cause of action arises and not from a month after the delivery of the hill of costs. Cdburn v. Colledge, (1897) 1 Q. B. 702. On payment of solicitor's bill, he is bound to deliver to Ins client II. not only original deeds, &c, belonging to EL, 1ml also the drafts and copies for which H. has paid. Ex pte. Horsfall, 7 I'.. .V < . 528. See Gibbon v. i'tase, cited post, p. 585. ACTION AGAINST SOLICITOR FOB NEGLIGENCE. What amotvnts to acUonabl negligence.] An error ol judgment on a poinl of law, open to reasonable doubt, is not Bufficienl ; Kemp v. /;«//, I B. a Ad. 424; there must he gross ignorance or gross negligence in the perform- ance of his professional duties. Purves v. Landell, 12 CI. .V P. 91. The solicitor is bound to bring a fair amount of skill, care and knowledge \o the performance of his duty, and tins will he a question of fact for the jury 510 Action against Solicitor for Negligence. under the direction of the judge, who will explain the nature of the duty, and the degree of negligence which makes him responsible. Hunter v. ( 'aldwi II, 10 Q. B. 69, 83, Ex. Oh. See Blytli v. Fladgate, (1891) 1 Ob. 337. The omission to take the proper steps for renewing a writ, issued to save the Statute of Limitations, is evidence of actionable negligence. Hunter v. ( 'aldwell, supra. Where a mortgage was prepared under the defendant's advice, and the solvency of the mortgagor was questionable to the knowledge of the attorney, it was held his duty to search at the Insolvent Debtors' Court; and if the language of the defendant show that he considered his search expedient, this is evidence of his suspicions; Cooper v. Stephenson, 21 L. J., Q. B. 202 ; but the court declined to say whether or not searches of this kind are necessarily, and in all cases, essential. See also Langdon v. Godfrey, 1 F. & F. 445. It may not be part of the duty of a solicitor to know the legal operation of conveyances, but it is his duty to take care not to draw wrong conclusions from deeds before him, but to lay them before counsel, or draw the conclusions at his own peril; and therefore where a solicitor acted on the advice of counsel to whom he had mis-stated the legal effects of certain deeds which did not accompany the case, this was held evidence for the jury of negligence for which he was responsible. Ireson v. Pearman, 3 B. & C. 799. As to a solicitor's liability for investing his client's money by way of mortgage on an insufficient security, see Dooby v. Watson, 39 Oh. D. 178. A solicitor instructed to take or to defend legal proceedings is liable for failure by reason of his own culpable neglect; as where he was retained to proceed on a statute against an apprentice, and he proceeded under a wrong section of the statute as against a servant ; Hart v. Frame, 6 01. & F. 193 ; or where the solicitor and his witnesses were absent when a cause was called on ; and the counsel had a brief and was present, and was obliged to withdraw the record ; Hawkins v. Harwood, 4 Exch. 503 ; or where he sued in an inferior court, which, as he ought to have known, had no jurisdiction in the matter, and was restrained by prohibition. See Robinson v. Emanuel, L. K., 9 C. P. 415, 416. There are numerous other cases on this subject; and they establish, in general, that a solicitor is liable for the consequence of ignorance or non-observance of the rules of practice of the court in which he sues ; for the want of care in the preparation of the cause for trial ; or of attendance thereon with his witnesses ; and for the mismanagement of so much of the conduct of a cause as is usually allotted to solicitors. But he is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction, or such as are usually intrusted to counsel. His liability must, however, depend upon the nature and description of the mistake or want of skill which has been shown, and he cannot shift from himself such responsibility by consulting counsel where the law would presume him to have the knowledge himself. Qodefroy v. Dalton, 6 Bing 467-9, per cur. Sec Lee v. Walker, L. B., 7 C. P. 121. A solicitor will be liable to an action, at least for nominal damages, for compromising an action against the express directions of his client, though the compromise be really for the benefit of the client; Butler v. Knight, L. B., 2 Ex. 10'J; and, under such circumstances, it is no defence that the solicitor acted under the advice of counsel retained to conduct the cause. Fray v. I r oules, 1 E. & E. 839 ; 28 L. J., Q. B. 232. A solicitor retained in an action has no implied authority after judgment in favour of his client, to agree on his behalf to postpone execution. Lovegrove v. White, L. B., 6 C. P. 440. As to the implied authority "fa solicitor to compromise an action, vide ante. p. 283. By the Partnership Act, 1890 (53 & 54 V. c. 39), s. 10, "Where, by any What amounts to Actionable Negligence. — Damages. 511 wrongful act or omission of any partner acting in the ordinary course of the business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act." By sect. 11, "In the following cases; namely — (a.) AVhere one partner acting within the scope of his apparent authority receives the money or property of a third person and misapplies it; and (b.) Where a firm in the course of its business receives money or property of a third person, and the money cr property so received is misapplied by one or more of the partners while it is in the custody of the firm; the firm is liable to make good the loss." By sect. 12, "Every partner is liable jointly with his co-partners and also severally for everything for which the linn while lie is a partner therein becomes liable under either of the two last preceding sections." Where the money of a client comes into the hands of a partner in a firm of solicitors in the ordinary course of their business as solicitors, the firm are liable to make good any loss occasioned by the partner's defalcation. St. Aubyn v. Smart, L. E., 3 Ch. 646; Dundonald, El. of v. Masterman, L. R., 7 Eq. 504. So in the case of negotiable share warrants or bonds of the client. Rhodes v. Monies, (1895) 1 Ch. 236, < '. A. A sum of i ey received to be invested on a,npec.ific mortgage falls within this rule ; Harmon v. Johnson, 2 E. & B. 61; 22 L. J., Q. B. 297 ; but, not a sum left to be invested on mortgage generally, for this is the business of a Bcrivener, and does not fall within the province of a solicitor merely as such. S. C. ; VI a uter v. Gregory, L. Pi., 18 Fa\. 621. A firm of solicitors are not liable for money received by a partner qua trustee ; Dundonald, El. of v. Masterman, supra; or otherwise than in a professional capacity. Cleather v. Twisrffii, 28 Ch. D. 340, C. A. By sect. 13, " If a partner, being a trustee, improperly employs trust- property in the business or on the account of the partnership, no other partner is liable for the trust-property to the persons beneficially interested therein : Provided as follows : — (1.) This section shall not affect any Liability incurred by any partner by reason of his having notice of a breach of trust ; and (2.) Nothing in this section shall prevent trust money from being followed and recovered from the firm if still in its possession or under its control." Where B. has a contract with A., who then takes P. into partnership with notice to B., B. may elect whether he will rest with his contract with A. or accept the joint liability of" A. & 1'.; in the former case !'. is not liable for the fraud of A. committed against, I'.. in respect of tin- contract, and within the scope of the partnership. British Homes Asmr. Cor. \. Paterson (1902) 2 Ch. 101. As to the liability of an outgoing partner, see Scarf v. Jardine, post, p. 560. A solicitor when making a special agreement under the Attorneys and Solicitors Act, 1870 (ante, p. 503), with reference l" his fees, cannot stipulate that he shall not he liable for negligence, as such condition is by sect 7 wholly void. Damages.'] This action is maintainable, though the damages be only nominal"; G,,11. Sec also Whiteman v. Hawkins, 4 C. P. D. 13. As to damages where the solicitor has compromised the action contrary to his client's instructions, Butler v. Knight, ante, p. 510; and where he has improperly sold Ins client's land under a power of sale, Cochbum v. Edwards, Defence. Statute of Limitations.'] As the action can be maintained without show- ing special damage (ante, p. 510), it follows that the Statute of Limitations runs from the breach of duty complained of; Howell v. Young, 5 B. & C. 259; and not from the first discovery of the default; S. C, Short v. M'Carthy, 3 B. & A. 026 ; nor, from the occurrence of the consequential damage ; S. CC. ; Smith v. Fax, 6 Hare, 38P> ; nor is the remedy kept alive by the defendant's admission of his responsibility within six years. Short v. M'Carthy, supra. The statute runs although the defendant concealed the negligence until within six years before action, unless he were guilty of fraud. Armstrong v. Milburn, 54 L. T. 723; E. S. 1886, C. A. Under the Trustee Act, 1888 (51 & 52 V. c. 59), s. 8 (1), vide p>ost, p. 080, the defence now extends to cases where the solicitor was a trustee, " except where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use." ACTION BY SURGEONS OR OTHER MEDICAL PRACTITIONERS. The following are the statutes which relate to the qualifications of medical practitioners and their capacity to sue. The Apothecaries Act (55 G. 3, c. 194), s. 20, prohibits any person from acting or practising as an apothecary without having obtained a certificate from the Court of Examiners of the Apothecaries' Company. See Davies v. Mahuna, 29 Ch. D. 590, 0. A. By sect. 21, no apothecary shall be allowed to recover any charges claimed by him in a court of law, unless he shall prove at the trial that he has obtained such certificate. The Medical Act, 1858 (21 & 22 V. c. 90, amended by 22 V. c. 21, 23 V. c. 7, and 49 & 50 V. c. 48, s. 2), provides for the formation of a general "medical register" of all persons qualified to practise in medicine, surgery, and midwifery ; and (sect. 31), a person so registered is entitled to practise medicine or surgery, or both according to his qua! if cations, in any part of the Queen's dominions, and to demand and recover in any court of law, with " full costs of suit," reasonable charges for professional aid, advice, and visits, and the cost of any medicines or other medical or surgical appliances rendered or supplied to patients. By sect. 32, " no person shall be entitled to recover any charge in any court of law for any medical or surgical advice, attendance, or for the performance of any operation, or for any medicine which he shall have both prescribed and supplied, unless he shall prove upon the trial that he is registered under this Act." By sect. 27, the registrar of the general council, formed tinder the Act, shall yearly cause to be printed and published, under the direction of the council, a register of the names and residences of all persons entitled to be registered under it and appearing in it on Jan. 1st in each year, with their medical titles, diplomas, and qualifications, &c. ; aud a copy of this Action by Surgeons or other Medical Practitioners. 513 "medical register" for the time being purporting to be bo printed and published shall be evidence in all courts, and before all justices and others, that the persons therein specified are registered according to the Act; and the absence of the name of any person from such a copy shall be evidence, until the contrary appear, that he is not registered. Provided that in the case of a name not in the copy of the register, a certified copy under the hand of the registrar of the general council, or of any branch council, of the entry of the name on the general or local register, shall be evidence of registration. As to the form of register, see Pedqrift v. Chevallier, 8 C. B., N. S. 240; 29 L. J., M. C. 225. By sect. 55, the Act does not extend to prejudice or affect the lawful occupation, trade, or business of chemists and druggists, and dentists, so far as the same extend to selling, compounding, or dispensing medicines. But if a chemist prescribe he must show registration, as sect. 55 exempts chemists only so far as selling, compounding, and dispensing medicine. See Apothecaries' Co. v. Greenough, 1 Q. B. 799. The Medical Act, 1886 (49 & 50 V. c. 48), s. 28, repeals sect. 31, ante, p. 512, and by sect. 6, provides that a medical practitioner registered on or after June 1st, 1887 (see sect. 24, infra), is entitled to practise medicine, surgery, and midwifery, and to recover in due course of law in respect of such practice any expenses, charges in respect of medicaments, or any fees to which he may be entitled. But, by sect. 24, the act does not increase or diminish the privileges in respect of his practice, of any person registered before June 1st, 1887, and he is entitled to practise in pursuance of the qualification then possessed by him in medicine, surgery, or midwifery, or any of them, according as he was then entitled, but not further or otherwise. The language of the Medical Act, 1858, s. 32, resembles that of the Apothecaries Act, 55 G. 3, c. 194, s. 21 (ante, p. 512), under which act many of the following cases were decided. Proof of qualification is a con- dition precedent to recovery, but the want of qualification must now be specially pleaded. See Kules, 1883, (>. xix. rr. 15, 20, ante, pp. 309, 310. The provisions above as to proof of registration are probably only cumu- lative, and plaintiff' may prove it by production of a "local register," or, ut semb., by an examined copy, or by a copy certified as in the case of public books under 11 & 15 V. c. ,99, s. 11. See ante, pp. 97, 101. The qualification of an apothecary may be proved by certificate under II & L5 V. c. 99, s. 8, ante, p. 101. The identity of the plaintiff and the person named in the register will be presumed. Simpson v. Dismore, 9 M. & \V. 17. The register only shows registration down to the preceding January, but the plaintiff's continuance on the register will probably be presumed, in con- formity with the ordinary presumption of things, remaining in statu quo; ante, p. 31. To entitle the plaintiff to recover for services and medicines supplied, he must have had the necessary qualification, and be registered in respect thereof, at the time the services were rendered and the medii supplied. Leman v. Houseley, L. K., L0 Q. B. 66. The plaintiff, although duly qualified and registered, cannol recover for medical Bervices rendered exclusively by his assistant who was neither qualified nor registered. Howarth v. Brearley, 19 <.,). B. D. 303. Sect. 31 only enables persona registered to practise medicine or surgery "according to their qualifications"; hence, where the plaintiff's qualifica- tion is to practise surgery only, he cannol recover for attendance in a medical ease, for he is not within the section, and is prohibited from recovering by the Apothecaries Act, s. 2] (ante, p. 512). Allison \. Eaydon, 1 Bing. 619; Leman v. Fletcher, L. R., 8 Q. B. 319. He might, however, recover for medicine administered as ancillary to a surgical ca i B. — VOL. I. '* ■' 51 I Aiii'mi by Surgeons or other Medical I'mei ilioners. '■/(A S. CC. See also on this section, per Bramwell, B., Ellis v. Kelly, 6 II. & N. 226; better, 30 I<. J., M. C. 35, 37. But a medical man registered on or after June 1st, 1887, may practise in either branch. See 19 & 50 V. c. IS, s. (I, ante, p. 513. Sect. 32 of 21 & 22 V. c. 90, is not confined in its operation to actions against the patients themselves, but extends to a case where a third person has guaranteed payment for medical attendance, &c, or is primarily liable for it, as supplied on his credit. So, a medical practitioner, engaged by another to attend his patients in his absence, cannot recover the price of his services without proof of registration; De la Rosa v. Prieto, 16 C. B., N. S. 578; 33 L. J., ('. P. 262; but scmble, that an unregistered assistant may recover his salary from a registered practitioner; per cur. S. C. The Act applies to medical attendance given on board a foreign man-of-war in an English port. S. C. By sect. 46, the general council may dispense with the provisions of the Act, or its own regulations, in favour of certaiu persons practising before the Act passed. A resident physician or medical officer of an hospital solely for foreigners (not being a British subject) is not affected by the Act if he has a foreign degree or diploma of M.D., and has passed such examination as entitles him to practise in his own country, and is in no other medical practice except as such resident officer; 22 V. c. 21, s. 6. By the Dentists Act, 1878 (41 & 42 V. c. 33), s. 5, a person registered under that Act may practise dental surgery ; and no person who is not registered under that Act, or is a legally qualified medical practitioner, is entitled to recover any fee for any dental operation, attendance, or advice. An unregistered dentist may however recover the price of material, such as gold or false teeth, supplied, Seymour v. Pickett, (1905) 1 K. B. 715, C. A. Cf. Lee v. Griffin, 1 B. & S, 272 ; 30 L. J., Q. B. 252. As to evidence of registration, see sect. 29. By the Midwives Act, 1902, 2 E. 7, c. 17, s. 1, midwives acting as such habitually and for gain after April 1st, 1910, must, unless acting under a qualified medical practitioner, be certified. As an uncertified woman is in geueral liable to a penalty for practising, (sect. 1 (2)), it seems that she is precluded from recovering a fee for so doing. Cf. Bonnard v. Bolt, (1906) 1 Ch. 740, C. A., post, p. 669, decided on stat. 63 & 64 V. c. 51, s. 2 (c). As to evidence of certification, see sects. 6, 7. By the Veterinary Surgeons Act, 1881 (44 & 45 V. c. 62), s. 17 (2), no person not for the time being on the register of veterinary surgeons, or who on the 27th Aug., 1881, held the veterinary certificate of the Highland and Agricultural Society of Scotland, shall be entitled to recover any fee for performing any veterinary operation or for giving attendance or advice. See R. College vf Veterinary Surgeons v. Robinson, (1892) 1 Q. B. 557. The superintendent of a station of a railway company cannot, as such, and without express authority, make the company liable for a surgeon's hill for attendance on a person injured by an accident on the railway; Cox v. Midland Counties Ry. Co., 3 Exch. 268; but the general manager of a railway has, incidental to his employment, authority to bind the company to pay for surgical attendance bestowed at his request on a servant of the company injured by an accident on their railway. Walker v. Gt. W. Ry. Co., L. R., 2 Ex. 228. Defence. If the defendant have received no benefit, in consequence of the plaintiff's want of skill, the latter cannot recover. Kanneu v. M'Mullen, Peake, 59; Duffit v. James, cited 7 East, 480. But the remuneration of a practitioner who has used due skill and diligence does not depend on his effecting a Action j\>r \\'V Ad. 904. See, however, as to damages, post, p. 520. If the servant leave his service dining the year without good cause, he cannot recover any of the current wages; Huttrnan v. Boulnvis,- C. >V I'. 510. So, il he he discharged for g 1 cause during the year, either by his master or a magistrate's order : Lilley v. El 'win, supra ; Ridgway v. Hungerford Market Co., 3 Ad. & !•',. 171; and see further, post, p. 518; even though the master baa recovered damages against him for the misconduct. Turnery. Robinson, 5 B.& Ad. 789. So, if the servant die during the year. Plymouth v. Throgmorton, I Salk. 65. But where 8. was employed as consulting engineer, at 500/. payable in equal quarterly instalments, for 15 months, to complete certain works, and died after two instalments became due, but before the work was finished, his administrator was held entitled to recover the two instalments. Stubbs v. Holywell ////. Go., \j. I>'., 2 Ex. -"'I I. The rule thai an indefinite hiring is to be taken as a yearly one is not a rule of law; but the jury are to say what the terms of hiring were, judging from the circumstances of the case, including evidence, if any, of usage; thus, on an indefinite hiring at certain weekly wages, the L L 1! • ■Id Action for Wages and Wrongful Dismissal. jury may infer that the hiring is weekly. Baxter v. Nurse, 6 M. & Gr. 935. So, a hiring at "21. 2s. a week for one year," liobertson v. Jenner, 15 L. T. .">M, l.ramwell, J'>.; or at "21. a week and a house," Evans v. .Roe, L. l;., 7 ( '. P. L38; is a hiring by the week and not by the year. See also B. v. Droitwich, 3 M.& S. 243. And where there is such a written contract, oral evidence that, at the time it was signed, it was intended to be a hiring for a year, is inadmissible. Evans v. Boe, supra. Where the plaiutiil was engaged as a clerk at a yearly salary of 150?., and was paid his wages weekly, and accepted a month's notice as determining his service, and after- wards re-entered the service at a salary of 250?., and was paid weekly; it was held properly left to the jury to say whether the last hiring was on the same terms as the first, and well determined by a month's notice. Fairmun v. Oakford, 5 H. & N. G35 ; 29 L. J., Ex. 459. In the case of the master of a ship, the hiring is not for a year certain, and requires reasonable notice to determine it. Green v. Wright, 1 C. P. D. 591. Questions may arise as to whether the hiring is even a weekly one. See Warburton v. Heyworth, 6 Q. B. D. 1, C. A. With regard to a menial or domestic servant, there is a common under- standing (except where a different custom is shown to prevail), though the contract is for a year, that it may lie dissolved by either party on giving a month's warning or a month's wages. Beeston v. Collyer, 4 Biug. 313, pt r Gaselee, J. ; Fawcett v. Cash, 5 B. & Ad. 908 ; Nowlan v. Ablett, 2 C. M. & Pi. 54. There is no notorious custom of which judicial notice will be taken, that such servant should leave at the end of the first month on a fortnight's previous notice. Moult v. Ilalliday, (1898) 1 Q. B. 125. But si in hie, such custom if proved would be good. S. C. If the master without reasonable cause turn the servant away without notice, the latter would be enabled to recover a month's wages, beyond the arrears; Bobinson v. Hind- man, 3 Esp. 235; the claim must be for wrongful dismissal, and not for work and labour ; Fewings v. Tisdal, 1 Exch. 295 ; recognizing Smith v. Hay ward, 7 Ad. & E. 544, and dissenting from Eardly v. Price, 2 N. K. 333 ; on this special claim the servant can only recover the month's wages, and not the wages down to the dismissal. Hartley v. Harman, 11 Ad. & E. 798. The term " menial servant " within this rule includes a head gardener, though living in a separate house in his master's grounds. Nowlan v. Ablett, supra; Johnson v. Blenleinsop, 5 Jur. 870, T. T. 1841, Q. B. So, a huntsman, although hired at yearly wages, with perquisites that cannot be fully realized till the end of the year. Nicoll v. Greaves, 17 C. B., N. S. 27 ; 33 L. J., 'C. P. 259. But does not include a governess. Todd v. Ki rrich or Kellage, 8 Exch. 151 ; 22 L. J., Ex. 1. Although a general hiring of an agent at a certain sum per annum, simply, is a hiring for a year, yet a custom to discharge upon notice may be engrafted on such general hiring though the contract be in writing, if the terms are not inconsistent with the custom ; and they are not incon- sistent where the hiring was at a yearly salary, stipulating for a gratuity at the end of a year on approval. Metzner v. Bolton, 9 Exch. 518; 23 L. J., Ex. 130 ; Parker v. lbbetson, 4 C. B., N. S. 346; 27 L. J., C. P. 236. The custom must be of some reasonable antiquity and standing, uniform and sufficiently notorious and well understood that people would make their contracts on the supposition that it exists. Foxall v. International Land Credit Co., 16 L. T. a cotton warp agent there was held to be no breach. Turner \. 8awdon,{ L901) 2 K. B.653. Secus, where B. was an actor, or a musical director, engaged as such by A., tin- theatre manager. Fcchfrr v. Montgomery, 33 Beav. 22; Bunning v. Lyric Theatre, 71 L. T. 396, T. T. L894, Stirling, J. As in implied contra* I by employer to find work, see Devonald v. Bosser, (1906) 'J K. I'-. 728, 0. A. If a servant misconduct himself, the master may turn hira away without any warning. Spain v. Arnott,2 Shirk. 256. A refusal to obey a lawful order (as to remain ai home at. a. certain time, or t" do ;i proper day's harvest work, . I'.. 7 li' ; however reasonable oi urgent the excu e for the servant' 518 Action for Wages and Wrongful Dismissal. wilful absence may bo. Turner v. Mason, 14 M. & W. 112. As to what amounts to a refusal to work, see Bowes & Partners v. Press, (1894) 1 Q. B. '-'ni', C. A. A single case of forgetful uess causing damage to a valuable machine, of which the servant had management, maybe ground for dismissal. Baxter v. L. & County Printing Works, (1899) 1 Q. B. 901. If a clerk wrongfully claim to be a partner, the master may dismiss him forthwith as clerk. Amor v. Fearon, 9 Ad. & E. 548. So, where a clerk disobeys a direction to apply remittances in a particular way ; Smith v. Tliompson, 8 C. B. 44; or, a traveller neglects immediately to remit sums collected, in accordance with the terms of his engagement ; Blenharn v. Hodges' 1 Distillery Co., 16 L. T. 106, Byles, J. ; or sell his employer's goods (wines) to a brothel-keeper; S. C. ; or, where a servant embezzles, though his wages due exceed what lie has embezzled. Brown v. Croft, 1 Ohitty, Prac. of the Law, 82. So, where a servant employed to purchase goods for his master, accepts even on a single occasion a commission from the seller without his master's knowledge. Boston Beep Sea, &c, Co., v. Anself, 39 < !h. D. 339, C. A. So, where a servant is guilty of such misconduct, outside his employment, as is incompatible with a safe performance of his duties, he may be dismissed ; as where a confidential clerk of a firm of merchants who had large dealings in securities was in the habit of speculating to an enormous amount in " differences " on the Stock Exchange, vide post, p. 575. Pearce v. Foster, 17 Q. B. D. 536, C. A. Where evidence of misconduct is given, it is a question of fact for the jury, whether there has been such misconduct as justified the dismissal. Clouston ln v. Davison, L. R., 6 Ex. 21 19. But where from the circumstances it. can be given, the employer is entitled to reasonable notice of such disability. S. <'., per Brett, J., at N. P., Id. p. 271. Incapacity of the servant from sickness is not a determination of the contract, nor will it- justify dismissal without regular notice. Semhle, It. v. Winteraett, Cald. 298. So where a person entered into service as a brewer for a term certain at weekly wages, and became disabled by illness for several months, but afterwards was employed by the defendant as before, — held, that this involuntary inability did not suspend the right to wages; nor negative the allegation of readiness and willingness to serve. Cuckson v. Stones, 1 E. & E. 248; 28 L. J., Q. B. 25. But permanent disability, Mich as paralysis, &c, would have justified putting an end to the contract. /'. 152, cited post, p. 541." Sect. 56. "Where, by this act, any reference is made to a reasonable time the question what is a reasonable time is a question of fact." Sect. 57. "Where any right, duty, or liability is declared by this act, it may, unless otherwise by this act provided, be enforced by action." Sect. 61. — (1.) " The rules in bankruptcy relating to contracts of sale shall continue to apply thereto, notwithstanding anything in this act contained. (2.) The rules of the common law, including the law merchant, save iu so far as they are inconsistent with the express provisions of this act, and in parti- cular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress or coercion, mistake, or other invalidating cause, shall continue to apply to contracts for the sale of goods. (3.) Nothing in this act or in any repeal effected thereby shall affect the enactments relating to bills of sale, or any enactment relating to the sale of goods which is not expressly repealed by this act. (4.) The provisions of this act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge, or other security." By sect. 1. — (1.) "A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part owner and another. (2.) A contract of sale may be absolute or conditional. (3.) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale ; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell. (4.) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred." Sect. 3. "Subject to the provisions of this act and of any statute in that behalf, a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties. Provided that aothing in this section shall affect the law relating to corporations." Sect. 4 is cited post, p. 526. Sect. 5. — (1.) " The goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract of sale, in this act called 'future goods.' (2.) There may be a contract for the sale of goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. (3.) Where by a contract of the eller purports to effect a present saie of future goods, the contract operates as an agreement to sell the goods." Sale of Goods Act, 1893. 523 Sect. 6. "Where there is a contract for the sale of specific goods" (vide s. 62, ante, p. 521), " and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void." Sect. 7. " Where there is an agreement to sell specific goods, and sub- sequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is thereby avoided." See Howell v. Coupland, 1 Q. B. D. 258, C. A. Sect. 9. — (1.) " Where there is an agreement to sell goods on the terms that the price is to be fixed by the valuation of a third party, and such third party cannot or does not make such valuation, the agreement is avoided ; provided that if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor. (2.) " Where such third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault." Sect. 11 (1.) (o.), ante, p. 480, a condition to be fulfilled by the seller may be treated as a warranty : " (b.) Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in tin- contract : "(e.) Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, or when' the contract is for specific goods, the property in which has passed to the buyer, the breach of any con- dition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract, express or implied, to that effect. "(3.) Nothing in this section shall affect the case of any condition or warranty, fulfilment of which is excused by law by reason of impossibility or otherwise." Sects. 13, 15, post, pp. 540, 541, define the effect of a sale of goods by description or sample. Sect. 14, ante, p. 487, defines in what cases there is an implied warranty or condition, as to the quality or fitness for any particular purpose of goods supplied under a coutract of sale. Sect. 27. "It is the duty of the seller tn deliver th I , an. I of the buyer to accept and pay for them, in accordance with the terms of the contract of sale." Sect. 28. " Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that, is to say, the seller must he read) ami willing to give possession of the " la to tie- buyer in exchange for the price, and the buyer must he ready ami willing to pay the price in exchange for possession of the goods." Sect. 30.— (1.) "Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may rejeel them, hut if the buyer accepts the goods so delivered be must pay for them at the contract raie. (o.) Where the seller delivers to the buyer a quantity of goods Lai than he contracted to sell, the buyer may accept the goods included in the contract and rejeei the rest, or he may reject th" whole. If the buyer accepts the whole of thi ods so delivered he must, pay for them at the contract rate. (.'',.) Where the seller delivei to the buyer the goods he Ail ion on Contract of Sale oj Goods. contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods winch are in accordance with "the contract and reject the rest, or he may reject the whole. (4.) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties." Sect. 35, post, p. 568, defines acceptance. Sect. 54. "Nothing in this act shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed." The sections relating to the vesting of property by sale and to lien and stoppage in transitu will be found post, pp. 949, 985, 988 et seq., where the authorities relating thereto are also collected. The subjects of non-acceptance and of delivery are treated of, pout, pp. 537 et seq. The Contract.'] — Points often arise respecting the effect of a contract or negotiation relating to a sale, contained in a written correspondence. On this some cases have been already cited under a former head, ante, pp. 311 et seq. Where from the circumstances of the case it may be fairly inferred that the acceptance may be sent by post, the rule is that as soon as an offer by A. is accepted by B., in a letter duly posted and addressed by B. to A., the contract is complete, although the letter may not reach A. Duncan v. Topham, 8 C. B. 225 : Dunlop v. Eiggins, 1 H. L. 0. 381 ; S. C, 9 Sc. C. of Sess. Cases, 1847, p. 1407 ; Harris's case, L. R., 7 Ch., 587 ; Household, &c, Insur. Co. v. Grant, 4 Ex. D. 216 C. A. ; Henthorn v. Fraser, (1892) 2 Ch. 27 C. A.., ante, p. 311; see also 2 Ap. Ca. 692, per Ld. Blackburn. The acceptance must be unconditional in order to bind the party offering. Chaplin v. Clarke, 4 Exch. 403. If, therefore, the acceptance introduce any variation, there is no contract, unless there be evidence of assent by the other party to the alteration, either express or implied. Illustrations of this rule will be found in Wontner v. Shairp, 4 C. B. 404 ; Duke v. Andrews, 2 Exch. 290; Cheveley v. Fuller, 13 C. B. 122 ; Hutton v. Upfill, 2 H. L. C. 674; Barker v. Allan, 5 H. & N. 61; 29 L. J., Ex. 100: Appleby v. Johnson, L. R. 9 C. P. 158. See further on the making, accepting and retractation of offers, cases cited ante, pp. 311 et seq., and post, p. 1100. A tender to supply goods at- specified prices, followed by an order for specified quantity of such goods, constitutes a valid contract. Gt. N. By. Co. v. Wiiham, L. R., 9 C. P. 16. A mere mental assent to the terms of a proposed contract is not binding, but acting on those terms may amount tn evidence of the adoption of the contract. Metropolitan Ily. Co. v. Brogden, 2 Ap. Ca. 666, D. P. See also Carlill v. Carbolic Smoke Ball Co., (1893) 1 Q. B. 256, C. A., and cases therein cited : and Keiqhley Maxsted & Co. v. Durant, (1901) A. C. 240, D. P. Where the contract is entered into by telegram, the sender is not liable for a mistake of the telegraph clerk in sending the message. Ilenkel v. Pape, L. R., 6 Ex. 7. As to correspondence by a telegraphic code, see Falclc v. Williams, (1900) A. C. 176, J. C. Where an agent V. makes a contract purporting to sell goods to L. in the name of his principal T., but fraudulently intending to sell them on his own account, T. may ratify and take the benefit of the contract against L. In re Tiedemann v. Ledermann, (1899) 2 Q. B. (56. Conditions cannot be attached to goods on their sale so as to bind sub- sequent purchasers with notice. Taddy v. Sterious & Co., (1904) 1 Ch. 354 ; ace. McGruther v. Pitcher, (1904) 2 Ch. 306, C. A. As to the assignability of contracts of sale, see Tolhurst v. Associated Portland Cement, &c, (1903) A. C. 414, D. P., and Kemp v. Baerselman, (1906) 2 K. I'.. 604, CA. Contracts within the Statute of Frauds, s. 4. 525 As to a contract of exchange or barter, vide post, p. 551. The validity of contract of sale without writing will now be considered. The principal decisions on the Stat, of Frauds, so far as relates to contracts not to be performed within a year, and on the S. of G. Act, 1893, s. 4, for the sale of goods therefore may be conveniently collected here. Tlie Contract— Stat, of Frauds, s. 4.] By the Stat, of Frauds. 29 ( '. 2, c. 3, s. 4, no action shall be brought whereby to charge any person "upon any agreement that is not to be performed within the space of one, year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him law- fully authorized.' - ' Contracts within the Stat, of Frauds, s. 4.] Sect. 1 applies "to contracts the complete performance of which is of necessity extended beyond the space of a year." . . . " Where the agreement distinctly shows, upon the face of it, that the parties contemplated its performance to extend over a greater space of time than one year, the case is within the statute, but that where the contract is such that, the whole may be performed within a year, and there is no express stipulation to the contrary, the statute dues nol apply." Per Tindal, O.J., Souch v. Strawbridge, 2 0. J». 815; Boydell v. Drummond, 11 East, 142 ; Knowlman v. Bluett, L. U., 9 Ex. 1, 307, Ex. Ch. ; McGregor v. McGregor, 21 Q. B. D. 424, C. A.; 4 Smith's L. C, 11th ed., pp. 317 et seq. t notes to Peter v. Complon. The following cases have been decided on this section. An agreement to serve for 70?. the first year, ( .J0/. the second, and so on, is within the section, and requires a writing; and such writing cannot be explained by showing a contemporary or subsequent agreement to pay r the salary quarterly. Giraud v. Richmond, 2 C. B. 835. A contract for a year's service to commence on the next day is not within the section. Smith v. Gold Coast, &c., Explorers, (1903) 1 K. B. 285, 538, C. A. Secus, where it is to commence on a subse- quent day; Bracegirdle v. Heald, 1 B. & A. 722 ; SnelUng v. Euntingfield, Ld., 1 C. M. & R. 20 ; Britain v. Bossiter, 11 Q. B. D. L23, C. A. The con- tract is within the statute, although the service is subject to he determined by a notice within the year. Dobsou v. ('oil is, 1 II. & N. 81; 25 L. J., Ex. 207. An agreement by a company that E. "shall be the solicitor to the company," "and shall not be removed from his office except for misconduct," was held to be within the section. Eley v. Positivi Assur. <'<>., 1 Ex. D. 20; affirm, on another ground, Id. 88, C. A. So, an agreeement that S. should not carry on a certain trade during the joint lives of himself ami another person. Davcy v. Shannon, ! Ex. D. 81. So, a contract to maintain a child about 5 years old, " until she is able to do for herself." Farrington v. O'Donohoe, [. R.,1 C. L. 675. The reason for the above decisions was that the pu-ties contemplated that the agreement would Dot be peri irmed within a year, ootwithstanding it might, owing to the death of the wrvanl or child, &c, before the expiration of the year, be then c pletely performed. In Murphy v. Sullivan, II Ir. Jur., X. S. Ill, the [rish Courl of Exch. Oh. held, however, that a contrail, to maintain a child for life was QOl wit Inn the section, as it was possible it might die within the year, and this ease was followed with approval by C. A. in McGregor v. McGregor, 21 Q. B D. 124, where an agreement by the husband in a separation deed to pay hifl wife \.l a week was" held not "to be within the statute. The decision in Davey v. Shannon, supra, was the only one of the above eases of which the (I. A. distinctly disapproved ; but the principle of Murphy v. Sullivan, supra, il logically carried out, would prevent any contract for B lite annuity, or foj 526 Action on Contract of Sale of Goods. persona] service, from coming within the section ; ;iml it must be observed that although McGregor v. McGregor, ante, p. 525 ; was decided in the Q. B. D. on the principle of Knowlman v. Bluett, L. 11., 9 Ex. 307, Ex. (Jh., as an action for money paid at the defendant's request, the C. A. expressly declined to decide the case on that ground. A contract, not enforceable, because of the statute, is an existing contract, and a fresh contract cannot be implied from acts done in pursuance of it: Britain v. Rossiter, ante, p. 525 ; but where A. orally agreed to serve B. for the year, the service, to commence on a subsequent day, and A. entered upon the service upon the day named, and B. paid him wages on account, it was held thai, the jury might infer a new implied contract from that day. Cawthorn v. Cordrey, 13 C. B., N. S. 406 ; 32 L. J., C. P. 152. The section applies only to contracts which are not to be performed on either side within the year. Braceyirdle v. IlcaJd, ante, p. 525 ; Donellan v. Read, 3 B. & Ad. S99. If all that is to be done by one party as the considera- tion for the promise of the other, can be doue within the year, it is not within the section. S. C. ; Smith v. Neale, 2 C. B., N. S. 67 ; 26 L. J., C. P. 143. Where in a contract, between the plaintiff and the defendant, one of several terms to be performed by the defendant falls within the section, the contract cannot be enforced ; but if the entire work be done under the contract by the plaintiff, and accepted by the defendant, the plaintiff can recover on a quantum meruit, without before action electing to abandon the contract. Savage v. Canning, I. R., 1 C. L. 134, C. P.; following Gray v. Hill, By. & M. 420 ; and see per Cur., Teal v. Auty, 2 B. & B. 99 ; Harman v. Reeve, 18 C. B. 587 ; 25 L. J., C. P. 257. Where there was a contract for 24 numbers of a periodical work, to be delivered monthly at 21s. a number, it was held that the plaintiff might sue for the price of the numbers actually delivered, the defendant having refused to accept the remainder. Mavor v. Pyne, 3 Bing. 285. See Knowlman v. Bluett, ante, p. 525. The consideration must appear in the memorandum, at least by necessary inference. Wain v. Warlters, 5 East, 10. See further as to the sufficiency of the memorandum, ante, pp. 314 et seq., and post, pp. 531 et seq. The doctrine of part performance, vide ante, pp. 319 et seq., was held in Britain v. Bossiter, 11 Q. B. D. 123, 126, C. A., to apply only to contracts relating to land. This, however, has been doubted, see Maddison v. Alderson, 8 Ap. Ca. 474, per Ld. Selborne, C, and McManas v. Cooke, 35 Ch. D. 681, 697, per Kay, J. The Contract— Sale of Goods Act, 1893, t. 4.] By the S. of G. Act, 1893, s. 4, (1.) " A contract for the sale of any goods of the value of 10/. or upwards shall not be enforceable by action" vide post, p. 527, "unless the buyer shall accept part of the goods so sold, and actually receive the same, or give some- thing in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent iu that behalf. (2.) " The provisions of tins section apply to every such contract, not- withstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. (3.) " There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognises a pre-existing contract of sale whether there be an acceptance in performance of the contract or not." Sub-sects. 1, 2, replace and are almost identical with the Stat, of Frauds, Contracts, Acceptance, &c, within Sale of Goods Act, 1893. 527 s. 17 (sect. 16 in Stat, of the Realm), and Ld. Tenterden's Act, 9 G. 4 c 14 s. 7. As to sub-sect. 3, vide infra. . B 7 Be 3 ct ; 62 W' ante > P- 521 > " action " includes counter-claim aud set off; it also defines " goods." Contracts within the Sale of Goods Act, 1893, s. 4.] The following cases were nearly all decided under the repealed sections, the effect of which were in this respect, identical with the S. of G. Act, 1893, s. I. „ joint stock banking company is not within sect. 4. Humble v. Mitchell, ll Ad. & E. 20o. Nor of shares in a canal company. Latham v. Barber, (i T. L. 76. Nor of railway shares. Bowlby v. Bell, 3 C. B. 284 ; Tempest v. Kilner, 3 C. B. 249. Nor of shares in a mining company. Watson v. Spratley, 10 Exch. 222; 24 L. J., Ex. 53. Nor is a sale or contract to deliver foreign stock consisting of bonds and certificates. Eeseltine v. Siggers, 1 Kx.ch. 85G ; nee post, p. 571. Sales of timber and growing crops where they are not an "interest in land" within the Stat, of Frauds, s. 1, may be within the S. of G. Act, 1893, s. 4. See the interpretation of "goods," ante, |>. 521, and the cases cited ante, pp. 312 et seq., and also the cases under the third exemption from the Stamp Act as to agreements, ante, p. 235. Trees lying felled are within sect. 4. Acraman v. Morrice, 8 0. B. 449. A contract for work and labour, as an agreement by a printer to print a book, although it involves finding materials, is not within sect. 4; Clay v. Yates, 1 H. & N. 73; 25 L. J., Ex. 237; but a contract to make a set of artificial teeth to fit the mouth of the employer is a contract for the sale of a chattel, and therefore within the section. Lee v. Griffin, 1 B. & S. 272; 30 L. J., Q. B. 252. If the substance of the contract be goods to be sold and delivered by the one party to the other, it is within the section. S. C. ; Atkinson v. Bell, 8 B. & C. 277; Grafton v. Armitage, 2 C. B. 33b\ A sale is not less within the statute because it also includes an exchange; Bach v. Owen, 5 T. I!. 409; or a collateral agreement touching the thing sold. Barman v. Reeve, 18 0. B. 587 ; 25 L. J., (J. P. 257. Thus a contract whereby H. agreed to sell a horse of the value of 101. to R., and to agist it and also another horse of R.'s for a tixed time, and R. was to pay 30/., is within sect. 4. S. C. The section applies In a single contract for the sale of several articles, of the aggregate value of 10^. although each is under that value. Baldry v. Parki r, '_' B. & I '. 37. It seems that a contract for the sale of goods, not enforceable by reason of sec. 4 (1) is not thereby avoided and the property in the goods m.iv pass to the purchaser. Taylor v. Gt. K. By, Co., (1901) I K. B. 774. Aeci ■pin nee a ud. receipt, within. I he Sale of Goods Act, 1893,8.4.] Under the Stat, of Frauds, s. 17, a very large number of cases were decided as to what constituted a sufficient " acceptance" thereunder ; many of these i a e c »uld not easily be reconciled together, hence the S. of .•/., in Page v. Morgan, 15 <.^. B. I ». 228, post, p. 529. Where hay sold was delivered to the buyer, who t<«>k a sample from it, and after examination said "The hay is not to my sample 528 Action on Contract of Sale of Goods. and I shall in >i have it." it was held that this was evidence of an act dune by liini in relation to the hay which recognised a pre-existing contract of sale, and therefore evidence of acceptance within sect. 4 (3). Abbott & Co. v. Wohi y, C. A., ante, p. 527. So where B. sold his barley which had been ware- housed with the defendant 11. to S., and K. advised S. that it was awaiting his orders ; S. did not inspect it or take a sample from the bulk, but endeavoured to re-sell the barley by another sample he obtained from the seller, and did not repudiate the sale within 5 weeks. Taylor v. Gt. E. By. Co., (1901) I K. B. 778. Acceptance without a delivery is insufficient, for the words are '"accept and actually receive;" but the acceptance may be prior to the actual receipt and need not be contemporaneous with or subsequent to it. Cusack v. Eobinson, 1 B. & S. 299; 30 L. J., Q. B. 201; Kershaw v. Ogden, 3 H. & C. 717 ; 34 L. J., Ex. 159, post, p. 529 ; Morton v. Tibbett, 15 Q. B. 429; 19 L. J., Q. B. 382. By sect. 41 (2) the seller may exercise his right of lien although in posses- sion as agent or bailee for the buyer; the cases therefore which decided that there could be no delivery so long as the goods were subject to the seller's light of lien no longer apply. The following cases were decided under the Stat, of Frauds, s. 17. A delivery of goods to a wharfinger or agent who has been accustomed to forward goods from the plaintiff to the defendant, and a delivery by him to the carrier, is not an acceptance, the carrier having no authority, though named by the vendee, to accept the goods for him, but only to receive them for the purpose of being carried. Hanson v. Ar milage, 5 B. & A. 557; Meredith v. Meigh, 2 E. & B. 3G4 ; 22 L. J., Q. B. 401. So where goods bought abroad were delivered at a foreign port on board a ship chartered by the buyer, this was held to be no acceptance. Acebal v. Levy, 10 Bing. 376. So, where the buyer appointed the mode in which the goods should be conveyed, and directed a third person, in whose possession the goods temporarily were, to see them delivered and measured and put up properly, and they were accordingly sent to another warehouse of the seller, where the clerk gave an invoice to the buyer, who did not pay for the goods, but the same day gave notice that he would not accept them, these circumstances were held not to amount to an acceptance. Astey v. Emery, 4 M. &. S. 262. So where a hogshead of wine in the warehouse of the London Dock Company was sold for 1ZI. and a delivery order given to the buyer, but there was no assent on the part of the Dock Company to hold the wine as the agents of the buyer, it was held that there was no actual receipt within the statute. Bentall v. Bum, 3 B. & C. 423; Farina v. Home, 16 M. & W. 119. Where A. employed B. to construct a waggon, and while it was in B.'syard unfinished, A. employed a third person to fix upon it some iron work and a tilt, it was held this did not amount to an acceptance; but, per Tindal, C.J., it might perhaps have been otherwise if these acts had been done after the waggon was completed. Maberley v. Sheppard, 10 Bing. 99. Where the goods were sent with an invoice, and the buyer declined to receive them of the earner, who kept them for a month, and until the end of that time the buyer, who had received the invoice, did not communicate with the seller, it was held that there was not sufficient evidence of acceptance to justify a jury in finding one. Norman v. Phillips, 14 M. & W. 277. Where spruce deals, bought by the defendant, were taken by a carrier, chosen by the defendant, to the carrier's wharf and there inspected by the defendant, who did not move them, and within a reasonable time gave notice to the vendor that he rejected them, it was held there had been no acceptance. Taylor v. Smith, (1893)2Q.B. 65, C. A. There may, however, be a constructive acceptance by acquiescence. Thus, where the goods were sent by a named carrier, and a letter of advice Acceptance and Receipt within Sale of Goods Art. 1893, s. 4. 529 was forwarded to the buyer stating that the credit was throe months, and the goods, after arrival, were seen by him in the warehouse of the carrier, when he told the carrier that he refused to take them, but made no com- munication whatever to the seller till after five months, it was held that this was evidence to be left to the jury of acceptance and actual receipt. Bushel v. Wheeler, 15 Q. B. 442. In another case, where wheat was sent by a carrier named by the buyer, who was to take it to a market town, where the buyer resold it by the same sample which he had taken from the seller himself, but never inspected the bulk, this was held to be evidence of acceptance and receipt. Morton v. Tibbett, Id. 128. Goods not specified in the original contract, but selected by the seller, and shipped by him for delivery to an inland carrier named by the buyer, who was to convey them to the buyer's residence, were lost at sea; a bill of lading had bp B. & S. 431 ; 34 L. J., Q. B. 145. But where the buyer has received the bill of lading, and dealt with it as owner of the property, this is evidence of an acceptance and receipt. Currie v. Anderson, 2 E. & E. 592 ; 29 L. J., Q. B. 87. Where the buyer receives the articles sold, but, disputes the alleged terms of sale on the delivery, the sale is good, and the terms may be proved by oral evidence. Tmnkinson v. Staight, 17 C. B. (>97 • 24 L. J., C. P. 85. The circumstances in the following cases were held to constitute an acceptance and receipt within the Stat, of Frauds, s. 17. The defendant bought a quantity of hay from the plaintiff, and sold it to another person, by whom it was taken away; it was held that the jury might presume an acceptance by the defendant. Ohajplin v. Rogers, 1 East, L92. Where defendant selected and orally agreed to purchase certain goods of the plaintiff, and directed them to be sent to a particular wharf, where he was in the habit of warehousing his goods, that was held sufficient to constitute an acceptance; and the goods having been placed mi the wharf under the control of the defendant, so as to put an end to any rights of the plaintiff as unpaid vendor, that was held a sufficient actual receipt. Ousacle v. Robinson, 1 B. & S. 299; 30 L. J., Q. I'.. 261. Where the defendants agreed to purchase of the plaintiff four specific atacks of cotton waste at so much per lb.; they sent their packer with sacks ami carts t" fetch it; he packed the waste in 81 sacks; 21 were weighed, haded, and taken to the defendant's premises; the other sacks were not weighed; nn arrival of the 21 sacks, the defendants refused to accept any of the waste, on the ground that it was of inferior quality t" that purchased; and it was held that there was evidence of an acceptance and receipt. Kershaw v. Ogden, .". II. & C. 717; .".I L. .1. Ex. 159. So, where on a sale of wheat by sample, the buyer received several suks of wheat, delivered under the contract, on his premises, and, immediately after opening the sacks and examining their contents, gave notice t" the seller thai he refused the wheat, as not equal to sample, this was held evidence for the jury <<( an acceptance. Pa ',>. B. I >. 22s, < '. A., following Kibble v. Oough, :;s I-. t. 204, 29, per Cur., citing Beaumont v. Brengeri, and Marvin v. Wallis, infra. The defendant bought two horses from the plaintiff, a livery-stable keeper, and desired him to keep them at livery for him; it was held that the plaintiff, by assenting to this order, and changing the horses from the stables in which they had been kept to his livery-stables, had relinquished his lien, and that there was a constructive deliver}' of them to the defendant. Elmore v. Stone, 1 Taunt. 458; Beau- mont v. Brengeri, 5 C. B. 301, accord. And sect. 41 ('2), ante, p. 528, which retains the right of lien in such cases seems not to affect the two decisions last cited. Where, on an oral sale of a horse by A. to B., B., without having had it in his possession, lent it to A. at his request for a few weeks, and B. afterwards refused to receive or pay for it; and the jury found that the contract of sale was completed before the loan of it to the vendor: held that there was an acceptance and actunl receipt within the statute. Marvin v. Wallis, 6 E. & B. 726; 25 L. J., Q, B. 369. So, where the defendant bought some spirits from the plaintiffs, who sent an invoice of certain specified casks, terms six months' credit, and to lie in plaintiffs' warehouse till wanted, free six months; the plaintiffs kept a general bonded ware- house, and transferred the particular casks to the defendant's name in their warehouse book, as sold to him, after which the plaintiffs could not take them out ; at the end of the six months the defendant asked the plaintiffs to take them back, or sell them for him ; held, there was evidence of a receipt and acceptance, as the character of the plaintiffs had changed from sellers to warehousemen or agents of the defendant. Castle v. Sworder, 6 H. & N. 828; 30 L. J., Ex. 310, Ex. Oh. Wool, bought by defendant, was removed to the warehouse of a third person, M., by defendant's direction, and weighed and packed by him ; the course of dealing was, that it should not be taken out of M.'s warehouse till payment; this nevertheless was held a delivery and acceptance, as the seller had parted with possession, and had no lien, properly so called. Dodsley v. Varley, 12 Ad. & E. 632. Where the goods sold were in the defendant's possession at the time of the sale, a dealing with them by the defendant, and an account rendered to the plaintiffs by defendant, debiting himself with the price, are evidence of an acceptance by defendant. Edan v. Dudfield, 1 Q. B. 302. Where the act done by the buyer is an ambiguous act, which may or may not be done as an act of ownership, it is evidence on which it ought to be left to the jury to say whether or not there had been an acceptance. Parker v. Wallis, 5 E. & B. 21. A. bargained for a horse then in a stable, and soon afterwards brought in a third person and stated to him that he had bought the horse, and offered to sell it to him for a profit of 51. ; it was held that it ought to be left to the jury to say whether this was or was not a delivery and acceptance. Blenkinsop v. Clayton, 7 Taunt. 597 ; and see I'll il lips v. Bistolli, 2 B. & C. 511. A wrongful taking by the buyer after a tender and refusal of the money is not an acceptance to bind the seller. Taylor v. Wakefield, 6 E. & B. 765; see Smith v. Hudson, 6 B. & S. 431 ; 34 L. J., Q. B. 145. There need not be an actual delivery, but there may be something tanta- mount; such as the delivery to the buyer of a key of the warehouse in which the goods are lodged, or the delivery of other indicia of property; per 1,(1. Kenyon, C.J., Chaplin v. Bogers, 1 East, 192, 195; and this is evidence '.I acceptance as well as of delivery. Elmore v. Stone, 1 Taunt. 460. So, where the purchaser cut down and sold some of a number of trees he had Sufficiency of Note within Sale of Goods Act. 1893, s. 4. 531 bought, this was held to he an acceptance and receipt. Marshall v. Green, 1 C. P. D. 35. A written order given by the seller of goods to the buyer, directing the person in whose care the goods are to deliver them to the buyer, is a sufficient receipt within the statute, provided the person to whom it is directed accept the order for delivery, and assent, to hold the goods as the agent of the buyer. Searle v. Keeves, 2 Esp. 588; Bentall v. Burn, 3 B. & C. 426 ; Salter v. Woollams, 2 M. & Gr. 650. When a joint order is given for several classes of goods, the acceptance of one class is a part acceptance of the whole, under this section ; Elliott v. Thomas, 3 M. & W. 170 ; and Thompson v. Maceroni, 3 B. & C. 1, contra, is there explained. And part acceptance is sufficient, although the rest are not even made. Scott v. Eastern Ct>untif Goods. transactions between them the vendor liad contracted in the agent's name. Trueman v. Loder, ante, p. 535. Ho wbjere the contract was made by a broker, on behalf of principals whose names were not disclosed, oral • vidence that by the usage in London in such a case the broker is liable to be treated as principal, is admissible to charge the broker, unless the contract provides for the final determination of differences by him, vide ante, p. 25. Where a broker employed to buy goods for his principal, A., himself sells the goods, he cannot sign a valid note, so as to bind A., and, indeed, it seems i bat there is no contract at all. Skarman v. Brandt, L. R., 6 Q. B. 720, Ex. Ch. In an action by the purchaser against the seller of goods for not delivering them, the bought note per se is evidence of the contract against the seller on proof of the employment of the broker by him. Hawes v. Forster, 1 M. ec Rob. 368. The conduct of the defendant may afford evidence that the broker was authorized to contract for him. Thompson v. Gardiner, f C. P. D. 777. If the seller intend to insist on a variance between the bought and sold note, it is for him to produce and prove the latter. Hawes v. Forster, supra. Ho the sold note signed by the broker acting for both parties, and delivered by him to the purchaser, is a sufficient memorandum to bind the purchaser within sect. 17, in the absence of proof of any variance between it and the bought uote. Parton v. Crofts, 13 0. B., N. 8. 11 • 33 L. J., C. P. 189. Even if they differ, yet if one be signed by a principal in the contract, it will be evidence of the contract as against him. Howe v. Osborne, 1 btark. 140. So where the notes disagree, the entry in the book, if brought home to the knowledge of the parties, or even it not known to them, may be evidence of the contract : semi. Thornton v. Charles, 9 M. & W. 802; and see the observations of Parke, B., in that case ; but the point is not a settled one ; see Ileyman v. Neale, Sievewright v. Archibald, ante, p. 535 ; and Parton v. Crofts, supra. Where the broker in the bought and sold notes described the sellers' firm as A., B., and C. ; but the firm had, unknown to the broker, been changed to A., D., and E., it was held that A., D., and E. might sue on the contract, it not appearing that the defendant bad been prejudiced or excluded from a set-off, and there being some evidence of his having treated the contract as subsisting with the plaintiffs. Mitchell v. La-page, Holt, N. T. 253. A material alteration in the sale note by the broker, at the instance of the seller, after the bargain made and without the consent of the purchaser, precludes the seller from recovering. Powell v. Bivett, 15 East, 29. So, where the buyers altered the bought note in a material particular by an addition at the foot of it (referred to by an asterisk in the body of it), though the breach was unconnected with the alteration. Molhtl v. Wacker- barth, 5 G. B. 181. Where the sold note was sent back altered and signed by the seller, and the buyer proceeded on it as the contract, it was held to be a question for the jury whether this was a contract, or only an offer by the seller provided a bought note to the like effect were signed by the buyer. In this case there was no bought note in evidence at all, ami the broker was it of the buyer only. Moore v. Campbell, 10 Exch. 323; 23 L. J., Ex. 310. If the two principals agree in the broker's presence, and the broker's dues not correspond with the terms agreed upon, then there is no written contract by an agent lawfully authorized, and a party, who did not assent to the alteration, is not bound. Pitts v. Beckett, 13 M. & W. 743 ; contra, where there is evidence from which a subsequent assent to such alteration may be implied. Earnor v. Groves, 15 0. B. 667, 24 L. J., C.P.53. A distinction has been made between a contract in writing and a note or orandum in writing of a contract within the Stat, of Frauds, s. 17 Action for not Accepting Goods Sold. 537 (now the S. of Gr. Act, 1893, s. 4) ; see tlie judgments in Sievewriyht v. Archibald, 17 Q. B. 107, 11-1, 121; 20 L. J., Q. B. 538 ; and in Parton v. Crofts, ante, p. 530, bat in many casus this distinction seems to have been lost sight of. ACTION FOK NOT ACCEPTING GOODS SOLD. By sect. 50 (1), "Where the buyer wrongfully neglects or refuses to accept and pay fur the goods, the seller may maintain an action against him for damages for non-acceptance." In an action for not accepting goods sold, the plaintiff may be put to proof of the contract, the performance of all conditions precedent on his part, the refusal to receive, and the amount of damage. The contract.'] The validity of the contract is considered, ante, pp. 524 et seq. Readiness of the plaintiff to deliver."] By sect. 28, ante, p. 523, unless otherwise agreed, delivery and payment are to be concurrent acts, i.e. the seller must be ready and willing to give possession of tbe goods in exchange for the price. Sect. 29, post, pp. 5-15, 546, lays down the rules as to delivery. Where readiness and willingness is denied it is enough for the plaintiff to show, either that he has offered to deliver, or that tlie defendant has dispensed with delivery, or has made it an idle and useless form to attempt to deliver. Tlie plaintiff must also prove his ability to deliver, see Lavm nee v. Knowles, 5 N. C. 399 ; an article corresponding with that which was contracted for, per Cresswell, J., in Boyd v. Lett, 1 C. B. 222, 225. It. is sufficient "that the non-completion of the contract was not the fault of the plaintiffs, aud that they were disposed and able to complete it, if it had not been renounced by the defendant." Cort v. Ambergaie /,'//. Co., 17 Q. B. 127, 144; 20 L. J., Q. B. 4G0; Baker v. Farminger, 28 L. J., Ex. 130; Braithwaite v. Foreign Hardwood Co., (1905) 2 K. 1!. 543, C. A. Under a contract for the sale of a cargo, if the buyer reject a cargo tendered, the seller may, within the time limited by the contract, tender another cargo. Borrowman v. Free, 4 Q. B. 1). 500. As to what is sufficient tender of bills of lading, on the sale of goods to be shipped, sec S. v. Eieronimus, L. R., 10 Q. B. 140, cited post, p. 553. Sec, however, Sanderson v. Graves, L. II., I<> Ex. 23 I. Refusal t<> receive.] It must be shown that the defendant has refused t<» receive under circumstances which do not warrant a refusal. Therefore, where a tender is necessary, it must be made at a reasonable time and place, and be such as to afford the defendant an opportunity of examining and receiving the goods ; for without such opportunity it is no tender. Bee sect. 31 (2), post, p. 568. Thus, a tender of articles in closed casks, so ;is to prevent inspection, i> no tender. Tsherwood \. Whitmore, I" M. & W. 7.'>7. Nor is it. sufficient to show a tender of the- goods at the defendant's warehouse at a late hour after it is shut up, and the defendant has h ii ii. But il lb.' defendant be present, and able to examine and receive them, the tender will not be bad merely because the hour is late aud unreasonable. Startup v. 538 Action for not Accepting Goods Hold. Mmdonald, (I M. & Gr. 593. On the sale of goods for .shipment by steamer or steamers, the defendant must accept such part of the goods as arrives in cue steamer. Brandt v. Lawrence, 1 Q. B. D. 344, C. A. But, where, on the sale of twenty-five Ions of pepper, October shipment, the name of vessel, &c, were to be declared within sixty days from the date of the bill of lading, and within the time twenty-five tons were declared by the B. vessel, only twenty tons of which complied with the contract, and no further declaration was made, it was held that the defendant need not accept the twenty tons. Eeuter v. Sala, 4 C. P. D. 239, C. A. The tender must not be of a larger quantity than was bought ; Dixon v. Fletcher, 3 M. & W. 146 ; Hart v. Mills, 15 M. & W. 85; at least, unless the tender be divisible, or the surplus not charged for. If the buyer give a limited order for certain specified goods, and the seller send those and others from a distaut place in one jjaekage, charged at a lump sum, the consignee may repudiate the whole and refuse to receive the package. Levy v. Green, 8 E. & B. 575 ; 27 L. J., Q. B. Ill ; Ex. Ch., 1 E. & E. 969 ; 28 L. J., Q. B. 319 : and see Macdonald v. Longbottom, 1 E. & E. 977, 987 ; 28 L. J., Q. B. 293 ; 29 L. J., Q. B. 256 ; Tamoaco v. Lucas, 1 E. & E. 581 ; 28 L. J., Q. B. 150, 301. If the defend- ant notify his intention to refuse, ami forbid the plaintiff to deliver goods ordered to be made, then the plaintiff need not proceed to complete the contract on his part, and may show this under an alleged refusal to accept, although the goods are not ready for delivery, and could not be delivered ; for the plaintiff is thereby " discharged " from proceeding further ; and such a notice to the plaintiff will support an allegation that the defendant "pre- vented and discharged " the plaintiff from supplying the goods and executing the contract. Cort v. Ambergate Lly. Co., ante, p. 537. And a countermand by the person ordinarily representing the defendant in his dealings with the plaintiff (as the engineer of a railway) is sufficient, although the defendant be a corporate body, and the notice not under seal ; S. C. See further, as to readiness to receive, post, p. 545. Damages^] In an action for not accepting goods, by sect. 50 (2), " The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract. (3) Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept." By sect. 37, " When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery " (vide sect. 62, ante, p. 521), " and the buyer does not within a reasonable time alter such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods. Provided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract." By sect. 48, " (3) Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract. "(4) Where the seller expressly reserves a right of re-sale in case the buyer should make default, and on the buyer making default, re-sells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages." Damages. — Defence. — Denial of Contract. 539 The measure of damages under sect. 50 (3) is not affected by notice given by the buyer, while the goods are on their way, that he would not accept them. See Phillpotts v. Evans, 5 M. & W. 475 ; and see Leigh v. Patterson, 8 Taunt. 540, post, p. 548. Where the defendant has ordered goods and then wroDgfully countermanded the order, and thereupon the vendor ceases to manufacture them, he is entitled to damages for the goods in hand, and to such profit as he would have made if the contract had been fully carried out. Dunlop v. Tliggins, 1 II. L. C. 381. Where the payment was to be by bill, plaintiff may recover the amount which would have accrued on it for interest. Boyce v. Warburton, 2 Camp. 480. Where no difference is proved between the contract price and the market price, only nominal damages are recoverable. See Valpy v. Oakeley, 16 Q. B. 941. Defence. By Rules, 1883, 0. xix. r. 15, the defendant must plead specially all facts not previously stated on which he relies, and must raise all such grounds of defence as, if not pleaded, would be likely to take the plaintiff by surprise ; and r. 17 provides that the defendaut shall not deny generally the allegations in the statement of claim; vide ante, p. 310. Where therefore the defence is that the contract is materially different from the one alleged in the state- ment of claim, or that the goods were iu fact sold with a qualification or condition annexed, which the goods tendered did not satisfy, this must be specially pleaded in the defence. The admissibility of evidence under certain common defences will be found under the general head of Defences in actions on simple contracts, post, pp. 658 et seq. Denial of contract.} By Rules, 1883, O. xix. r. 20, ante, p. 310, a denial of a contract operates only as a denial of the making of the contract iu fact, and not of its legality or its sufficiency in law, whether with reference to the Statute of Frauds or otherwise. This requires the defendaut specifically to allege in his defence that be relies on the objection to the contract arising under that statute. Clarke v. Callow, 46 L. J., Q. B. 53, C. A. An objection on the ground of non-compliance with the Sale of Goods Act, 1893, s. 4, must also be specially pleaded. The following are defences which must also be specially pleaded: — Where a joint order is given for several articles at several prices, the contract is entire, and the purchaser may refuse to accept one, unless I he others are delivered; Champion v. Short, 1 Camp. 53; and where Roods are sold as "about" a certain quantity, "more or less," the latter wind., are intended to provide only for a small excess, and the purchaser is not bound to accept 350 tons on a bargain for "about 300 tons, more or less"'; at least, not unless it be showu that a large excess was contemplated. Cross v. Eglin, 2 B. & Ad. 106; Tamuaco v. Lucas, ante, p. 538. See also Oockerell v. Aucompte, 2 C. B., N. S. 440; 26 L. J., 0. P. 194; MacdonaU v. Longbottom, 1 E. & K. 977, 987; 28 L. J., Q. B. 293 ; 29 I-. J., Q. I'.. 256; Bechh v. Page, r> C. B., N. S. 708; 7 Id. 861 ; 28 L. J., C. P. Mil, 34 I ; Miller v. Borner, (1900) 1 Q. B. 019. As to the effect of delivery of the wrong quantity of goods, or of goods mixed with others, or by instalments, see sect. .".O, ante, p. 523, and sect. 31 ('-). post, p. 545. When; the defendant instructed the plaintiffs to buy for him 500 tons of Bugar, "50 tona more or less of no moment if von an- enabled to get a suitable vessel"; and the plaintiffs bought 400 tons, parcel by parcel according to the usage ol the market, and could buy no more at the price named, i! was held that tie defendant W8J not bound to accept the 100 tons, as the usage could not affect the express 540 Action for not Accepting Goods Sold. order. Ireland v. Livingston, L. R., 5 Q. B. 516, Ex. Ch. (reversed on another ground, L. K., 5 H. L. 395). Sec, however, Johnston v. Kershaw, L II. , 2 Ex. 82. A contract to sell "all spars manufactured by M., say about 600 red pine spars," was held not tu amount to a warranty as to the quantity of the spars. WGonnel v. Murphy, L. R., 5 P. C. 203. See also Gwillim v. Daniell, 2 0. M. & R. 61. A contract to buy a "cargo of about the following lengths, &c, in all about GO fathoms," is nut satisfied by the delivery of 60 fathoms, part of a cargo of 80 fathoms, although the GO fathoms were severed from the remainder, for "cargo" means the whole loading of the ship. Kreuger v. Blanch, L. R., 5 Ex. 170, following Sargent v. Heed, Str. 1228; Borrowman v. Drayton, 2 Ex. D. 15, C. A.; Anderson v. Murice, 1 Ap. Ca. 713, D. P., distinguished in Colonial Insur. Co. of New Zealand v. Adelaide Marine Insur. Co., 12 Ap. Ca. 128, J. C. A contract to supply " the whole steel" required for the Forth bridge, subject to conditions which contained the clause, " the estimated quantity of steel we understand to be 30,000 tons, more or less," is not limited by the clause. Tancred v. Steel Co. of Scotland, 15 Ap. 0a. 125, D. P. A sale of goods "on arrival," or "to arrive" in a particular ship, is a contract for the sale of goods at a future period, subject to the double condition of the arrival of the ship and the goods being on board, and is not a warranty on the part of the seller that the goods shall arrive. Boyd v. Siffkin, 2 Camp. 326 ; Hawes v. Humble, Id. 327, n. ; Louatt v. Hamilton, 5 M. & W. 639 ; Johnson v, Macdonald, 9 M. & W. 600. See also Smith v. Myers, L. R., 5 Q. B. 429 ; L. R., 7 Q. B. 139, Ex. Ch. ; and Nickoll v. Ashton, (1901) 2 K. B. 126, C. A. But, a contract for the sale of goods "now on passage and expected to arrive by," or " to be delivered on the safe arrival of," a certain ship : Gorrissen v. Perrin, 2 C. B., N. S. 681 ; 27 L. J., C. P. 29 ; Hale v. Rawson, 4 C. B., N. S. 85 ; 27 L. J., C. P. 189 ; is conditional on the arrival of the ship only. The stipulation in a contract of sale, "the cotton to be taken from the quay," was held an independent stipulation for the seller's benefit, and not a condition precedent which the purchaser had a right to insist on being performed. Neill v. Whitworth, L. R., 1 C. P. 684, Ex. Ch. See also Castle v. Playford, L. R., 7 Ex. 98, Ex. Ch. A sale of a cargo " from the deck " means that the vendor is to pay the harbour dues. Playford v. Mercer, 22 L. T. 41, Q. B. When goods are supplied under a single special contract with a committee of several persons, and a new member of the committee is added before the contract has been performed, he caunot be joined as co-defendant in an action for not accepting, though he assented to and recognized the contract after he had become a member; Beale v. Molds, 10 Q. B. 976; accord. Newton v. ]'>• hh r, 12 Q. B. 921 ; and it matters not whether the property in the goods sold ve.-ted in successive portions during the execution of the contract. But it might be otherwise, if the circumstances were such that a new contract could be implied, on successive deliveries, or successive acts, done by the plaintiff; as on a standing contract to work for a firm, on certain terms, when required ; see the cases, supra, and Helsby v. Mears, 5 B. & C. 504. A person employed by the defendant, as broker to buy the goods, cannot himself be the vendor; Sharman v. Brandt, L. R., 6 Q. B. 720, Ex. Ch. ; even by the usage of the market, if the principal were ignorant of the usage. Robinson v. Mollett, L. R. 7 H. L. 802. "Repudiation of the goods.] By sect. 13, "Where there is a contract for tin- sale of goods by description, there is an implied condition that the goods shall correspond with the description ; and if the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description." Repudiation of Goods. — Sale by Samph . 541 The first paragraph applies " to all cases in which the purchaser has not seen the goods, but is relying on the description alone." Varley v. Tf^ip^, (1900) 1 Q. B. 513, 516. Where the goods correspond with the description and are marketable, the buyer cannot repudiate the whole on the ground that a small portion is inferior in quality, aud therefore subject to a reduction in price. Braithwaite v. Foreign Hardwood Co., (1905) 2 K. B. 543, C. A. Sect. 14, ante, p. 487, defines the implied condition as to quality and fitness on the sale of goods. Sale by sample.'] Sect. 15 (1). "A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect. (2) In the case of a contract for sale by sample — (a) there is an implied condition that the bulk shall correspond with the sample in quality : (b) there is an implied condition that the buyer shall have a reasonable opportunity' of comparing the bulk with the sample : (r) there is an implied condition that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample." Hence in the case of sales by sample, if the bulk do not correspond with it, the defendant may refuse to receive it, and may keep the article any reasonable time to examine, and then repudiate it. Bat where a contract for the sale of barley was "about as per sample" and contained an arbitration clause, a custom of the London Corn Exchange applicable to such contracts, that the buyer might not reject for difference or variation iu quality, unless excessive or unreasonable, and so found by arbitration, is good, and by sect. 55, ante, p. 522, varies the condition implied by sect. 15 (2). In re Walkers, &c., & Shaiv & Co., (1904) 2 K. B. 152. By sect. 36, "Unless otherwise agreed, where goods arc delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if lie intimates to the seller that he refuses to accept, them." By sect. 53 (1), ante, p. 488, where there is a sale of a specific article with a warranty, it cannot be returned for breach of warranty only. Jn the ease, however, of an executory contract for the supply of goods of a particular quality, the goods may be refused or returned, if not of the kind contracted for. Street v. Blay, 2 B. & Ad. 463 ; Heilbutt v. Hickson, L. B., 7 I '. 1'. 138. Thus where a contract is made for the purchase <>f hops by sample, con- ditional on sulphur not having been used in their growth, if sulphur have been so used, the defendant may reject the hops, although they correspond with the sample; Bannerman v. White, 10 C. B., N". S. 844; :'4 L. J., 0. P. 28 ; and where goods are sold under a certain denomination, the defendant i- entitled to have such goods delivered to him as are commercially known under this denomination, though he may have bought after inspection of the bulk and without warranty. Josling v. Kvngsford, 13 < '. I'., N. S. I 17: 32 L. .T., C. P. 94; ami see Hopkins v. Hitchcock, II < '. B., N. 8. 65; »2 L. •'.. C. P. 154 ; Jones v. Jus/, L. R., 3 Q. B. L97, and 8hand v. Bowes, 2 \p. I la. 455, 48Q,per Ld. Blackburn. A contract for the sale of 600 ton (8,200 bags) of rice to be shipped at Madras "during the months of March ',',';' April," per Rajah, is cot satisfied by the delivery of rice all shipped in February except 50 ba^s shipped on March 2nd. S. <'., D. P. See also Reuter v. Sola, post, p. 542. On the sale of g Is by a manufacturer of such goods, who is out otherwise a dealer in them, the buyer is entitled to receive the goods as of the manufacturer's own make; .h./mso,, v. Raylton, . «,». I'.. D. 438, C. A. ; unless a custom iii the particular trade is proved thai the goods of another maker may be substituted. S. 0. 542 Action for not Accepting Goods Sold. So, if the sale note refer to the sample, and the bulk prove not to be of the same kind as the sample, the buyer may reject the goods, even though there be a condition in the contract that the contract should not be avoided if the bulk prove of inferior quality to the sample, but that an allowance should in that case be made. Azemar v. Caselar, L. II., 2 C. P. 431 ; Ex. Ch. Id. 677; see Tigers v. Sanderson, (1901) 1 K. B. G08. But, generally, where the seller produces a sample, and represents that the bulk is of equal quality, and the sale note does not refer to any sample, the defence that the goods are not equal to it is inadmissible. Meyer v. Everth, 4 Camp. 22 ; Pickering v. Dawson, 4 Taunt. 770 ; Kain v. Old, 2 B. & 0. 634. The defendant may, however, show that all sales of tobacco are by sample by general usage in that trade, though there was no mention of sample in the contract. Syers v. Jonas, '1 Exch. 111. And the plaintiff may show in reply the custom of certain markets as to the time for objecting to the bulk, or as to returning, or allowing for, articles not answering the sample. Sanders v. Jameson, 2 Car. & K. 557 ; Cooke v. Biddelien, 1 Car. & K. 561. By sect. 15 (2, b), ante, p. 541, there is an|implied condition that the pur- chaser by sample shall have a reasonable opportunity of comparing the bulk with the sample. The place of inspection is, in the absence of express stipulation, presumed to be the place of delivery; Perkins v. Bell, (1893) 1 Q. B. 193, C. A. ; if after an inspection of a sample there, the purchaser orders the goods to be sent to his sub-vendee, he cannot afterwards reject them. S. C. By sect. 10 (1), " Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stif>ulation as to time is of the essence of the contract or not depends on the terms of the contract." The rule of equity stated ante, p. 323, is confined to contracts for the sale of land, fieuter v. Sala, 4 C. P. D. 239, 249, per Cotton, L.J. Thus where a contract for the sale of goods, to arrive by ship, provides that the name of the vessel, marks, and particulars shall be declared " within 60 days from the date of the bill of lading," such time is of the essence of the contract, and if such declaration be not made within the time limited, the buyer is not bound to accept the goods. S. C. See further, Hoare v. Rennie, 5 H. & N. 19; 29 L. J., Ex. 73 (explained by C. A. in Mersey Steel and Iron Co. v. Naylor, 9 Q. B. D. 658, 671 ; see also S. 0., 9 Ap. Ca. 446, 447) ; Ooddington v. Paleologo, L. R., 2 Ex. 193 ; and Shand v. Bowes, ante, p. 541. But in general a partial breach by the plaintiff of his contract to deliver does not justify the defendant in subsequently refusing to accept. Jonassohn v. Vonng, 4 B. & S. 296 ; 32 L. J., Q. B. 385. See further as to the effect of a partial breach, Simpson v. Grippin, L. II., 8 Q. B. 14, and Freeth v. Burr, L. R., 1) C. P. 208. Fraud."] A wilful misrepresentation by the vendor, which induced the defendant to purchase, will warrant the defendant in refusing to complete the contract; but this must be pleaded specially. Even where the sale is " with all faults," any artifice to disguise a fault may vitiate the sale. Baglehole v. Walters, 3 Camp. 154; Schneider v. Heath, Id. 506. See Ward v. Hobbs, 4 Ap. Ca. 13, D. P. By sect. 58, " (3) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person. Any sale contravening this rule may be treated as fraudulent by the buyer. (4) A sale by auction may be notified to be subject to a reserved or upset price, and Action for Goods Bargained and Sold. 543 a right to bid may also be reserved expressly by or on behalf of the seller. Where a right to bid is expressly reserved, but not otherwise, the seller, or any one person on his behalf, may bid at the auction." ACTION FOR GOODS BARGAINED AND SOLD. By sect. 49, " (1) Where, under a contract of sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract^ the seller may maintain an action against him for the price of the goods. " (2) Where, under a contract of sale, the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropri- ated to the contract." Sects. 16 — 19 relate to the passing of the property on a contract of sale ; they will be found, post, pp. 949 et seq. ; Action for conversion — Vesting of the property — Sale of goods. The plaintiff, an artist, agreed " to finish three pictures for F. (the defen- dant), which are now submitted to him, in my best manner, for 60Z. and a clock." The pictures were not then completed, but afterwards the defendant, expressed approval of them and said he would send for them : held, to con- stitute sufficient appropriation of the pictures to support the common count for goods bargained and sold, and sold and delivered. Qirardot v. Fitzpatrick, 21 L. T., 470, Mellor, J. Where acceptance of goods is conditional on some- thing to be done by the seller, if the buyer prevent the possibility of the seller's fulfilling the condition, the contract is satisfied. Mackay v. Dick, 6 Ap. Ca. 251, D. P. The plaintiffs in London sold to the defendants a quantity of butter, expected from Sligo, of specified quality and price. The butter was to be shipped for London in October, and paid for by bill at two months from the landing. The butter was not shipped till November; but the defendants waived the objection, and accepted the invoice and bill of lading. The butter having been lost by shipwreck on the passage, it was held that the property had passed to the defendants; and that they might be sued for goods bargained and sold, or, per Park, J., for goods sold and delivered. Alexander v. Gardner, 1 N. 0. 671. Where goods are destroyed, the question is not necessarily whether the property had passed, hut at whose risk the goods were; Castle v. Vlayford, \>. I!., 7 Ex. '.is, Ex. Ch.; Martineau v. Kitching, L. R., 7 Q. B. 436, 455, 459; in such ease, if the price were nut ascertained prior to the destruction, it must be ascertained as nearly as possible. S. G. Td. By sect. 20, " Unless otherwise agreed, the -.roods remain at the seller's risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer, tl ;oods are at the buyer's risk whether delivery has been made or not. Provided that where delivery lias been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not hav iourred but for such fault. Provided also that nothing in this Beotion shall aflfeel the duties or liabilities of either seller or buyer as a bailee or custodier of the goods of the other party." As to re-sale by the seller on default of the buyer, .•<• sect. 18(3, I), ante, p. 538. By Rules, 1883,0. xxi. r. 3, post, p. 658, a defence in denial must deny the order or contract or the amount claimed. Ml Action for not Delivering (r<><,/>'. Carn/orth, &c, Co., I Oh. D. LOB. Ii is sufficiently avowed if the vendee tile a petition for Liquidation, and within a reasonable time tender of the price in cash be not made by the trustee appointed thereunder; A'.'; pte. Stapleton, J<> Oh. D. 586, 0. A. ; or, it seemB, by his sub-vendee. S. 0. Where lie' delivery LB to be by monthly quantities, the plaintiff can compel the defendant in a subsequent month to make up for short deliveries in the previous months, although the defendant had forborne to deliver the full quantities at the plaintiff's request. Tyers v. Roscdale,&c, Iron Co., L. P., 10 Ex. L95, Ex. Ch. Non-deliucry.] By Beet. 28, ""'', p. 523, payment and delivery are eon- current conditions. The rules as to delivery are laid down in sect. L".'. R. — VOL. I. N N 546 Action for not Delivering Goods Sold. "(1) Whether it is for the buyer to take possession of the goods or for the seller to semi them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, the place of delivery is the seller's place of business, if lie have one, and if not, his residence: Provided that, if the contract be for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery. " (2) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. " (3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf; provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods. "(4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact. " (5) Uide.ss otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state " (see sect, tili (4), ante, p. 522) " must be borne by the seller." Sect. 30 (3), ante, p. 524, relates to the case of delivery of the wrong quantity of goods or of goods mixed with others. By sect, 31 (1), " Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments." By sect. 34 (2), post, p. 568, the seller, on tendering delivery of the goods, must, on request, give the buyer reasonable opportunity of examining them to ascertain if they are in conformity with the contract. If the vendor be to deliver, but the contract do not (expressly or impliedly) provide where the delivery is to take place, as on board ship, he is not bound to deliver, or offer to deliver, till the place of delivery is notified by the vendee. Armitaye v. Insole, 14 Q. B. 728. Hops, when sold by T. to W., were lying at a warehouse to TVs use. W. paid for them and took away part from the warehouse with the consent of the warehouseman, F. ; but before he had carried away the rest, they were seized by a creditor of T.'s vendor under a claim of right ; held, that W. could not sue T. for non- delivery, although the latter had given no delivery order to W. Wood v. Tassell, 6 Q. B. 234. In this case F. had, in fact, become T.'s agent, and it was not shown that the seizure was rightful. If it had appeared that F. had, from the first, refused to deliver on the order of T., an action for non- delivery would have lain against T. Semb. Thbl v. Hinton, 4 W. R. 26, M. T. 1855, Ex. If, before the time of delivery, the seller announce to the buyer his intention not to deliver, the latter may sue at once. Roper v. Johnson, L. II., 8 C. P. 167, following Frost v. Knight, L. R., 7 Ex. Ill, Ex. Ch. As to delivery of goods "to arrive," &c, vide ante, p. 540. As to delivery to a carrier, see sect. 32, post, p. 552. If goods sold be in a carrier's hands, subject to lien, an action for non-delivery lies against the seller if the carrier refuse to deliver, on readiness by the buyer to pay charges thereon. Buddie v. Green, 27 L. J., Ex. 33. By sect. 33, " Where the seller of goods agrees to deliver them at his own risk at a place other than that where they are when sold, the buyer must, nevertheless, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit." Damages.] In an action for non-delivery of goods, by sect. 51 (2) " the measure of damages is the estimated loss directly and naturally resulting, in Damages. 547 the ordinary course of events, from the seller's breach of contract." This follows the principle enunciated in Eddley v. Baxendale, 9 Exch. 311 ; 23 L. J., Ex. 179 : cited post, p. 048. See Bonks v. Hutchinson, 18 C. B., N. S. 445 ; 34 L. J., (J. P. 169 ; Ilinde v. Liddell, L. K., 10 Q. B. 265; and see Hughes v. Grceme, 33 L. J., Q. B. 335, 310. Tims, if a ship be ordered to be made ur be left for repair and not delivered at the stipulated time, the measure of damages is prima facie the sum which would have been earned by the ship in the ordinary course of trade since the period when it should have been delivered. Fletcher v. Tayleur, 17 C. B. 21 ; 25 L. J., C. P. 65 ; Expte. Cambrian S. Packet Co., L. R.,4 (Jh. 112, 117. See Cory v. Thames Ironworks Co., L. K., 3 Q. B. 181. So, where sets of waggon wheels and axles were to be made by the defendant according to patterns furnished by the plaintiffs, the jury may give damages for the loss of the use of the waggons. Elbinger Actien-Gesellschaft v. Armstrong, L. R., 9 Q. B. 473. By sect. 51 (3), " Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, ur, if no time was fixed, then at the time of the refusal to deliver." This applies although there are several periods of delivery and the action was commenced before the periods of delivery have elapsed ; for the repudiation of the con- tract before the time for its fulfilment goes bo the question of breach, but does not affect the damages. Brown v. Mutter, L. 1!., 7 Ex. 319; Roper v. Johnson, ante, p. 546. But where delivery was to lie made between January and May, and on default the defendants to pay a line per ton per week, it was held that the line was to be computed from May until delivery actually was complete. Berghevm v. Blaenavon Iron, dr., Co., L. 1!., 10 Q. B. 319. If no difference be proved between the contract and market prices, the damages must be nominal. Valpy v. Oakeley, 16 Q. B. 911; 20 L. .1., Q. I'.. 380; Griffiths v. Perry, 1 E. & E. 680; 28 L. J., Q. B. 204. When the price has been paid, the measure of damages is the market price, without deducting the contract price; and this will lie the rule where the payment is by bills which are still outstanding. But if the hills he dishonoured, even though after breach of the contract to deliver, the parties are placed in the same position as if the bills had never been given, or the contract bad been to pay in ready money ; and the vendee can only recover the difference between the contract price and the market price of the goods. S. C. 220; 11 Q. 1'.. 1). 7«.»7, (J. A. Accord, ri'ilvesen v. Eederi Aktiebolaget, &c., (1905) A. C. 302, D. P. Specific performance.'] By sect. 52, "Iu any action for hreach of contract to deliver speci6c or ascertained goods the court may, if it thinks fit, on the application of the plaintiff, by its judgment or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the court may seem just, and the application by the plaintiff may be made at any time before judgment or decree." A writ of deliver is now issued and enforced under Rules, 1883, 0. xlviii. r. 1. Defence. The defence arising under the Sale of Goods Act, 1893, s. I, must, if relied on, be specially pleaded. Rules, 1883, O. xix. r. 20, mitt, p. 310. Where goods sold under a contract required by the Stat. of Frauds to be in writing were to be delivered at a certain place or time, and the parties afterwards orally varied their stipulation as to delivery, it was held that this did not amount to a rescission of the original contract ; Moore v. Campbell, 10 Exch. 323; 23 L. J., Ex. 310 ; Noble v. Ward, L. R., 2 Ex. L35, Ex. ( !h. ; vide ante, p. 28: but if the goods had been actually accepted, or even a delivery order accepted under the agreement as so varied, that would have been a defence under a plea of accord; semh. Moore v. Campbell, supra. Though a contract made iu error may be avoided, yet the vendor cannot trea< as void, at law or in equity, a sale to the vendee of an article misrepresented by the vendor in error, unless the vendee consents. Semble, Scott v. Little- dale, 8 E. & B. 815 ; 27 L. J., Q. B. 201. The case of the goods having perished is provided for by seels. 6, i, <>nte, p. 523. See also sect. 32 (2, 3), post, p. 552, and .sect. 33, /r contracts Rescission, post, p. 703. As to defence on the ground of the insolvency of the buyer, ,-ide Action for conversion of goods /:>'idence of right of jmssession, pod, p. 967. ACTION FOR COOPS sor.l) AM" DELIVEBBD. The plaintiff in an action lor goods sold and delivered must be in a con- dition to prove, if denied, 1. The contract of sale ; 1. The delivery of g Is according to contract ; •">. The value or price. The contract of sale.'] The general statutory and other rules relating to contracts of sale will be found, ante, pp. 52] et seq., and the cases in which the contract must be in writing are collected, ante, pp. 525 ei teq. The necessity of a writing under the S. ol . B. 218. Sale and delivery by a Conner agent of an intestate between the time of the death and grant of administration will support an action hj tbe administrator, as such, for goods .-sold. Foster v. Bates, 12 M. & W. 226. A symbolical delivery of goods, if sufficient to enable the vendee to take possession and to divest the seller's lien for the price, is a sufficient delivery ; as the delivery of the key of the warehouse, or of a delivery order on a wharfinger, or of other indicia of property, so as to put it under the control of the vendee. See Chaplin v. Rogers, 1 East, 192, 194 ; Elmore v. Stone, 1 Taunt. 460. And this species of constructive delivery is particularly applicable to ponderous goods not capable of ordinary delivery, as timber; or which the vendor has not engaged to deliver in any other way. Where a ship or goods at sea are sold, the delivery is by delivery of the documentary proofs of title, as the bill of sale or lading, &c. 2 Kent's i lomm. 500, 501. An order by seller for delivery to defendant of a rick of hay made on a third person who has consented to let it remain on his land, is a sufficient delivery as between the seller and buyer, the latter having undertaken to carry it away himself. Salter v. Woollams, 2 M. & Gr. 650, ; Rusby v. Scarlett, . to order goods from the plaintiff C, on which authority B. acted: A. was held liable for goods ordered by B. of C. after A. had become insane, G. having no notice of such insanity. Drew v. Nunn, 4 Q. B. D. 661, C. A. Meat was supplied to I. during the lifetime of her husband, II., by his authority, for the support of herself and her family : it was held thai I. was not liable for the price of the meat so supplied, after the death of II. on a distant voyage, before news of the death came to hand. Smout v. llbery, 1<> M. & W. 1. Accord. Saltan v. New Beeston Cycle Co., (1900) 1 Oh. 43. Delivery to partner.'] The law of partnership lias now 1 n declared and amended by the Partnership Act, 1890, 53 & 54 V. c. 39, and the most con- venient course seems to be in the first instance to state the provisions of the Act which define partnership, and give the rules for determining its existence, and afterwards to show what is the effect of the relation of partnership. The Act expressly provides by sect. 46, M The rules of equity and of common law applicable to partnership shall continue in force except bo far as they are inconsistent with the express provisions of this Act." By sect,. 1 (J), "Partnership is the relation which subsists between persons carrying on a business in i imoa wit h a \ iew of profit. "(2) But the relation between members of any company or association which is — (a.) Registered as a company under the Companies Act, 1862, or any other Act of Parliament for the tune being in force and relating to the registration of joint stock companies; or (b.) Formed or incorporated by or in pursuance of any other Act- of Parliament or letters patent, or Royal Charter; or (c.) A company engaged in working mines within and subject to the jurisdiction of the Stannaries: is not a partnership within I In- meaning of this Act." Sect. 2. "In determining whether a partnership dues or does not exist, regard shall be had to the following rules: "(1) Joint tenancy, tenancy in common, joint property, common property, or part ownership docs not of itself create a partnership as to anything held or owned, whether the tenants or owners do or do not bare oiy profits made by the use thereof. 556 A 'Hon for Goods Sold and Delivered, "(2) The sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or have not a joint or common right or interest in any property from which or from the use of which the returns are dern ed. "(3) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but the receipt of such a share, or of a pay mod contingent on. or varying with the profits of a business, does not of itself make him a partner in the business ; and in particular — (a.) The receipt by a person of a debt or other liquidated amount by instalments or otherwise out of the accruing profits of a business does not of itself make him a partner in the business or liable, as such : (b.) A coutract for the remuneration of a servant or agent of a person engaged in a business by a share of the profits of the business does uot of itself make the servant or agent a partner in the business or liable as such : (c.) A person being the widow or child of a deceased partner, and receiving by way of annuity a portion of the profits made in the business in which the deceased person was a partner, is not by reason only of such receipt a partner in the business or liable as such : (d.) The advance of money by way of loan to a person engaged or about to engage in any business on a contract with that person that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on the business, does not of itself make the lender a partner with the person or persons carrying on the business or liable as such. Provided that the contract is in writing, and signed by or on behalf of all the parties thereto : (e.) A person receiving by way of annuity or otherwise a portion of the profits of a business in con- sideration of the sale by him of the goodwill of the business is not by reason only of such receipt a partner in the business or liable as such." (28 & 29 V. c. 86, ss. 1—4.) Sect. 4. (1) " Persons who have entered into partnership with one another are for the purposes of this Act called collectively a firm, and the name under which their business is carried on is called the firm-name." Sect. 5. " Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership; and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority, or does not know or believe him to be a partner." A partner is responsible for the act of his co-partner, within the general scope of his authority as partner, although such act is an actionable wrong. Eamlyn v. John Houston & Co., (1903) 1 K. B. 81, C. A. Sect. (I. " An act or instrument relating to the business of the firm and done or executed in the firm-name, or in any other manner showing an intention to bind the firm, by any person thereto authorized, whether a partner or not, is binding on the firm and all the partners. " Provided that this section shall not affect any general rule of law relating to the execution of deeds or negotiable instruments." See Mar- chant v. Morton Down & Co., ante, p. 137, and Ex pte. Wright, (1906) 2 K. B. 209. Goods delivered in pursuance of an order by one partner are delivered to all, unless it appear that they were delivered on the exclusive credit of one only ; but debiting one only, and taking the separate acceptance of that one, is not decisive of this. Bottomhy v. Nuttall, 5 0. B., N. S. 122 ; 28 L.J., C. P. 120; Kmy v. Fen wick, 1 0. P. D. 745, C. A. A question sometimes arises in such actions whether all the defendants are liable as partners. Delivery to Partner.— ^Partnership Ad, 1890. 557 Although the defendant cannot compel the joinder of a dormant partner, as co-defendant, yet the dormant partner may, at the option of the plaintiff, he so joined. Lloyd v. Archbowle, 2 Taunt. .".27; Ruppell v. Roberts, 4 Nev. & M. 31. And such a partner may be joined as defendant, though the contract, which was in writing (not under seal) and inter paries, did not name him. Drake v. Beckham, 11 M. & W. 315, Ex. l> . Mills, L. R., 8 Ch. 569; Ex pte. Taylor, 12 Ch. 1). 366, C. A.; In re Mom; :::; Ch. D. 541; In re Vince, (1802) 2 Q. B. ITS, C. A.; In re Hildesheim, (1893) 2 Q. B. 357, C. A. ; Badeley v. Consolidated Bank, ante, \>. 558. By the Partnership Act, 1890, s. 7. "Where one partner pledges the credit of the firm for a purpose apparently not connected with the firm's ordinary course of business, the linn is not bound, unless he is in fact specially authorized by the other partners: but this Bection does not affect any personal liability incurred by an individual partner." Sect. 8. "If it has been agreed between the partners that any restric- tion shall be placed on the power of any one or more of them tn find the firm, no act done in contravention of the agreement is binding <»n the firm with respect to persons having notice of the agreement." Sect. 16. "Notice to any partner who habitually acts in tin' partnership business of any matter relating to partnership affairs operates as notice in the firm, except in the case of a fraud on the firm committed by M with the consent of that partner." Sect. 8 seems to alter the rule laid down in Ex pte. Greenwood, '■'■ l». M. & (i. 459; 23 L. J., Ch. 966, and to harmonize the rule as to other simple contracts with that which gover 1 negotiable instruments, vide ante, pp. 364 et seq. The Bection does not, however, apply where there has been no agreement between the partners to restrict their power to bind the firm, and the question may therefore still arise how far the presumed agency of a partner to bind the firm can be determined, or excluded, by timely Action for : 3 Kent's Com. pp. 44, 45. In cases where the majority can bind the rest of the partnership, it is questionable whether such notice or disclaimer can have any operation at all. Vide Id. Sect. 17. (1) "A person who is admitted as a partner into an existing firm does not thereby become liable to the creditors of the firm for anything done before he became a partner." This rule applies even though the partnership has been made retrospec- tive by agreement between the new aud old partners. Vere v. Ashby, 10 B. & C. 288. Sect. 17. (2) " A partner who retires from a firm does not thereby cease to be liable for partnership debts or obligations incurred before his retirement." (3) " A retiring partner may be discharged from any existing liabilities, by an agreement to that effect between himself and the members of the firm as newly constituted and the creditors, and this agreement may be either express or interred as a fact from the course of dealing between the creditors and the firm as newly constituted." If a creditor, knowing of a dissolution of partnership, transfer his account from the old to the new firm, and continue to ileal with the new firm, this is evidence of accepting that firm as his debtors, aud will release a retiring partner. Hart v. Alexander, 2 M. & W. 484; Rolfe v. Flower, L. It., 1 P. 0. 27. So, where the creditor receives interest from the new firm on the debt due from the old. Bilborough v. Holmes, 5 Ch. D. 255, distinguished In re Head, (1893) 3 Ch. 42(3. See also Kir wan v. Kir wan, 2 Cr. & M. 617; Ex pte. Gibson, L. R., 4 Ch. 062. Sect. 36. (1) " Where a person deals with a firm after a change in its constitution he is entitled to treat all apparent members of the old firm as still being members of the firm until he has notice of the change." (2) " An advertisement in the London Gazette as to a firm whose principal place of business is in England or Wales, . . . shall be notice as to persons who had not dealings with the firm before the date of the dissolution or change so advertised." (3) " The estate of a partner who dies, or who becomes bankrupt, or of a partner who, not having been known to the person dealing with the firm to be a partner, retires from the firm, is not liable for partner- ship debts contracted after the date of the death, bankruptcy, or retirement respectively." In the case provided for by sub-sect. (3) the retiring partner is not liable from the mere fact of his having allowed the continuing partner to carry on the business under the firm-name. Ex pte. Central Bank of London, (1892) _ Q. B. 633, C. A. As to persons who knowing that the retiring partner was a partner, had dealings with the firm, there must be actual notice to them of his retirement, in order to free him from liability for the price of goods or.lered subsequently to his retirement. Farrar v. Dejlinne, 1 Car. & K. 580, per Cress well, J. Sect. 36 (3) does not apply to the case of an entire contract entered into by C. with the acting partner, during the partnership, C. not knowing that the defendant was a partner, or that he had retired. Court v. Berlin, (1897) 2 Q. B. 396, C. A. Of two partners A. and B., A. retired, and B. carried on business with C. as partner under the same style ; a customer of the old firm who sold goods to the new firm after the change of partners, but without notice of it, is put to his election, whether he will sue A. and B. for the price on a liability by estoppel, or B. & C. on a liability in fact. Scarf v. Jardine, 7 Ap. Ca. 345, D. 1'. If after notice of A.'s retirement he sue B. and C, or prove in Delivery to Partner.— Partnership Act, 1890. 561 their liquidation, he cannot afterwards sue A. S. C. ; see Morel Brothers tfe Co. v. Westmoreland, El. of, post, p. 564. As to the liability of a neu- partner, see British Homes Insur. Co. v. Paterson, ante, p. 511. By Sect. 38. "After the dissolution of a partnership the authority of each partner to biud the firm, and the other rights and obligations of the partners continue notwithstanding the dissolution so far as may be necessary to wind up the affairs of the partnership, and to complete transactions begun but unfinished at the time of the dissolution, but not otherwise. Provided that the firm is in no case bound by the acts of a partner who has become bank- rupt ; but this proviso does not affect the liability of any person who has after the bankruptcy represented himself or knowingly suffered himself to be represented as a partner of the bankrupt." Sect. 9. " Every partner in a firm is liable jointly with the other partners," , . . "for all debts and obligations of the firm incurred while he is a partner: and after his death his estate is also severally liable in a due course of administration for such debts and obligations, so far as they remain unsatisfied, but subject " ..." to the prior payment of his separate debts." Thus during the lifetime of partners, A. and B., a partnership debt due from them to C. is joint only, and a judgment recovered against B. bars the remedy against A., although C. was unaware when he sued B. that A. was jointly liable. Kendall v. Hamilton, 3 C. P. D. 403, C. A. ; 4 Ap. Ca. 504, D. P. On the death, however, of A., C. may, unless there has been such judgment in A.'s lifetime, prove his debt against A.'s estate; S. C. ; In re Hodgson, 31 Ch. D. 177, C. A. ; but C. can be paid only after A.'s separate creditors have been paid in full. S. C. Hence the expression that the debt of a partnership is several as well as joint is inaccurate, for the debt does not lose its joint character. S. C. On B.'s death, C. may prove against his estate, notwithstanding his prior proof against A.'s estate. S. C. A regular judgment obtained by C. against B. by his consent, cannot be set aside also by his consent, so as to enable C. to sue A. Hammond v. Scho- field, (1891) 1 Q. B. 453. Such judgment may have been obtained in an action against A. and B. in which they both appeared. M'Leoil v. Po"> r, (1898) 2 Ch. 295. But an unsatisfied judgment against A. on a bill of exchange given for the joint debt of A. and B. is no bar to an action against B. on the original contract. Brake v. Mitchell, 3 East, 251. Accord. Wegg Prosser v. Evans, (1895) 1 Q. B. 108, C. A. The above principles apply where one of the contractors is a married woman contracting in respect of her separate estate. Hoare v. Niblett, (1891) 1 Q. 15. 78L. As to what arc "debts and obligations," see Friend v. Young, (1897) 2 Ch. !'_'l ; Bagel v. Miller, (1903) 2 K. B. 212, cited post, p. I L54. Under Sects. 10, 12, ante, pp. 510, 511, where partners are liable for a breach of trust committed by one of them, their liability is several as well as joint, and a judgment against one is no bar to an action against the others. Ste Blyih v. Fladgate, (1891) 1 Ch. 337. Delivery to an unincorporated mining company.'] Working mines is a species of trade, and has some of the qualities of an ordinary partnership. Mines within the stannaries of Devon and Cornwall are often worked by unincorporated partnerships, with transferable shares, on what is termed the " cost-book" principle. Vide ante, pp. 83, 275. The shareholders in an ordinary mining company, conducted by managers or other agents, are personally liable on the contracts made for the supply of the mines, where such contracts are necessary or usual, or where the -defendants can bu shown to have authorized the contracts. Tredwen v. Bourne, 6 M. & W. I'll ; Steigenberger v. Carr, 3 M. & (Jr. L91. And such shareholders are for this purpose partners, and therefore liable on all usual k. — vol. r. 562 Action for Goods Sold and Delivered. contracts for goods supplied, &c, made by their agents, though there may be an agreement inter se not to deal on credit; unless the plaintiff knew of the restriction, and that the goods were ordered without the authority of the shareholder sued. Hun-ken v. Bourne, 8 M. & W. 703. The defendant may be charged as partner on proof of an admission of his interest either before or after the debt was incurred, without proviog a deed of co-partnership or any strict legal interest in the mine ; Ralph v. Harvey, 1 Q. B. 845 ; or by proof that he acted as partner; Oiuen v. Van Uster, 10 C. B. 318; 20 L. J., C. P. 61 ; unless the admission be shown to have been made under error. Vice v. Anson, 7 B. & C. 40 ( J, 411. The defendant's interest may be proved by his acceptance of the shares in a mine, written at the foot of a certificate of transfer by the seller, although it be not stamped as a transfer ; but if the document do not itself convey any legal interest, the admission of the defendant is not conclusive proof. Toll v. Lee, 4 Exch. 230. See ante, p. 275, as to stamp duty ; and as to evidence of transfer, see Watson v. Spratley, 10 Exch. 222 ; 24 L. J., Ex. 53, cited ante, p. 314. Attendance of the defendant at a meeting in the character of a shareholder is evidence that he is one. Harrison v. Heathcrn, 6 M. ifc Gr. 81. AVhere the facts showed that the defendant became a shareholder on the terms that the directors should not proceed without a certain capital, and they proceeded (without the defendant's assent) before that capital was raised, the defendant was held not liable on his contract. Bitcliford v. Davis, 5 M. & W. 2. But the non-performance of this condition by the directors will not prevent the liability of a shareholder from attaching, where he sanctions the contract either directly or by acquiescing in the working, Steigenberger v. Carr, ante, p. 561. Delivery to members of an inchoate company. - ] A joint-stock company is in the nature of a partnership ; but the constitution of such companies generally distinguishes them from ordinary partnerships. When incor- porated, the direct liability of individual members ceases. When inchoate, or not incorporated, the liability of a member depends on his being actually or constructively a party to the contract on which the plaintiff sues. In such cases the questions to be considered are : — Was the defendant directly a party to the contract ? Was he a member of the body which contracted ? Did he hold himself out as a partner by acting, or permitting others to act, in such a way as reasonably to induce the plaintiff to believe that he was a partner, and responsible as such ? Had he legally withdrawn from the concern at the time of the contract? See Wood v. Argyle, DA: of, 6 M. & Gr. 928 ; Lake v. Id., 6 Q. B. 477 ; Fox v. Clifton, 6 Bing. 792 (cited 2wst, p. 563) ; Bright v. Hutton, 3 H. L. C. 341. The question that most frequently presents itself, is the liability of persons who have become subscribers to a company projected, but not finally established. When the defendants consented to be directors of a water company and attended meetings, and were privy to an order given to the plaintiff (an engineer), though not actually present when the order was given, they were held liable, notwithstanding the subsequent failure of the project. Doubleday v. Muskett, 7 Bing. 110. See Collingivood v. Berkeley, 15 0. B., N. S. 145. But the mere consent of the defendant to become a member of the provisional committee of an intended company, and the insertion, with his authority, of his name in a prospectus accordingly, will not^er se, and without further privity, make him liable on orders given by other members of the committee, or by the secretary, or the solicitor of the company. Reynell v. Lewis, 15 M. & W. 517 ; Barker v. Stead, 3 C. B. 946 ; Cooke v. Tonkin, U Q. B. 936; Bailcn v. Macaulay, 13 Q. B. 815; Burbidge v. Morris, 3 H. & C. 664; 34 L. J., Ex. 131. The facts of the case may, Delivery to Members of an Inchoate Company — to Wife. 563 however, warrant a judge in leaving them to the jury, as evidence that the defendant had authorised the contract to be made, either by his co-provisional committeemen or by the managers of the concern, i.e., by the managing committee, if any, or the majority of them, or by the solicitor or other officer of the company ; and the terms of the printed prospectus, if circulated with the defendant's privity and consent, and known, or presumably known, to the plaintiff, may be sufficient to justify such inference. Semb. per cur., in Beynell v. Lewis, ante, p. 562 ; Maddick v. Marshall, 16 C. B.. N. S. 387 ; 17 C. B., N. S. 829, Ex. Ch. ; Biley v. PacJcington, L. E., 2 C. P. 536 ; and see Bailey v. Macaulay, ante, p. 562. But a managing committee, appointed by the provisional committee, are not therefore agents of the latter for the purpose of pledging their credit by contracts. Williams v. Pigott, 2 Exch. 201. AVhere the defendant, as one of an acting committee, assented to the contract with the plaintiff, it was held a proper question for the jury whether the contract was on the personal liability of the defendant, either alone or as a committeeman, or on the sole credit of the funds. If on the credit of the funds, the contract becomes absolute on receipt of funds, and may be enforced. Higgins v. Hopkins, 3 Exch. 163. A minute in the books of an incorporated railway company appointing the plaintiff their engineer, not authenticated by any signature, or by any proof aliunde that a board meeting was held on the day, or that the defendant, a provisional committeeman, had sanctioned the resolution, is not per se evidence to fix the defendant ; nor is a letter of the secretary to the plaintiff, stating the minute, admissible against the defendant without some proof of his authority to write it. Bennie v. Wy 4 Exch. 691. Where the defendants, as agents on behalf of a proposed company, entered into a written contract with the plaintiff for the supply of goods to the company, which was not then constituted, it was held that, as the defendants had no existing principal, they were personally liable, and that a subset p. ■ ratification by the company, when formed, could not relieve them from this responsibility, as the company was a stranger to the contract. Kelner v. Baxter, L. It., 2 C. P. 174. See also Scott v. Ebury, Ld., Id. 255 ; Ifopcroft v. Parker, 16 L. T. 561, E. T. 1867, C. P.; Melhado v. Porto Alegn A'//. Co., L. R., 9 C. P. 505, and other cases cited ; and Part III., Actions by ■ against Companies, post, p. 1111. A person who applied for shares in an unincorporated joint stock company, and paid a deposit on them, but had not otherwise interfered in the concern, was not therefore liable on contracts made by a board of directors, who have taken upon themselves to act before the necessary capital had been raised, agreeably to the prospectus, and after the shares had been declared forfeited by reason of non-paymeDt of subsequent falls. Fox v. I 6 Bing. 776. See Ho v:h„ <•], c„ a l Co. v. Teague, 5 II. & X. !■"■! ; i".' L. .1., Ex. 137, and Omarm ntal Woodwork <'<>. v. Brown, - 11. & C. 63; 32 L.J., Ex. 190. Some of the cases belonging to this head have already been mention under the last head of Delivery to 'partner {ante, pp. 555 -/ Beg.), i companies having formerly been treated as partnerships, and so called. In Beynell v. Lewis, ante, p. 562, it is denied that associations of this kind (at least, so long as they are in fieri) are partner bipa at all. As to actions against incorporated or registered companies, vide Part III., Actions by and against companies, post, pp. 1090 el Delivery to ivife.'] "Where a husband ■:ivcs his wife express author pledge his credit he is liable for the price of goods delivered <>n such credit, as in the case of any other agent; as to which vide nut,, pp. 552 et seq. Under the present head is considered the authority of the wife to pledge hei 00 2 ,i,: Action for Goods Sold and Delivered. husband's credit, to be implied from the mutual relation of the parties in the absence of such express authority. Where a husband is living in the same house with his wife, he is liable for any goods which he permits her to receive there. If they are not cohabiting, then the husband is in general only liable for such necessaries as from his situation in life it is his duty to supply to her. Waithman v. Wakefield, 1 Camp. 121; Atkins v. Garwood, 7 C. & P. 750. The question of the husband's liability must therefore be considered separately in the cases where his wife is and is not living with him, and the latter cases must be further distinguished with reference to the cause of the wife's separation from her husband. These questions are fully discussed and the cases thereon collected, in the notes to Manly v. Scott, and other cases in 2 Smith's L. Cases. Where husband and wife live together, and necessaries are delivered to the wife by her order, a jury may presume the husband's assent. Bac. Abr. Baron and Feme (H.) ; Freem. 2nd ed. 249, n. As, however, the liabilitv of the husband turns on the question of the wife's power as his agent, the plaintiff, who relies on this presumption of agency arising from cohabitation, must show that the goods he delivered to the wife were necessaries. Phillipson v. Ilayter, L. R., 6 C. P. 38. The question, however, is one of authority for the jury, and not simply whether the articles supplied were necessaries or not. Jolly v. Sees, 15 C. B., N. S. 628 ; 33 L. J., C. P. 177 ; Bebenham v. Mellon, 5 Q. B. D. 394, C. A. ; 6 Ap. Ca. 24, D. P. And the husband may rebut the presumption of agency by showing that he had forbidden his wife to pledge his credit, although the plaintiff had no notice of the prohibition. S. CC. ; Morel Bros. & Co. v. Westmoreland, El. of, infri. The presumption of agency may also be rebutted by proof that the credit was given to the wife ; Bentley v. Griffin, 5 Taunt. 356 ; Metcalfe v. Shaw, 3 Camp. 22 ; or by proof of any other circumstances negativing the husband's assent, as that the goods supplied are beyond the rank and station the husband maintains. Montague v. Benedict, 3 B. & C. 681. So in an action for the price of dresses delivered to his wife, the husband may show that his wife was already supplied with sufficient articles of dress, although the plaintiff did not know she was so supplied. Beneaux v. Teakle, 8 Exch. 680; 22 L. J., Ex. 241. Where the order is plainly an extravagant one, that fact may be considered by the jury as tending to rebut the presumed agency. Lane v. Ironmonger, 13 M. & W. 368. The fact that necessaries have been supplied for the household on the order of the wife, both she and her husband each having property, affords no evidence of a joint liability to pay for them. Morel Bros. & Co. v. Westmoreland, El. of, (1903) 1 K. B. 64; (1904) A. C. 11. Judgment obtained against either of them for the price of the necessaries bars any remedy against the other; S.C. See also French v. Bowie, (1906) 2 E. B. 674, C. A. Where a wife carried on business of her own account during the imprisonment of her husband, and after his return articles were furnished in the same business with his knowledge, he was held liable for these articles, though the invoices and receipts were made out in the wife's name. Betty v. Anderson, 3 Bing. 170. As to the evidence necessary to connect the defendant with the woman to whom the goods were delivered, vide post, p. 567. Where a wife is living separate it lies on the plaintiff to show that she does so under circumstances which imply an authority to pledge her husband's credit. Johnston v. Sumner, 3H.&N. 261 ; 27 L. J., Ex. 341. If the wife leave her husband without his consent there is no implied authority to bind him. If with his assent there is no necessary implication of authority, but it may be implied either by her destitution of adequate support aliunde, or inability to support herself. Thus, in the case of labouring Delivery to Wife. 565 people both equally able to maintain themselves, an authority to bind the husband is not to be implied in the case of mere non-cohabitation. In those cases in which the husband would ordinarily support the wife, and she has no resources of her own, and he do not make her an adequate allowance, an authority to the wife to pledge her husband's credit for necessaries may be implied. S. C, per Cur., explaining Hodgkinson v. Fletcher, 4 Camp. 70. " And, as in all cases, the creditor is to be considered as standing in the wife's place, it imports him, when the wife lives apart from her husband, to make strict inquiries as to the terms of the separation, for in such cases he must trust her at his peril." Ozard v. Darnford, 1 Selw. N. P., 13th ed. 229. Where the husband and wife had lived separate for many years, and the wife had adequate resources of her own of which the plaintiff had notice, it was held that he could not sue the husband. IAddlow v. Wilmot, 2 Stark. 88; see Thompson v. Hervey, 4 Burr. 2177. So, even without a knowledge of her being provided for, the creditor, if he give credit to her, and she is, in fact, adequately provided for aliunde, cannot sue the husband. Clifford v. Laton, M. & M. 101. And, generally, it is now settled that if the wife be living apart from her husband, and he, in fact, allow her a sufficient maintenance, he is not bound by her contracts ; and it is immaterial whether the tradespeople had notice of that allowance or not. Mizen v. Pick, 3 M. & W. 481 ; in which case, at p. 483, Alderson, B., says, " I do not see how notice to the tradesman can bo material. The question in all these cases is one of authority. If a wife, living separate from her husband, is supplied by him with sufficient funds to support herself, with everything proper for her maintenance and support, then she is not his agent to pledge his credit, and he is not liable." This rule applies equally where the husband is insane, and he therefore lives apart from his wife in a lunatic asylum. Richardson v. Du Bois, L. R., 5 Q. B. 51. And a wife, living apart from her husband with his consent, on the terms that she shall accept a certain allowance, which is paid, has no authority to pledge his credit, though the allowance is inadequate. Eastland v. /lure/tell, 3 Q. B. D. 432. See also Biffin v. Bignell, 7 H. & X. 877; 31 L. J., Ex. 189. Where the separation is compulsory, and is the act of her husband, he is liable, although an implied authority, in the strict sense of the word, can hardly be the ground of obligation. Thus where a wife leaves her husband under a reasonable apprehension of personal violence, he continues liable for necessaries furnished to her; Houliston v. Smyth, '■> Bing. 127; and if living apart she obtain the custody of her infant child against her husband's will, by an order under 2 & 3 V. c. 54 (now replaced by 36 A: 37 V. c. L2), the reasonable expenses of providing fur it have been held to be part of the necessary expenses of the wife for which she had authority to pledge her husband's credit. Bazeley v. Forder, L. R., 3 Q. B. 559; diss. Cockburn, C. J. So, if he cxuselessly turn away his wife or shuts his door against her. Lungworthy v. Hockmore, cited 1 Ld. Baym. Ill; see also Rawlyns v. Vandyke, 3 Esp. 251. In such cases, even a notice by him that be will not be answerable for her debts, will not relieve him from Liability. Boulton v. Prentice, 1 Selw. N. P., 13th ed. 233 ; S. I '., 2 Str. 1211; Harris V. Morris, 4 Esp. 42 ; Harrison v. Grady, 13 L. T. 369, M. T. L865, 0. 1'. A husband ill-treated his wife, and was indicted by her for the assault ; a person who advanced money, for the purposes of the prosecution, to the attorney, with- out which he could not have gone on, could not recover it from the husband as money supplied to procure her necessaries. Qrindell v. Oodmond, 5 Ad. & E. 755. But the husband is Liable to the solicitor employed by the wife for legal expenses incidental to a suit brought by her for restitution of Oon- jugal rights, and for obtaining legal advice as to her position. Wilson v. 566 Ar/ ion for Goods Sold and Delivered. Ford, L. R., 3 Ex. 63. So for the wife's extra costs of obtaining a divorce. Ottaway v. Hamilton, 3 C. P.D. 393, C. A., see further, In re Wingfield and Blew, infra. It lies upon the plaintiff to show, that under the circumstances of the separation, or from the conduct of the husband, the wife had authority to bind him, and this even in an action for necessaries. Mainwaring v. Leslie, M. & M. 18 ; 2 C. & P. 507 ; Clifford v. Laton, ante, p. 566. And where the plaintiff caused a letter to be sent to the defendant, reminding him of his liability for necessaries supplied to his wife, that she was getting into debt, and stating the wish of his wife to return to him, which the defendant received, but returned no answer, it was held some evidence, though slight, that the defendant had authorised his wife to pledge his credit for necessaries. Edwards v. Towels, 5 M. & Gr. 624. If the husband be a lunatic, and incapable of making contracts, then he is bound by the orders for necessaries given by his wife; for this is analogous to the. case of an omission of the husband to supply necessaries, though the omission is involuntary. Read v. Legard, 6 Exch. 636 ; 20 L. J., Ex. 309. A husband was liable for necessaries provided for his wife, pending a suit in the ecclesiastical court, and before alimony decreed, although a decree, afterwards made, directed the alimony to be paid from a date before the time when the necessaries were provided. Keegan v. Smyth, 5 B. & C. 375. A decree for alimony was, however, a bar to the husband's liability, if the alimony were duly paid, even though the decree had become inoperative through an appeal having been presented, it being shown that it might have been renewed on application to the court of appeal. Willson v. Smyth, 1 B. & Ad. 801. But after a divorce a mensd et thoro for adultery in the husband, and a decree of alimony, the husband has been held liable for necessaries supplied to the wife, if he omitted to pay the alimony. Hunt v. Be Blaquiere, 5 Bing. 550. After a decree of nullity, the liability of the husband for the debts of his pseudo-wife does not continue. Anstey v. Manners, Gow, 10. And after sentence of judicial separation (20 & 21 V. c. 85, s. 26), the wife is, whilst so separated, to be considered a feme sole, for the purposes of contract and wrongs, and civil suits, and her husband is not liable in respect of any engagement or contract she may have entered into, or for any wrongful act or omission by her, or for any costs she may incur as plaintiff or defendant ; but if he shall not have duly paid the alimony (if any) decreed, he shall be liable for necessaries supplied for her use. And a wife, deserted by her husband, and obtaining protection under sect. 21, is during the protection and desertion, deemed to be in like position, with regard to property and contracts and suits, as if she had obtained a decree of judicial separation. And see also 21 & 22 V. c. 108, s. 8. See on these sections, Eiuart v. Chubb, L. B., 20 Eq. 454 ; Hill v. Cooper, (1893) 2 Q. B. 85, C. A. ; In re Wingfield and Bleiv, (1901) 2 Ch. 665, C. A. ; Sheppard v. Sheppard, (1905) P. 185. So an order given to a wife under 58 & 59 V. c. 39, s. 5 («), or to a husband under 2 E. 7, c. 28, s. 5 (2), has the same effect as a judicial separation. But such order is avoided on a resumption o cohabitation, see Haddon v. Iladdon, 18 Q. B. D. 778, decided on, 41 & 42 V. c. 19, s. 4. Where the wife has separated from her husband, without cause and with- out his consent, the husband is not liable even for necessaries supplied to her. Child v. Hardyman, 2 Stra. 875 ; Bindley v. Westmeath, Ms. of, 6 B. & C. 213, per Bayley, J. See also Johnston v. Sumner, 3 H. & N. 261 ; 27 L. J., Ex. 341, cited ante, p. 564. So, a fortiori, where the wife elopes from her husband and lives in adultery. Morris v. Martin, Stra. 647. And, in such case, the wife is a competent witness to prove the adultery ; Cooper v. Lloyd, 6 C. B., N. S. 519 ; but the adultery cannot be proved by giving evidence of the proceedings for divorce, in which the jury found that the t- Delivery to Wife— to Infant Child. 567 wife had been guilty of adultery, unless a decree has been pronounced alter- ing the status of the parties. Needham v. Bremner, L. R., 1 C. P. 583. Where the husband turns the wile out of doors on account of her having committed adultery under his roof, he is not liable for necessaries furnished to her afterwards. Ham v. Toovey, 1 Selvv. N. P., 13th ed. 228. See also Govierv. Hancock, 6 T. E. 603. It is, however, otherwise if he connived at the adultery. Wilson v. Glossop, 20 Q. B. D. 351, C. A. So, if after an adulterous elopement, the husband take her back, he is liable for necessaries subsequently supplied. Harris v. Morris, 4 Esp. 41. The plaintiff must prove, either that the defendant and the woman to whom the goods were delivered are married, of which it is sufficient prima facie evidence that they are living together; < 'ar v. Kimj. 12 Mod. 372; or that she and the defendant cohabited, and that she passed as his wife with his assent, assumed his name, and lived in his house as part of his family ; Watson v. Threlkeld, 2 Esp. 637; Robinson v. Xahon, 1 Camp. 245; for the presumed authority arising from cohabitation in the character and position of a wife applies to such cases as well as to legal marriages, and is not rebutted by proving; that the plaintiff knew the real position of the parties. Watson v. Threlkeld, supra. But when the defendant has separated from a woman with whom he has lived, not being his wife, he is not liable for necessaries supplied afterwards. Munro v. De Ohemant, 4 Camp. 215. If, however, the separation be unknown to the plaintiff, and the goods have been supplied under circumstances which justify him in supposing that the authority of the defendant continued, — as where the defendant had authorised like orders before, and the woman continued to live in the same house where the former orders had been given, — it is a mere question of agency for the jury, and it is immaterial that the plaintiff knew that the parties were unmarried. Ryan v. Sams, 17 Q. B. 460. Where the wife ordered goods to be delivered to her mother, saying her husband would pay for them, which he did ; and she subsequently ordered other goods in like manner, it was held that there was evidence for the jury of the wife's authority to order the latter goods. Filmer v. Lynn, 4 Nev. & M. 569. The case is, in this respect, like that of a household servant. See ante, p. 553. As to the liability of the wife under the Married Women's Property Acts, 1882, 1803, for goods delivered on her order, vide post, pp. 1171 et seq. As to liability of wife for necessaries supplied to her after her husband's death, see Smout v. llbery, 10 M. & W. 1, cited ante, p. 555. Delivery to infant child.'] The father of an infant to whom goods are supplied is only liable where an authority from him to his child is proved, or circumstances appear from which such an authority can bo implied. Baker v. Keen, 2 Stark. 501; RcHfe v. Abbott, 6 C. & P. 286. Quave, whether a father, deserting his inlant child of tender years, be liable to a person who supplies the child with necessaries, no further proof of contract being given? Such action, at all events, cannot be maint lined if the father had reasonable ground to suppose that the child was provided for. Urmton v. Newcomen,* Ad. cv E. 899; see Bazeley v. Warder, I,. R., 3 Q. B. 599, ante,?. 565. And the mere moral obligation arising from the relation of parent and child does not, per Stafford any legal inference of a promise on the part of a parent to pay a debt of the child, even for necessaries supplied to him, although he may, under certain circumstances, by proceedings under the 43 El. c. 2, s. 7, be compelled to Bupp >rt bis children, under the age ol 16, according to his ability. Mortimore \. Wright, 6 M. & W.4B2; Shelton v. Springett, 11 C. B. 152. The mother T. of a bastard child O. is bound by the 4 & 5 W. 4, c. 76, B. 71, to maintain it till L6 years old, but •"" ;v Action for Goods Sold and Delivered. this is a mere personal liability ; and on T.'s death, leaving assets, her adminis- trator cannot be sued for necessaries supplied to C. after the death. Buttinger v. Temple, 4 B. & S. 491 ; 33 L. J., Q. B. 1. A contract between T. and another person P., for the transfer to P. of T.'s rights and liabilities in respect of C, is void. Humphrys v. Polak, (1901) 2 K. B. 385, C. A. By the Prevention of Cruelty to Children, 1894 (57 & 58 V. c! 41), s. 1 any person, who having the custody of any child under the age of 16 year/ wilfully neglects him in a manner likely to cause him unnecessary suffering' is guilty of a misdemeanor, and by sect. 23 (3) the parent is presumed to have the custody. Hence the parent's moral duty of providing necessaries for his child is now an absolute one. B. v. Senior, (1899) 1 Q. B. 283. Therefore an express promise to pay for such necessaries already supplied is* sufficient, and the jirior request will be implied. See note to Wennall v Adney, 3 B. & P. 249, n.; Flight v. JReed, 1 H. & C. 703, 716; 32 L. J* Ex. 265, 269; and 1 Smith's L. C, 11th ed. 149, 150. Delivery to overseer.] Where goods were supplied for the use of the poor of the parish on orders signed by some ot the overseers separately all of whom had, on different occasions, promised to pay, this was held evidence of a joint contract on which all the overseers were liable to be sued, including the assistant overseer who had signed. Kirhy v. Banister 5 B. & Ad. 1069: see Eaden v. Titchmarsh, 1 Ad. & E. 691.' And an express promise will make them liable fur medicines, &c, already supplied to a pauper on sudden illness without previous request. Watson v. Turner B. N. P. 147 ; Wing v. Mill, 1 B. & A. 104. But overseers are not generally legally bound by the contract of one or more of them ; it is a question for the jury whether the parties sued did in iact join in it. Marsh v. Davies 1 Exch. 668. Acceptance.] As before mentioned, p. 527, the acceptance necessary to render the buyer liable to pay for the goods is not the same as that r< quired by the S. of Gr. Act, 1893, s. 4, ante, p. 526, to make an enforceable contract of sale. As to the former kind of acceptance it is provided by sect. 34 (1), " Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. (2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity°with the contract." By sect. 35, "the buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them." See Varley v. Whipp, (1900) 1 Q. B. 513. By sect. 36, ante, p. 541, the buyer who rejects goods need only intimate to the seller his refusal to accept them; he need not return, the goods. Value.] By sect. 8 (1), "The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties. (2) Where the price is not determined in accordance with the foregoing provisions Acceptance.— Value— Defence.— Reduction of Damages. 56£ the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case." Wheo, therefore, the goods have been sold without anv agreement as to the price, the value must be proved. If the vendor of goods be only able to prove the delivery of a package, without any evidence of the contents, it will be presumed as against him that it was filled with the cheapest commodity in which he deals. Clunnes v. Pezzerj, 1 Camp. 8. If a seller agree to sell a machine at a certain price, and put in materials superior to those contracted for, the purchaser is neither bound to pav a higher price, nor to return the machine. Wilmot v. Smith, 3 C. t v P. 45a. Where goods have been sold and delivered, to be paid for by bill at a certain date, if the bill be not given, the plaintiff may recover, as part of the stipulated price, interest from the time the bill would have become due; the special agreement should, however, be stated in the claim. Farr v. Ward, 3 M. & W. 25; Davis v. Smyth, 8 M. & W. 399. See sect. 9, ante, p. 523, as to the effect of no valuation being made, when the contract is for sale at a valuation. Defence. By Eules, 1883, 0. xxi. r. 3, post, p. G58, a defence in denial must deny the order or contract, the delivery, or the amount claimed. See also O. xix. rr. 15, 17, 20, ante, pp. 309, 310. Evidences of the various defences that may be set up to an action of this kiud will be found under the general head of Defences in actions on single contract, post, pp. 659 et sea. Reduction of damages.'] By sect. 53 (1), ante, p. 488. where there is a breach of warranty by the seller or the buyer treats a breach of a condition as a breach of warranty, the buyer "may (a) set up against the seller the breach of warranty in diminution or extinction of the price.'' Any further damages sustained by the defendant beyond the difference of v.due must be recovered in a cross action; Mondel v. Steel, 8 M. & \V. 858; or now by way of counter-claim. And it seems that the acceptance and non-return of the goods by the defendant will not preclude this defence, though it may be evidence in favour of the plaintiff of a fresh contract to pay on the footing of a quantum valebant. S. C. ; Grounsell v. Lamb, 1 M. & W. :;."iL'. By sect. 53 (1, b), ante, p. 488, the buyer has the alternative course of suing the seller for the breach of warranty. "The defendant has the option, if he pleases, to divide the cause of action, and use it in diminution of damages, in which case he is concluded to the extent to which he obtained, or was capable of obtaining, a reduction; or he may" . . . "claim no reduction at all, and afterwards sue for his entire cause of action." Dan'* v. Hedges, L. R., 6 Q. B. 687, 692. Where plaintiff sold to the di fendanl cyder, warranted good, which was bad and unsaleable, whereof defendant gave the plaintiff notice, ainl said he would continue to try it: to which plaintifi made no reply: held, that the defendant was not liable, though he used more than was necessary to try it, and that there was evidence i the plaintiff acquiesced in the further trial, and that defendant wis not bound to send back the cask with the remaining cyder. Lucy v. Mouflet, 5 II. & N. 229; 29 L. J., Ex. 110. And by Beet. 36, ante, p. oil, the buyer is not bound to return rejected goods. A defence, relying upon a warranty of title, must be specially pleaded in cases win re it is a defence at all, as to which see ante, p. 487. Where a patented machine for printing in two colours was bought by the defendant after Beeing it, and it turned out to be incapable of so printing, from a defect in the principle of it, it was held that he could not resist an action for the price; for the 570 Action for Goods Sold ai)d Delivered. plaintiff complied with the order of the defendant, and sent him the very article which he bargained for, and (there being no fraud) the insufficiency of the alleged invention was no answer. Ollivant v. Bat/ley, 5 Q. B. 288. And in an action by the patentee of an alleged invention, against an assignee or vendee of the patent, the defendant cannot set up its invalidity for want of novelty, if there be no fraud or eviction • for there is no warranty on such sale. Lawes v. Purser, 6 E. & B. 930 ; 26 L. J., Q. B. 25 ; Smith v. Neal, 2 C. B., N. S. 67 ; 26 L. J., C. P. 143. Though it is otherwise where by the invalidity of the patent, there has been a total failure of the consideration. Chanter v. Leese, 5 M. & W. 698. See further post, p. w 606. Where plaintiff sold to defendant by sample an article (e.g., alkali) not manufactured by himself, which proved unfit for defendant's use, this is no defence if the sample was fairly taken, though much of the article did not correspond with it. Sayers v. L. & Birmingham Glass Co., 27 L. J., Ex. 294. Where the contract contains a clause, releasing the plaintiff from all responsibility in respect of the goods supplied by him after a certain time of trial, the purchaser cannot, after the time is passed, prove a latent defect in them in reduction of the price ; there being no fraud alleged. Sharp v. Gt. W. By. Co., 9 M. & W. 7. As to the defence of fraud on sales, see ante, pp. 326 et seq., and Defences to actions on simple contracts — Fraud, post, p. 663. Action "brought before credit expired."] In calculating the time of the credit, the day of the sale must be excluded ; and, therefore, where goods were sold on the 5th of October, to be paid for in two calendar months, an action could not be commenced till after the expiration of the 5th of December, and a writ issued on that day was premature. Webb v. Fair- maner, 3 M ; & W. 473. By sect. 10 (2), "in a contract of sale 'month' mean?, prima facie calendar month." Where goods are fraudulently bought on credit, the seller cannot sue for goods sold and delivered before the credit has expired, though he may maintain trover. Ferguson v. Carrington, 9 B. & C. 59 ; Strutt v. Smith, 1 C. M. & R. 312. If by the contract it is agreed that a bill at a certain date shall be given, it operates as a giving of credit ; and although no bill should be given, the seller cannot sue the purchaser for goods sold and delivered before the period when the bill, if given, would have become due. Therefore where a person purchased goods, and agreed to pay for them in three months by a bill at two months, which bill he afterwards refused to give, an action for goods sold was held not to lie before the expiration of five months. Mussen v. Price, 4 East, 147 ; Lee v. Bisdon, 2 Marsh. 495. So when goods are sold at six months' credit, payment to be then made by a bill at two or three months at the purchaser's option, this is in effect a nine months' credit. Helps v. Winterbottom, 2 B. & Ad. 431 ; Price v. Nixon, 5 Taunt. 338. And where the goods are to be paid for partly in cash and partly by bills at three months, the payment of the money or delivery of bills does not constitute a condition to the credit, so as to enable the vendor to sue for goods sold before the expiration of the three months. Paid v. Dod, 2 C. B. 800. But where payment is to be " 1\ per cent, or three months' bill," which is explained to mean cash, less discount, at the expiration of the month succeeding the current month, or at the buyer's option, a bill of three months from the same period, and the buyer refused to accept a bill at the end of the second month, the seller may sue at once for the price. Bugg v. Weir, 16 C. B., N. S. 471. Where the purchaser has such option, by paying part in cash he waives his right to pay by bill. Schneider v. Foster, 2 H. & N. 4. And if part only of the goods be supplied, and the defendant then refuses to take more, the plaintiff may immediately Action on Sales of Stock,' Shares, and Securities. 571 sue for the goods delivered. Bartholomew v. Markunck, 15 C. B., N. S. 711 ; 33 L. J., C. P. 145. So where goods were sold at 3 months' credit, the vendor agreeing to take the vendee's bill at 3 months' date, at the end of the first 3 months, if he wished for further time, and the vendee, at the end of the 3 months, did not give such bill, Ld. Ellenborough held that the giving the bill was a condition to the further credit, and that the vendor might briDg an action for goods sold and delivered immediately. Nickson v. Jepson, 2 Stark. 227. Where bills, given for goods, are dishonoured, the vendor may sue for the price immediately ; Sickling v. Hardey, 7 Taunt. 312 ; Mussen v. Price, 4 East, 151 ; provided the bills are in the hands of the seller; but if they are in the hands of third persons, that is a defence to the action; for the defendant may be called upon by those persons to pay the bills. Burden v. Ealton, 4 Bing. 454, 455 ; and where the bills have been indorsed away for value it is not sufficient that they should have returned to the plaintiff's hands after writ, though before trial. Davis v. Beilly, (1898) 1 Q. B. 1. But if the bills were delivered at the plaintiffs request to C. as a trustee for the plaintiff, and they are still in the hands of C. as such trustee, and are dishonoured, there is no defence. National Savings Bank Association v. Tranah, L. B., 2 C. P. 566. When the buyer gives a promissory note of another person without indorsing it, the vendor may, on its dishonour, sue for the price of the goods without proving presentment to the maker, the note being produced by himself. Goodwin v. C'oates, 1 M. & Rob. 221. So where the seller takes a bill, indorsed by the defendant, on a wrong stamp, in suing for the price of the goods he need not prove due notice of dishonour of the bill. Gundy v. Marriott, 1 B. & Ad. 696. But if he make a bill his own by laches, it operates in satisfaction of the preceding debt ; so if he make it his own by altering it in a material part. Alderson v. Langdale, 3 B. & Ad. 660. See further as to payment by bill or note, post, pp. 699 ct seq. ACTION ON SALES OF STOCK, SHARES, AND SECURITIES. Shares in the public funds, in commercial partner-hips and companies, and like interests, are choses in action, and were not assignable at common law, so as to pass a legal interest in them except by statute, as in the case of stock, railway shares, &c; or by ancient custom, as in the case of promissory notes and bills of exchange; Crouch v. Credit Fonder of England, L. K., 8 Q. B. 374 ; or by modern usage, as in the case of bonds " to bearer " issued by companies. Bechuanaland Kxplom/ion < '-.v. /.. Trading <'<-., (1~ 2 Q. B. 658; Edelstein v. Schuler, (1902) 2 K. B. 111. Such interests, however, are saleable, whether they be legal or equitable interests, and are the subject of contract which the law will recognise and enforce. Humble v. Mitchell, 11 Ad. & E. 'Jo:,; Tempest v. Kilner, 2 C. J'-. 300. A.nd the legal right therein is now assignable under J. Act, L873, 25 (6), ante, pp. 307^08. Such shares are not "goods" within the Bale of <• Is Act, 1893, ss. 4, 62 (1), ante, pp. 526, 521, though they are "goods and chattels" within the meaning of a claim by the seller for the price ol them, ante, p. 550. 572 Arti'0,1 on Sales of Stock, Shares, and Securities. A sale of such securities, which pass hy delivery only, is not like a sale of specific goods ; it passes no property till delivery, and, in effect, it means only a contract to deliver some stock. Headline v. Siggers, 1 Exch. 856, per Cur. The same held good in the case of all contracts for the sale and purchase of shares ; for the sellers' contract was only to procure a transfer of some shares to the huyer; Budge v. Bowman, L. R., 3 Q. B. 689; but con- tracts for the sale of shares in joint stock hanking companies in the United Kingdom are now for the sale of specific shares, as such contracts are regulated by 30 & 31 V. c. 29, s. 1, which provides that all contracts for sale aud purchase, made for the sale or transfer of any shares, stock, or other interest in any joint stock banking company in the United Kingdom (except the Bank of England or of Ireland, sect. 3), issuing shares or stock, trans- ferable by any deed, &c, shall be null and void to all intents and purposes whatsoever, unless such contract shall designate in writing such shares, &c, by the respective numbers by which the same are distinguished on the register or books of such banking company, or where there is no such register of shares, &c, by distinguishing numbers, then, unless such contract shall set forth the person in whose name such shares shall, at the time of making such contract, stand as the registered proprietor thereof in the books of such banking company. See on this section N. Mitchell's Case, Ct. Sess. Cas. 4th ser. vi. 420 ; affirm, on another ground, 4 Ap. Ca. 624, D. P. Where a broker, on behalf of A., entered into a contract for the sale of bank shares to B., without specifying therein the particulars required by this section, and the bank having stopped payment, and the shares became worthless, B. refused to accept them, the broker was held to be liable to A. in damages, at any rate equal to the contract price of the shares. Neilson v. James, 9 Q. B. D. 546, C. A. A custom of the Stock Exchange to dis- regard the statute is unreasonable as against a person ignorant of the custom. S. C; Perry v. Burnett, 14 Q. B. D. 467; 15 Id. 388, C. A. Secus, as against a person who had notice of the custom. Seymour v. Bridge, 14 Q. B. I). 460, cited post, p. 591. And the buyer of shares bought under a contract void under the statute must repudiate it, or he will be bound thereby. Loring v. Davis, 32 Ch. D. 625. A contract for the sale of shares in a company is not rescinded by the Companies Act, 1862, s. 153, if the company has commenced to be wound up under that Act, after the contract was made and before the transfer was executed. Chapman v. Shepherd, and Whitehead v. Rod, L. B. 2 C. P. 228. Nor is a contract for the sale of shares, entered into after the commencement of the winding-up, made illegal by lhat section ; Budge v. Bowman, supra ; see In re Onward Building Sue, (1891) 2 Q. B. 463, C. A. ; nor where the winding-up is voluntary, by sect. 131. Biederman v. Stone, L. K., 2 C. P. 504. As to time bargains and wagering contracts for sale and purchase of stock and shares, vide post, p. 577. As to an agreement with a broker, B., to buy shares in order fraudulently to inflate the price, &c, see Scott v. Brown; Slaughter v. Brown, cited post, p. 667. A dividend declared after the contract of sale of shares and before com- pletion belongs to the purchaser. Black v. Homersham, 4 Ex. D. 24. Sales on the Stock Exchange.] Shares, stock, and other securities are usually bought and sold on the London or some local Stock Exchange, and the transactions are consequently regulated by the usage of that Exchange. Grissell v. Bristvwe, L. R., 4 C. P. 49, Ex. Ch. ; Maxted v. Paine, L. R., 6 Ex. 132, Ex. Ch.; Merry v. Nickalls, L. R., 7 H. L. 530; vide ante, p. 26. The usage of the London Stock Exchange is to be found fully set out in those cases, and the rules then in force will be found at L. R., 4 C. P. 53, a. Sales on the Stock Exchange. 573 See also the evidence in Ex pte. Grant, 13 Ch. D. 667, C. A. As, however, these rules have undergone some modifications, and are very frequently referred to, it will be useful here briefly to describe how the transactions are carried out, and to state the most important of the printed "Pules and Eegulations" (dated March 25th, 1906, and corrected up to June, 1907), which now govern them. It must first be observed that the Stock Exchange only recognises dealings with its own members, and consequently all members, whether dealers on their own account, called "jobbers," or brokers acting for a principal, contract with each other as principals (r. 66). Hence the term member, hereafter employed, will include both jobbers aud brokers. Every calendar month is divided into two nearly equal periods, each called " the ordinary account," and, when no time is specified, it is with reference to one or other of these accounts that contracts for sale or purchase of stocks and shares, other than new securities for which a special settlement has not been appointed, are in general made (r. 81), vide pout, pp. 576, 577. The last four days of each account are called the ordinary settlement, and are known respectively as — 1st, the mining contango or making-up day ; 2nd, the general contango or making-up day, (and mining ticket or name da}', see r. 104, infra) ; 3rd, the ticket or name day ; 4th, the account or pay-day. The account-days are fixed by the Committee of the Stock Exchange (r. 80), at about the middle and end of each month. Taking first the case of shares, &c, transferable by deed of transfer. The buying member, to whom the shares have been sold, is at liberty by the name-day to substitute, if he be able to do so, another person as buyer, and so relieve himself from further liability on the contract, provided that to such person the seller cannot reasonably except, and that such person accept the transfer of the shares, and pay the price agreed on between the seller and the buyer ; in other words, become the buyer of the shares at the price originally agreed on. Grissell v. Brutowe, L. R., 4 C. P. 36, 45, Ex. Ch. ; Coles v.'Bristoive, L. P., 4 Ch. 3; Torrington, Vt. v. Lowe, L. P , 4 C. P. 26 ; Maxted v. Paine, L. R., 4 Ex. 203 ; Ex. Ch., L. R., G Ex. 132 ; and Maxted v. Morris, 21 L. T. 535, M. T. 1869, Ex. When the seller has accepted the nominee of the original buyer, the contract with the latter and his liability is at an end; the seller by transferrin- the shares to the nominee, and so putting it out of his power to transfer the shares to the original buyer, irrevocably declares his acceptance of tin- aominee. S. CO. This, of course, assumes that the nominee is a person legally capable of entering into the contract with the seller; where this is not so, as where he is an infant, the original buyer remains liable. Merry v. NichalU, L. P., 7 H. L. 530, post, p. 575. This process of substituting another name for that of the on -ma 1 buyer is carried on by means of tickets, in the following manner : the buyer, I'.., -who takes up securities deliverable by deed of transfer, before uocn on the ticket- dav (or, in the case of securities dealt in in the mining markets, before 2 p.m". on the day before the ticket-day), issues a ticket with Ins own name, as payer of the purchase-money, which ticket contains— the amount and denomination of the security to be transferred, the name, address, and description of the ultimate transferee, A., in full, the price, the date, and the name of the member to whom the tickei ueo. This ticket is passed through the. hands of all the intermediate sellers, CPE W in succession, each of them indorsing thereon the name of his 'immediate seller, 1)., E, P., ... X. (r. L04), till it ultimately reaches the member Y., who is actually to procure the transfer ol the security; the result is that Y. is brought into contact with B. Y. IB then bound within ten days to deliver to B. an instrument of transfer of the security to 571 Art ion on Sales of Stock, Shares, and Securities. A. executed by Z., the ultimate seller, the person in whose name they are registered, together with the coupons or certificates showing Z.'s title to the security, or a certificate on the transfer deed that they have been deposited with the Secretary of the Stock Exchange, or with the company whose security is being transferred.* B., on receiving the transfers and certificates from Y., pays him the price named on the ticket and the stamp duty on the transfer (rr. 108, 110, 111). Where B. and Y. are acting as brokers for A. and Z. respectively, the delivery of the ticket to Y., which was issued by B., establishes privity of contract between A. and Z. See judgment of Black- burn, J., in Maxted v. Paine, L. It., 6 Ex. 162 ; also Merry v. Nickalls, L. R., 7 H. L. 530. Members set off their transactions as much as possible between each other, and deliver tickets for the balance of the security, and of this only they require to take delivery at the account. When the amount of the security on the ticket delivered to a member is greater than that which he wishes to pass on to one single member, he may "split" the ticket or divide the security between other similar tickets, which he passes on, retaining the original ticket (see r. 105). It is the duty of the seller to deliver genuine transfers and certificates (r. 102), and it is the duty of the purchaser thereupon to execute those trans- fers, and to procure their registration at the office of the company; Wynne v. Price, 3 De G-. & Sm. 310; Biederman v. Stone, L. R., 2 C. P. 504; Stray v. Russell, 1 E. & E. 888 ; 28 L. J., Q. B. 279 ; 1 E. & E. 916 ; 29 L. J., Q. B. 115, Ex. Ch. ; the seller does not contract to obtain the consent of the directors to the transfer ; S. C. ; L. Founders' Assoc, v. Clarice, 20 Q. B. D. 576, C. A.; but he must not interfere with the registration. Hooper v. Herts, (1906) 1 Ch. 549, C. A., cited post, p. 1099. A special action lies at the suit ot the seller against the buyer on an implied indemnity, if by reason of the buyer allowing the seller's name to remain on the register of shareholders, the latter is obliged to pay subsequent calls ; Walker v. Bartlett, 18 C. B. 845 ; 25 L. J., C. P. 263, Ex. Ch. ; and in such case the transferor may also sue the transferee for not registering the transfer of the shares to him. See judgment in Grissell v. Bristowe, L. R., 3 C. P. 112 ; not affected on this point by judgment of Ex. Ch. So, when the seller S. has adopted the nominee N. as the buyer, aud the price has been paid by the one, and the property transferred by the other, a contract, and the relation of vendor and vendee, immediately arises between them (see judgment of Ex. Ch., in Grissell v. Bristoiue, L. R., 4 C. P. 36, 51), and this brings the case within the principle of Walker v. Bartlett, ante, p. 574, so that X. is liable to indemnify S. for loss if N. do not register the shares in his name; Bowring v. Shepherd, L. R., 6 Q. B. 309, Ex. Ch.; Hawkins v. Maltby, L. R., 6 Eq. 505 ; L. R., 4 Ch. 200. And where the name of X. has been given by H., the real buyer of the shares, and they are held by X. as trustee for II., H. is liable to indemnify S. Castellan v. Hobson, L. R. 10 Eq. 47. See Hardoon v. Belilios, post, p. 593. This right to indemnity is not affected by the transferee not having executed the transfer to himself. Coles v. Bristowe, L. R., 4 Ch. 3 ; Boring v. Davis, 32 Ch. D. 625. Until the delivery by the member X., who entered into the contract with the broker Y. of the seller Z. of the shares, of the name of a proper nominee, X. remains liable to carry out his contract. Maxted v. Paine (1st action); Merry v. Nickalls, post, p. 575. Aud where the contract is made "with registration guaranteed," X. is liable to indemnify Z. if the nominee do not * The <-'irtry of this certificate is known as "certification." As to its effect, see Bishop v. Ballti* Consolidated Co., 25 Q. B. D. 512, C.A., and George White- church v. Cavanagh, (1002) A. C. 117, D. P., cited post, p. 1120. Sales on the Stock Exchange. 575 register the transfer executed to him hy Z. Crusev. Paine, L. R., 6 Eq. 641 ; L. B., 4 Oh. 441. The nominee must have agreed to buy the shares, and where he agreed to buy for one account, and his broker, without his consent, carried over the sale to the next account (as to which vide infra), the original bu} r er was held to remain liable to carry out his contract, and to indemnify the seller ; Maxted v. Paine (1st action), L. R., 4 Ex. 81 ; Maxted v. Morris, 21 L. T. 535, M. T. 1869, Ex. ; so, the buyer was held liable to indemnify the seller, where the former passed the name of an infant, L., as the trans- feree ; L. being incapable of entering into a valid contract. Merry v. Nickalls, L. R., 7 H. L. 530. In this case a transfer had been executed by the seller to L., and objection was not taken to L. within ten days under the rule below mentioned, as neither the seller nor buyer knew of L.'s infancy. Where, however, the infant transferee sued the vendor to set aside the contract on the ground of fraud, and the vendor compromised the action by repaying the purchase-money, it was held that he was bound by this com- promise, and could not afterwards sue the real purchaser. Maynard v. Eaton, L. R., 9 Ch. 414. The nominee must, in any case, at least, in which there is any existing liability on the shares to be transferred, be a person open to no reasonable objection, and, by the usage of the Stock Exchange, the seller has ten days from the account day during which he may object to him. If an objection be made, it is referred to the Committee of the Stock Exchange, and admitted or overruled by them, according to the merits of the case, and. it admitted, the member P., who entered into the contract, is bound to find another nominee free from objection, or to perform the contract himself. Maxted v. Paine, L. R., 4 Ex. 203, 220, per Kelly, C.B.; Merry v. Nickalls, L. R., 7 H. L. 539, 540. This usage does not appear in the printed Stock Exchange rules, but there seems no ground for the doubt expressed by Blackburn, J. (see L. R., 6 Ex. 179), as to its existence. The seller is not bound to accept the name of a foreigner resident abroad. Goldschmidt v. Junes, 22 L. T. 220, M. R. ; Allen v. Graves, L. R., 5 Q. B. 478. Nor that of an infant, vide supra. Where K. the holder of shares transferred them to E., who transferred them to M., who was registered in respect of them, and the company was wound up and K. and E. were settled on the list of contribute; is as past members ; E. was held liable to indemnify K. against calls. Kellock v. Enthoven, L. R., 9 Q. B. 241, Ex. Ch. Where a member who has agreed to buy or sell shares, does not desire to take up or deliver them at the account for which they were bought, the contract is frequently "carried over" or "continued " to the next account: this is arranged on the making-up da}', and on the morning of the account- day 'all unsettled bargains are brought down, and temporarily adjusted at the making-up price of the ticket-day, except bargains in securities .subject to arrangement by the settlement department of the Stuck Exchange, which are adjusted at the making-up price (vide infra), of the conta > r. 1 1 _' i. Continuations are "effected at the making-up price, or at the then existing market price ;" (r. 88). The " difference 7 ' payable on Buch "continuation 7 ' is paid on that, and each subsequent account-day, until the closing of the transaction. The Clerk of the Stock Exchange fixea the making-up prices of all securities, by taking the actual price i oi the two days preceding the account-day, and in the ease of securities deall in in the minin" markets on the mining contango day (r. 89). In other words, the shares are re-sold to the vendor, at the making-up price, and DOl back from him at the same price, the difference between thai price and the contract price, being paid on the account-lay of tl ant. If this continuation be arranged for the accommodation oi the buyer, as is 576 Action on Sales of Stock, Shares, and Securities. usually the case on a " bull " * account, be pays the seller " contango " f ; if for the accommodation of the seller, as is usually the case on a "bear"* account, he pays the buyer " backwardation." f The contango or backwarda- tion is paid on the settling-day of the next account. The carrying over is often effected by means of similar contracts of sale and re-purchase made for this purpose with a person other than the original vendor. Bongiovanni v. Societe General, 54 L. T. 320, C. A. In law a "continuation" is a sale and re-purchase and not a loan. S. C. Accord. Bentinck v. L. Joint Stock Bank, (1893) 2 Ch. 130, 131. This agrees with r. 88. When the member buying securities does not carry out his contract, and the securities have not been carried over as above mentioned, they may be sold out against him. The seller not receiving a ticket in due course on the ticket-day may, within a limited time, sell out the securities and charge the loss on the member who was in default (r. 133), where the ticket has been passed, the seller having transferred the stock has a right to demand payment from the member who passed him the ticket ; so also where the seller has applied to the issuer of the ticket and failed to obtain payment, or has received a cheque which has been dishonoured (r. 86). Where a selling member does not deliver the securities he has agreed to sell, they may within a limited time be bought in against him by the issuer of the ticket (rr. 126, 127). Buying-in or selling-out is effected publicly by the officials of the Stock Exchange, who will trace the transaction to the responsible party and claim the difference thereon (r. 123). In the case of bargains in securities passing to bearer without deed of transfer, the transactions are carried on in a similar manner with some modifications arising from the difference in the mode of transfer. The tickets are passed on the ticket-day between 10 and 1 o'clock at the making-up price of the day before ; the tickets must bear distinctive numbers and be of certain amounts specified in the rules and may not be split, except in the settlement department of the Stock Exchange ; smaller amounts are settled "without tickets (r. 117). On account-days unsettled bargains are brought down and temporarily adjusted at the making-up price (vide ante, p. 575) of the ticket-day (r. 121). These securities, if not taken up by 2.30 p.m. (noon on Saturdays) on the day for which they are sold, may be sold out by the seller, and the buyer charged with the loss (r. 136); so if not delivered by 2.30 p.m. (noon on Saturdays), they may within a limited time be bought in by the buyer, and the seller charged with the loss (rr. 129, 130). Buyers are to pay for such portions of securities as may be delivered within the prescribed time (r. 122). The deliverer is responsible for the genuineness of securities delivered (r. 114). English and Indian Government and Corporation securities to bearer must be delivered before 3 p.m. or noon on Saturdays (r. 98). The Consols settlement is monthly only, and consists of contango, making-up and account-days (r. 80) ; the latter is usually about the 3rd -or 4th day of each calendar month. Tins settlement, however, relates chiefly to speculative dealing in government and corporation inscribed or registered stocks, &c; bona fide sales and purchases are made lor any specified * A person who buys shares on speculation for the mere purpose of re-sale on a rise is called a " bull," as he tosses up the market. So, one who sells shares he has not got, and therefore seeks to lower the price that he may purchase them at a profit, and so fulfil his contract by delivery, is called a "bear," as he hugs down the market. t It thus appears that "contango" is, in effect, though not strictly in law (vide supra), a sum paid for the loan of money, and "backwardation" for the loan i >f stock, and the rate of continuation, therefore, depends on the relative scarcity of money and stock in the market. Occasionally the rate is "even," i.e., neither contango nor backwardation is payable. Sales on the Stock Exchange. 577 day in such securities. The buyer for the ordinary account (cute ante, p. 573) must issue tickets before 2 p.m. on the ticket day (r. 97). Stock receipts (which are evidence that the stock has been transferred in the bank books) for stock bought for a specified day must be delivered before 3.30 p.m. or 12.30 p.m. on Saturdays (r. 98). If the member selling stock does not receive a transfer-ticket before 1.30 p.m. (12.15 p.m. on Saturdays) on the day upon which it was contracted to deliver the stock, he may sell out the same, and claim of the person who at 1.30 p.m. held the ticket any loss hereby occasioned (r. 131). Stock bought for a specified day and not then delivered, may be bought in on the following day at 11 a.m., and the member causing the default shall pay any loss incurred (r. 126). When no time is specified, bargains in new securities, for which a special settlement has not been appointed under rr. 137, 138, are for that settlement (r. 81). Where the appointment of such settling-day has been obtained by the fraud of persons not parties to the bargain, the bargain is good. Ex pte. Ward, 20 Ch. D. 356, ," & 56 V. c. 9, s. 1 , cited post, p. 591. A contract of this nature is, however, unusual on tin' Stock Exchange, and the general course of speculation is as follows (see A'.-- pte. Grant, 13 Ch. D. 667, 670 et sen.): A. employs P., a broker, to speculate for him ; P. tu carry out the speculation enters into contracts to buy or sell stock or shares for A., and in order to protect himself B. subsequently cnt into contracts to sell or buy respectively similar amounts of stocks or shares (vide ante, pp. 575, 576), as A. knows that I'-. must. A. never intends to take delivery of or deliver the stock bought or sold for him, as li. knows, but is content to run the risk of having to accept or deliver, in the hope B. will be able to arrange matters so that differences only shall be payable, and B. knows A. could not pay for stock bought or deliver that Bold for him. In such a case P. having entered into real i be on behalf of A., the transactions between them are not of a wagering nature, ami I'.. Is entitled to be indemnified by A. and to recover commission on tin' -airs >>i- purchases. Thacker v. Hardy, ■! < ( ». P. 1>. 685, 0. A.; Knight v. Fitch, L5 <'. I'.. 666; 2 1 L. J., C. P. 122 ; see also Forget v. Ostigny, (1895) A. I !. 318, J. 0. In such cases P. can recover from A. differences he has paid for A., although ho has not entered into separate contracts on A.'s behalf, but has appi r. — vol. i. J " l ' 5 i 8 Action on Sales of Stock, Shares, and Securities. to A. parts of larger amounts of stocks which he has bought as principal, in view of dividing them among A. and other clients. Ex pie. Rogers, 15 Ch. D. 207, C. A. By so doing, B., at any rate \>y the usage of the Stock Exchange, creates privity of contract between C, from whom he bought the shares, and A. ; Scott, & Horton v. Godfrey, (1901) 2 K. B. 726 ; explaining Beckhuson v. Hamblet, Id. 73, C. A.; C. can therefore, on B. being declared a defaulter, and his accounts closed under rr. 118, 152 (ante, p. 577), sue A. for not accepting the stock ; for the contract between A. and C. is not affected bv the domestic procedure of the Stock Exchange under those rules. Levitt v. Hamblett, infra; Anderson v. Beard, (1900) 2 Q. B. 260. So A. may take up the shares in accordance with the contract, although B. has become a defaulter, or he may appoint another broker in the place of B. to cany on the transaction. Id. 261. But A. has no right to close his purchase at the " hammer price" (vide ante, p. 577), as against C. Levitt v. Hamblett, (1901) 2 K. B. 53, C. A., correcting dictum of Matthew, J., S. C. (1900) 1 Q. B. 261. If A., after B. has become a defaulter, repudiate the contract with C, before the account-day, C. may at once sell the shares and sue A. for the difference. Anderson v. Beard, and Scott & Horton v. Godfrey, supra. See further as to the usage of the Stock Exchange in the event of a member becoming a defaulter, Ex pte. Grant, 13 Ch. D. 673 et seq. As to B.'s rights of indemnity against A., see Ex pte. Rogers, supra, and post, pp. 592, 593. Where a member D. of the Stock Exchange becomes a defaulter, and under r. 153 (ante, p. 577) the official assignee O. collects D.'s assets, this creates an assignment of all D.'s assets to O. Richardson v. Stormont, Todd & Co., (1900) 1 Q. B. 701, C. A.; Lomas v. Graves, (1904) 2 K. B. 557. This assignment, unless invalidated in bankruptcy proceedings against D., is valid even against non-members of the Stock Exchange. S. CC. The assignment and distribution of the assets under r. 153 are not, however, an accord and satisfaction of the defaulter's debts, and his creditors may sue him for the balance due after deducting the dividends received by them. Mendelssohn v. Ratcliffe, (1904) A. C. 456, D. P. See further as to the effect of such liqui- dation by the official assignees, Tomkins v. Saffery, 3 Ap. Ca. 213, D. P. ; King v. Button, (1900) 2 Q. B. 504, C. A. As to the ostensible authority of the clerk of a broker B. to bind B. by accepting orders for him, see Spooner v. Browning, (1898) 1 Q. B. 528, C. A. The actions of ordinary occurrence are — for not accepting stock or shares ; for not delivering or replacing them ; and for not paying for them when transferred. Action for not accepting.'} The plaintiff in order to prove his alleged tender of or readiness to transfer stock, if denied, must show his attendance at the time or latest office hour of the day fixed for transfer, and the non- attendance of the defendant; or an actual tender and refusal to accept by the defendant; or that defendant in some way dispensed with such tender or attendance of the plaintiff; Bordenave v. Gregory, 5 East, 107; and on such sales the facts proved may warrant a tinding of readiness to transfer, though no transfer be actually tendered. Humble v. Langston, 7 M. & W. 517 ; see ante, pp. 537, 545, 546, and Shaw v. Roivley, 16 M. &. W. 810. Although the court gave no decision on the point, it was intimated in Hibblewhite v. M'Morine, 6 M. & W. 200, that such readiness was disproved by showing that the plaintiff had no stock or shares to transfer at the time for completion. As, however, it was decided in Budge v. Bowman, L. E., 3 Q. B. 689, that the seller does not contract that he Action for not accepting. — Damages. 579 will himself transfer the shares, for the contract is merely to procure a transfer of shares into the defendant's name, it seems immaterial whether the plaintiff have the stock standing in his own name or not, provided he has the requisite amount of shares under his control. In a contract to deliver shares on a certain day, time is of the essence of the contract both at law ; Fletcher v. Marshall, 15 M. & W. 755, 763; see also Maxted v. Pain?, and Maxtedr. Morris, ante, p. 575 ; and in equity; Doloret v. Rothschild, 1 Sim. & St. 590. Where no time is named the delivery must be within a reason- able time. De Waal v. Adler, 12 Ap. Ca. 141, J. C. The reasonableness of the time is not affected by circumstances unknown to the buyer, and not disclosed to him by the seller. S. C. The plaintiff must of course be prepared to prove the title, if in issue, but the title to shares in commercial companies, in which no documentary evidence of title is provided, does not stand on the same footing as the title to land, and requires no such strict proof. On the sale of a share in a cost- book mine, proof of the existence of the mine and of the authorised entry of the plaintiff's name in the cost-book of the mine as an adventurer will be evidence of title. The contract of sale in such adventures seems indeed to amount to nothing more than an agreement to substitute the defendant for the plaintiff in the possession of such iuterest as the plaintiff, in common with the other shareholders, can lawfully claim in the subject of the adven- ture. See Curling v. Flight, 6 Hare, 41 ; S. C. cor. Ld. Cottenham, C, 2 Phill. 613. Where the question was whether there was a proper conveyance by deed, a written transfer by a foreigner of a foreign mine is evidence of it, though not under seal; it not appearing by any evidence that a seal was necessary abroad. Steigenberger v. Can; 3 M. & Gr. 191. See further as to the proof of the title to shares, Part 111., Actions by and against companies, post, pp. 1098, 1118. It was held that, in the absence of usage to the contrary, where the assent of directors was necessary for a transfer, the vendor must procure and show such assent; Wilkinson v. Lloyd, 7 Q. B. 27; and that it was the business of the purchaser to prepare and tender the written transfer to the seller for his execution. Stephens v. De Medina, 4 Q..B. 422. But where, as is com- monly the case, the sale takes place on the Stock Exchange, the contract is regulated by the usage of that market; by that usage, it is the duty of the vendee to pass the name of a person to whom the vendor is to transfer the shares, and the latter is to tender certificates and transfers of them, duly executed, to the vendep, and it is thereupon the duty of the vendee to execute those transfers, and to register them at the offices of the Com- pany {ante, pp. 57.'!, 574). By the Companies Clauses Consolidation Act, 1845, s. 12, the want of the certificate of shares in a company con- stituted under that Act shall not prevent the holder from disposing of the shares. Where the company is not completely constituted, a contract for the sale of shares will be satisfied by the tender of the letter of allotment made out to the seller; for that is all which could have been contemplated by the parties. Tempest v. Kilner, - I '. B. 249. Ae to oontraota on the Stock Exchange for shares of a new company, vidt ante, p. 577. Where bought and sold notes for the sale ot mining shares named the time for payment, but were silent as to the time of delivery, oral evidence was held admissible to show that, by custom, the shares were not deliverable till the time named for payment. Field v. Lelean, 6 11. & X. ''1 i | ;; " L. J., Ex. 168. Damages.] The measure of damages for not accepting stock sold is the difference between the contract price and the market price on the day of !■ i' - 580 Action on Sales of Stock; Shares, and Securities. the breach of contract. Boorman v. Nash, 9 B. & C. 145. The measure of damage in the case of railway or other shares in companies is the difference between the contract price and the market value on the day of breach, or earliest day afterwards on which they could be sold. Pott v. Flather, 16 L. J., Q. B. 366. Action for not delivering or replacing.'] The vendee, in the absence of usage or express agreement on the point, must show a tender to the defendant of a written transfer for execution by him, in cases where such formal instru- ment is necessary, as in railway shares ; Stephens v. De Medina, ante, p. 579 ; unless the defendant has, by his conduct, dispensed with such tender. See cases ante, p. 579. In a sale ou the Stock Exchange the tender is unneces- sary, as it is there the duty of the transferor to deliver a transfer to the transferee, together with certificates of the shares, but he must show that the name of the transferee was duly passed. Vide ante, pp. 573, 574. A tender of payment by the plaintiff is not necessary. Stephens v. De Medina, ante, p. 579. It is only necessary that he should be ready and willing and able to pay. A contract to deliver shares in a company does not require the actual delivery of the scrip certificates, but it is sufficiently performed when the vendor has put the vendee in the position of legal owner of the shares. Hunt v. Gunn, 13 C. B., N. S. 226. Where, after the contract for the sale of shares, and before transfer, new shares are allotted to the vendor in right of the shares he has sold, the purchaser is entitled to these shares. Stewart v. Lupton, (1874) W. N., 171, V.-C. M. ; Id. 178, L.JJ. See Rules of the Stock Exchange, 1906, r. 94. In a contract to deliver shares on a certain day, time is of the essence of the contract. Vide ante, pp. 323, 579. Damages."] When the action is for non-delivery, and the plaintiff had not paid the price, the measure of damage is the difference between the contract price and the market value on or about the day of breach ; for the plaintiff might have bought other stock immediately; and the same rule applies to shares in a company. Shaio v. Holland, 15 M. & W. 136 ; Tempest v. Kilner, 3 C. B. 253. In an action for not replacing stock or share?, lent by the plaintiff to the defendant, a different measure is adopted. There the plaintiff may have been prevented from replacing them himself, for he may not have had, and is not bound to have, funds in his hands to do so. He is therefore entitled to damages sufficient to enable him to buy other stock or shares, at the current price at the time of the trial, if that be larger than the price at the time fixed for replacing. Shepherd v. Johnson, 2 East, 211 ; M Arthur v. Seaforth, Ld., 2 Taunt. 257; Owen v. Routh, 14 C. B. 327;. 23 L. J., C. P. 105. Any other special damage arising from the breach of contract, such as the loss of dividends, iSrc, must be alleged in the claim if sought to be recovered. Action for price of shares, &c, sold.] In a sale on the Stock Exchange the transferor must prove a tender of the transfer and of the certificates of the shares to the buyer, or his broker, unless such tender has been waived. Vide ante, pp. 573, 574. AYhere shares in a company are not legally saleable for want of registration of the company under an Act of Parlia- ment, this may be pleaded as a defence. Semb., Laivton v. Hichnan, '.) Q. B. 563. In the sale of shares or securities there is generally no implied warranty - r hut it is implied that they are really what they purport to be, and what the buyer means to purchase. Where, for instance, scrip is known in the market as "Kentish Bailway Scrip," though informally issued by a railway Action for Work and Materials. 581 company, the buyer cannot treat the sale as a nullity on that ground, if the jury rind that it was what he contracted to buy. Lambert v. Heath, 15 M. &. W. 486. Where R., a member of the Stock Exchange, has become a defaulter, and thereupon, by the direction of the official assignees, sells shares standing in his name, in order to realise the estate {vide ante, p. 577), the buyer who knows all the circumstances cannot set oft' against the price a debt due to him from R. Richardson v. Stormont, Todd & Co., (1900) 1 Q. B. 701, C. A. See Lomas v. Graves & Co., (1904) 20 K. B. 557, C. A. See further as to the effect of R.'s failure as to purchases made by him as H.'s broker, Beck- huso >i v. Hamblet, Levitt v. Ld. and Anderson v. Beard, cited ante, p. 578. ACTION FOR WORK AND MATERIALS. In an action for work done, the plaintiff's proofs are, 1. The contract, express or implied ; 2. The performance of the work and supply of materials, if any ; and 3. The value, if the remuneration be not ascertained by the contract. Tlie contract."] Where there was a special agreement, the terms of which had been performed, it raised a duty for which an indebitatus assumpsit or the common counts lay. B. N. P. 139 ; cited by Holroyd, J., in Studdy v. Sanders, 5 B. & C. 638; Robson v. Godfrey, Holt, N. P. 236. ' And this principle still holds good although the Rules, 1883, O. xix. rr. 4, 5, 6, 15, vide ante, p. 309, require a more specific statement of the plaintiff's claim. If the contract have not been executed, but the plaintiff have been pre- vented from executing it by the absolute refusal of the defendant to perform his part of it, or by an act done by the defendant which has incapacitated the plaintiff from performing it, the plaintiff may rescind the contract, aud sue on a quantum meruit for past services. Planche v. Colburn, 8 Bing. 14 ; Lodder v. Slowey, (1904) A. C. 442, J. C.;.2 Smith's Lead. Cas., notes to Cutter v. Powell. So, where tiie plaintiff was to have certain goods for his services, and the defendant sold them, or caused them to be sold, by his own default, this action lies for the money value. Keys v. Harwood, 2 C. B. 905. Where the plaintiff agreed to print a work, but refused to print a libellous dedication to it, and the author thereupon refused to accept or pay for the rest, he was held liable to pay for printing the body of the work. Clay v. Yates, 1 H. & N. 73 ; 25 L. J., Ex. 237. Where A. agrees to build a house on B.'s land lor a lump sum, and after doing part of the work abandons the contract and 1'.. completea the house, A. cannot recover for the work done on & quantum meruit, there being no evidence of a fresh contract. Sumpter v. Hedges, (1898) 1 Q. B. 673. So where the house was built but it deviated from the special contract. Ellis v. Eamlen, 3 Taunt. 52. Where, however, the work has been done and been adopted by B., though not strictly pursuant to the contract, the plaintiff may recover upon a quantum meruit. B. N. 1'. 139; Burn v. Miller, 4 Taunt. 745. So where the plaintiff having contracted to build cottages by Oct. 10th, did not finish them until tbe L6th, and the defendant accepted them. Lucas v. Godwin, 3 N. C. 7:i7. Sen Gray v. /////, Ily. & IU. 420; and Savage v. Canning, I. R., 1 C. L. 434,0. P., cited ante, p. 526, and infra. An implied promise to pay for work done extra, and not under the contract, can onlyarUe in cases where the defendant is competent to contract by parol. 582 Action for Work and Materials. Lamprell v. Billericay Union, 3 Exch. 283. As to the liability of a corpo- ration for work done, see Part III., Actions by Companies — Contracts by. Corporations, post, pp. 1092, 1093. To fix a defendant with extras, the acceptance and adoption ought to be under circumstances which imply approval and waiver of the deviation, and make it practicable to repudiate ; for a defendant cannot be expected to refuse a house built on his own land, or to repudiate materials and labour worked into the corpus of his own property. In such cases the decisions in Sinclair v. Bowles, 8 B. & C. 02, post, p. 589, and Ellis v. Hamlen, ante, p. 581, seem to apply. In Lucas v. Godwin, ante, p. 581, the stipulation as to time was held not to be a condition precedent ; and there was also extra work done. The rule with regard to additions or alterations, in the case of a special contract, must be taken with this limitation, that the workman cannot charge for them unless his employer is expressly informed, or must, neces- sarily from the nature of the work be aware, that they will increase the expense. Lovelock v. King, 1 M. & Kob. 60. Where the special contract is so entirely abandoned by consent that it is impossible to trace it, the workman will be permitted to charge by measure and value, as if no contract had ever been made ; but if not wholly abandoned, the contract will operate as far as it can be traced, and the excess only shall be paid for according to the usual rate of charging. Pepper v. Burland, Peake, 103. "Where there is a written contract it must be produced, although the plaintiff seeks only to recover for extras not included in it; Vincent v. Cole, M. & M. 257 : for the contract is the proper evidence to show what are extras ; Jones. v. Howell, 4 Dowl. 17G ; Buxton v. Cornish, 12 M. & W. 426; and, if unstamped, the judge cannot look at it to see whether it extends to the work claimed as extras. S. CC. ; and see Edic v. Kingsford, 14 C. B. 759 ; 23 L. J., C. P. 123. In Vincent v. Cole, supra, it was held that even a distinct promise by the defendant to pay for the work would not supersede the pro- duction of the contract; but it was not held (though so stated in the marginal note) that an admission by the defendant that it was extra the contract, was insufficient to fix him without producing it. Yet, semble, as a building contract usually contains generaL provisions as to extra works, even this admission may not dispense with the production, unless the defendant has also admitted that it contains no such provisions. Where a man is employed to do work under a written contract, and a separate order for other work is afterwards given orally during the continuance of the first employment, the written contract need not be produced in an action for the second work. Beid v. Batte, M. & M. 413. Where A. contracts with B. to do work for A. which involves B.'s indi- vidual responsibility or skill, personal performance by B. is of the essence of the contract. Bobson v. Drumond, 2 B. & Ad. 303. Where, however, that is not involved, B. may assign his interest in the contract to C, and per- formance by C. is sufficient. British Waggon Co. v. Lea, 5 Q. B. D. 149. As to the effect of the death of a partner in the firm with whom the plaintiffs had contracted personally to do work, see Phillips v. Alhambra Palace Co., (1901) 1 K. B. 59, and other cases cited ante, p. 519. An action will lie against the employer for preventing work being done under a contract, e.g., by not supplying plans and setting out the work ; Boberts v. Bury Commissioners, L. P., 5 C. P. 310, Ex. Ch. ; or not giving the contractor possession of the site for the work. Lawson v. Wallasey Local Board, 11 Q. B. D. 229; affirm, in C. A. on other grounds; 48 L. T. 507, E. Sit. 1883. And where a contract for the execution of certain works by a named day provided for the payment, by the contractor D., of liquidated damages for non-completion by that day, and also that additional work might be ordered; additional work was ordered which necessarily delayed Architect's Certificate. — Liability of Defendant. 5S3 the completion of the contract, it was held that in the absence of agreement that the additional work should not extend the time for completion, D. was exonerated from paying the damages. Dodd v. Char ton, (1897) 1 Q. B. 562, 0. A. As to warranty with respect to plans, specifications, and quantities, vide ante, p. 486. Conditions precedent — Architect's certificate.'] In Morgan v. Birnie, 9 Bing. 672, the surveyor's certificate, required by the contract, was held a condition precedent to the plaintiffs ri°ht to sue in respect of work done under it ; and a letter inclosing the bills, with an approval of the charges, is not equivalent to a certificate of approval of the work done. S. C. And it is no dispensation of the condition that it is withheld by fraud or collusion with the defendant; Milner v. Field, 5 Exch. 829; but an action is main- tainable, alleging that the architect withholds the certificate in collusion with, and by the procurement of the defendant; for such an action is based on fraud. Batterbury v. Vyse, 2 H. & C. 42; 32 L. J., Ex. 177. But apart from fraud, the wroDgful withholding by the surveyor of the certificate affords no ground of action. Clarke v. Watson, 18 0. B., N. S. 278; 34 L. J., C. P. 148. The principle of Morgan v. Birnie, and Milner v. Field, supra, is supported bv Grafton v. E. < 'ounties By. Co., 8 Exch. 699; Pashley v. Birmingham, 18"C. B. 2; Banger Gt. W. 7.'//. Co., 5 H. L. C. 72 ; Goodyear v. Weymouth, Mayor, &c, of, H. & R. 67 ; 35 L. J., C. P. 12 ; and see Scott v. Liverpool Corporation, 3 De G. & J. 334; 28 L. J., Ch. 230; Russell v. Sa Da Bandeira, Vt., 13 C. B., N. S. 149 ; 32 L. J., C. P. 68. Where the surveyor is to give certificates and fix the price of extras and additions, his certificate conclusively determines what are extras and additions. Richards v. May, 10 Q. B. D. 400. The surveyor or architect need not certify in writing, unless expresslv required by the contract. Roberts v. Wathins, 14 C. B., N. S. 592 ; 32 L. J., C. P. 291. Where the contract required the work to be done to the satisfaction of the other party, his approval was held not to be a condition precedent. Dallman v. King, 4 N. C. 108. But if the parties have clearly left it to the employer to decide as to the sufficiency of the compliance with the contract, his decision is conclusive as long as he acts bona fide. Stadhard v. Lee, 3 B. & S. 364 ; 32 L. J., Q. B. 75. In building contracts, payments on architect's certificates during the work are considered as payments on account of the sum eventually found clue; and the time of completion is not generally of the essence of the contract. Lamprell v. Billericay Union, 3 Exch. 283. An alteratii □ made by the defendant in the written conditions will not enable the plaintifl to dispense with them, and sue on a quantum meruit. Pattinson v. Luchley, L. R., 10 Ex. 330. As to the effect of such certiBcate under a contract in the R. I. B. A. form, see Robins v. Goddard, (1905) 1 K. B. 294, 0. A. An architect's certificate for work done dues nol dispense with the ner sity for a previous written order where required by the contract. Tharsis Sulphur and Copper Co. v. WElroy, 3 Ap. I !a. L040, D. P. It maybe here noticed that, in the absence of Iraud, no action will against an architect, either by the builder for refusing to certify ; 8U veruon v. Watson, 4 C. P. 1). 148; or by the building owner for improperly certify- ing; Chambers v. Goldthorpe, and Bestell v. Nye, (1901) I K. B. 624, 0. A. Liability of defendant.] Where the defendant had contributed to the funds of a buildin^ society, and had been party to a resolution that certain houses should be built, it was held that this made him liable to an action for work done in building those houses, without prooi oi bifl i. .teres! m them, or in the land. Braithwaiti v. Shofield, 9 B. & C. 401. Bo a 58 ! Action for Work and Materials. subscriber, who is oue of a committee for managing the affairs of a hospital, is personally liable to the creditors of the hospital, for goods supplied with the sanction of the committee. Burls v. Smith, 7 Bing. 705. For cases ou the personal liability of partners, members of clubs, of mining and inchoate companies, &c, see ante, pp. 553, 561 et seq. As to the liability of a company after its incorporation for preliminary expenses incurred by the promoters in its establishment, see Melhado v. Porto Alegre By. Co., L. 11., 9 C. P. 505 ; In re English, &c., Produce Co., (190G) 2 Ch. 435 ; and other cases cited Part III., Actions by and against Companies, post, pp. 1111, 1112. Where orders are given by a public officer, acting on behalf of a public body, or of a known department of the State, and in discharge of his duty as such, it is to be presumed that personal credit is not given to him, and he is not liable. Macheath v. Haldimand, 1 T. E. 172 ; Goodwin v. Bobarts, L. P., 10 Ex. 344, 345, per Cockburn, C. J. See Dunn v. Macdonald, ante, p. 494. This rule applies to such officers as a colonial governor, commissary, commanding officer of a regiment or of a king's ship, justices contracting to build a county bridge, &c. Allen v. Waldegrave, 2 B. Moore, 021 ; Myrtle v. Beaver, 1 East, 135 ; Unwin v. Wolseley, 1 T. K. 674 ; Palmer v. Hutchin- son, 6 Ap. Ca. 619, J. C. Tbis principle is applied by the Public Health Act, 1875 (38 & 39 V. c. 55), s. 265, to contracts entered into by the local authority, &c, lor carrying out the act. But where navigation commis- sioners employed the plaintiff to do certain of the works, all the acting commissioners were held personally liable. Horsley v. Bell, Ambler, 770. So, where the defendant, the clerk of a county court, ordered the plaintiff to fit up the court, and the bill was allowed by the county court judge, it is for the jury to say whether the work was not done on the clerk's personal credit; lor it was no part of his official duty to give such an order, nor did the facts exclude the presumption of personal credit. Auty v. Hutchinson, 6 C. B. 266. An action will lie against H. M. Comrs. of Public Works and Buildings for damages for breach of a contract between them and a builder for the erection of a public building. Graham v. Bublic Works Comrs., (1901) 2 K. B. 781. The defendant requested the plaintiff to take care of and show his (the defendant's) house, and promised to make him a " handsome present ; " it was held that this was evidence on which the plaintiff might recover a reasonable recompense for work and labour. Jewry v. Busk, 5 Taunt. 302. But where a person performed work for a committee, under a resolution entered into by them, " that any service rendered by him should be taken into consideration, and such remuneration be made as should be deemed right," it was held that an action would not lie to recover a recompense. Taylor v. Brewer, 1 M. & S. 290 ; see Boberts v. Smith, 4 H. & K 315 ; 28 L. J., Ex. 164. It was held by Ld. Kenyon, C. J., that there is no implied promise to pay an arbitrator for his trouble. Virany v. Warne, 4 Esp. 47 ; sed secus Swinford v. Burn, Gow, 8, cor. Dallas, C. J., and Crampton v. Bidley, 20 Q. B. D. 48, per Smith, J. See also la re Coombs, 4 Exch. 839 ; Hoggins v. Gordon, 3 Q. B. 466. A master may sue for the work and labour of his apprentice, against a person who harbours him after his desertion ; for he may waive the tort. Foster v. Stewart, 3 M. & S. 191. A barrister cannot recover, even on an express contract to remunerate him for professional services rendered as a barrister; Kennedy v. Broun, 13 C. B., N. S. 677 ; 32 L. J., C. P. 137 ; In re Le Brasseur, (18U6) 2 Ch. 487, C. A. ; see also Broun v. Kennedy, 33 Beav. 133 ; 33 L. J., Ch. 71 ; but he may recover on an express contract for services rendered to the guardians of a union as returning officer. Egan v. Kensington Union, 3 Q. B. 935, n., Ld. Denman, C. J. A phjsician might, at common law, recover his fees, on Liability of Defendant. 585 an express contract to remunerate him. Veiteh v. Bussell, 3 Q. B. 928; and see, since the Medical Act, ante, p. 515. Where A., who was employed by the defendant to transport goods to a foreign market, delegated the entire employment to the plaintiff, who performed it, it was held that the plaintiff could not recover from the defendant a compensation for such services ; for there was no privity between them. Schmaling v. Thom- hnson, 9 Taunt. 147. See further, cases cited, ]wst, p. 605. Where the plaintiff, having a contract jointly with A. to do certain work for a company, assigned the contract to A. with the company's consent, on a promise by A. to pay plaintiff a certain sum when the contract was completed, and the contract was afterwards abandoned as between A. and the company, and replaced by another ; held that the plaintiff could not sue A. for the money upon the completion of the substituted contract. Humphreys v. Jones, 5 Exch. 952. l The sheriff's officer cannot, but the sheriff can, sue the execution creditor, B., for fees payable by B. under the Sheriff's Act, 1887, s. 20 (2), and the table of fees made thereunder dated August 31st, 1888 (see W. N. (1888) Part H. p. 441); Smith v. Broadbent, (1892) 1 Q. B. 551; Glasbrook v. David, (1905) 1 K. B. 615. The fees are meant, however, only to cover the sheriff's out-of-pocket expenses, and where he has recovered possession money from one creditor, he cannot recover a second 5s. a day from another creditor in respect of the same possession. S. C. The earlier cases are no longer applicable. Where an architect is employed by the owner to draw plans, and obtain tenders for the execution of works, it is usual for him to employ a surveyor to take out the quantities, who is to be paid by the builder whose tender is accepted; North v. Bassdt, (1892) 1 Q. B. 333; Moon v. Witney Union, 3 N. C. 814 ; if, however, by the act of the owner the work does not proceed, the latter is bound to pay the surveyor for taking out the quantities. S. C. When the architect has completed his work and been paid, the plans are the property of the owner. Gibbon v. Bease, (1905) 1 K. B. 810, C. A. As to when a claim for work and labour, and when one for goods sold and delivered is applicable, the rule is thus laid down : " If you employ a man to build a house on your land, or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labour and your materials to any other person. Having bestowed his labour at your request on your materials he may maintain an action against you for work and labour. But if you employ another to work up his own materials in making a chattel, then he may appropriate the produce of that labour and materials to any other person. No right to maintain any action vests in him during the progress of the work : but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed may maintain an action for goods sold and delivered, or (if the employer refuses to accept) a special action on the case for such refusal ; hut be cannot maintain an action for work and labour." Per Bayley, J., in Atkinson v. Bell, 8 B. & C. 227, 283. See also Cotterell v. Apsey, 6 Taunt. 322 ; /A v. Freeland, 1 M. & W. 543; and cases cited, nut'-, p. 527. The power of amendment renders these distinctions less material than they were formerly; it must, however, be remembered that if the claim is not properly made for work and materials, but for not accepting a chattel, it maj be defeated by a defence under the Sale of (ioods Act, 1893,8. I, vidi <>/'/'■, p. 527. A contract for work and materials snj>/Ji>>/ in and about the work is not within that section. It may lie within the Stat, of Frauds, sect. 4, ante, p. o25, if it must continue beyond a year; but uol if it will not necessarily continue beyond the year. See cases cited, ante, pp. 52."., 526. 586 Liability of Defendant. — Repairs of Ships. Liability of defendant — Repairs of ships.'] The owner is liable for neces saiy repairs done, or supplies provided for a ship by the master's order ; Webster v. Seehamp, 4 B. & A. 352; those are necessary which the owner, as a prudent man, would have himself ordered, although not absolutely necessary. S. C. ; The Riga, L. E., 3 Adm. 510. The plaintiff must prove that the goods supplied are necessaries; Mackintosh v. Mitcheson, 4 Exch. 175 ; Gunn v. Roberts, L. R., 9 C. P. 331 ; and that neither the owner nor his recognised agent, able to obtain supplies, was present at the port. S. C. Where the master dies during the voyage the mate becomes master, and is consequently invested with the incidents of the post. Hanson v. Royden, L. P>., 3 C. P. 47. Registered ownership, that is, proof of registration (see 57 & 58 V. c. 60, ss. 14, 64 (2) ) is prima facie i vidence of the liability of those parties for the repairs of the ship. Cox v. Reid, Ry. & M. 199 ; and see Eibbs v. Ross, L. R., 1 Q. B. 534, where the earlier eases are considered. Such evidence may be rebutted by proof of the beneficial interest having been parted with, and of the legal owner having ceased to interfere with the management of the ship. Young v. Brander, 8 East, 10 ; Jennings v. Griffiths, Ry. & M. 42. The true question in cases of this description is, "Upon whose credit was the work done?" S. C, Id. 43, per Abbott, C. J. Even although the order was given by a person, who without the defendant's knowledge or authority was registered under 57 & 58 V. c. 60, s. 59, as managing owner. Frazer v. Cuthbertson, 6 Q. B. D. 93. See also Baumvoll Manvfactur, &c, v. Furness, (1893) A. C. 8. But where a managing owner is such with the consent of his co-owners, he has authority to give orders for the necessary repair, fitting, and outfit of the vessel. The Huntsman, (1S94) P. 214. Where the owner, A., agreed to sell to B., who appointed T. to be master, and he was registered as such, and plaintiff did repairs on the order of T., A. was held not liable, he not having done anything to sanction T. appearing as his master. Mitcheson v. Oliver, 5 E. & B. 419 ; 25 L. J., Q. B. 39, Ex. Ch. See Frost v. Oliver, 2 E. & B. 301 ; 22 L. J., Q. B. 353 ; Preston v. Tamplin, 2 H. & N. 684 ; 27 L. J., Ex. 192 ; The Gt. Eastern, L. P., 2 Adm. 88 ; Burdick v. Ionian, W. N. 1878, p. 129, C. A. ; and Baumvoll Manvfactur, &c, v. Gilchrist, supra. A person who takes share in a ship under a void conveyance is not liable for articles furnished to the ship, unless credit be given to him individually, or he holds himself out as (that is, by acts or words assumes the character of) owner. Harrington v. Fry, 2 Bing. 179. An undertaking by the defendant's solicitor " to appear for Messrs. T. & M., joint owners of the sloop A.," is evidence against the defendants of the joint ownership. Marshall v. Cliff, 4 Camp. 133. A part owner of a ship is not necessarily a partner ; and if, as ship's husband, he have fitted her out, he may sue the other part owners separately for their shares of the expense. Helme v. Smith, 7 Bing. 709. Whether a mortgagee of a ship, before possession, was liable to repairs was formerly much doubted ; Briggs v. Wilkinson, 7 B. & C. 33 ; but now when a transfer is made only by way of mortgage in the manner specified in stat. 57 & 58 V. c. 60, ss. 31 et seq., the mortgagor continues owner except so far as may be necessary for making the ship available as a security for the mortgage debt. And when a mortgagor has been allowed by the mortgagee to continue in possession and to use and navigate the ship, and the mortgagor orders necessary repairs to be done, the shipwright has a lien as against the mortgagee for his work and labour. Williams v. Allsup, 10 C. B., N. S. 417 ; 30 L. J., C. P. 353 : see Johnson v. R. Mail S. Packet Co., L. R., 3 C. P. 38. Where the repairs were done by F., under a contract with C, on behalf of the owner M., but without his authority, it was held that M. did not, by taking the ship as repaired, and selling her, ratify the contract or become Work as Agents. 587 liable for the repairs. For man & Co. Proprietary v. Ship " Liddesdale" (1900) A. C. 190, J. C. Work as agents."] Generally a commission to sell may be revoked, and tbe death of the principal is a revocation ; Campanari v. Woodburn, 15 C. B. 400; 24 L. J., C. P. 13; and the agent is not necessarily entitled to any remuneration, unless be can show that he has been put to expense or trouble before the revocation, from which a contract to pay on a quantum meruit may be implied ; and a private sale by the principal without his agent's instrumentality, will not entitle him to bis commission on the price. Simpson v. Lamb, 17 C. B. 603 ; 25 L. J., C. P. 113. And where an estate agent is to receive a certain percentage for finding a purchaser, he is entitled to nothing if he fail to find one before his authority is revoked ; but if he find one, and the seller is unable or unwilling to complete the sale, the agent may recover on a quantum meruit at least for his labour, if not the whole stipulated percentage ; Prichett v. Badger, 1 C. B., N. S. 296 ; 26 L. J., C. P. 33 ; and in such a case the title to remuneration is not a question for the jury, but of law. S. C. But where the defendant contracted with the plaintiff to sell tickets for the defendant at a certain percentage, and the defendant afterwards revoked the plaintiffs authority before any were sold, but after some trouble had been taken and expense incurred by him, and the plaintiff acquiesced in the revocation, it may be left to the jury whether there was a rescission by consent, and a new contract to pay for past labour on a quantum meruit. Be Bernardy v. Harding, 8 Exch. 822 ; 22 L. J., Ex. 340. As to the right of an auctioneer to remuneration where his authority has been revoked before the auction, see Bainy v. Vernon, 9 0. & P. 559, cor. Lord Denman, C. J. The plaintiff was to place the shares of the defendant's company for 100?. down and 400/. when they had been allotted; before they were all allotted the directors caused the company to be wound up ; held, that the plaintiff was entitled to remuneration for the work he had done, he having been prevented completing it by the act of the defendants, and the Court, acting as a jury, awarded him 250/. Inchbald v. W. Neilgh rry Coffee, &c, Co., 17 C. B., N. S. 733 ; 34 L. J., C. P. 15. See further Moffat v. Laurie, 15 C. B. 583 ; 24 L. J., C. P. 56. Where a broker is employed to find a buyer, he is entitled to his com- mission if he introduced the parties, though the principals eventually settled the term; and, semble, if several brokers are employed separately, the one who first introduces the parties is entitled. Ounard v. Fan Oppen, I F. & F. 716. The above was a case of shipbrokers, and was perhaps governed by the proof cf custom at the trial ; but in the absence of express stipulation, or of fraud, the rule seems reasonable in other like cases. .\ broker or other agents finds a buyer, if he introduce a buyer to the seller, or to the premises for sale, or call the premises to the notice of a buyer; introduction to the agent of the buyer is sufficient. Wilkinson v. Alston, 48 L. J., Q. B. .■"■•'!, C. A. The plaintiff was employed by the defendant to sell an estate for him, upon the terms of being paid commission if the estate were sold, and a fixed sum if not sold. The estate was sold by the defendant himself to a person, who had first heard of the estate being in the market from the plaintiffs advertisement. It was held that the plaintiff was entitled to the commission, the relation of buyer and seller having been broughl aboul by whal the plaintiff had done. Green v. Bartlett, 14 0. B., N. 8. 681 : 32 L. J., C. P. 261. See also Bayley v. Chadwick, 39 L. T. 129, D. P., and Mansell v. Clements, L. B., 9 0. P. L39. It seems that tbe purchaser may be o ked "whether, but for the plaintiffs intervention, he would have bought the property?" S. C. See further Tribe v. Taylor, 1 C. P. D. 505. Where A. employed B. to procure a loan on mortgage of A.'s property, Action for Work and Materials. for a certain commission, and B. has procured a person, C, willing to make the advance, B. is entitled to the whole of the commission, although the advance was not made, bscause A. was either unable to give a good security ; Green v. Lucas, 33 L. T. 584, Mich. S. 1875, C. A.; or refused to give it; Fisher v. Drewitt, 48 L. J., Ex. 32, C. A.; for agents " who bargain to receive commission on introduction, have a right to their commission as soon as they have completed their portion of the bargain, irrespective of what may take place subsequently between the parties introduced." Id. 33, 34, per Bramwell, L. J.; Lockwood v. Levick, 8 C. B., N. S. 603: 29 L. J., C. P. 340. ' As to the effect in a contract of agency of the determination or transfer of the business of the principal, thereby determining the agency, see Ogdens v. Nelson, and other cases cited, ante, p. 519. Performance.] The plaintiff must prove a performance of the work and labour according to the terms of the contract ; or if there be a deviation from those terms, an assent of the defendant to the deviation. Vide ante, p. 581. Thus in an action to recover the value of a riding habit, for which the defendant's wife had been measured, but which was returned to the plaintiff on the day on which it was delivered, it was ruled to be incumbent on the plaintiff to prove that the habit was made agreeably to the order. Hayden v. Hayward, 1 Camp. 180. So, a herald who sues for making out a pedigree, is bound to give some general evidence of the truth of the pedigree. Toivnsend v. Neale, 2 Camp. 191. Where an agent, A., has, without the knowledge of his principal, B., agreed to receive from C. 3,000?. as profit to himself, out of a purchase by A. on behalf of B. from C. ; B. on knowing of the agreement, before A. has received the 3,000?., may adopt A.'s agreement and sue C. for the 5,000?. Whaley Bridge, &c, Co. v. Green, 5 Q. B. D. 109. See also cases cited, post, p. 603. Value.] In what manner the value of the work done is to be calculated where there is a special contract and deviations from it has been already mentioned, pp. 569, 581, 582. Where a tradesman finishes work differing from the specification agreed on, he is not entitled to recover the actual value of the work done; but (if anything) only the stipulated price, minus the sum necessary to complete the work according to the specification. Thornton v. Place, 1 M. & Rob. 218; Chapel v. Eickes, 2 Or. & M. 214. In an action for work and labour as a surveyor or architect, in the absence of express agreement, it is a question for the jury whether the commission charged is, under the circumstances, a reasonable or unreasonable charge. Chapman v. Be Tastet, 2 Stark. 294 ; Upsdell v. Stewart, Peake, 193. Defence. By Rules, 1883, O. xxi. r. 3, "a defence in denial must deny such matters of fact from which the liability of the defendant is alleged to arise, as are disputed." See also O. xix. r. 17, ante, p. 310. By r. 15, ante, p. 309, the defendant must plead specially all facts, not previously stated, on which he relies, and must raise all such grounds of defence as if not pleaded would be likely to take the plaintiff by surprise. And by r. 20, ante, p. 310, a bare denial denies the making of the contract in point of fact only, and not its sufficiency in point of law. It is a good defence that the work was done under a special contract not executed. Jones v. Nanney, 1 M. & W. 333. Or that the defendants, being a corporation, did not contract under seal, or with the formalities required by the act of incorporation. Cope v. Thames Defence. 589 Haven By. Co., 3 Exch. 841. So, that the defendants, guardians of a union, are charged for work done by a surveyor, which it was no part of their duty to order. Paine v. Strand Union, 8 Q. B. 326. If the defendant have received no hene6t from the work, it having been improperly executed by the plaintiff, the latter cannot recover anything. Farnsworth v. Garrard, 1 Camp. 38; Montriou v. Jefferys, Ey. & M. 317. Thus an auctioneer, through whose gross negligence the sale becomes nugatory, can recover nothing for his services. Denew v. Daverell, 3 Camp. 451 ; see ante, pp. 507, 508, 514. Where the plaintiff had contracted to repair completely some chandeliers for 10?., and returned them incompletely repaired, in an action for work and labour it was held that the plaintiff could not recover anything, at least in this form of action, though the jury found that the repairs were worth 5?. Sinclair v. Boivles, 9 B. & C. 92, and vide ante, pp. 581, 582. So, where A. contracts to do work and supply materials, to the ship, or upon the land of B. for a specific sum, to he paid on the completion of the whole, A. is not entitled to recover anything until the whole work is completed, unless it is shown that the performance of the contract was prevented by the default of B., or there are facts from which it may be inferred that the parties have entered into a fresh contract; For man & Co. Proprietary v. Ship " Liddes- dale," ante, p. 587; Appleby v. Myers, L. K., 2 C. P. 651, Ex. Ch. In the last case the completion of the work on the defendant's premises was prevented by a fire there, and the court held that by the contract the work to be done was entire, and that the defendant did not warrant that his premises should continue in such a state as to enable the plaintiff to do the work, and that both parties were therefore excused from the further per- formance of the contract. For instances of the excepted cases see 0'A'< U v. Armstrong, (1895) 2 Q. B. 70, 418, C. A.; and Austin Friars 8.S. Co. v. StracJc, (1905) 2 K. B. 315. See further as to the completion of a contract beiDg rendered impossible by reason of an unforeseen accident, Taylor v. Caldwell, 3 B. & S. 326; 32 L. J., C. P. 104 ; Heme Bay S. Boat (Jo. v. Hulton, (1903) 2 K. B. 683, C. A.; Krell v. Henry and Chandler v. Webster, ante, p. 340 ; Civil Service Co-operative Soc. v. Gen. S. Nav. Co., post, p. 606, and Caine v. Palace SS. Co., (1907) 1 K. B.670, ('. A. ; in 1). l'.,c.a. i/., June 5th, 1907. In Elliott v. Crutchley, (1906) A. C. 7, D. P. ; the contract contained a special provision in case of the occurrence of the accident. Where the contract is not entire, the defendant must pay -pro tanto for the work done by the plaintiff. As where a shipwright undertook to put a ship into thorough repair, and, before the work was finished, required payment for the portion done, without which he refused to proceed, and the ship thereby lost her voyage, it was held that lie was nevertheless entii to recover for the work done. Roberta v. Havelock, ■'> B. & Ad. 404. So, where the ship was burnt in the plaintiff's dockyard before the repairs were completed, the plaintiff was held entitled to recover for the work done. Menelone v. Athaives, 3 Burr. 1592. And the same principle applies win r< the work has been badly done. Farnsworth v. Garrard, supra. Where A.engaged with defendant's landlord to build a house on land occupied by the defendant" and A. made a sub-contract with the plaintiff to do part of the work, and defendant separately agreed to pay over to the plaintifl din all money due for such part of the work upon B discharge from A., it was held that the defendant's agreement did not make him liable to the plaint ill for work and labour, but only on the special agreement. Sweeting v. Asplin, 7 M. & W. 165. Where the plaintiff agra to do \u>rk for a certain'sum on a false representation by defendant of the quantity oj v ■ to be done, he may repudiate the contract; but if he perform it, lie can only recover the stipulated sum in this action. Selway v. Fogg, 5 M & W. 38. 590 Action for Money Paid. As to defence to action by a builder, that the work was done under a contract, which entitled him to payment by his employer, out of a special fund only, see Williams v. Hathaway, 6 Ch. D. 544. An agent entrusted to sell laud for his principal on commission is dis- entitled to any remuneration if he became himself the purchaser. Salomons v. Pender, 3 H. & C. 639; 34 L. J., Ex. 95, citing Story on Agency, § 210. Or if he have received a secret profit from the purchaser. Andrews v. Ramsay, (1903) 2 K. B. 635. But a merely collateral profit received with- out fraud or dishonesty will not so disentitle him. Hippisley v. Knee Bros., (1905) 1 K. B. 1. An agent cannot recover a bribe promised to induce him to enter into a contract on behalf of his principal, e^veu though the promise did not affect his mind, and his principal was cot prejudiced. Harrington v. Victoria Graving Hock Co., 3 Q. B. D. 549. As to the defence arising under the Stamp Acts to a claim for brokerage, vide ante, pp. 248, 267. Election expenses.'] By stat. 38 & 39 V. c. 84, s. 5, a person having a claim against a Parliamentary returning officer for work and labour, &c, in respect of an election (except publication of the accounts), must, within 14 days after the return, send to him the particulars of the claim in writing, and he is liable only in respect of claims included in such particulars; such claims are liable to a taxation by the Mayor's Court, London, or by the County Court, which is final for all purposes. By stat. 46 & 47 V. c. 51, s. 29 (2, 3), every claim against a candidate at a Parliamentary election in respect of any expenses incurred on account or in respect of the conduct or management of such election, which is not sent in to the election agent within 14 days after the return, shall be barred. By sect. 30, in the case of an action in a disputed claim for such expenses, where the defendant admits his liability, but disputes the amount, the amount is to be referred for taxation, unless the court on the application of the plaintiff otherwise directs. ACTION FOR MONEY PAID. The plaintiff, in an action for money paid, must prove, if denied by the defendant, 1. The payment of money by the plaintiff; 2. That it was paid at the request of the defendant, and to his use. The payment of money.'] The payment must be proved as a fact ; the admission of the payee is not admissible against the defendant, vide ante, p. 69. To prove, as against O, payment by A. to B. for work done by B. for A., for which C. is ultimately liable, it is sufficient to show that A. received from B. an invoice of the work done, that on Feb. 25th he sent B. a cheque for the amount, and on the next day received back the invoice from B. with a receipt, and that B. received the cheque on the 26tb, at 9 a.m., and sent the receipt : the receipt is then admissible as a link in the evidence. This was held to be evidence of payment at 9 a.m. on the 26th, without producing the cheque or showing that it was honoured. Carmarthen & i 'ardigan By. Co. v. Manchester & Milford By. Co., L. E., 8 C. P. 685. The plaintiff must prove that money was paid ; giving a security, as a bond or warrant of attorney is not sufficient ; Taylor v. Higgins, 3 East, 169 ; Maxwell v. Jameson, 2 B. & A. 51 ; unless, perhaps, where a bill or note is Defendant's Request. 591 taken from the plaintiff by a creditor as payment of the defendant's debt. Barclay v. Gooch, 2 Esp. 571. So. stock cannot be considered as money : Nightingale v. Devisme, 5 Burr. 25S9 ; unless it be so treated by the parties, as where it was transferred to the defendant with the view to sale for defendant's use. Howard v. Banbury, 2 C. B. 803. The plaintiff must prove that the money paid was his money. Thus, an under-tenant, whose goods had been distrained and sold to strangers by the original landlord for rent due from his immediate teuant, cannot maintain an action for money paid to the use of the latter ; for immediately on the sale under the distress, the money paid by the purchaser vested in the landlord in satisfaction of the rent, and never was the money of the under- tenant ; Moore v. Byrke, 11 East, 52 ; but it is otherwise where the under-tenant, or a stranger, redeems his goods with his own money. Exall v. Bartridge, 8 T. K. 308. See post, pp. 596, 597, and other cases there cited. Defendant 's request.'] The plaintiff must prove a request by the defendant, express or implied. Alexander v. Vane, 1 M. & W. 511. Thus, where the lessee is to pay the lessor's expenses of granting a lease, and the lease has been granted, the lessor may recover his own solicitor's bill as money paid to the use of the lessee. Grissell v. Robinson, 3 X. C. 10. A subsequent assent to the payment will be evidence of a previous request ; 1 Wms. Saund. 261 b, (2) ; and if there be a request to pay, the plaintiff may recover the money, though paid on a contract that could not ba enforced. Thus, where a broker, C, bought for D. on his order bank shares on the Stock Exchange according to the custom there, under a contract void by 30 & 31 V. c. 29, s. 1, ante, p. 572, C. is entitled to recover the price from D., provided D. knew of the custom; Seymour v. Bridge, 14 Q. B. D. 460; but not otherwise; Berry v. Bamett, Id. 467; 15 Q. B. D. 388, C. A. So formerly the plaintiff mhjht recover the money paid on a time bargain which, as a wager, is void by the Gaming Act, 1845 (. 578. And where A., at B.'s request, had made bets for him, in A. 'a name, and would incur disqualifica- tion, and sustain injury, if he did not pay the losses consequent on such bets, A. had, on the bet being made, an irrevocable authoritv from B. to pay such losses. Read v. Anderson, 10 Q. B. D. 100; 13 Id. 77!', C. A., diss. Brett, M. B. Now, however, by the Gaming Act, 1892 (55 & 56 V. c. 9), s. 1, "Any promise, express or implied, to pay any person any sum of money paid by him under or in respect of any contract or agreement rendered null and void by the" Gaming Acf, 1845, vide post, p. 617, "or to pay any sum of money by way of commission, tee, reward, or otherwise iu rtspect of any such contract, or of any .services in relation thereto or iu connection there- with, shall be null and void, and no action shall be brought or mai n tain e d to recover any such sum of money." Hence .\. is now no Longer entitled to an indemnity from B. against liability to pay the loser. Levy v. Warburton, 70 L. J., K. B. 70s. The defendant, R., asked the plaintiff, T., to pay to Wioufl persona debts due from E. to them : the debts were, as T. knew, bets lost by K. ; I . paid the debts: it was held that the above .section prevented T. r< c ivering from R. the amount lie had so paid. Tatam v. A' L Q. B. 44. So where V. advanced money to M. for the purpose of making bets on their joint account, and it was lost on such bets, V. cannot sue M. lor hall the amount. &>fcry v. Mayer, (1901) 1 EL B. 11, 0. A. 592 Action for Money Paid. If there be no request, plaintiff cannot recover, though he has paid a legal debt of the defendant. Stokes v. Lewis, 1 T. R. 20. Costs and expenses, incurred by the mortgagee, in relation to the mortgaged property, cannot be recovered from the mortgagor, as money paid. Ex i>te. Feivings, 25 Ch. I>. 338, C. A. Where, in the absence of usage, a broker purchases stock to fulfil a contract entered into by him for his principal, but which his principal refuses to make good, he cannot sue his principal in this action. Child v. Morley, 8 T. R. 614. So where the party to whom the stock was contracted to be sold, on the defendant's refusal to transfer, bought the stock himself, and sued for money paid, to recover the difference in the price of the stock, it was held that this action could not be sustained. Lightfoot v. Creed, 8 Taunt. 268. But where there is a usage of the Stock Exchange that brokers should be responsible to each other on their contracts {vide ante, p. ST.' 1 -), and the seller's broker is obliged to pay money in consequence of bis principal's default, he may reimburse himself in this form of action. Sutton v. Tatham, 10 Ad. & E. 27 ; Bayliffe v. Butterworth, 1 Exch. 425 ; Pollock v. Stables, 12 Q. B. 765; Smith v. Undo, 4 C. B., N. S. 395; 27 L. J., C. P. 196 : 5 C. B., N. S. 587 ; 27 L. J., C. P. 335, Ex. Ch. See Westropp v. Solomon, 8 C. B. 345. In such cases it is immaterial whether or not the principal knew of the usage. S. CC. ; Grissell v. Bristowe, L. P., 4 C. P. 36, 49. It makes no difference t) the broker's right to recover, that the company, in which the shares had been bought, is being wound up, and therefore the shares cannot be transferred to his principal. Taylor v. Stray, 2 C. B., N. S. 175, 197 ; 26 L. J., C. P. 185, 287 ; Chapman v. Shepherd, and Whitehead v. Izod, L. R., 2 C. P. 228. Where the broker, who had been authorized to buy shares at a certain price, was called upon by the seller (see Rules of the Stock Exchange, 1906, r. 109) to repay him a call due after the sale, and paid by the seller in order to enable him to transfer the shares, the principal was held liable over to the broker in this action. Bayley v. Wilkins, 7 C. B. 886. Where the principal, P., has instructed his broker, B., to carry over (vide ante, p. 575) stock to the next settlement, B. may, by the usage of the Stock Exchange, close P.'s account, if the balance of differences, due from P. to B., have not been paid on the account-day of the current settlement, provided B. gave P. notice of the amount due to him before that day, and P. have not paid or secured the amount, and B may sue P. for any balance due. Davis v. Howard, 24 Q. B. D. 691. The account may be closed by the sale by B. of the stock bought to S., and a re-purchase thereof by B. from J., for the next account at fair market prices, and B. may sue P. for the difference and commission. Macoun v. Erskine & Co., (1901) 2 K. B. 493, C. A. If, however, the sale and re-purchase be part of the same transaction, B. must credit P. with any profit resulting therefrom. Erskine & Co. v. Sachs, Id. 504, C. A. In the event of the death, bankruptcy, or insolvency of the principal, P., whereby he will be unable to take up the stock, which the broker has bought for him on his own credit, the broker, B., is justified in immediately selliug the stock, and claiming the difference against the bankrupt's estate, subject to a set-off for any loss arising to the estate from such sale being made before the account- day, the customary time for selling out stock, on default of P. to take it up (vide ante, p. 576). Scrimgeour's Claim, L. R., 8 Ch. 921 ; see also Crowley's Claim, L. R., 18 Eq. 182. If in any other case B. sell the stock before the account-day without P.'s consent, B. cannot claim indemnity against P. for any loss he may thereby sustain. Ellis v. Pond, (1898) 1 Q. B. 426, C. A. And if on P.'s death, B., of his own authority, carry over stock he bought for P. on a continuation account, and ultimately sell it at a loss, he is liable for such loss. In re Overwey, (1900) 1 Ch. 209. Where Defendant's Request. 593 the broker is, otherwise than through the fault of his principal, P., unable to meet his engagements, and thereby becomes a defaulter uuder the Stock Exchange rules (r. 152 of 1906, ante, p. 577), and his contracts are closed in accordance with those rules, P. is not bound to indemnify him against the loss thereby occasioned to him. Duncan v. Hill, L. R., S Ex. 242, Ex. (Jh. Secus, where P. has assented to the closing of the contract wade for him, and has declined to exercise his right of taking it up himself, or of having it transferred to another broker. Hartas v. Ribbons, 22 Q. B. 1). 251, C. A. Where a broker, B., holds stock for his principal, P., which he has taken up with his own money, and has agreed not to sell before a certain day, if B. sell before that day he may sue P. for money paid, subject to P.'s right to counterclaim for damages occasioned by the premature sale. Ellis v. Pond, ante, p. 592. As to the measure of such damages see Michael v. Hart, (1901) 2 K. B. 867 ; (1902) 1 K. B. 482, C. A. See further as to the recovery by a broker of differences paid by him, ante, pp. 577, 578. Where B. being mi juris is the beneficial owner of shares, which he cannot disclaim, registered in the name of H., he must in equity indemnify H. against calls made on them. Hardoon v. Belilios, (1901) X. C. 118, J. C. There is an implied agreement between the original lessee and each successive assignee of a term, that the latter shall indemnify the former from liability on breaches of the covenants of the lease during the possession of the assignee; such agreement is implied, although each assignee expressly covenants to indemnify his immediate assignor against all subsequent breaches; the lessee is in the position of a surety to the lessor for the assignee. Moule v. Garrett, L. R., 5 Ex. 132; L. K., 7 Ex. 101, Ex. Ch.; and see Roberts v. Crowe, L. R., 7 C. P. 636, /" r Willes, J. ; and Crouch v. Tregonning, L. R., 7 Ex. 88. The damages recoverable are the actual loss sustained. In re Russell, 29 Ch. 1 K 254, C. A. As to recovery by lessee against the assignee under this indemnity, of costs, to which he has been put by the action against him, by the lessor lor breaches of covenant, sec Howard v. Lovegroue, L. R., 6 Ex. 43. The mortgagee, T., by sub-demise of an assignee, P., is not bound to indemnify the original lessee although T. had covenanted with P. to apply the rent he received in paying the rent due under the original lease. Bonner v. Tottenham, Ac. Building .s'nf., (is'.t'.t) 1 Q. B. 161, 0. A. Trustees of a club who are lessees of the club premises, are not, in the absence of aclub rule to that effect, entitled to indemnity From the club members against their liability as such lessees. Wi& v. Perpetual Trustee Co., (190o) A. C. 139, J. C. As to indemnity against liability under the Directors' Liability Act, 1890, see sect. A,j>ost, p. 846. A legal obligation to pay for another's benefit will be equivalent to a previous request; as where one person is surety for another and is called on to pay, the money paid may be recovered, though uot paid by the desire of the principal. Per Ld. Kenyon, Exatt v. Partridge, '■> T. R. 310. See also Johnson v. /.'. Mail 8. Packet <'<>., L. I>'., 3 < '. P. 38. So if one co-bail pay the whole debt. Belldon v. Tankard, I Marsh, is. So if an accommodation acceptor be sued on default of the drawer to pay, the acceptor may recover in this action ; and he may sue alone though the loan was in fact advanced on account of the plaintiff and his partner, and paid out of their joint funds. Driver v. liurton, 17 Q. B. 989; l'I l>. J., Q. B. 157. So the indorser of ,i bill who has been sued by the holder and paid him part of the amount of the. bill, may recover that amount in an action for n ey paid against the. acceptor. Pownal v. Ferrand, 6 B. & 0. 139. Bee also Expte. Bishop, 16 Ch. 1). 400, 0. A., whence it, appears thai the indorsee may also recover the interest which he has been compelled to pay. But if the drawer voluntarily pay the holder of a bill which he had drawn and indorsed for the accommo- dation of the acceptor without having received any notice of dishonour or any r. — vol. i. y y 594 Action for Money Paid. request from the acceptor to pay it, ho canuot sue the latter for money paid ; for there must be either legal obligation or request. Sleigh v. Sleigh, 5 Exeh. 514. A person who pays a bill for the honour of one of the parties to it may sue him for money paid. But he must prove noting or protest before the payment. Vaudeivall v. Tyrrell, M. & M. 87, as explained in Geralopulo v. Wieler, ante, p. 387. When an executor has paid legacies in full and is afterwards obliged to pay the legacy duty, it was held, in Foster v. Ley, 2 N. ('. 269, that he might recover the amount paid for duty in an action for money paid against the legatee. See Bate v. Payne, 13 Q. B. 900. Where several are sureties, and one is compelled to pay the whole, he may recover in this action from each of his co-sureties a rateable proportion of the money so paid. Gowell v. Edwards, 2 B. & P. 268 ; Deering v. Winchelsea, EL, Id. 270. A co-surety might sue as soon as he had paid more than his rateable share, but not at law till then. Davies v. Humphreys, 6 M. & W. 153, 168, 169 ; Ex pte. Snowdon, 17 Ch. D. 44, C. A. He may pay the debt when due without waiting for a demand or an action, and may then sue for contribution. Pitt v. Purssord, 8 M. & W. 538. But a surety, W., against whom judgment has been obtained by the principal creditor, B., for the full amount of the guarantee, may sue his co-surety, G., for contribution, before making any payment, and obtain a prospective order under which, when W. shall have paid his own share, G. shall indemnify him from further liability, or if B. be a party to the action, W. may obtain an order on G. to pay his proportion to B. Wolmershauseii v. Qullick, (1893) 2 Ch. 514. The allowance of a claim by B. in an action for the administration of the estate of a deceased co-surety, D., is equivalent to a judgment against D. S. 0. See further In re Parker, (1894) 3 Ch. 400, C. A. The amount recoverable from each co-surety is ascertained by reference not to the number of principals but to the number of sureties ; Kemp v. Finden, 12 M. & W. 421 ; who are solvent only. Peter v. Iiich, 1 Ch. Hep. 19 ; Hole v. Harrison, 1 Ch. Cas. 246 ; Dallas v. Walls, 29 L. T. 599, L. C. & L. JJ., M. T. 1873 ; see notes to Deering v. Winchelsea, EL, supra, and in 2 White and Tudor's L. C. in Equity. See Lowe v. Dixon, 16 Q. B. D. 455 post, p. 595. Where A., B. and C. became sureties for D. by three separate bonds, and one of them was compelled to pay D.'s debt, each of the others must contribute in proportion to the amount in their respective bonds. Deering v. Winchelsea, EL of, supra; Ellesmere Brewery Go. v. Cooper, (1896) 1 Q. B. 75. And even although A. did not know when he became surety that B. and C. were also sureties. Graythorne v. Swinburne, 14 Ves. 160, 105, per Ld. Eldon, C. It seems that the right is not affected by the plaintiff surety having given time to the principal debtor. Greenwood v. Francis, (1899) 1 Q. B. 312, 320, 322, per A. L. Smith, L. J. A surety, A., is entitled to the benefit of any security his co-surety, B., has taken from the principal debtor, C, although B. consented to be surety only on the terms of having the security, and A. when he became surety did not know of the agreement for security. Steel v. Dixon, 17 Ch. D. 825. See also In re ArcedecJcne, 24 Ch. D. 709. The division of the security is to be continued unlil it is exhausted or the co-sureties have been repaid. Berridge v. Berridge, 44 Ch. D. 168. In these cases the true nature of the transaction itself is to be considered without regard to the form of the instrument by which the relation is created. Reynolds v. Wlieeler, 10 C. B., N. S. 561, 566 ; 30 L. J., C. P. 350, 351, per Williams, J. Thus, where the plaintiff had drawn a bill which C. accepted, and the defendant indorsed (both plaintiff and defendant putting their names for C.'s accommodation), the plaintiff having been obliged to pay the bill, was held entitled to recover contribution against the defendant as co-surety. S. C. So where the defendant and plaintiff both indorsed a promissory note of C. as sureties for Defendant's Request. 595 him, the defendant signing first. Macdonald v. Whitfield, 8 Ap. Ca. 733, J. C, ante, p. 393. By 6 E. 7, c. 41, s. 80 (2), ante, p. 449rf, the principle of contribution is applied to co-insurers on a marine policy. Where two are jointly liable for the expenses incurred for their common benefit, and one dies, the survivor who pays the whole may sue the executor of the deceased for money paid for the defendant as executor. Prior v. Hembrow, 8 M. & W. 873 ; semb. accord. Batard v. Hawes, 2 E. & B. 287 ; 22 L. J., Q. B. 443. See also Ramskill v. Edwards, infra. If premises are let to several persons for the use of a company or partnership of which the lessees are members, and one of them is called upon to pay rent, he may sue the co-lessees tor contribution. Boulter v. Peplow, 9 C. B. 493 ; 19 L. J., C. P. 190. So if one of a managing committee is obliged to repay a loan borrowed for a club by authority of the committee, he may recover contributions from each of the others. Mountcashel, El. of v. Barber, 14 C. B. 53; 23 L. J., 0. P. 43. If one partner advance to another the capital which the latter is to contribute to the joint capital, he may sue for the amount. French v. Styring, 2 C. B., N. S. 357 ; 26 L. J., C. P. 181. A partner who pays a note in which he has joined some of the other partners, may sue them for contribution in this action, though the money raised on it was for partnership purnoses. Sedgwick v. Daniell, 2 H. & N. 319 ; 27 L. J., Ex. 116. And see the Partnership Act, 1890 (53 & 54 V. c. 39), s. 24 (2). In calculating the amount of contribu- tion the number of solvent partners only is to be considered. Lowe v. Dixon, 16 Q. B. D. 455, vide ante, p. 594. One partner cannot, however, in general sue another in this form of action for contribution to a joint partnership liability. Brown v. Tapscott, 6 M. & W. 119, 123; Worrall v. Gray*"", 1 M. & W. 166. The partnership account must first be taken. It must be observed " that there is uo principle of law which requires that a person should contribute to an outlay merely because he has derived a material benefit from it; " Ruabvi, SS. Co. v. L. Assur., (1901) A. 0. 0, 10, 15 ; The Acanthus, (1902) P. 17. Thus one tenant in common of a house, who expends money on repairs thereon, cannot sue his co-tenant lor contribution. Leigh v. Dickeson, 15 Q. B. D. 60, C. A. As a general rule this action does not lie on an implied contract for contribution or indemnity against a person jointly engaged with the plaint ill' in doing a wrongful act by which the plaintiff is put to expense; Merry" weather v. Nixan, 8 T. R. 186; or where ney is paid in furtherance of an illegal transaction. Mitchell v. Cockburw, 2 II. Bl. 379; Aubert v. Maze, 2 B. & P. 371. But where the plaintiff was not aware that the transaction was illegal, or where its nature is doubtful, he may sue on the implied contract to indemnify. Betts v. Qibbins, 2 Ad.& E5. 57 ; Pearson v. Skelton, 1 M. & W. 504; and see Dixon v. Fawcu8, 30 L. •»., Q. B. 137 : Burrows v. Rhodes, (1899) 1 Q. B. 816; I Smith's Lead Cas., notes to Lampleigh v. Braithwait; ami post, pp. 618, 619. So a trustee, A., is entitled to contri- bution from his co-trustee, B., in respeel of liability arising from a joint breach of trust in making an unauthorized investmenl ; Ramshillv. Edwards, 31 Oh. D. 100; Jacksony. Dickinson, 1 1903) I Cb. 947 ; and in the event of B.'s death his executors are liable. 8. I ;i ; . See fui i Ungvjorth v. Chambers, (1896) 1 Oh. 685, and Fletcher v. Colli*, fl905) 2 0b. 211, 0. A. So directors of a company who have hem compelled t place its capital illegally distributed by them among the shareholders, wit) tice to the latter thai the distribution was of capital, may recover from each shareholder the amount relumed to him. Moxham v. Grant, I L900) I 0- I'-- 88, 0. A And a director liable under the Direcl ■' Liability Act, L890, l. 3, ta entitled, under sect. 5, to contribution from his co-direotors ; vid\ post, p. 816. Sec as to indemnity to executors or trustees properly carrying on a y, v 2 596 Action for Money Paid, trust business, against liability arising in contract, Dowse v. Gorton, (1891) A. 0. L91, 1>. P.; or tort, Benett v. Wyndham, 4 D. G. & J. 250; In re Raybould, (1900) 1 Ch. 199. The right to the indemnity may be subrogated in the person injured by the tort. S. C. A notice to the party by whom an indemnity is given is not necessary before defending an action ; but if such notice be given, and he refuse to defend the action, he is estopped from saying that the person indemnified was not bound to pay the money. Duffield v. Scott, 3 T. R. 374; and see ,luni s v. Williams, 7 M. & W. 493. The only effect of want of such notice is to let in proof that the course pursued was not justified under the circum- stances, but the onus lies on the person indemnifying. Smith v. Compton, 3 B. & Ad. 408. And if knowledge of an action be brought home to the party indemnifying, and he leave the defence to the party indemnified, the latter is not bound to defend, but may compromise the action to the best of his judgment, and sue for money paid, though the action might perhaps have been defended with success. Pettman v. Keble, 9 C. B. 701 ; 19 L. J., C. P. 325. A cestui que trust cannot, however, recover agaiust his trustee what he alleges he has been compelled to pay through a breach of trust by the trustee, without showing that the loss was in fact occasioned by such breach of trust. Parker v. Lewis, L. R., 8 Ch. 1035, 1056. Where an action is brought against a surety who lets judgment go by default, there being no good defence, he cannot recover the costs, unless the writ was the first notice of default, in which case the costs of the writ can be recovered. 1'itrce v. Williams, 23 L. J., Ex. 322. But where A., who is indemnified by B., reasonably defends an action, he may recover against B. the costs of such action. Hornby v. Cardwell, 8 Q. B . D. 329, per Brett and Cotton, L. J J. Under a promise by the defendant to insure a tug against damage, and to " indemnify the plaintiffs in respect of all such damage to the extent of all moneys received by him under such insurance," the defendant having effected the insurance, is not bound to sue the underwriters thereon without au indemnity from the plaintiff. The Lord of the Isles, (1894) P. 342. As to the indemnity arising under the Workmen's Compensation Act, 1906 (6 E. 7, c. 58), s. 6, vide post, p. 809. 'I'd support this action, it must appear either that the defendant was primarily liable to the third party to pay the money, or that it was paid, or the liability incurred, by the plaintiff at his express or implied request, or on his guarantee. See Brittain v. Lloyd, 14 M. & W. 762 ; Lewis v. Campbell, 8 C. B. 541, and 1 Smith's L. C. 11th ed. 146 et seq. "Where a person's goods are lawfully seized for another's debt, the owner of the goods is entitled to redeem them and to be reimbursed by the debtor agaiust the money paid to redeem them, and in the event of the goods being sold to satisfy the debt, the owner is entitled to recover the value of them from the debtor." Edmunds v. Wallingford, 14 Q. B. D. 811, 814, C. A. See The Orchis, 15 P. D. 38. Therefore where the goods of A. on the premises of B. are distrained for rent, and A. is obliged to pay the rent to redeem them, B. is liable to A. in this form of action, for the sum so paid ; Exall v. Part- ridge, 8 T. R. 308 ; so where the tenant is compelled to pay landlord's tax by distress, the action lies. Dawson v. Linton, 5 B. & A. 521. So, too, when the tenant of land, liable by prescription to repair a public bridge, is fined for non-repair on indictment, he may reimburse himself by this action against Ins landlord ; per cur., Baker v. Oreenhill, 3 Q. B. 103. So in cases ol rates levied on the lessee in respect of such liability, if he has not cove- nanted to pay them. Id. But where, before the Tithe Act, 1891, A.'s goods were seized on the land i if B. lor a tithe rent-charge, B. was not liable to indemnify A., for the rent- charge issued only out of the land, and was not a personal charge on B. Defendant's Bequest. 597 Griffinhoofe v. Daubuz, 5 E. & B. 740; 25 L. J., Q. B. 237, Ex. Ch. explained in Edmunds v. Wallingford, ante, p. 596. So where A. and B. were under-tenants of adjoining houses which were held of the freeholder under one lease, and A. was compelled to pay the whole rent reserved by that lease, he could not sue B. at law for a contribution as money paid to his use. Hunter- v. Hunt, 1 C. B. 300. Tindal, C. J., suggested that A. might have a remedy in equity. Id. 305. Where, however, A. let land to B., who assigned the lease as to part thereof to C. at an apportioned rent, and under- let the residue to D., and 0., under threat of distress from A., paid him the whole rent reserved by the lease : it was held that C. had no right of contri- bution against D., as they were under no common obligation. Johnson v. Wild, 44 Ch. D. 146. In England v. Marsden, L. R.,' 1 C. P. 529, it was held that if the plaintiff allowed his goods to remain on the defendant's premises with his knowledge, but without his express request, until rent became due, and the landlord distrained, he could not recover from the defendant tbe rent and expenses he so paid ; this decision was, however, virtually overruled by the C. A. in Edmunds v. Wallingford, ante, p. 596. Where A. paid the funeral expenses of his deceased daughter during her husband's absence, the husband was held liable to A. Jenkins v. Tucker, 1 H. Bl. 90; accord. Ambrose v. Kerrison, 10 C. B. 776; 20 L. J., C. P. 135. So where the wife was living apart from her husband, and the plaintiff, in whose house she died, knew where he was and did nut apply to him before burying her. Bradshaw v. Beard, 12 C. B., N. S. 344 ; 31 L. J., C. P. 273. But it is not sufficient that the defendant has agreed with the plaintiff to pay the money to the third party. Thus where the landlord is called upon to pay the taxes, to which a landlord is primarily liable, but which his tenant is by special agreement bound to pay, he cannot sue the tenant for money paid. Spencer v. Barry, 3 Ad. & E. 331 ; and Bee Lubbock v. Tribe, 3 M. & W. 607. So where the transferee of shares in a company omits to register the transfer, and the transferor is consequently obliged to pay calls subsequent to the sale, he cannot recover the amount from the transferee as money paid; but a special action for not registering is the proper remedy; Sayles v. Blane, 14 Q. B. 205; aliter, if the defendant have requested the plaintiff to pay. See ante. p. f>74. An accommodation acceptor, who has defended an action on the bill at the request of the drawer, may recover the costs of such action as monej paid. Howes v. Marl In., 1 Esp. 162; anon/. Qarrard v. (',,/?,-f men hauls does not make an acceptor liable for the costs of actions against subsequent holders. Dawson v. Morgan, 9 B. & C. 618. Bail may recover, as i iey paid, the expenses incurred by them in taking their principal; but not the costs ol an action against them to recover these expenses unadvisedly defended. Fisher v. Fallows, 5 Esp. 171. If one of two parlic; to an award take it Up and pays the whole expense of it, tbe award directing each party to pay only one half, he cannot, unless the amount due has been ascertained by the award or by taxation, recover half from the oilier as money paid. Bates \. Townley, 2 Exch. 152. Secus when it has been so ascertained. 8\ mble, B. 0. Even though the submission is silent as to costs. 'J t'hitty, loT, n. ; 2 Tidd, 9th ed. 831; O rove v. Cox, 1 Taunt. 165. Money paid lies against a shipowner for money supplied to the captain, either in a foreign or English port, for the ueo pairs or use of the ship. Bobinson v. Lyull, 7 Price, 592. But only where the necessity is ho 598 Action for Money Levi. pressing that tlio owner himself cannot be -consulted without prejudice and delay. Johns v. Simons, 2 Q. B. 425. See further, ante, p. 586. Where a carrier, by mistake, delivered to B. goods consigned to C, and B. appropriated them, and the carrier on demand without action, paid C. the value, it was held that the carrier might recover from B. the sum so paid, as money paid to his use. Brown v. Hodgson, 4 Taunt. 189. See Sills v. Laing, 4 Camp. 81 ; Spencer v. Parry, 3 Ad. & E. 331, 338 ; and Coles v. Bulman, 6 C. B. 184. Generally, if a party be compelled to pay money in consequence of his own neglect ; Capp v. Topham, 6 East, 392 ; or breach of duty ; Pitcher v. Bailey, 8 East, 171 ; though for the benefit of another, the law implies no promise on the part of the other to repay him. ACTION FOR MONEY LENT. Evidence of loan.'] In an action for money lent, the plaintiff will have to prove the loan of his money. Of this a promissory note given by the defendant to the plaintiff is not alone evidence. Gary v. Oerrish, infra. It is not sufficient merely to prove the payment of money to the defendant, for in such case the presumption is that the money is paid in liquidation of an antecedent debt. Welch v. Seaborn, 1 Stark. 474. But if the plaintiff can show any money transactions between the defendant and himself from which a loan may be inferred, or any application by the defendant to borrow money at the time, this, coupled with the payment, will be evidence of a loan. Gary v. Gerrish, 4 Esp. 9. When a parent advances money to a child, it is presumed to be by way of gift. Per Bailey, J., Hick v. Keats, 4 B. & C. 71. Where money is advanced by A. to B. as a gift, B.'s assent will be assumed, but if B. decline to accept the money except as a loan, the advance becomes one of loan. Hill v. Wilson, L. R., 8 Ch. 888. A transfer of stock may be evidence of a loan of money. Howard v. Banbury, 2 C. B. 803. Where the defendant was heard to ask for a loan, and the plaintiff then handed him a banknote, of which the amount was not shown, the plaintiff cannot recover more than 51. as principal, for that is the smallest note in circulation. Lawton v. Sweeney, S Jur. 964, M. T. 1844, Ex. An I U is not evidence of money lent. Semble per Cur. in Fesenmayer v. Adcock, 16 M. & W. 449. Contra, Douglas v. Holme, 12 Ad. & E. 641, but qucvre, see 10 L. J., Q. B. 43. If A. lend money to B., who contracts "to repay on demand or to execute a mortgage," A. may recover for money lent on B.'s refusal to execute. Bristowe v. Needham, 9 M. & W. 729. Where the plaintiff advances money to the defendant, for which the defendant deposits a security which is to be returned "upon repayment," a return, or offer to return, is not a condition precedent to the right of recovery for money lent. Scott v. Parker, 1 Q. B. 809 ; Lawton v. Newland, 2 Stark. 73. Where A., at the request of B., agreed to lend C. money on D.'s guarantee, and did so, receiving the following memorandum signed by C. and D. : "We jointly and severally owe you 60/.;" it was held that there was evidence of a loan to C. and D. jointly, or of an account stated with them. Buck v. Hurst, L. R., 1 C. P. 297. On a declaration containing special counts on debentures, and counts for money lent, and interest, the deben- tures were rejected as evidence on the special counts for want of proper stamps, but were held admissible to show that they were void as debentures; and the plaintiff was therefore entitled to recover, on the common counts, the loan with interest, for which the debentures had been given as collateral securities. Enthoven v. Boyle, 13 C. B. 373 ; 21 L. J., C. P. 100. A Action fen- Money Lent. 599 promissory note, stamped as a receipt only, is inadmissible to prove the loan of money. Ashling v. Boon, (1891) 1 Oh. 568. See as to interest, Action for interest, post, p. 622. Where a married woman is entitled to pledge her husband's credit for necessaries, money advanced her to procure such necessaries may, on equitable principles, be recovered from her husband by the person who advanced it. Jenner v. Morris, 3 D. P. & J. 45; 30 L. J., Ch. 361- Davidson v. Wood, 1 D. J. & S. 465; 32 L. J., Ch. 400. So, money lent to an infant to buy necessaries, or to pay a debt incurred for them, and so applied by him, is recoverable. Ellis v. Ellis, 12 Mod. 197; 3 Salk. 197. Marlowv. Bitfield, 1 P. Wms. 558, cited in Ex pte. Williamson, L. B. 5, Ch. 313 ; see further, post, p. 674. So where H. was carrying on M.'s busi- ness as his agent, and borrowed money of B. for the business, B. erroneouslv believing that H. had M.'s authority to borrow, M. was held liable for so much of the loan as had been applied in payment of M.'s debts. Bannatyne v. Maclver, (1906) I K. B. 103, C. A. In these cases, the person lending the money is entitled in equity to stand in the same position as if the defendants had originally borrowed the money from them. S. ( '., see further In re Wrexham, &c. By. Co., and other cases cited, post, p. 1127. In ordinary trading partnerships, one partner is presumed to have authority to bind the rest, by borrowing money for partnership purposes, and the other partners will be liable to pay. Fisher v. Tayler, 2 Hare, 218; Bothivell v. Humphreys, 1 Esp. 406; Story on Partnership, p. 102. But, if one partner open a banking account on behalf of the firm in his own name, this presumption will not extend so as to bind the other partners. Alliance Bank v. Kearsley, L. R., 6 C. P. 433. In the case of a mining concern, carried on by a company, no such authority to borrow is to be presumed; the power must be given by the original settlement, or by the consent of every shareholder. Bicketts v. Bennett, 4 C. B. fitti; ; Urmnn \. Byers, 16 M. & W. 252; Burmester v. Norris, 6 Exch. 796; 21 L. .1., Ex. 43. If, however, mining be carried on as a trade by an ordinary private partnership under a deed of partnership, the ordinary authority to bind each other exists. Brown v. Kidger, 3 H. & N. 853; 28 L. J., Ex. 66. As to authority of agent to borrow, see Montaignac v. shift, i, L5 Ap. Ca. 357, J. C. A loan of money secured by a mortgage is recoverable as money lent, if there be no covenant to pay the amount. Yates v. Aston, I Q. B. 182. But where a simple loan of money is secured by a covenant t<> repay the money, the creditor's only remedy is on the covenant. Edwards v. Bates, 7 M. & Gr. 590; Baler v. Harris, 9 Ad. & E. 532; Mathew v. Blaekmore, 1 H. & N. 762; 26 L. J., Ex. 150. And a mere acknowledgment, in a deed, of a debt being due will amount to a covenant to pay it, if such an intention to enter into a covenant appear on the d I ; Sounder v. Milsome, L. R., 2 Eq. 573; Courtney v. Taylor, 6 M. & dr. 851 ; but this is not the case where the acknowledgment is made for a collateral purpose. B. 0.; Marryat v. Marryat, 28 Beav. 221; 29 I/. J., Oh. 665. Holland v. Holland, and Jackson v. N. A'. By. Co., cited post, p. 71 !' it, bills were given discounted and renewed, see Litchfield v. Dreyfus, (190fj) 1 K. B. 584. ACTION FOR MONEY HAD AND RECEIVED. In an action for money had and received, the plaintiff may he compelled by a proper defence to prove the receipt of the money by the defendant, and his own title to recover it as received fur him. This action has always been regarded as an equitable action, and was formerly held to lie whenever the defendant was "obliged bj the ties of natural justice and equity to refund the money." 1/ v. \facferlan, 2 Burr. 1012, per Ld. Mansfield ; see Rogers v. Ingham, '■'■ « !h. 1>. 351. This definition was, however, found too vague, and the following cases will show the conditions necessary to sustain a claim for money had and received. Receipt of money. ,] The plaintiil must prove thai money has been received; and therefore an action for money had and received will not lie to recover stock. NighUngal v. Denisme, 5 Burr. 2589. See onto, p. 590. And it b i been held that it will not lie against a finder of bank note, t,, recover theii value; Noyes v. Price, MS. Select Ca.242; Ohitty on Bills, Nth ed. 368, 369; unless it can be shown that they have been cashed, or circumstance justify the presumption. Chilly, ubi sup., citing Longchamp v. Kenny, 1 Dou<». 138. Ami the value even of provincial notes, if received "^ money, may"l>e recovered in this action. Picbard v. Bankes, 13 Bast, 90; Foa v. Cutworth, cited 4 Bing. L79. The principle ol the cases is, thai if a thing be received as money it may be treated ami recovered as such. /'. 339, C. A. ; and P. may recover, although he was not entitled to recover the bonuses from the person who paid A. S. C. See also Whaley Bridge Calico Printing Co. v. Green, ante, p. 588 ; and Salford, Mayor, . 871, C. A.; Emma Silver Mining Co. v. (Irani, 11 Ch. D. '.'IS; /,/. v. Lewis, I C. P. D. 396 ; Lydney, &c, Iron Ore Co. v. Bird, 33 Ch. D. 85, < !. A Oluckstein v. Barnes, (1900) A. C. 210, I ». 1*. See also In re Leeds .1 Eanley Theatres, &c, cited post, p. 850. And a director is liable t>> the company for any consideration he received from the promoter to induce him to become a director; Nant-y-glo, &c, Ironworks Co. \. Grave, 12 Ch, D, 738; or received subsequently, if any question be then open between the promoter and the company. Eden v. Ridsdale's By. Lamp, . v. Forwood, (1901) 1 Ch. 746. As to damages recovcrahle by the com] my from i 604 Action for Money Had and Received. director who has improperly received or obtained its shares, see Eden v. RidsdaWs By. Lamp, &c, Co., ante, p. G03, and Shaw v. Holland, (1900) 2 Ch. 305. By the Partnership Act, 1890, 53 & 54 V. c. 39, s. 29— (1). " Every partner must account to the firm for any benefit derived by him without the consent of the other partners from any transaction concerning the partner- ship, or from any use by him of the partnership property name or business connexion. (2). This section applies to transactions undertaken after a partnership has been dissolved by the death of a partner, and before the affairs thereof have been completely wound up, either by any surviving partner or by the representatives of the deceased partner." An agent is in general estopped from denying the accuracy of accounts rendered by him to his principal, except in the case of an error arising by mistake. Skyring v. Greenwood, 4 B. & C. 281 ; Shore v. Picton, Id. 715; Cave v. Mills, 7 H. & N. 913 ; 31 L. J., Ex. 2G5. Where an agent receives money to pay over to a third person, although he assent to hold it for that purpose, he continues to be accountable to his principal alone, until he has entered into some binding engagement with that third person to hold the money to his use ; and not until then will he be liable to the third person in an action for money had and received. Baron v. Husband, 4 B. & Ad. 611 ; Williams v. Everett, 14 East, 582 ; Wedlake v. Hurley, 1 C. & J. 83 ; Scott v. Porcher, 3 Mer. 652 ; Brind v. Hampshire, 1 M. & W. 365. Where money is bonafi.de received from an agent under a binding contract, it cannot in general be recovered by the principal. Foster v. Green, 7 H. & N. 881 ; 31 L. J., Ex. 158. But if A., the clerk of B., without B.'s authority, pay money into the bank of C, having previously made an arrangement with D., the clerk of C, for some application of that money which neither A. nor D. had authority from their masters to make, 0. must refund to B. British and American Telegraph Co. v. Albion Bank, L. B., 7 Ex. 119, 122. Where money, paid by A. to an agent B., to be remitted to C, is by mistake remitted to D., it may, if D. have not in the meantime, changed his position, be recovered by B. from D. Colonial Bank v. Exchange Bank of Yarmouth, Nova Scotia, 11 Ap. Ca. 84, J. 0. The holder of a lull cannot sue the acceptor's bank for money had and received, though the acceptor has put funds into his hands for payment on the bill. Moore v. Bnshell, 27 L. J., Ex. 3 ; Bill v. Royds, L. B., 8 Eq. 290. But if A. send money to B. to discharge a debt owing from A. to C, and B. assent to hold the money for that purpose, and allows C. to be told this, C. can maintain an action against B. for money had and received. Lilly v. Hays, 5 Ad. & E. 548. See Noble v. National Discount Co., 5 H. & N. 225 ; 29 L. J., Ex. 210. A receipt signed by an agent for his principal is not per se evidence to support an action for money had and received against the agent. Edden v. Bead, 3 Camp. 339. So, where an attorney's clerk, B., in the absence of his master, J., received money due to the plaintiff, one of his master's clients, and gave a receipt, " B. for J.," and his master never returning, the clerk refused to pay over the money to the plaintiff, it was held that no action lay against the clerk, there being no privity between him and the plaintiff, and the money being rightfully received on behalf of J., who was accountable to the plaintiff for it. Stephens v. Badcock, 3 B. & Ad. 354. But where the defendant is a wrongdoer, as where he took money of the plaintiff found in the house of a deceased person, by direction of the executor, to whom he paid it over, he is liable, and such payment is no defence. Tugman v. Hopkins, 4 M. & Gr. 389. So, where the defendants bond fide received money from the plaintiff's wife, but without his assent, to keep for her infant child, the plaintiff can recover it. Calland v. Loyd, 6 M. & W. 96. In Stead v. Thornton, 3 B. 8c Ad. 357, n., the defendant received money on Receipt by Defendant for Plaintiff.— Agents, Sub- Agents, &c 605 behali of the assignee of a bankrupt, wlio was, however, insane at the time, and on his being afterwards removed, and the plaintiff appointed assignee in his stead, it was held that the plaintiff could maintain money had and received against the defendant, for he was a mere stranger, as he could not be the agent of an insane person. See further, Ex parte Edwards, 13 Q. B. D. 747, C. A.; and Sharland v. Mildon, 5 Hare, 469, cited post, p. 1158. The directors of a company stand in the relation of agents to the company, but there is no such relation between them and persons contracting with the company. Wilson v. Ld. Bury, 5 Q. B. D. 518, ('. A. As to the liability of a firm for money received by a partuer and mis- applied, see the Partnership Act, 1890, ss. 11 and 13, cited ante, p. 511. As to the particular case of a firm of solicitors, vide ante, p. 511. Money received by a sub-agent for an agent is not in general received for the use of the principal. See Prince v. Oriental Bank Cor., 3 Ap. Ca. 325, 334, following Mackersy v. Ramsays, 9 CI. & F. 818, cited ante, p. 600. Thus, there is no such privity between the client of a country solicitor and his London agent, as will support an action by the client for money had and received against the agent, for the proceeds <>f a judgment recovered in the ordinary course of business. Robbins v. Fennel!, 11 Q. B. 248 ; Robbins V. Heath, Id. 257, n. ; Cobbe v. Becke, 6 Q. B. 930. See also I'wfju-ld v. Barlow, L. R., 8 Eq. 61. But the circumstances of the agency may be such, that it involves an authority to the agent to appoint a sub-agent or substitute, who shall be in direct privity with the principal. De Bussche v. Alt, 8 Ch. 1). 286, C. A. Thus, where B. the agent for sale of A. lias employed, in his own name, a broker, C, to sell A.'s goods, and alter < '. had sold the goods for B. and before delivery or payment B. died, and after the sale, but before receiving the proceeds, C. had notice that A. claimed the proceeds, it was held that A. might recover them from 0., either on the ground of privity of contract, or of property. Kaltenbu< h v. L< "7, S) 1<> A p. Ca. '117, l>. P., explaining New Zealand Land Co. v. Watson, 7 Q. I'.. D. 374, C. A., cited post, p. 7u8. So where B. as agent for A. consigned goods to C, and by B.'s direction, C. insured them, after notice that B. had an undisclosed principal, and received the policy moneys after a claim therefor by A.; A. was held entitled to recover the moneys from B. by reason of his property in the goods, less the cost of insurance only. Mildred v. Maspons, 8 A p. Ca. 874, D. P. With regard to the right to follow moneys received by an agent, it has been held that where A. intrusts a specific chattel to B. for Bafe custody or sale for A.'s benefit, then the chattel or its proceeds, whether rightfully or wrongfully disposed of, may be followed at any time, though the chattel or the money representing its proceeds may have been mixed and confounded with the mass of like material. In re HaMett's Estate, 13 Ch. I >. 697, 723, C. A. But it is otherwise where although there may have been a trust with reference to the disposition of the chattel, there is none with respect to the money itself, beyond the ordinary duty of a man to pay his debts; S. ('., Id. 723, 724; as in the ease oJ a commission agenl who was in the habit of receiving goods generally for sale, and of trading on hia own account, to whom the owner has consigned goods for sale. Kirkhant v. Peel, 13 L T. 171, T. S. 1880, M. R.; affirm, in C. A., (1880) W. N. L68, M. Sit. Bo where a broker B. Bold securities for T. by T.'a order, and in the ordinary course of business paid the cheque be received for the price tohlsacoount with his banker C, which account was then overdrawn beyond the amount of the cheijue; C. knew that B. was a broker, and thai the cheque was the proceeds of the sale of securities, but did not enquire whether the money it represented was in D.'s hand as agent or otherwise : it was held thai C. entitled to retain the money; Thomson v. Clydesdah Bank, (1893) A.c. 282, D. P.; and that T. could not recovei it from 0., unh - I '. knew that B. til m; Action for Money Had and h'eceived. was misapplying the fund in violation of his duty. Id. 289, 293. In order to follow money which an agent has been entrusted to receive for the plaintiff, the money must be capable of identification. Ax parte Blane, (1894) 2 I}. B. 237, C. A. See further, Persian Investment Cor. v. Malcolm Khan (Prince), (1893) W. N. 49, H. S. Chitty, J. Where oDe of two tenants in common receives the whole rents of the property, the co-tenant must sue for his moiety in account, and cannot maintain money had and received. Thomas v. Thomas, 5 Exch. 28. A strict trustee, who receives rents, &c, which he is bound by the trust deed to' pay over to his cestui que trust, could not formerly be sued in this form of action by the latter for non-payment over, the plaintiff's remedy being by bill in equity ; but this objection will no longer prevail. See J. Act, 1873, s. 24 (1), cited ante, p. 306. Failure, or want of consideration.] Where money has been paid on a consideration which has wholly failed, it may be recovered in this action by the party who has paid it. Thus, if an annuity be defective, and the deeds are set aside, the consideration money may be thus recovered. Shove v. Webb, 1 T. E. 732. So if one of several securities for the annuity fails. Scurfield v. Gowland, 6 East, 241. So if an annuity be purchased at a time when the annuitant is in fact dead, but neither buyer nor seller knows of this at the time, the buyer may recover back his money. Strickland v. Turner, 7 Exch. 208 ; 22 L. J., Ex. 115. But where an annuity for A.'s life was regularly paid up to the time of A.'s death, but no memorial of the grant of the annuity was enrolled, it was held that although the contract was void, A.'s executor could not, on that ground, recover back the consideration money as money had and received. Davis v. Bryan, 6 B. & C. 651. Where the annuity is set aside, and the grantee brings an action to recover the consideration money, the defendant may, on a plea of set-off, deduct the payments made by him within six years in respect of the annuity. Hicks v. Hicks, 3 East, 12. So there may be a total failure of part only of the consideration, as where the plaintiff has paid for a parcel of goods of 150 tons at 18s. per cwt., and on delivery, it is found to be of 133 tous only, in .such case the plaintiff may recover the difference of value. Devaux v. Conolly, 8 C. B. 640. But where the contract is entire and the consideration has only partially failed, the action is not maintainable. As where the plaintiff bought 25 sacks of flour, and used 24 sacks of it, although he had objected that it was not equal to sample, it was held he could not rescind the contract and recover the price paid. Haruor v. Groves, 15 C. B. 667 ; 24 L. J., C. P. 53. So where the thing sold is not severable, and the buyer has enjoyed any part of the consideration for which he paid, he cannot rescind and recover the price. Thus where B. paid A. an annuity for licence to use a patent, which after some years was found to be bad, it was held B. could not recover what he had paid. Taylor v. Hare, 1 N. R. 260, followed in Lawes v. Purser, ante, p. 570. So where a premium was paid to the defen- dant's testator to instruct an apprentice for six years, and the testator died at the end of one year, it was held that no part of the premium was recover- able from the executor. Whincup v. Hughes, L. R., 6 C. P. 78 ; vide ante, p. 51 ( J. Where money had been paid as tlie consideration under a contract, the completion of which afterwards became impossible by reason of an event not within the contemplation of the parties, they are both discharged from further performance of the contract, but it is not rescinded ab initio, and therefore the money paid is not recoverable back. Civil Service Co-operative Socy. v. General S. Nav. Co., (1903) 2 K. B. 756, C. A. A broker at A.'s request bought railway scrip for him ; before the day of account the company converted the scrip into shares, and made a call ; held, that A. was bound to Failure or Want of Consideration. 607 accept the shares and pay the call, and could not repudiate the contract and recover back the price. M'Eiven v. Woods, 17 Q. B. 13. As to the recovery of freight, paid under a divisible contract for carriage, the goods having been lost, see Greeves W. India, &c, S. Ship Co., cited post, p. 035. If A. sell to B. a bill as a foreign bill of exchange, which turns out to be an English bill and unavailable for want of a stamp, B. may recover the price in this action, both being ignorant of the defect ; but if it liad really been a foreign bill, with some latent delect which made it worthless, B. could not have recovered, unless there was a warranty or fraud. Gomptrtz v. Barlldt, 2 E. & B. 849 ; 23 L. J., Q. B. 05. So if A. sell to B. a bar of brass as gold, B. may recover the price, though A. was ignorant of tbe fact. Per Ld. Campbell, C.J., Id. 854. So where the plaintiff bought of defendant a bill, purporting to be an acceptance of A., but which wa,s in fact forged, he was held entitled to recover back the money paid, although there was one geuuine though worthless indorsement. Gurnet/ v. Womerslcij, 4 E. & B. 133 ; 24 L. J., Q. B. 40. Where plaintiff, a stockbroker, sold lor defendant foreign bonds, which proved to be defective for want of a foreign stamp, and the bonds were afterwards returned on that account by the purchaser, where- upon plaintiff took them back and reimbursed the purchaser, it was held that money had and received was maintainable against the defendant for the amount of purchase-money paid over to him by the plaintiff. Young v. Cole, 3 N. 0. 724. The defendant, a broker, received S00/. from the plaintiffs to purchase a certain number of bales of cotton, and he made a contract in his own name for a larger number, it was held that as the defendant had not made a contract upon which the plaintiffs could sue, they could recover the money back. Bostock v. Jardine, 34 L. J., Ex. 112, misreported in '•'> H. & C. 700 ; see L. R., 7 0. V, 101, per Mellor, J. Where A. has conveyed laud on sale to B., and B. is evicted by (J. owing to a defect in A.'s tide, B.'a only remedy against A. is on A.'s covenants. Clare v. Lamb, L. K., 10 0. 1*. '■'>',', 1. As to action after conveyance, for damages on the original contract of sale, vide ante, p. 330. Where shares in a compauy have been applied for ami allotted, but the allottee has subsequently repudiated the shares, and his name has been removed from the register, it seems that the action, lies lor the deposit paid. Stewart v. Austin, L. R., 3 Eq. 299. See also Ship v. Crosskill, L. R., 10 Eq. 73; Alison's case, L. R., 'J Ch. 1, 20. So where an infant on attaining majority repudiates shares previously allotted him, from which he has derived no benefit. Hamilton v. Vaughan-Sherrin, tfec, Co., (1894) ■'! Ch, 589. Where a scheme for establishing a tontine was put forth, Btating that the money subscribed was to be laid out at interest; and after Borne subscriptions had been paid to the directors in whom the management ol the concern was vested, but before any part of the money was laid out at interest, the directors resolved to abandon the project, it was held thai each subscriber might, in this action, recover the whole of the money advanced hy him without any deduction for expenses. Nochels v. Crosby, 3 B. M. & W. 501. But the action must be against a party, or one of tie panes, who received the money or sanctioned the application of it. Payment t" the bankers named in a letter of allotment "to the credit of the company," of which the defendant, is an active managing director, is a payment to him. Moore v. Garwood, 4 Exch. 681. It is not enough to show that 'lie defen- dant was a provisional committee-man and chairman of the managing tiOS Action for Money Had and Received. committee, if he never in fact concurred in their acts, though he may have been present at a meeting of them, from whose proceedings, however, he dissented. Burnside v. Dayrell, 3 Exch. 224. But on a failure of the project, a deposit applied to expenses actually incurred, with the plaintiff's authority, cannot be recovered. WiUey v. Parratt, Id. 211. It is otherwise if paid without his authority. Moore v. Garwood, 4 Exch. 681, 690. Where payment of the deposit by the plaintiff was made " subject to the provisions of the subscriber's agreement," and no such agreement was then in existence^ but one was subsequently made, which improperly authorized payment of expenses out of the deposits, and which was not signed by the plaintiff, the plaintiff may recover back the deposit in full, on proof of failure of the projected company; for he neither assented, nor could be required to assent, to such an agreement. Ashpitel v. Sercombe, 5 Exch. 147. Inability to establish the company after a reasonable lapse of time, is evidence of an abandonment of the scheme. Chaplin v. Clarke, 4 Exch. 404. It is no answer to the action that the plaintiff signed the parliamentary and subscrip- tion contracts, if his signature were obtained by suppressing the fact that the scheme had been abandoned. Jarrett v. Kennedy, 6 C. B. 319 ; vide post, p. 613. Where the deposit was paid to the credit of certain persons in trust for the company, it cannot be recovered from other, though active, members of the company. Watson v. Charlemont, El. of, 12 Q. B. 856. Where all, or substantially all, of the shares in a cost-book mine are not subscribed for, and the directors are obliged to relinquish the mine for want of funds, they are liable to refund to allottees who have not authorized the working or other expenditure ; and the deposits are recoverable from the directors, though they were, in fact, paid to their bankers, who were authorized to receive them, and though entered to the credit of some of the directors only. Johnson v. Goslett, 3 C. B., N. S. 569 ; 27 L. J., C. P. 122, Ex. Ch. See Blackmore v. N. Australasian Co., L. R., 5 P. C. 24. The defendant sold, and the plaintiff bought, shares in a banking company through brokers on the Slock Exchange in the usual way (vide ante, pp. 572 et seq.) ; the defendant executed a transfer, but the requisite consent by the company to the transfer not having been given, and the company having stopped payment, and ultimately become bankrupt, the plaintiff directed his broker not to pay for the shares or accept the transfer ; in obedience, how- ever, to the decision of the Stock Exchange, the broker paid the money to the defendant's broker, who handed it over to the defendant. The plaintiff afterwards paid the money to his broker, under a threat of legal proceedings, and then sued the defendant for money had and received; it was held that the action did not lie, as there was no proof of a total failure of consideration. Remfry v. Butler, E. B. & E. 887, Ex. Ch.; Stray v. Russell, 1 E. & E. 888; 29 L. J., Q. B. 115, Ex. Ch. Money paid by the plaintiff, as the price of a grant of a patent right which he knew did not exist, cannot be recovered back, as the plaintiff obtained that for which he paid the price. Begbie v. Phosphate Sewage Co., L. R., 10 Q. B. 491 ; 1 Q. B. D. 679, C A. Where a fixed sum has been paid to the parish by the putative father of a bastard in discharge of further liability, and the child dies, the unexpended residue may be recovered in this action. Watkins v. Hewlett, 1 B. & B. 1. And in Chappell v. Poles, 2 M. & W. 867, the balance was held recoverable, though the defendants (the overseers who had received the money) had handed over the money to their successors, the child having died during the defendants' year of office ; and semble, the whole sum paid was money had and received to the plaintiff's use from the time it was so paid ; such contract being illegal and void. S. C. If A. pay B., a gratuitous bailee, money to be employed to a particular Failitre or Want of Consideration.— Forgery. 609 purpose, which B. neglects to do, A. may recover it hack in this form of action ; hut semble, it will be otherwise, if B. have lost it by gross negligence ; for this is the subject of a special action for such negligence, Barry v Roberts, 3 Ad. & E. 118. Where the plaintiff abandons the purpose for which money was deposited with the defendant: Baird v. Robertson, 1 M. & Gr. 981; or countermands a direction to the defendant to pay over the money, before the defendant lias paid it over ur entered into a binding contract to do so; Taylor v. Lendey,Q East, 49; Fletcher v. Marshall, 15 M. & W. 755; he may sue for money had and received. But where money has been paid to an agent to apply in a particular manner, the principal cannot sue the agent in this form of action, for neglecting his instructions, before he has countermanded the agent's authority ; Ehrensperyer v. Ander- son, 3 Exch. 148 ; unless there has been a total refusal on the part of the agent to perform his part of the contract. Id. 158. If A. give a letter of credit to B. to apply the proceeds to a specific purpose, and B. is persuaded bj C, who is cognizant of the facts, to lend the money to him, and lie fails to repay it, A. mav sue C. in this form of action. Lilt v. Martindale, 1- C. B. 314. Conduct money received witli a subpoena maybe recovered back by the party who paid it, where the attendance of the witness has been counter- manded, and he has incurred no expense. Martin v. Andrews. 7 B. & 15. 1 ; 26 L. J., Q. B. 39. In cases of forgeiy.'] Where a party paying money upon a forced instrument, has not been guilty of any want of thai caution which, in consequence of the character which lie fills, he is bound to exercise, and has not by his conduct affected the rights of any other parties to the instrument, he may in general recover back the money as money paid under a mistake. Thus a person who discounts a forged navy bill, may recover back the money as money had and received to his use. Jones v. Ryde, 5 Taunt. 188; 1 Marsh. 157. So in the case of forged bank-notes; /» /■ Gribbs, ('..J.. S. ('. ; and of Bank of England notes, the numbers of which had been altered, and payment was in consequence refused. Leeds Haul; v. Wafker, 1 I ','. B. D. 84; vide ante, p. 395. So where a banker by mistake paid a bill for the honour of a customer whose name was forged, but, discovering (he mistake, gave notice thereof the same morning to the holder in time to enable him t" give notice of non-payment to the indorsers, it wis held thai the money was recoverable from the holder. Wilkinson v. Johnson, '■'< B. -V < '. 128 ; and Qompertz v. Bartlett, and cases cited ante, p. (JOT. So where the plaintiffs discounted for the defendants a bill of exchange, which the latter did not indorse, and the signatures of the drawer and acceptoi (the latter of whom kept an account with the plaintiffs) were forged, it was ruled that the defendants were liable to refund the money. Fuller 7. Smith, Ry. & M. 49. But where the party paying the money so conducted himself a to le id the holder of the bill to believe that he considered the signature genuine he cannot afterwards withdraw from thai DOBltiorj and he allowed ty L. & River Plate Bank v. Bank of Liverpool, ( I -'•";) I ",». B. 7, 10, per Mathew, J. Thus, where two bills were drawn upon the plaintiff, one of which he accepted, and both ol which he paid, and il appeared thai the handwriting of the drawer was forged, hut the plaintin gave no noti thereof for a long time to the payee.il wa held thai he could nol recover the amount from the paj Price v. Neale, 8 Burr. 1854; I W. Bl. 890. So where a banker paid a hill to a bond fide holder, which purported to he accepted payable at his house by one of his customer . and the I f ol the acceptor's name was not discovered until the end ol a week, it was held thai B, — VOL. I. " " 610 Action for Money Had and Received. the money could not be recovered from the holder; Smith v. Mercer, 6 Taunt. 76 ; and the banker in such a case cannot recover, though he give notice of the forgery on the day after he has paid it ,• for the holder is entitled to know whether it is to be dishonoured on the very day it becomes due. Cocks v. Masterman, 9 B. & C. 902; Accord. L. & River Plate Bank y. Bank of Liverpool, ante, p. 609. Where a cheque, drawn by a customer upon his banker, for a sum of money, described in the body of the cheque in words and figures, was afterwards altered by the holder, who substituted a large sum for that mentioned in the cheque, in such a manner that no person in the ordinary course of business could observe it, and the banker paid to the holder this larger sum, it was held that the banker could not charge his customer for anything beyond the original sum. Hall v. Fuller, 5 B. & C. 750. But where the customer drew a number of cheques in blank and delivered them to his wife to be filled up with such sums as might from time to time be required, and his wife filled up one for 50Z., and left a space on the line before the fifty and also a space between the £ and the 50, so that the person to whom it was delivered was enabled to insert three hundred and before the fifty, and the figure 3 between the £ and the 50, it was held that the forgery and payment were from the customer's negligence, and he must bear the loss. Young v. Orote, 4 Bing. 253. This case has been supported on the ground either that, 1st, the customer by drawing a blank cheque impliedly authorizes any person in whose hands it may come to fill it up as his agent, or 2ndly, the customer in filling up the cheque through his wife as his agent, failed in the duty he owed his banker by giving facilities for the subsequent alteration. Scholfield v. Earl of Londesborough, (1896) A. C. 514, cited ante, p. 395. See also Union Credit Bank v. Mersey Docks, &c, Board, (1899) 2 Q. B. 205, 210, 211, and Imperial Bank of Canada v. Bank of Hamilton, (1903) A. C. 49, 54, J. C. Where a cheque for $5 certified by the H. bank stamp was fraudulently altered by B. the drawer, to $500, and paid by H. to the bank C, a holder for value, under a mistake of fact not discovered till the next day, it was held that H. could recover back the $495 from C, for the cheque for $5 was not dishonoured, and no notice of dishonour of the cheque for $500 to B. the forger, was necessary, hence the rule in Cocks v. Easterman, supra, did not apply, notice of the mistake having been given within a reasonable time, and no loss having been occasioned by delay. S. C. The documents described in Bank of England v. Vagliano, (1891) A. C. 170, D. P., cited ante, p. 361, having been accepted by V., payable at the banking house of his bankers, were paid over their counter to G. bond fide, and in pursuance of letters of advice signed by V., his signature thereto having been fraudulently obtained by G., it was held that the bankers were entitled to charge V. with the amount of the bills. See further, ante, ]>. 76. The executor of A. recovered from the maker of a note, purporting to be payable to A. and B., of whom A. survived B. It afterwards appeared that A.'s name had been added by forgery, and B.'s executor thereupon sued A.'s executor for money received to plaintiff's use ; held, that he could not recover, for it was not money paid on a note to which, if genuine, the plaintiff would have been entitled. Vaughan v. Matthews, 13 Q. B. 187. As to the liability of a banker for the amount paid or received in respect of a cheque payable to order, the indorsement of which has been forged, vide ante, pp. 406, 407. As to the recovery of money obtained under a forged power of attorney, see Stone v. Marsh, 6 B. & C. 551 ; and Marsh v. Keating, 1 N. C. 198, cited post, pp. 616, 617. Money paid under ignorance or mistake of facts or of law.'] Money paid with a knowledge of all the facts, but under a mistake of the law, cannot in Forgery.— Money paid under Ignorance or Mistake. (',11 general be recovered back, there being nothing against conscience in the other retaining it. Bilbie v. Lumley, 2 East, 469 ; Brisbane v. Dacres 5 Taunt. 143 ; Barber v. Pott, 4 H. & N. 759 ; 28 L. J., Ex. 381 ; Sogers w. Ingham, 3 Ch. D. 351. Thus, where the plaintiff has suffered the defendant to sell some of his property under an impression that it had passed t«» the defendant by deed of assignment, which was, in fact, inoperative, he cannot recover the price as money received to his use. Piatt v. Bromage, 24 L. J., Ex. 63. But money paid under a mistake of facts, and which the party receiving it has no claim in conscience to retain, is recoverable as money paid without consideration. Bize v. Dickason, IT. R. 285; Milnes v. Duncan, 6 B. & C. 671. And money so paid iu ignorance may be recovered hack, although the defendant cannot be put in statu quo. Stand ish v. Jtoss, 3 Excb. 537. Where money was paid on account, and a dispute afterwards occurred between the parties, and a balance was struck omitting to notice the sums paid, and the plaintiff paid the whole balance, he was permitted to recover the sum paid on account, as money paid under a mistake in the hurry of business. Lucas v. Worsvoich, 1 M. & Rob. 293. And a payment, made in bond fide forgetfulness of a fact formerly known to the plaintiff, may be recovered back. Kelly v. Solari, 9 M. & W. 54. And it is not enough to disentitle the plaintiff that he might have learnt the real fact upon inquiry, unless he has voluntarily waived all inquiry into the truth. S. ( '. ; Imperial Bank of Canada v. Bank of Hamilton, ante, p. ml v. Crowdg, 8 C. B., N. S. 477; 29 L. J., C. P. 300. The action will lie, although the position of the defendant has been altered since the payment was made, unless there is some mutual relation between the parties creating a duty on the plaintiff, breach of which disentitles him to recover. Durrani v. Eccl. Comrs., 5 Q. B. D. 234. It has been said that, before commencing the action on the -round of mistake, it is necessary to give the defendant notice of the mistake, ami to demand the money. Freeman v. Jeffries, L. It., I Ex. L89, pel Mai tin and Bramwell, BB. Where a bill was given by one partner for the balance of an account, alleged to be due from the partnership to the defendant, and he afterwards lound that this account included a separate debl due from his co-partner, and then paid the amount of the hill to the holder, under prote t, to save the drawer's credit; it was held this was not a voluntary payment, and that the plaintiff might recover from the defendant the amount of the private debt. Kendal v. Wood, L. R., 6 Ex. 243, Ex. Ch. Money paid with full knowledge of facts by a person who mighl have resisted payment cannot be ((covered hack. Thus where a discharged insolvent, being lawfully arrested by one of his creditors, pays the debt ; he cannot get it back in this action; m,d semble, if he had given a ecurity tor ii (which would itself have been void as againsl the Btatute), and paid the amount when due, he could not have recovered il had.. Vinery. Han-kin-*, 9 Exch. 266; 23 L. J., Ex., 38. Where B mortgagee pve notice ol the mortgage to a tenant and demanded the rent, ami the tenant chose to pay it to his landlord, the mortgagor, on an indemnity which proved to be bad, it was held that he could not recover the rent hack li-m hi | lefl or aft) I be had been obliged by distress to pay it over cam to the morl Eiggsv. Scott, 7 C. B. 63. The rule in equity is in general the same a, ,i law. Rogers v. Ingham, 3 Ch. I >. 351 ; and Bee /■/. 356, 367. Bui in H R 2 612 Action for Money Had and Received. the case of a common mistake of both the payer and the payee, relief may sometimes be given ; see Daniell v. Sinclair, 6 Ap. Ca. 181, J. C, cited post, p. (125. Not every mistake of fact will enable the party to recover money paid in ignorance. Thus, where A. conveyed to his bankers by way of security all his interest in a supposed devise to him, subject to a charge on it of a debt due from A. to B., and the bankers afterwards voluntarily paid to B. the debt at A.'s request, it was held that they could not recover back the money from B. upon discovering that the will had been revoked and the security was worthless. In this case the debt paid was really due to B., and the only mistake of the bankers was in supposing that they held a good security against A. for the advance. Aiken v. Short, 1 H. & N. 210 ; 25 L. J., Ex. 321. So where bankers cash a customer's cheque and after- wards discover that they have no assets of his, they cannot recover the money back from the person to whom they paid it. Chambers v. Miller, 13 C. B., N. S. 125 ; 32 L. J., C. P. 30 ; see also Pollard v. Bank of England, L. R., 6 Q. B. 623. See further the notes to Marriot v. Hampton, 2 Smith's L. C, 11th ed. 440 et seq. Where money had been paid to the defendant by the plaintiffs on an insurance on a ship effected by the defendant, as the agent of a foreign principal, and the defendant, when effecting the insurance, had suppressed a material fact which if known to the plaintiffs would have enabled them to resist the payment, and on discovering the fact the plaintiffs brought an action against the defendant to recover the money; it was held that the defendant having suppressed the fact with no intention to defraud, and having paid the money over to his principals, or settled it in account with them, before demand by the plaintiffs, was not liable to refund it. Holland v. Russell, 1 B. & S. 424 ; 30 L. J., Q. B. 308 ; 4 B. & S. 14 ; 32 L. J., Q. B. 297, Ex. Ch. ; accord. Shand v. Grant, 15 C. B., N. S. 324. Where, however, the defendant has, as principal, so received the money to which he is not entitled, it is no answer that he has paid it over to another person for whom he was acting. Newall v. Tomlinson, L. R., 6 C. P. 40. Where an article is sold, which turns out to be of less value than the price given for it, the extra price if there be no fraud cannot be recovered back. Per Le Blanc, J., Cox v. Prentice, 3 M. & S. 349. But if parties agree to abide by the weighing of any article at any particular scales, and, in the weighing, an error not perceived at the time takes place from an accidental mis-reckoning of some weight, and the thing is reported of more weight than it really is, and the price is paid thereupon, money had and received is sustainable. Per Le Blanc, J., and Ld. Ellenborougb, C.J., S. C. In that case a bar of silver, having been assayed by a third person, was bought of the defendant by the plaintiff and paid for according to the assay, but it turned out that the assay was wrong, and the bar contained less silver; it was held that the plaintiff could recover what he had over-paid. Though this action will not lie for the purpose of determining a right to an interest in land; Lindon v. Hooper, Cowp. 414; yet where the title is not in issue it will often lie to recover back payments made under misappre- hension of title. Thus, a tenant who paid rent to his landlord and was afterwards ejected by a third person who recovered mesne profits from him for the period during which the tenant has paid his rent, may recover the rent so paid from his landlord in an action for money had and received, the landlord not having set up any title at the trial of the ejectment. Newsome v. Oraham, 10 B. & C. 224 : see Freem., 2nd ed. 479 (d). So where a tenant continues to pay rent to the defendant in ignorance of the failure of a life on which his lease depends, he may recover back the payments, there being no dispute about title. Barber v. Brown, 1 C. B., N. S. 121 ; 26 L. J., C. P. 41. But rent paid by the tenant P. of the equitable mortgagor, to the Money obtained by Fraud, Duress, &c. 613 equitable mortgagee T. on his claim as such, is not recoverable by F from T. Fuick v. Tranter, (1905) 1 K. B. 427. As to money had and received on rescinding a contract or on breach of warranty, see ante, pp. 330, 331, 488. Money obtained by fraud, duress, (fee] Where money has been obtained by traud, this action lies to recover it back ; and money fraudulently obtained may be recovered, although the defendant may be entitled to it as legatee. Crockford v. Winter, 1 Camp. 124. After the deatli of a bankrupt tenant for life his assignees were allowed to recover as money had and received, the bygone reuts from a person who had received them under the colour of a fraudulent assignment. Fearce v. Day, cited 2 Russ. & My I. 1 24. If A. by means of a false pretence or promise, or condition which he does not fulfil, induce B. to give him a cheque, and hand it over to C. in fraud of B., but C. takes it bond fide for value and obtains cash for it at B.'s bankers, B. cannot recover the money from C. Watson v. Russell, 3 B. & S 34; 31 L. J.,Q.B. 304; Ex.Ch.,5 B. & S. 968 ; .J4 L. J.,Q. B. 93. Where the defendant, being secretly married already, married the plaintiff and received the rents of her lands, they were held recoverable in this form of action. Hasser v. Wallis, 1 Salk. 28. Where A. is agent of B. to pay certain acceptances of B., and the defendant obtains payment from A. by falsely representing himself to be the holder of one of the acceptances, the action for money had and received will lie at the suit of A., or semble of B. also. Holt v. Ely, 1 E. & B. 795. In tiovett v. Hopgood, Exeter Sp. Assizes, 1852, cor. Erie, J., the plaintiff, a lady imbecile from age and infirmity, recovered in this form of action a large sum which was alleged to have been a gift by her to the defendant's wife. The plaintiff, being herself called as a witness, showed her incapacity on her examination, and the judge left it to the jury to say whether she knew what she was about when she gave the money. Where the defendant fraudulently colluded with J. S., who was insolvent, to obtain wines from the plaintiff, the proceeds on the re-sale of which eventually came into the defendant's hands in satisfaction of a debt due to him from J. S. ; the plaintiff was held entitled to recover in this action. Abbotts v. Barry, 2 B. & B. 369; 5 B. Moore, 98. The plaintiff can only rescind a contract on the ground of fraud when lie can disaffirm the contract and remit the defendant to his former state. Urguhart v. Macpherson, .". Ap. Ca. 831, J. C, and see also cases cited infra. The promoters of a company advertised a large capital io 1.20,000 Bhare the plaintiff took an allotment of 60 shares ; notice was then published by the promoters that all the shares were allotted; whereupon the plain till paid a deposit on the shares and signed the subscription contract. Be alter- wards discovered that less than half the shares had been in facl allotl and that the company had no funds. Held, that on tins evidence "I fraud he might recover back his deposit from one "I the active promofc Wontner v. Shairp, 4 C. B. 404. See also Jarrett \. Kennedy, 6 C. B. •".!!>, cited ante, p. 608. If a fraudulent statement in a pubile advertise men! can be traced to the secretary of a company, and purport to be by order of iho directors, semb. an express authority to publish it may he presumed. 1 1 r ontm /■ v. Shairp, supra; and , see Watson \. Charlemont, El. of, 12 ',». B, E But a party who seeks to repudiate shares on the ground ol fraud must do so while be is in a condition to put both partie in vtatu quo. Thus be cannot do so after the company hat gone into liquidation ; Stom v. City and County l'.a, ,!,■,:> C. P. D. 282, I . A. ; nor after be ba reo ived dividt nd ind has permitted the companv to become incorporated under in & 20 V. <•. I,. Clarke v. Dickson, E. B. & B. L48; '-'7 L. J., Q. B, 223; CoU v. Bithop, E. B.& E. 150, ii.; Addie v. IV. Bank oj Scotland, L R., I EL L. Be. I 16, i ; I I Action for Money Had and Received. 165. But he may sue for the fraud and so get damages ; S. C. ; Clarke v. Dickson, 6 C. B., N. S. 453 ; 28 L. J., C. P. 225 : see Action for deceit, post, p. 846; be has not, however, this remedy against the compaDy, vide post, p. 1113. Where an allottee of shares has repudiated them on the ground of fraud by the company, and his name has been removed from the register, ii seems that the sum paid on the shares is recoverable iu this form of action. See Ship v. Crosskill, L. R., 10 Eq. 73; Askew's case, L. R., 9 Ch. 664, 666. There is an important difference between cases where a contract may be rescinded on account of fraud and those in which it may be rescinded on the ground that there is a difference in substance between the thing bargained for and that obtained ; for "it is enough to show that there was a fraudulent representation as to any part of that which induced the party to enter into the contract which he seeks to rescind ; but where there has been an innocent misrepresentation or misapprehension, it does not authorize a rescission, unless it is such as to show that there is a complete difference in substance between what was supposed to be and what was taken, so as to constitute a failure of consideration." Kennedy v. Panama, &c, R. Mail Co., L. R., 2 Q. B. 580, 5S7, per Cur. ; accord. Seddon v. N. E. Salt Co., 1905, 1 Ch. 326. See further, cases, cited sub tit. Action for deceit, post, pp. 843 et seq. "Where a man has been obliged involuntarily, and by wrongful duress, to pay money, it may be recovered in this action ; as where he has paid an exorbitant sum to redeem his goods from pawn ; Astley v. Reynolds, 2 Str. 915; or wrongful detention; Ashnole v. Wainwright, 2 Q. B. 837; Green v. Duckctt, 11 Q. B. D. 275. See Kendal v. Wood, L. R., 6 Ex. 243, ante, p. 611. Plaintiff being indebted to the defendant and others, offered a composition of 5s. in the pound, which some of the creditors accepted, but the defendant refused until the plaintiff had privately given him 50/., when he executed the deed. Some of the other creditors had refused to sign unless the defendant signed, and this he knew ; held, that the plaintiff could recover the 50Z. Atkinson v. Benby, 7 H. & N. 934 ; 31 L. J., Ex. 362, Ex. Ch. ; In re Lenzberg's Policy, 7 Ch. D. 650, and see post, p. 619. So where a party to a reference has been obliged to pay an unreasonable charge of the arbitrator in order to take up the award; per Cur. in Re Coombs, 4 Exch. 839. See Roberts v. Eberhardt, 3 C. B., N. S. 482; 28 L. J., C. P. 74, Ex. Ch. So the action lies where goods, not liable to seizure, are seized by a revenue officer, who extorts money to release them ; Irving v. Wilson, 4 T. R. 485 ; or a public officer demands and exacts an excessive fee, as a parish clerk for a search in a register; Steele v. Williams, 8 Exch. 625 ; 22 L. J., Ex. 225 ; or a corporation officer extorts a fee for granting a licence ; Morgan v. Palmer, 2 B. & C. 729 ; or a sheriff claims and receives a larger fee than be is entitled to ; Dew v. Parsons, 2 B. & A. 562 ; or a tolbkeeper exacts an illegal toll ; Parsons v. Blandy, Wightw. 22 ; or a railway company, bound by their special Act to charge rates equally to all, detains or refuses to carry the parcels of a particular person until he pays an unreasonable charge. Parker v. Ct. W. Ry. Co., 7 M. & Gr. 253 ; Edwards v. Id. 11 C. B. 588; 21 L. J., C. P. 72; Baxendale v. Id., 16 < !. B., N. S. 137 ; 33 L. J., C. P. 197, Ex. Ch. ; Sutton v. Id., 3 H. & C. 800 ; 35 L. J., Ex. 18 ; L. R., 4 H. L. 226 ; Baxendale v. L. & S. W. Ry. Co., J.. R., 1 Ex. 137 ; Qidlow v. Lancashire & Yorkshire Ry. Co., L. R., 7 II. L. 517. And this, although part of the money was received by the defendants as agents of another company and for their use. Parker v. Bristol & Exeter Ry. Co., 6 Exch. 702. See further, post, pp. 633, 634. So if a mortgagee with power of sale refuse to stop a sale unless the mort- gagor pays expenses not duly chargeable upon him, which the mortgagor accordingly pays under protest. Close v. Phipps, 7 M. & Gr. 586. So where a mortgagee having agreed to assign his security on payment of Money obtained by Fraud, Duress, &c. 615 principal, interest and costs, made a claim for costs to which he was not entitled, and on his refusal to execute the assignment on any other terms, the assignee, by direction of the mortgagor, paid the sum demanded under protest; held, that the mortgagor could recover the excess, as paid not under duress in the strict legal sense, but as paid involuntarily under undue pressure. Fraser v. Pendlebury, 31 L. J., C. P. 1. So if a sheriff obtain payment by a wrongful seizure under a/i.fa. by a threat of selling the goods, though not liable to the execution ; Valpy v. Mauley, 1 C. B. 594 ; or a solicitor illegally detain deeds till an undue claim is satisfied ; Wakefvhl v. Newborn, 6 Q. B. 276; Turner v. Deane, 3 Exch. 836; even though he detain them as solicitor of the third person, who had no ri«ht to payment, and though he has paid over the money to his client; Oates v. Hudson, 6 Exch. 346; 20 L. J., Ex. 112; — in all such cases this action is maintain- able. See also Gibbon v. Gibbon, 13 C. B. 205; 22 L. J., C. P. L31. And in these cases it makes no difference that the defendant, who lias obtained the money as an agent, has handed it over to his principal. See Steele v. Williams, 8 Exch. 625, and cases cited Id. 622; Oates v. Hudson, supra. Miter, if the agent have received, without fraud, money paid under a mistake of facts, and has paid it over to his principal, or settled it in account with him. Holland v. Russell, 4 B. & S. 14: 32 L. J., Q. B. 297, ante, p. 612 ; Shand v. Grant, 15 C. B., N. S. 324. Personal duress will, of course, avoid a payment made under its influence; and the wrongful detention of the plaintiff's goods or property for the purpose of obtaining money will, we have seen above, be ground for reclaim- ing the money paid under such circumstances; but this is not on the ground of duress, but because the payment is involuntary. Where there is a fair and bond fide agreement to pay for redelivery of the detained g la, and no undue advantage taken, the action will not lie ; for generally mere duress of goods will not avoid a contract or agreement, so as to enable a party to recover back money paid under it. See Atlee v. Backhouse, •"> M. & \V. 660; Skeate v. Beale, 11 Ad. & E. 983. A party cannot try a title to land in an action for money paid, to release goods taken as a distress by a claimant of the land. Lindon v. Hooper, (Jowp. 414. And see the observations of the Court iu Qingett v. i'ur/.-ins, 4 Exch. 725, and cases cited ante, p. 612. Nor can the owner of cattle rightfully distrained damage feasant, recover in this action an excessive demand for damage, though paid under protest. Gulliver v. Cosent, 1 0. B. 788. So it did not lie by a tenant against his landlord for the overplus after sale under a distress; for the proper remedy was an action for not leaving it in the hands of the sheriff or constable; Vatrs v. Eastwood, 6 Exch. 806; 20 L. J., Ex. 303; Evans v. Wright, 2 II. & N. 527 ; 27 L. J., Ex. 60; but it seems that the stat. 35 & 36 V. c. 92. s. 1.., makes it the duty ol the landlord to pay the overplus to the tenant, and this for action is there- fore now the appropriate remedy. Where an action is brought, and the defendant pays the demand "without prejudice," he nevertheless cannot afterwards recover the money so paid. Broum v. MKinally, I Bep. 279. So money recovered by regular legal process, though in facl i lue, cannot be recovered back in this action ; Marriott v. Hampton, 7 T. R. 269; even though the process was not followed by a final order or jnnRinenl ; H«mht v. Richardson, 9 Bing. 644; Moon v. Fulham Vestry, (1895) I 199, 0. A.; or even though recovered alter judgmenl by a wnl ol ft. fa. tn ingly issued to lew a sum already i-id by the r"^""" 1 'J'' "" g Medina v. Grov,:, 10 Q. B. 152, 172, Ex. Oh. Tn II ard v. \ flu, I I;- 1Q. B 675 678, it was, however, held by Kennedy, J., that the at* principle did not apply unless there was bond fide* on the pari ol the pei A. who had got the benefit, under legal pro ol the paymenl ol hifl GIG Action for Money Had and Received. opponent B. and that if A. bad therein taken an unfair advantage, or acted unconscientiously, knowing he had no right to the money, that principle did not prevent B. from recovering it back. Thus where B. sued A. for work and labour done and on the writ by mistake gave credit for the payment of 7, r i/. mi account, and claimed the balance, A., knowing of the mistake, paid the amount claimed, and B. gave him a receipt for the whole sum due; B. was held entitled to recover the 151. from A. in another action. 8. C. So where a certificated bankrupt, upon being arrested upon a ca. sa. for a debt provable under the commission, paid the money under a protest stating his bankruptcy and certificate, and warning the sheriff that he should apply to the Court to have the money returned, it was held that this was not such a payment under legal process, with knowledge of the facts, as precluded the bankrupt from recovering back the money. Payne v. Chapman, 4 Ad. & E. 364. And where defendant, knowing he had no real claim, arrested the plaintiff, a foreigner, on his arrival from abroad, for 10,000?., and, under the compulsion of a colourable legal process, extorted from him 500?., " as a pay- ment in part of the writ," the court held that this action was maintainable. Be Cadaval, Dk., v. Collins, Id. 858, see further notes to Marriott v. Hampton, 2 Smith's L. C. Against officer de facto.'] Though a title to land cannot, as we have seen, be tried in this form of action, a title to an office or appointment is often tried in it. Thus the person entitled may sue a usurper of an office for the fees wrongfully received, as in the case of the disputed title to a stewardship of an honour or a court baron ; Howard v. Wood, 2 Lev. 245 ; Freem. 478, the cases collected Id. in 2nd ed. ; or office of clerk of the papers in the King's Bench office ; Woodward v. Aston, 1 Vent. 296 ; or office of clerk of the peace ; Wildes v. Russell, L. B., 1 C. P. 722 ; or the office of registrar of an inferior court ; Osgood v. Nelson, L. B., 5 H. L. 636 ; or a rightful against a tortious guardian in socage; obiter, per Holt, C. J., in Lamine v. Dorrell, 2 Ld. Baym. 1217; or the office of crier of a court; Green v. Heivett, 1 Peake, 182 ; or prothonotary ; Campbell v. Hewlitt, 16 Q. B. 258. And in such actions it will be sufficient to show the fees received communibus n urn's. Montague v. Preston, 2 Vent. 170, 171; B. N. P. 76 (e) semb. Campbell v. Hewlitt, supra. But if there be no accustomed fees attached to the office, and the profits be only casual, as in the case of a sexton who receives only gratuities for showing a cathedral, no such action lies. Boyter v. Bodsworth, 6 T. B. G81. The action lies against a corporation which has taken, and wrongfully detained, fees belonging to an officer of it; Hall v. Swansea, Mayor, &c, of, 5, Q. B. 526 ; and thus the title to the office itself may be tried. On waiver of tort.'] We have seen that a taking or detention of goods from the plaintiff may be sometimes treated as a sale to the wrongdoer ; ante, p. 550. So a wrongful receipt by the defendant of the proceeds of the goods wrongfully sold may be treated as a receipt to the plaintiff's use by waiving the preceding tortious detention of them. Lamine v. Borrell, 2 Ld. Etaym. L216; Kitchen v. Campbell, 3 Wils. 304. So where the defendant has wrongfully received payment of the plaintiff's cheque, vide ante, p. 406, or post office order for money. Fine Art Society v. Union Bank of London, 17 Q. B. D. 705, C. A. See Bavins v. L. & S. W. Bank, (1900) 1 Q. B. ^70, C. A. So where the defendants wrongfully seized money of the plaintiff, and paid it to their joint account at the banker's, it was held that this action lay against both. Neate v. Harding, 6 Exch. 349; 20 L. J., Ex. 250. Where a member of the defendant's firm sold the plaintiff's government stock under a forged power of attorney, and the defendants On Waiver of Tort.— Wagering Contracts. 617 received the price innocently, it was held that the plaintiff could recover the price in this form ot action. Stone v. Marsh, 6 B. & C. 551; Marsh v. Keating, IN. C. 198. See on S. C, Beid v. Rigby, (1894) 2 Q. B. 40 ; and Jacobs v. Morns, (1902) 1 Ch. 816, C. A. The riglt to maintain this action seems in such cases to be founded, not on the right to treat a mere tort as a contract but on the right to refrain from suiug for the tort, and In estop the wrongdoer from setting up his own wrong to defeat the plaintiffs remedy for the proceeds. Thus if, after a wrongful sale of goods, the owner elect to claim and to accept part of the proceeds of the sale from the wrongdoer as money paid to his use, the tort is waived, and the owner's only remedy for the residue of the proceeds is by action for money had and received. Lythgoe v. Vernon, 5 H. & N. 180 ; 29 L. J., Ex. 164. See Smith v. Baker, infra ; Boe v. Mutual Loan Fund, 19 (,). B. 1). 347, C. A. Conversely, where the plaintiff has elected to treat the conversion as a tort by recovering a judgment in trover against A., he cannot, even though the judgment be unsatisfied, sue for the proceeds of the sale by A. and the defendant, which sale was the conversion complained of, although the defendant alone received the proceeds. Buckland v. Johnson, 15 C. B. 145; 23 L. J., ('. P. 204. Such a defence will, however, require to be specially pleaded. in some cases, however, the act relied on as an election '* is of an ambiguous character and may or may not be done with the intention of adopting and affirming the wrongful act. In such cases the question whether the tort has been waived becomes rather a matter of fact than of law." Smith v. Baker, L. B, 8, I '. P. 350, 355, 366, per Bovell, C. J. ; Accord. Bice v. Reed, (1900) 1 Q. B. 66, pt r A. L., Smith, L. J. See further notes to Smith v. Hodson, 2 Smith L. ( lases. This action lies to recover money in the hands of an overseer, levied on a conviction which has been quashed. FeUham v. Terry, cited 1 T. R. 387. Money stolen by the defendant from the plaintiff constitutes a debt from the defendant to the plaintiff'; but the generally received opinion has been that it could not be sued for until after the prosecution of the defendant for the felony. See Stone v. Marsh, supra; Choivne v. Baylis, 31 Beav. 351 ; 31 L. J., Ch. 757. And it has been held that the plaintiff would be nonsuit, where his case was founded on an unprosecuted felony. Wellock v. Con- slantine, 2 II. & C. 146; 32 L. J., Ex. 285. The. doctrine on which thi i cases were grounded lias, however, been said to be without legal foundation. Wells v. Abrahams, L. R., 7 Q. B. 554, per Our. See further on this subject, Ex pie. Ball, 10 Ch. D. CUT, ( '. A. ; Midland Insur. Go. v. Smith, 6Q. B. D. 561, and Roope v. D'Avigdor, 10 Q. B. D. 112. In case of wagering contracts.'] By the Gaming Act, 1845 (8 & '■' V. c. 109), s. 18, all contracts by way of gaming or wa ball be null and void; and no suit can be maintained "for recovering any Bum of u ey oi valuable tiling alleged to be won upon aoj wa :■ ir, oi which ball have MOD deposited in the hands of any person to abidi line evenl on which any a I shall have been made: provided always that this enactment shall not be deemed to apply to any subscription or contribution, oi agreement to subscribe or contribute for or toward any plate, prize or sum of monej to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise." The, words "any person" include the other |»rty lo the wager. Sc Strachan v. Universal Stock Exchangi (No. 2 . I 1895) " Q. B. 697, per C. A. As to what is a wagering contract see Oarltllv. Carbolic Smoh Ball Co., (1892) 2 <}. B. t90, per Hawkins, J. ; bia judgment wa affirmed In C. A., (1893) 1 Q. B. 256. The section prohibits only actions by one party to the wa oi against the other, or against the Btake-bolder to recover th< take won. Tim., if the party depositing the sum staked, claimed it back from the stake-holder, even 618 Action for Money Had and Received. alter the event is ascertained, but before the money is paid over, he can maintain money had and received against him. Hampden v. Walsh, 1 Q. B. D. 189 ; Biggie v. Hiygs, 2 Ex. D. 422, C. A. ; see also Hermann v. Charlesworth, (1905) 2 K. B. 123, C. A. Money deposited as a wager upon a lawful game or race in which the depositors are engaged, does not come within the proviso in sect. 18, and can, therefore, be recovered from the stake-holder as money deposited on a void contract. S. C ; Trimble v. Hill, 5 Ap, Ca. 342, J. C. A deposit of money or other securities by S. with V. as "cover" or security for the payment of differences on a wagering contract for the sale and purchase of stocks is not deposited to "abide the event" within sect. 18, ante, p. 617, and may be recovered by S. if the contract has been determined by revocation or otherwise before the money, &c, has been applied in satisfaction of losses incurred by S. ; Ex pte. Waud, (1898) 2 Q. B. 383, C. A. ; Universal Stock Exchange v. Strachan, (1896) A. C. 166, D. P. ; but not otherwise; Id. v. Id. (No. 2), supra. See further In re Gieve, (1899) 1 Q. B. 794, C. A. The recovery back of stakes deposited is not affected by the Gaming Act, 1892, s. 1, ante, p. 591 ; Burge v. Ashley and Smith, (1900) 1 Q. B. 744, C. A. But where C. advanced 500Z. to P. to enable P. to deposit it with a stake-holder, to abide the event of a wager between P. and X., on the terms that P. should repay C. the amount, only if P. won, P. did win and received the stakes, it was held that C. was pre- cluded by the section from recovering the 500Z. from P. Carney v.Plimmer, (1897) 1 Q. B. 634, C. A. A principal who has employed an agent, A., to make bets for him on commission, can sue A. for bets so made, and won and received by him. Bridger v. Savage, 15 Q. B. D. 363, C. A. ; Beeston v. Beeston, 1 Ex. D. 13. But he cannot sue A. for damages for not making the bets for him. Cohen v. Kittell, 22 Q. B. D. 680. In cases of illegal contracts.^ Where money has been paid in pursuance of an illegal contract, it is generally irrevocable. See cases cited 1 Smith L. C, 11th ed. 399 et seq., and Lowry v. Bourdieu, 2 Doug. 468. And there is no distinction in this respect between mala prohibita and mala in se. Aubert v. Maze, 2 B. & P. 371 ; Cannan v. Bryce, 3 B. & A. 179. But in some cases it is recoverable as money had and received to the use of the party paying it, as in the following cases : see 1 H. Bl., 4th ed. 65, n. : — 1. When the contract remains executory, though the plaintiff and defendant be in, pari delicto ; Tappenden v. Randall, 2 B. & P. 467 ; as a deposit upon an illegal wager; Aubert v. Walsh, 3 Taunt. 277 ; Bask v. Walsh, 4 Taunt. 290. Where the plaintiff authorized his money to be applied to an illegal purpose, he may recover it before it has been paid over or applied to such purpose. Bone v. Ekless, 5 H. & N. 925; 29 L. J., Ex. 438. See also Taylor v. Bowers, 1 Q. B. D. 291, C. A. 2. Money is recoverable from a stake-holder in whose hands it has been deposited upon an illegal consideration, though executed by the happening of the event upon which a wager is made ; provided the money has not been paid over by the stake-holder to the other party, or was paid over after notice to the contrary. Cotton v. Thurland, 5 T. R. 405; Bate v. Cartwright, 7 Price, 540; Hastelow v. Jackson, 8 B. & C. 221 ; Hodson v. Terrill, 1 Cr. 6 M. 797. See Barclay v. Pearson, (1893) 2 Ch. 154, 165. 3. The money is recoverable, though the contract be executed, if the plaintiff be not in pari delicto with the defendant. Per Ld. MansBeld, C.J., Lowry v. Bourdieu, 2 Doug. 472. As where money is extorted from the plaintiff by the threat of prosecuting a penal action against him; Unwin v. Leaper, 1 M. & Gr. 747 ; Williams v. Hedley, 8 East, 378 ; or, to induce the plaintiff to accept a composition, in common with the other creditors, on the plaintiffs debt to him. Smith v. Bromley, 2 Dou^. G96, n. ; Atkinson v. Illegal Contracts— On Transfer of Debts. 619 Deiiby, and In re Lenzberg's Policy, cited ante, p. 614. So where the plain- t ill gave the defendant a promissory note for the like purpose, and was com- pelled to pay it at the suit of a third person, to whom the defendant had indorsed it, he was held entitled to recover the amount from the defendant in this form of action. Smith v. Cuff, 6 M. & S. 160. But in a similar case, where the plaintiff had voluntarily paid the note to the defendant, it was held to be a voluntary payment, which he could not recover hack. Wilson v. Bay, 10 Ad. & E. 82. As to the recovery of premiums paid on an illegal policy, vide infra. 4. Money is not recoverable where the contract is executed and the plaiutiff is in pari delicto with the defendant. Andree v. Fletcher, 3 T. K. 266; Thistlewood v. Cracroft, 1 M. & S. 500; Stokes v. Ttvitchen, 8 Taunt. 4 HI'. Thus where on a criminal charge an order has been made on A. to find a surety for his good behaviour, and B. becomes such surety on the terms that 50/., the amount of the recognizance, should be deposited by A. with B. as security to him, A. cannot recover the 501. either before or after the expira- tion of the recognizance, and although he has made no default. Ih rmon v. Jeuchner, 15 Q. B. D. 561, C. A. So in the case of a surety for the appear- ance of a prisoner in a criminal case. Wilson v. Strugnell, 7 Q. I'.. 1>. 548, as corrected by Herman v. Jeuchner, supra. See also Consolidated, (fee., ( b. v. Musgrave, (1900) 1 Ch. 37. So where the plaintiff has paid money to compromise a prosecution for disobeying an order of sessions, which he after- wards finds to be irregular and void, he cannot recover back his money. Goodall v. Lowndes, 6 Q. B. 464. So where the plaintiff paid money to the defendant on the terms that he should not appear at the public examination of a bankrupt or oppose his discharge. Kearley v. Thomson, - 1 Q. 1'.. D. 742, C. A. Partial execution of the contract is sufficient to prevent the money being recovered back. S. C. See further Begbic v. Phosphate 8i wage Co., Scott v. Brotvn, and Slaughter v. Brown, cited ]><>st, p. 6(i7. So where the agent A. of an insurance company P., has bond fide induced II. to effect a policy with P. which is illegal and void lor want of interest, vide ante, p. 422, the premiums paid are not recoverable by 11. Horse v. Pearl Life Assur. Co., (1904) 1 K. B. 558, (J. A. Seats where the agent's statements were fraudulent. Id. I 5 63, per Collins, M.R., following British Workman's, &c, Assur. Co. v. Cunliffe, 18 T. L. K. 502, (J. A. The agent of a party to an illegal contract, who receives money paid under it to the use of his principal, cannot set up the illegality of the transaction to an action brought against him by his principal. Tenant v. Elliott, I B. & P. 3 ; Farmer v. Russell, Id. 296. But it is otherwise where the i ipl itself is illegal, and the agent is therefore also particeps criminis. M'Oregor v. Lowe, By. & M. 57; per Crompton, J., in Nicholson \. Qooch, :> K. & B. 1016 ; 25 L. J., Q. B. 137. The defence of illegality must he specially pleaded. Se< Defend in actions on simple contracts, post, p. 665. On transfer of debt.') Where A. was indebted to B., and B. to •'., and B. gave an order to A. to pay 0. the sum clue from A. to B., and the order was assented to by A., on the security of whioh < '. lenl B. * farther sum ; it was held that, on A.'s refusal to pay, < '. roigl aintain an a< I oi monej bad and received against him. Israel v. Douglas, I H. Bl. 239; Wilson v. Coupland, 5 B. & A. 228; Walker v. Rostron, 9 li. & W. ill. Qriffin v. Weatherby, L. I:., 3 Q. B. 763. It seems, bowever, thai the agreement mu I be such that the debt due from B. to 0. is thereby extinguished. Oman v. Chadley, 3 B. & 0. 591 j Liversidge v. Broadbent, Wharton v Walker, inf\ Cochrane v. Green, 9 0. B., N. S. I 18; 30 L. J., C. P. 97. When L, U indebted to B., gave him an order upon C, his(A.'s) teoant, to pay the 620 Action for Money Had and Received. amount out of tbe next rent that would become due, and B. sent the order t.> 0.| but had not any direct communication with him upon the subject, and at the next rent-day C. produced the order to A., and promised him to pay the amount to B., and, upon receiving the difference between that and the whole rent, A. gave a receipt for the whole, — it was held that B. could not recover the amount of the order from C, either in an action for money had and received, or upon an account stated. Wharton v. Walker, 4 B. & C. 163 ; see the principle of the cases discussed in Liversidge v. Broadhent, 4 H. & N. 603 ; 28 L. J., Ex. 332. So where an overseer stopped part of a pauper's allowance, and engaged to pay it to the pauper's landlord for his rent, in pursuance of an understanding between the three, it was held that the land- lord could not maintain money had and received against the overseer. Blackledge v. Harman, 1 M. & Kob. 344. Where, by the consent of all parties, the defendant is to pay to the plaintiff a debt due from defendant to A., who is the plaintiff's debtor, it lies on the plaintiff to show that there was, at the time of the agreement, an ascertained debt due from defendant to A. Fairlie v. Denton, 8 B. & C. 395. A promise by A. to B. to pay money when A. receives a debt due to him from C, does not constitute an equitable assignment, so as to charge the debt in the hands of C, or to afford a defence in an action by A. against C. for the debt due to him. Field v. Megaw, L. B., 4 C. P. 660. But an undertaking to pay when and as received " all dividends coming to me in respect of my proof for 800L, upon the estate of J. L.," operates as an equitable assignment of such dividends. Ex pte. Brett, 7 Ch. D. 419. So a letter from A. and B. to their creditor, C, " we hold at your disposal the sum of about 4251., due to us from D. for goods delivered by us to them," is an equitable assignment to C. of D.'s debt. Gorringe v. Irwell India Rubber, &c, Works, 34 Ch. D. 128, C. A. An assignment of all the grantor's future book debts is good, although it is not confined to those arising in a particular business. Official Receiver v. Tailby, 13 Ap. Ca. 523, D. P. The assignment is subject to any lien or set-off avail- able against the assignor. Roxburghe v. Cox, 17 Ch. D. 520, C. A. ; Webb v. Smith, 30 Ch. D. 192, C. A. See also Young v. Kitchin, and Newfoundland, Government of, v. Newfoundland Ry., post, p. 708. A writing opening a credit for a particular sum does not constitute an equitable assignment thereof. Lariviere v. Morgan, L. R., 7 H. L. 423. If an order given by A. to B. to pay C. a debt due from B. to A. amount to a bill of exchange, as defined in the Stamp Act, 1891, s. 32 {ante, p. 239), it will in general be inadmissible in evidence unless stamped as such. Pott v. Lonias, 6 II. & N. 529 ; 30 L. J., Ex. 210. See Griffin v. Weatherby, L. 11., 3 Q. B. 753, and other cases cited . 442. But a memorandum, " we hereby charge the sum of 1,080/., which will become due to us from J. E. on the completion of the above buildings as security for the advances, ami we hereby assign our interest in the above- mentioned sum until the money with added interest shall be repaid you," is not within sub-sect. 6. Durham v. Bobertson, (1898) 1 Q. B. 765, C. A. See also Mercantile Bank of London v. Evans, (1899) 2 Q. B. 013, C. A.; Jones v. Hurnphreijs, (1902) 1 K. B. 10. A deed signed and sealed by one partner A. in the name of ids firm, purporting to assign a partnership debt for valuable consideration, is good as an equitable assignment, although A. had no authority to execute a deed for the partnership. Marchant \ . Morton Down & Co., (1901) 2 K. B. 829, 832; Ex pte. Wright, (1906) 2 K. B. 209. Debts may be assigned under the sub-section before they become due. Walk r v. Bradford Old Bank, 12 Q. B. D. 511. The debtor cannot object that there is no consideration for the assignment. S. C. It is sufficient to give notice ol assignment after the death of the assignor ; S. C. ; or after that of the assignee. Bateman v. Hunt, (1904) 2 K. B. 530, C. A. Where there have l)cen successive assignments to several persons of a debt, priority of notice determines the title of the assignees. Marchant v. Morton Down & Co., supra. As to the deduc- tions which the defendant may make in respect of claims he lias against the assignor, see Young v. Kitchin, and Newfoundland, Government of, v. A- w- foundland By. Co., post, p. 708. This sub-section is retrospective. Dibb v. Walker, (1893) 2 Ch. 429. The notice of assignment may be disregarded where the debtor had given a negotiable security for the debt, llmce \. Shearman, (1898) 2 Ch. 582. Although the requirements of sub-sect. ('» ha\ e not been complied with, the assignee of a debt for valuable consideration may, after notice to the debtor of the assignment, sue him for the debt. William Brandt & Sons v. Vunhp Rubber <',,., (1905) A. t '. I.M, 1 >. I'., making the assignor a party to the action ; hi. Hi'-'. In case of partnership!] One partner cannot sue his co-partner for his share of the profits as long as the partnership is undissolve! and accounts unsettled; therefore, where two persons agree to divide the profit* "I an agency between them, and one of them receive , on accounl oi such agency, a certain sum of money, the other cannot maintain this action for a moiety, it being a partnership transaction, and there being no acoounl settled Bovill v. Hammond, 6B. & C. 1 19. A transaction between | mas, bowever, by agreement or a separate security, be so se| irated Iron, the partnership affairs, though arising ool of them, as to form the BUbjecl • •! an action by one against another. Such an action involves do general account Bee Jackson v. Stopherd, 2 OY. a M.361; Goff* v. Brian, I Bing < Peanon v. Skelton, 1 M. & W. 504 ; also cases ante, p. 59 • I ' for money paid, and post, p. 628, Action on an account stated. A I constitutes partnership of persons inter $e, see the Partnership \.t, !-•"> i 1,2, ante, pp. 555, 556, and Walker v. Hirsch, 27 ' !h. I ». 160, C. A. 622 Action for Interest. ACTION FOR INTEREST. Where interest is recoverable by law, it is either claimed in a special claim on an agreement — or given by way of damages by the jury, though not demanded in the claim — or it is the subject of a separate claim for interest, which last form has been commonly adopted where the principal sum only is recoverable under another claim. Tims, as interest is not generally recoverable, at common law, on claims for goods sold, money lent or had and received {vide post, p. 623), it is usual, if interest be due at all, to demand it in a separate claim. Gibbs, C.J., in Maberley v. Robins, 5 Taunt. 625, thought that a separate count was not necessary to enable the jury to give interest hy way of damage even on a count to recover a deposit paid on a sale, and in cases within the statute 3 & 4 W. 4, c. 42, post, p. 625, the claim seems to be superfluous, for the jury may give interest on any issue in such cases. See also Edwards v. Ot. W. Ry. Co., 11 C. B. 588 ; 21 L. J., C. P. 72. A claim for interest is not supported by proof that the defendant, a widow, promised the plaintiff to pa}' interest on a debt of her husband, if the plaintiff forebore to "proceed against her" for payment of the debt; for the debt was not her debt. Fetch v. Lyon, 9 Q. B. 147. Under this head the subject of interest will be noticed generally, and without reference to a special claim. Interest, when recoverable, is to be calculated down to the time of final judgment. Robinson v. Bland, 2 Burr. 1085 — 8. But if there has been a tender, it runs only to the time of such tender. Dent v. Dunn, 3 Camp. 296. Where a principal sum is payable with interest at a fixed rate the interest ceases to accrue on the recovery of a judgment for the principal, for the contract has then passed in rem judicatam ; Florence v. Jenings, 2 C. B., N. S. 454; 26 L. J., C. P. 274; Ex pie. Fewings, 25 Ch. D. 338, C. A. ; and the judgment debt bears interest at 4 per cent, under 1 & 2 V. c. 110, s. 17. Ex pte. Oriental Financial Association, 4 Ch. D. 33, C. A. If however the interest is payable at a given rate under a covenant so expressed as to avoid such merger, that rate will continue to be payable, notwithstanding the judgment. Economic Life Assur. Soc. v. Usborne, (1902) A. C. 147, D. P. When due at common latvJ] The principle upon which interest is claimed at common law is, that it is matter of contract, express or implied, between the parties. " It is now established as a general principle, that interest is allowed by law only upon mercantile securities, or in those cases where there has been an express promise to pay interest ; or where such promise is to be implied from the usage of trade, or other circumstances ; " per Abbott, C.J., Higgins v. Sargent, 2 B. & C. 349; Page v. Newman, 9 B. 6 C. 381; Rhodes v. Rhodes, Johns. 653; 29 L. J., Ch. 418; L. Chatham & Dover Ry. Co. v. S. E. Ry. Co., (1893) A. C. 429, D. P.; Johnson v. Rea, (1904) A. C. 817 ; notwithstanding many older cases at variance with the rule as above stated. But " money obtained by fraud and retained by fraud can be recovered with interest." Id., p. 822, per J. C. See also Borihwick v. Elderslie S.S. Co., (1905) 2 K. B. 516, 520, per Collins, M. R. There may be a usage to pay a certain interest on the settled balance of a mer- chant's account; see Orme v. Galloway, 9 Exch. 544; 23 L. J., Ex. 118. Where title deeds have been deposited to secure a loan the loan carries interest. In re Kerr's Policy, L. R., 8 Eq. 331. Ace. In re Drax, (1903) 1 Ch. 781, C. A, In an action on an undertaking to let judgment go by Common Law.— Interest on Mercantile Instruments. 623 default in a suit for a mortgage debt, and to pay principal and interest, in consideration of staying execution for a certain time, it was held that 'the jury might give interest by way of damages down to the date of the verdict for breach of the agreement by non-payment; and this without the aid of stat. 3 & 4 W. 4, c. 42. Harper v. Williams, 4 Q. B. 219. Under a warrant of attorney to pay a sum of money, with interest at a given rate, on a given day, if the sum be not paid on that day, there is no contract to continue to pay the same rate of interest after the day for payment ; damages may, however, be awarded by the jury for the non-payment, and as subject to the statute hereafter mentioned. It has been held that interest cannot, at common law, be recovered on money received to the use of another ; Be HaviUand v. Bowerbank, 1 Camp. 50; though the money was obtained by fraud; Crockford v. Winter, Id. 129; nor, for money lent, to be repaid either upon demand or at a given time; Calton v. Bragg, 15 East, 223; Higgins v. Sargent, 2 B. & 0. 35] ; nor, where the borrower by a written instrument promised to repay it al a certain time; Page v. Newman, 9 B. & C. 378; nor, on money paid; C'arr v. Edwards, 3 Stark. 132; nor, on money due for work and laboui ; Trelawney v. Thomas, 1 H. Bl. 303; nor, on money due for goods Bold and delivered to be paid for on a certain day; Gordon v. Bvxm, L2 East, 419; 2 Camp. 229, n. ; nor, upon a policy of insurance; Kingston v. M'l7itosh,l Camp. 518; nor, upon a policy of insurance on a Life, where the money was payable six months after proof of the death ; Higgins v. Sargent, 2 B. & C. 348 ; nor, on a single bond; //<»/. be made. S. I , The "sum certain payable must be i certain sum which is due abaolufc and in all events from' the one party to the "the,, although it may not Come strictly within the term 'debt.'" B.C.: Id. 436, per Ld. Hewchell, 0. A covenant by A. to pay a sum within 6 years alter hie death has been held t" be within the section. Inn ZTorner, (li 8ee also Duneombt v. Bri, • -., L R., 10Q. B. 371. a. — vol. i. 626 Action on an Account Stated. A claim indorsed uu the writ for interest on the amount claimed thereby, from its date till payment or judgment, is not a sufficient demand within set. 28. Rhymney By. Go. v. Rhymney Iron Co., 25 Q. B. D. 147, C. A. A notice of a call made on a contributory of a company being wound up, stating that interest would be charged if payment were not made by a certain day, is within it, Ex pte. Lintott, L. R., 4 Eq. 184; Barrow's case, L. R., 3 Oh. 784: see In re Welsh Flannel, &c, Co., L. R., 20 Eq. 360; as to interest on calls on forfeited shares, see Stocken's case, L. R., 5 Eq. 6. As to demand for interest when the amount of debt is not ascertained, vide (1893) A. 0. 436, per Ld. Herschell, C. Interest is not payable under sect. 29, under a policy of insurance, in respect of a delay in payment occasioned only by there being no person who could give a discharge for the amount thereof. Webster v. British Empire, Ac, Assur. Co., 15 Ch. I). 169, C. A. Nor in an action brought against an executor for the proceeds of the plaintiffs minerals, severed and converted by his testator. Phillips v. Homfray, (1892) 1 Oh. 465, C. A. As to interest on a solicitor's bill, vide ante, p. 506. By 17 & 18 V. c. 90, s. 1, all Acts or parts of Acts of Parliament mentioned in the schedule, and " all existing laws against usury," are repealed. By sect, 3, where interest was payable on August 10th, 1854, on any contract, express or implied, for payment of the legal or current rate of interest, or where interest was then payable by any rule of law, the same rate shall be recoverable as if the Act had not passed. By sect. 4, nothing is to affect the law relating to pawnbrokers. Sue Flight v. Beed, 1 H. & C. 703; 32 L. J., Ex. 265, and observations thereon in Rimini v. Van Praagh, L. R., 8 Q. B. 1. The repeal of the usury laws does not, however, deprive the Oourt of the power of relieving expectant heirs from unconscionable bargains. Aijlesford, El. of, v. Morris, L. R., 8 Ch. 484. See also BoHm/brokcY. CSBorke, 2 Ap. ('a. 814, D. P. Now by the Money Lenders Act, 1900, 63 & 64 V. c. 51, s. 1 (1), ante, p. 600, in an action by a money-lender for money lent, or for enforcing a security, where the interest is excessive the Court may grant relief. See cases in which this relief is given, ante, p. 601.- ACTION ON AN ACCOUNT STATED. By Rules, 1883, O. xx. r. 8, "in every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars, but in every case in which a statement of account is relied on by way of evidence or admission of any other cause of action which is pleaded, the same shall not be alleged in the pleadings." To recover upon a claim on an account stated the plaintiff must prove an absolute acknowledgment by the defendant of the plaintiff's claim. A qualified acknowledgment is not sufficient, as "I would have paid you if you had not doneso and so." Evans v. Verity, Ry. & M. 239. And an offer of a sum certain, on demand of a larger, is not evidence on the account stated. Way- man v. Billiard, 4 Moore & P. 729; 7 Bing. 101. An entry in a bankrupt's examination of a certain sum being due to A., is not, it seems, evidence of an account stated between them. Pott v. Clegg, 16 M. & W. 321 ; and Ex pte. Topping, 34 L. J., Bky. 44, cited post, p.'691, overruling Eicke v. Nokes, 1 M. & Rob. 359. An oral admission of a debt due for goods sold, is evidence of an account stated, though the agreement for the sale was in writing. A i whall v. Holt, 6 M. & W. 662. An agreement by a member of a company, lehalf of the company, to pay the plaintiffs bills in consideration of with- drawing an attachment against the company's funds, is evidence of au account Action on an Account Stated. 627 stated in an actiuu against the member as one of the company, though the defendant became a member after the debt was incurred. Barker v. Birt, 10 M. & W. 61. The company in this case seems to have been an unincorpo- rated company or trading partnership. Where a party, examined before commissioners of bankrupt, admitted that he had received a sum on account of the bankrupt, after an act of bankruf>tcy, but not that it was a subsisting debt; held that this would not support a count on an account stated with the assignees. Tucker v. Barrow, 7 B. & C. 623. A promissory note given in 184-1 by the defendant for a sum described as interest on a note for 117?. dated 1838, is evidence on an account stated of a subsisting debt of 117?. due in 1844. Perry v. Slade, 8 Q. B. 115. An I U is evidence of an account stated with the person who produces it, though not named in it, and if another person was meant, the defendant must prove this. Fesenmeyer v. Adcock, 16 M. & W. 449. But it may be shown that it was given ou a consideration that has failed ; as for part of a deposit on a sale which has gone off for want of title. Wilson v. Wilson, 14 C. B. 616 ; 23 L. J., C. P. 137 ; and see Berry v. Storey, 2 C. L. R. 815, H. T. 1854, C. P. Where an I O U was given fur a stipulated premium, extra the consideration specified in an apprentice deed, which was therefore void by 8 A. c. 9, s. 39, yet the master may recover the money under an account stated, the boy having, in fact, served out his full term. Westlake v. Adams, 5 C. B., N. S. 248 ; 27 L. J., C. P. 271. An account stated may be main- tained on an oral agreement of what the balance between the parties is, though one of the items be the price of land sold under an oral agreement, whether the statement be after the land has changed hands ; Cocking v. Ward, 1 C. B. 858; or before, if it be shown to have subsequently come into the defendant's possession. Laycock v. Pickles, 4 B. & S. 497 ; 33 L. J., Q. B. 43. See also Wilson v. Marshall, infra. I?ut there must be an admis sion of a debt due, in order to support an account stated : therefore when the defendant orally agreed to purchase a lease to the plaintiff, and gave as deposit an I O U for 25?., and afterwards refused to complete the purchase ; it was held that the I U, taken with the circumstances under which it was given, was no evidence of an account stated. Lcmere v. Elliott, 6 H. & N. 656 ; 30 L. J., Ex. 350. See Buck v. Hurst, L. B., 1 C. P. 227, ante, p. 598. In an action by the plaintiff as executrix, where the defendant, on being applied to by her for the payment of interest, stated that she would briug her some, it was held that, though this was an admission that something was due, still, as the nature of the debt did not appear, nor whether it was due to the plaintiff as executrix, or in her own right, nor that it was one for which assumpsit would lie, the plaintiff was not entitled to recover even nominal damages. Green v. Davies, 4 B. & C. 235 ; and see Teal v. Auty, 2 B. & B. 101. And, generally an account is not stated unless some specific sum is agreed upon ; therefore a letter asking the plaintiff "to hold the defendant's cheque till Monday, when 1 will send the amount," the amount of the cheque being unknown, will nut support this claim. Lane v. Hill, IS Q. I'.. 252; 21 L. J., (J. B. .'!18. If it appear that the account is stated of a debt due from a third /arson to the plaintiff, which defendant promised to pay without any consideration, this is a defence. French v. French, '1 M. & Gt. 644; Wilson v. Marshall, I. B., 2 (J. L. 356, Ex. Ch. So where the defendant gave a written promise to pay a debt due from her deceased husband to tin; plaintiffs deceased husband with interest, this was held no evidence on a common count lor interest, or on an account stated ; for the debt was not due from the defendant. Petch v. Lyon, 2 Q. 1'.. 147. A promissory note was found among the testator's papers, upon which the executors promised to pay it, but it afterwards appeared that it was intended as a legacy, and was not in payment of a debt; held, not evidence of an account stated with the ss 2 628 Action on an Account Stated. payee. Gough v. Findon, 7 Exch. 48; 21 L. J., Ex. 58. A written guarantee by one of several partners without the authority of the others, and a letter written by their clerk explaining it, also without the authority of all, are not evidence of an account stated by the firm. Brettel v. Williams, 4 Exch. 623. It is sufficient to prove the account stated with- out giving evidence of the several items constituting the account ; Bartlett v. Emery^l T. R. 42, n. ; and proof of the admission of a single item is sufficient. Highmore v. Primrose, 5 M. & S. 65. Where a partnership has been dissolved and a balance struck, it may be recovered under this claim even as between partners; Foster v. Allanson, 2 T. R. 479 ; Brierly v. Oripps, 7 C. & P. 709 ; Wilson v. Catting, 10 Bing. 436 ; and the action is then maintainable without any express promise to pay. Wray v. Milestone, 5 M. & W. 21. But it will only lie on a final balance of the partnership accounts, and not during the continuance of the partnership. Fromont v. Coupland, 2 Bing. 170; Goddard v. Hodges, 1 Cr. & M. 37 ; Carr v. Smith, 5 Q. B. 128. If an account were stated of the balance due on a deed or bond, this action did not lie, for it continued to be a specialty debt. Middhditch v. Ellis, 2 Exch. 623. The plaintiff may recover, though the account was, in fact, stated by the defendant with the plaintiff's wife ; but not on an account stated by the wife of the defendant ; Stijart v. Rowland, B. N. P. 129 ; unless she is proved to be the defendant's agent in the transaction. An acknowledg- ment in a casual conversation with a stranger, not shown to be the agent of the plaintiff, is not sufficient. Breckon v. Smith, 1 Ad. & E. 488. Where there were accounts between A. and B., and C. became a partner with B., and dealings continued between the partners and A. who after- wards settled an account with B. and C, wherein was included the money due from A. to B. alone, Ld. Keuyon held that the whole might be given in evidence in an action by B. and C. as on an account stated. Moore v. Hill, Peake, Ev., 5th ed. 253 ; see Gough v. Davies, 4 Price, 214 ; David v. Ellice, 5 B. & C. 196. The debt on which the account is founded may be an ecpiitable one; thus, where a trustee holds money in trust for the plaintiff, and states an account with him and acknowledges himself a debtor for the amount, he is liable on this claim. Per Crompton, J., Howard v. Broivnhill, 23 L. J., Q. B. 23, citing Roper v. Holland, 3 Ad. & E. 99. An account stated was formerly considered conclusive, but errors in it may now be corrected. Per Ld. Mansfield, C.J., Trueman v. Hurst, 1 T. R. 42 ; Bails v. Lloyd, 12 Q. B. 531. If the defendant account with the plaintiff in a particular character, he will be taken to have admitted that character. Peacock v. Harris, 10 East, 104. A promissory note, if not properly stamped, cannot be given in evidence as an admission of an account stated ; Green v. Davies, 4 B. & C. 235 ; but an unstamped foreign bill of exchange drawn abroad, which has not been presented for payment, or indorsed or negotiated in the United Kingdom, can so be used. Griffin v. Weatherby, L. R., 3 Q. B. 753. A note, payable on a contingency, is 'not evidence of an account stated. Morgan v. Jones, 1 C. & J. 162. See further on the admissibility of bills or notes to prove an account stated, ante, pp. 360, 375, 393, 415. The account must be stated before the commencement of the action ; and where a defendant, after action brought, had offered a cognovit, it was held insufficient evidence to support the count. Spencer v. Parry, 3 Ad. & E. 331 ; Allen v. Cook, 2 Dowl. 546. Where the plaintiff relies on an account stated on one day, the defendant cannot prove, without pleading payment or set-off, a subsequent accounting including fresh items, by which the balance was turned against the plaintiff. Fidgett v. Penny, 1 C. M. & R. 108. But if the second accounting were a Actions against Carriers. 629 mere correction of the first, it would bo admissible. See Tliomas v. HawJces, 8 M. & W: 140. Where accounts are submitted to an arbitrator, his award cannot be given in evidence as an account stated. Bates v. Townley, 2 Exch. 152, over- ruling Keen v. Batshore, 1 Esp. 194. But where an incoming tenant agrees to take fixtures at a valuation to be made by brokers, and after it has been made the tenant enters, the value so ascertained may be recovered on such a claim. Salmon v. Watson, 4 B. Moore, 73. An infant cannot state a valid account ; Trueman v. Hurst, 1 T. K. 40 ; but formerly it was good if ratified after full age and before action. Williams v. Moor, 11 M. & W. 256. The Infants' Belief Act, 1874 (37 & 38 V. c. 62, post, p. 675), s. 1, however, makes all accounts stated with infants absolutely void, and they are therefore now incapable of ratification ; see also sect. 2. No account can be stated with the agent of a lunatic, so as to bind the lunatic ; nor can a lunatic state one. Tarbuck v. Bispham, 2 M. & W. 2. ACTIONS AGAINST CABRIERS. Carriers may be of goods or of persons, or of both ; and they may be carriers by land or by sea ; or of dead or of live stock. The obligations are not the same in all these cases. Common Carriers. The obligation or liability of owners and masters of British seagoing ships has been already noticed under a previous head, ante, pp. 472 et seq., specially with reference to the Merchant Shipping Act, 1894. The obligations of carriers by land are regulated in some respects by the Carriers Act (11 G. 4 & 1 W. 4, c. 68), which relates to their liability for loss of goods. Canal and railway companies are subject to the regulations of the Railway and Canal Traffic Act, 1854 (17 & i8 V. c. 31), and the Regulation of Railways Act, 1873 (36 & 37 V. c. 48), both in respect of goods and passenger traffic, as well as to the Acts relating to carriers in general, so far as they are applicable. Railway companies are further regulated by the Regulation of Railways Act, 1868 (31 & 32 V. c. 119). The Railway and Canal Traffic Act, 1854, professes only to regulate the obligations of companies as carriers on their respective rails or canals, and does not apply to other carriers using such rails or canals. Hence the obligation of these latter carriers must depend on the general law of carriers. It is presumed that carriers by inland waters are within the Land Carriers Act, 11 G. 1 & 1 W. 4, c. 68; at least there appears to be no other statute specially applicable to inland navigation, except the several local or privato Acts under which such canals, &C., are established, and except the Act 8 & 9 V. o. 12, by which canal companies (theretofore empowered only to take tolls) were allowed to become carriers of goods themselves, with power to make reasonable charges to he fixed by the several companies, and subject to the general laws of the realm as to the liability and protection of common carriers. It may be observed that there is no analogy between the transmission of a telegram and the consignment of goods through a carrier. Playford v. fi30 Actions against Common Carriers. United Kingdom Telegraph Co., L. R., 4 Q. B. 706; Dickson v. Renter's Telegraph Co., 2 0. P. 1>. . 1, C. A. ; Nitrophosphate, &c.. Manure Co. v. L. & S. Catherine's Dock Co., '.' Ch. I ». 503. Common carriers from a place within t<> a place without the realm, are subject to the same liabilities, at common law, as ;i common carrier who carries only within the realm. Crouch v. L. & N. II". By. Co., 14 C. B. 255; 2:; L. -I., C I'. 73. As to the effect <>n the carrier's liability, of fraudulent concealment on the part of the sender of the goods, see -post, p. 651. In the case of live stock, a carrier is not liable for an injury caused by the inherent vice of the animal ; it is sufficient if he provide for its carriage a truck that is reasonably fit, fur the purpose. Blower v. . P., 7 Ex., 373; see al*o Richardson v. N. /:'. Ry. Go., L. R., 7 C. P. 75; Gill v. Manchester, &c, Ry. Co., L. I.\, 8 Q. B. L86. Nor is he liable if the injury done is such that no reasonable precaution could have prevented. Nugent v. Smith, supra. So, a carrier is not liable for injury to goods 632 Actions against Common Carriers. caused by their inherent unfitness for the carriage contemplated, though not known to either party. Lister v. Lane. & Yorkshire By. Co., (1903) 1 K. B. S7S. Nor for that caused by ordinary wear and tear, or dialing during the iourney, nor for the natural decay of perishable goods. Story on Bailments, § 492 a, cited Blower v. Gt. W. By. Co., L. R., 7 C. P. 663, 664. See further, post, p. 650. A carrier may limit, generally, his business to certain goods, and is then not obliged to carry other kinds of goods ; his obligation in this respect depends upon what he publicly professes to do. Johnson v. Midland By. Co., 4 Exch. 367 : In re Oxlade & N. E. By. Co., 1 C. B., N. S. 454 ; 26 L. J., C. P. 129 ; 15 C. B., N. S. 680. Any statutory exemption from liability must be pleaded specially. See Rules, 1883, O. xix. r. 15, ante, p. 309. Evidence of the contract.'] The contract implied from the delivery and acceptance of the goods, to and by the defendant, in his capacity of carrier, is to charge a reasonable reward for the conveyance, and the jury are the judges of this ; semb. Ashmole v. Wainwright, 2 Q. B. 837 ; Harrison v. L. Brighton & S. C. By. Co., 2 B. & S. 122 ; 31 L. J., Q. B. 113 ; and if the carrier refuse to carry or deliver, except upon payment of an exorbitant charge, the excess, if paid, may be recovered back. S. C. See ante, p. 614, Action for money had and received. But it is competent, at common law, to make a previous special bargain in each case, for the rate of charge ; and under the Carriers Act, 1830, s. 6, post, p. 637. Carr v. Ijancashire & Yorkshire By. Co., 7 Exch. 707 ; 21 L. J., Ex. 261. Where the carrier delivers a ticket or other notice to the person from whom he receives the articles, specifying the terms on which he agrees to carry, and the customer assents (or does not dissent), the terms of the notice will establish a special agreement, and will exclude the common law contract, so far as it is varied by those terms : Wyld v. Pickford, 8 M. & W. 443 ; Ot. N. By. Co. v. Morville, 21 L. J., Q. B. 319 ; Phillips v. Edwards, 3 H. & N. 813 ; 28 L. J., Ex. 52 ; Zunz v. S. E. By. Co., L. R., 4 Q. B. 539, 544; see also Watkins v. Bymill, 10 Q. B. 1). 178, and cases there cited; and such a specific notice is not " a public notice or declaration " within sect. 4 of the Carriers Act, set out post, p. 637. Walker v. York & N. Midland By. Co., 2 E. & B. 75® ; 23 L. J., Q. B. 73. If the customer in such a case decline the terms, and wish to fix the carrier with the common law liability, he must tender or offer a reasonable compensation, and sue for the refusal to receive the goods. Per Parke, B., in Carr v. Lancashire By. Co., supra ; Carton v. Bristol . As to the effect of the delivery, to the consignor, of a ticket with conditions printed thereon, vide post, p. 652. Where goods are sent by the defendants, " the company accepting no liability," the stipulation does not exempt the company from liability for a loss arising wholly from their own negligence. Martin v. Ot. Indian Peninsular By. Co., L. R., 3 Ex. 9. See further, ante, pp. 473, 474. But a condition to relieve the carrier " from all liability for loss or damage by delay in transit, or from whatever other cause arising," protects him against the consequences of his servant's negligence, including damage from loss of market. Brown v. Manchester, &c, By. Co., 8 Ap. Ca. 703, D. P. And where a passenger, by steamer, takes luggage subject to the further condition, that the ship will not be accountable unless bills of lading have been signed therefor, and the luggage is lost through the negligence of the captain, the plaintiff cannot recover unless the condition has been complied with. Wilton v. Atlantic Mail, &c, Co., 10 C. B., N. S. 453 ; 30 L. J., C. P. 369. See also Peninsular & Oriental S. Nav. Co. v. Shand, 3 Moo., P. C, N. S. 272. Evidence of the Contract. 633 A contract that goods should he carried "at owner's risk," was held not to exempt the carrier from liability in respect of delay. Robinson v. Gt. W. Ry. Co., H. & R. 07 ; 35 L. J., 0. P. 125 ; Z>' 'Arc v. L. & N. W. Ry. Co., L. R., 9C. P. 325. It seems that in these cases the purport of the condition " owner's risk " was to free the company from all liability whatever in respect of the goods. The present modified meaning of the term " owner's risk," is to free the carrying company " from all liability of loss, damage or delay except upon proof that such loss, damage or delay arose from wilful misconduct on the part of the company's servants." This condition was, however, held not to exonerate the company where goods which were to be carried by G. by a particular route, were by mistake sent by another route and in consequence delayed, because the delay did not arise in the performance of the contract; Mallet v. Qt. E. Ry. Co., (1899) 1 Q. B. 309. But even if this decision be correct it is not to be extended, for where goods sent under a similar contract were in the course of their journey by mistake not transferred into the proper train, and were therefore sent by another route for expedition, and delay was occasioned, G. was held protected by the condition. Foster v. Of. W. Ry. Co., (1904) 2 K. B. 306. As to evidence of "wilful misconduct" see Lewis v. Id., 3 Q. B. D. 195, C. A. and Forder v. Id. (1905) 2 K. B. 53, 32. The general notice affixed in the offices of carriers, or advertised in news- papers, by which carriers were accustomed to limit, or attempt to limit, their common law liability, are deprived of that effect, so far as regards all eommon carriers by land, by the Carriers Act, s. 4, post, p. 637. And it would seem that even if a hnowledyeoi such a public notice could be brought home to the customer, it would not now protect the carrier. There ought to be proof of a specific agreement between the carrier, or his agent, aud the individual tendering the goods. The case of special contracts with railway and canal companies is now provided for by stat. 17 & 18 V. c. 31, s. 7, cited 0. I'»., N. S. Ill ; 27 L. J., C. P. 21)5; Button v. Gt. W. /;>/. Co., 3 11. & C. 800; 35 L. J., Ex. IS; L. R., 4 II. L. 226 ; Baxendale v. L. & 8. II'. Hy. Co., L. R., 1 Ex. 139. But if the packed parcels be separately directed so as to ^ive more trouble on delivery, a higher charge is justifiable. Baxendale v. E. Counties Ry. Co., 4 C. B., N. S. 63 ; Q34 Actions against Comma// Carriers. 27 L. J., C. P. 137. A railway company charged a through rate, including collection and delivery as well as conveyance, which rate was charged whether the goods were collected and delivered by the company or not; it charged the plaintiff who collected aud delivered the goods the full amount, as if it had done so ; it was held that lie could recover such overcharge in an action for money had and received. Baxendale v. Gt. TV. Ry. Co., 14 C. B., N. S. 1 ; 32 L. J., C. P. 225 ; 16 C. B M N. S. 137 ; 33 L. J., 0. P. 107, Ex. Ch.,see Pickford v. Od. Junction Ry. Co., 10 M. & W. 399 ; Baxendale v. L. & S. TV. Ry. Co., L. R., 1 Ex. 137 ; and Evershed v. L. & N. TV. Ry. Co., 2 Q. B. D. 254 ; 3 Q. B. D. 134, C. A. ; 3 Ap. Oa. 1029, D. P. Secus in cases where the company is under no statutory obligation to carry the goods. Stone v. Midland Ry. Co., (1904) 1 K. B. 669, C. A. The special acts of railway companies generally authorize higher charges for small parcels sent in separate packages, and sometimes provide that large aggregate quantities of goods sent in several small parcels at the same time, shall be subject to a tonnage charge on the aggregate, and not to the higher rate, as upon small separate packages. See Parker v. Gt. IT. Ry. Co., 6 E. & B. 77 ; 26 L. J., Q. B. 209. But the decisions on all these acts would be out of place iu a work of this kind, and are therefore omitted. In order to show a breach by the railway company of the equality clauses, it may be proved that it was well known in the trade and, inferentially, to the com- pany, that mercantile houses were in the habit of despatching packed parcels by the company, and that the company charged less for these parcels than for the packed parcels of the plaintiff, a carrier. Sutton v. Gt. TV. Ry. Co., ante, p. 633. Evidence that the agent and traffic manager of the company were present at a reference between another carrier and the defendants, where facts of this sort were proved in their hearing, is also admissible to prove that the defendants knew the usage of the mercantile houses above stated, and knowingly charged the plaintiff a higher rate than others for the carriage of like packed parcels. S. 0. By the Regulation of Railways Act, 1868 (31 & 32 V. c. 119), s. 16, equality is secured to all persons using steamers worked by railway com- panies ; and by sect. 17 railway companies are now bound on application to deliver particulars of the charge for the conveyance of goods on their railway, distinguishing how much is for conveyance and how much for loading and other expenses. Vide post, p. 645. When a railway company undertakes to carry goods from a station on its railway to a place on another distinct railway with which it com- municates, this is evidence of a contract with them for the whole distance, and the other railway company will be regarded as its agents, and not as contracting with their original bailor. Muschamp v. Lancaster, &c, Ry. Co., 8 M. & W. 421 ; Webber v. Gt. TV. Ry. Co., 3 H. & 0. 771 ; 34 L. J., Ex. 170; 4 H. & 0. 582, Ex. Ch. And the same position obtains in the case of passengers. Vide post, pp. 651, 652. But the first railway company might, by a special contract evidenced by the terms of the receipt note or otherwise, restrain its own liability as carrier to the limits of its own rail where it expressly acts as agent for the other company ; Foivles v. Gt. TV. Ry. Co., 7 Kxch. 699 ; 22 L. J., Ex. 76 ; such a condition embodied in a notice signed by the consignor has been held just and reasonable within the meaning of the Railway and Canal Traffic Act, and, therefore, to protect the companv (assuming they would be otherwise liable) beyond its own line; Aldridge v. Gt. W. Ry. Co., 15 C. B., N. S. 582; 33 L. J., C. P. 161 ; and that Act does not apply at all to the carriage of goods over lines not worked by the company. Zunz v. S. K Ry. Co., L. R., 4 Q. B. 539. Where X. Railway Co. undertook to carry goods over X. and Y. railways, which were damaged on Y. railway, and the contract with X. excluded liability lor Evidence of the Contract. 635 damage done on Y., it was held that company Y. could not be sued for it, for there was no contract with Y. Coxon v. Gt. W. By. Co., 5 H. & N. 274 ; 29 L. J., Ex. 165. Plaintiff, a passenger, took a ticket from a place on railway X. to a place on railway Y. ; in the Railway Act for X., the company was made not liable for ordinary passenger's luggage; on railway Y., there was no such provision ; plaintiff's luggage was lost on railway Y. ; it was held that the Y. company was not liable, the contract being with X. ; and semble, X. company was not liable by reason of their statutable exemption. Mytton v. Midland By. Co., 4 H. & N. 615 ; 28 L. J., Ex. 385 ; see Bristol & Exeter By. Co. v. Collins, 7 H. L. C. 194 ; 29 L. J., Ex. 41. A receipt note by railway A. for goods " to he sent " to a place on another railway and there " delivered " for one entire sum, is one entire contract with railway A. for the whole distance, and a subsequent company cannot be sued for loss on their railway. S. C. But the effect of such special acceptances, and of the conditions contained in them, when the contract involves an undertaking to cause goods to be conveyed over successive portions of distinct railways forming a continuous line, has been the subject of much difference of opinion among the judges ; and it cannot be taken as yet settled how far conditions or limitations iuserted in the receipt note, and therein confined to the carriage of the goods while on the railway of the first company, can be considered as accompanying the goods throughout the whole distance ; — or whether the company is to be con- sidered as carrying with the ordinary common law liability of carriers when beyond its own limits; — or on the conditions and limitations which may be legally in force on each successive railway. The principle to be adduced from the above cases is, that in respect of any cause of action arising out of the contract of carriage of goods, the contracting party can alone sue the carrier. The owner of the goods, however, although not a party to the contract, may sue for a tort, which would have been actionable, apart from the terms of the contract. Martin v. (it. Indian Peninsular By. Co., 3 Ex. 9, 14, per Bramwell and Channell, BB. As to the rules applicable to passengers and their luggage, vide jjost, pp. 652, 653. Where a railway compauy, A., contracts to carry over its own line and that of another com- pany, B., and enters into such contract as agent for the company B., the company B. may be sued for an accident on its line. QUI v. Manchester, &c, By. Co., L. R., 8 Q. 1!. 186. Where there has been a general acceptance by company A. to convey goods over another railway, B., to ('., the bailor may countermand the bailment while in the hands of company B., and if the goods be lost in consequence of inattention to the countermand, and of delivery at C, he may sue A. for the loss. Scothorn v. S. Staffordshire By. Co., 8 Exch. 341 ; 22 L. J., Ex. 121. The plaintiff sent goods to a carrier, X., to be carried from A. to D. by three independent carriers, X., Y., Z. ; there being an arrangement between X., Y., Z., that X. should carry from A. to B., Y. from B. to C, and Z. from C. toD.; X. received the freight lor the whole journey, and paid over to Y. and Z. their proportion, after notice that the goods were lost before arriving at B. : held, that X. was not liable, in an action for money had and received, to repay the sum he had so paid over. Qreeves v. IT. India, (fee, 8. !>ln'i> <'<>., Iv\. Ch., ex relation* amid, revets. S. ('. in Q. B., 20 L. T. 912, T. T. L869. A railway company ifl liable on its contract, whether the transit be over other railways, or partly by sen, or partly by coach, and whether payment for the whole be before or alter delivery to the consignee; and where a railway com pany receives a parcel directed to a place beyond its line without objection or special contract, there is an implied contract of carriage; over the entire distance, although the consignor may have pointed out a route different from the one usually adopted by the company. Wilhy v. W. Cornwall By. P>rtf> Actions against Common Carriers. Co., 2 II. & N. 703 ; 27 L. J., Ex. 181. A condition that the company will not be responsible for loss or injury in receiving, &c, live stock, if occasioned by the restiveness of the animals, does not exonerate them from injury proximately caused through negligence of the company. Gill v. Manchester, &c, Ry. Co., ante, p. 635. When the carrier's receipt for the goods is offered in evidence in order to prove the contract, the necessity for an agreement stamp depends on the amount payable for the carriage, and not on the value of the goods ; Latham v. Butley, Ry. & M. 13 ; if the sum payable amount to 5?., a stamp is now required, vide ante, pp. 232, 234. The receipt in the case of an inland carrier is exempt from duty as a warrant for goods, vide ante, p. 276, but where the goods are exported or carried coastwise, it becomes a bill of lading, and must be stamped as such, vide ante, p. 246. A receipt under the Carriers Act, s. 3, piost, p. 637, is exempt from duty. Though a cab driver is not a common carrier, yet if charged on an implied contract to carry a passenger's luggage "safely and securely," it is no variance; for this shall be taken to mean such obligation to use ordinary care as arises out of the relation between a bailee for him and his bailor, and not the mere extended liability of a common carrier. Boss v. Hill, 2 C. B. 877. As to the liability of the proprietor of a metropolitan cab for a loss occasioned by the driver, see Powles v. Eider, 6 E. & B. 207 ; 25 L. J., Q. B. 331 ; and cases cited post, pp. 776, 777. A carrier, even without reward, is liable for gross neglect. Beauchamp v. Powley, 1 M. & Rob. 38. Where the action is for refusing to carry, the plaintiff need not aver or prove a strict tender of the fare; it is enough that he was ready to pay. Pickford v. Gd. Junction By. Co., 8 M. & W. 372. But where the carrier has limited his liability unless a certain charge be paid, payment or tender of that charge must be proved. Wyld v. Pickford, Id. 443. An exception of "insurance risks" in a contract with A. for carriage by water, does not relieve A. from his liability as a common carrier. Sutton v. Ciceri, 15 Ap. Ca. 144, D. P. Nor from that resulting from his negligence; Price & Co. v. Union Lighterage Co., (1004) 1 K. B. 412, C. A.; Nelson (James) & Sons v. Nelson Line, &c, No. 2, (1907) 1 K. B. 769, G. A. A contract to undertake sea risk for additional freight or otherwise is, under 54 & 55 V. c. 39, s. 92 (2), ante, p. 266, a contract for sea insurance, and must comply with the stamp and other provisions of that statute, vide ante, pp. 266 et seq. Carriers Act, 1830, 11 G. 4 , nothing in the Act shall be construed to annul or affect any special contract between such common carrier and any other parties for the conveyance of goods and merchandise. By sect. 7, a person who lias insured, as above, may recover back the extra charge as well as the value of the goods lost or damaged. By sect. 8, nothing in the Act shall be deemed to protect any common carrier for hire from liability to answer for loss or injury to any goods what- soever arising from the felonious acts of any coachman, guard, book-keeper, porter, or other servant in his employ, nor to protect any such coachman, &c, from liability for any loss or injury occasioned by his own personal neglect or misconduct. 638 Actions against Common Carriers. By sect. 9, common carriers shall be liable to pay only the actual value, as proved, not exceeding the declared value, together with the increased charges paid by the owner. Where a carrier makes oue contract to carry by land and sea, and goods are lust on the land journey, the carrier is within the protection of the Act. Pianciani v. L. & S. W. By. Co., 18 C. B. 226; Le Conteur v. Id., L. 11., 1 Q. B. 54 ; Baxendah v. Gt. E. By. Co., L. P., 4 Q. B. 244 ; Ex. Ch. Under sect. 1, articles more for ornament than use have been considered " trinkets,'' as bracelets, shirt pins, rings, brooches, ornamental purses, and scent bottles ; but not a plain metal fusee box. So silk made into articles, as watch-guards, is within it; silk hose, gold chains for eye-glasses, &c. Bernstein v. Baxendale, 6 C. B., N. S., 251 ; 28 L. J., C. P. 265 ; and cases cited, Id. So is a silk dress made up for wearing. Flowers v. S. E. By. Co., 16 L. T. 329, E. T. 1867, Ex. ; overruling Davey v. Mason, Car. & M. 45. Hand-painted designs of carpets are not within the term " paintings," which is to be used in its ordinary sense as meaning works of art. Woodtvard v. L. & N. W. By. Co., 3 Ex. D. 121. Whether an article is of the description mentioned in this section is a question of fact for the jury. S. C, following Brunt v. Midland By. Co., 2 H. & C. 889 ; 33 L. J., Ex. 187. A blank acceptance for 11/., lost by the carrier before delivery, and before the drawer's name has been inserted, is not a bill nor a writing of the value of 10?. within sect. 1. Stoessiger v. S. E. By. Co., 3 E. & B. 549; 23 L. J., Q. B. 293. The Act extends to all the articles enumerated in sect. 1, although not (within the words of the preamble) " an article of great value in small compass." To entitle a party to recover for loss or injury to any article of such description, he must give express notice to the carrier of the value and nature of the article. A looking-glass exceeding the value of 10/. was ] lacked up in a case and sent to the carrier's office to be conveyed from London to a house near Lymington ; a notice was fixed up in the office pursuant to sect. 2 : the words "looking-glass,"' "keep this edge upwards," were written on the case, but no declaration was made of the nature and value of the article, and no increased rate of carriage paid ; the parcel was cnveyed from Lymington to its destination on a brewer's truck, which was the usual way : it was held that the carrier was not liable for breakage of the glass. Owen v. Burnett, 2 Cr. & M. 353; 4 Tyr. 133. A packed waggon sent for carriage by the defendants, containing enumerated articles, is a parcel or package within sect. 1. Whaitev. Lancashire & Yorkshire By. Co., L. II., 9 Ex. 67. The expressed opinion of the carrier as to its real value will not supersede the necessity of a formal declaration of it. Boys v. Fink, 8 C. & P. 361. The packing-case in which goods mentioned in sect. 1 are contained is usually considered as accessory to them. Wytd v. Pickford, 8 M. & W. 413. So the frame of a framed picture is accessory to it, and within the Act. Henderson v. L. & S. W. By. Co., L. P., 5 Ex. 90. But where the packing-case contains articles, some within the statute and some not, the value of the case, and of the articles not within the statute, may be recovered separately. Treadwin v. Gt. E. By. Co., L. P., 3 C. P. 308. The defendant must prove that the goods fall within sect. 1. See Sutton v. Ciceri, 15 Ap. Ca. 144, D. P. The declaration required by sect. 1 must be given at the time of delivery, whether that be at the carrier's office or to a carter sent to the customer's house to collect parcels, or on the road, or elsewhere; the carrier may then demand the increased charge as publicly notified in his office under sect. 2, and on payment thereof he is to give the receipt, if required, under sect. 3. If no such declaration be made by the bailor on delivery, the carrier is protected by sect. 1 in respect of the specified articles, except in cases of Carriers Act, 1830. 639 felony referred to in seot. 8. Hart v. Baxendale, 6 Exch. 769 ; 21 L. J., Ex. 123, Ex. Cb. But by sect. 3, if no notice has been affixed under sect. 2, the carrier is not protected, even tbougb no declaration bas been made. See Baxendale v. Hart, 6 Excb. 769, 778 ; 20 L. J., Ex. 338, 340, per Cur. In Hart v. Baxendale, supra, which is cited in many text books in support of the contrary proposition, the Court decided that there bad been a sufficient notice under sect. 2, and the exception to the ruling of Pollock, C.B., at the trial being allowed on that hypothesis, the effect on the carrier's liability of the absence of a notice, did not directly arise in Exch. Cham. Where the plaintiff sent a valuable picture by a railway, and declared its nature and value at the time of its delivery to the carrier, and the carrier did not demand any increased rate to which he was entitled under sect. 2, and only the ordinary charge was paid, the carrier was held not to be protected by the statute from his common law liability for an injury which happened to the picture on its journey. Behrens v. Ot. N. By. Co., 7 H. & N. 950, 953 ; 31 L. J., Ex. 299, 300, Ex. Cb. " There is nothing in the statute which protects the carrier from liability if, after the value is declared to be such as would entitle him to demand an increased rate of charge, be chooses to accept the goods to be carried without making any demand for such increased rate or requiring it to be either paid or promised "; per Cur., S. C. The "loss" provided for by sect. 1 means loss by the carrier or his servant, so that the parcel cannot be delivered ; it protects the carrier against liability for damage caused by delay in delivery in cousecpience of a temporary loss. Millen v. Brasch, 10 Q. B. D. 142, C. A. But in the case of a temporary loss the carrier will be liable for detention of the goods beyond a reasonable time after they have been found ; Hearu v. L. & S. W. By. Co., 10 Exch. 793 ; 24 L. J., Ex. 1«0 ; an injury done to goods sent beyond their destination is within the protection of sect. 1. Morritt v. N. E. By. Co., 1 Q. B. D. 302, C. A. Where an innkeeper had no express authority from the defendants to take in parcels, and used his discretion in sending them by the defendant's mail or any other coach ; though he kept no regular booking-office, it was held that for the purpose of taking in a parcel the inn was a receiving-house of the defendants within sect. 5. tiyms v. Chaplin, 5 Ad. & E. 634. See also Stephens v. L. & S. W. By. Co., infra. Since this Act, if articles mentioned in sect. 1 are sent without declaration of value and payment of the increased charge, carriers who have complied in the requirements of the Act are not liable though the loss be occasioned by the gross negligence of their servants. Jlinton v. Dibbin, 2 Q. B. 616; Morritt v. N. E. By. Co., supra. And it seems that there is no distinction between the negligence of themselves or their servants; but wilful mis- feasance would come under a different consideration. See S. CC. By sect. 8, where the loss is by the felony of the carrier's servants, the Act dues not protect. Metcalfe v. 1*. & Brighton Ey. Co., 4 C. B., N. S. 307; 27 L. J., C. P. 205. The servants of a common carrier or other agent employed by a railway company to forward goods to their destination are servants of the company within that section ; Machu v. /,. & 8. W. Ey. <'"., !_! Kxoh. 415; Stephens v. L. & 8. IK. Ey. Co., 18 Q. 11. I>. 121, C. A. ; accord. Doolan v. Midland Ey. Co., 2 Ap. Ca. 7'.t2, I). 1'.; hut the company is not estopped from denying that the thief is its servant, and may show that though he represented himself as being one of the servants of the carrier employed by the company, he was not so in fact. Way v. Gt. E. By. Co., 1 Q. B. 1>. 692. Where to a defence founded on sect. 1 that the value of the goods had not been declared, the plaintill replies under sect. 8, alleging a felony by the defendant's servants, the plaintill' must prove facts which show not merely that somebody must have stolen them while they were in transitu, but also 640 Actions against Common Carriers. that it is more likely that they were stolen hy the defendant's servants than any one else. Metcalfe v. L. & Brighton By. Co., 4 C. B., N. S. 311 ; 27 L. J., 0. P. 333; Gt. W. By. Co. v. Bimmell, infra. It is not sufficient to show merely that they had greater opportunity of committing the theft ; M' Queen v. Gt. W. By. Co., L. R., 10 Q. B. 569 ; although it is not neces- sary to give evidence which would fix any one servant of the company with the felony. Vaughton v. L. & N. W. By. Co., L. It., 9 Ex. 93. See also Kirkstall Brewery Co. v. Furness By. Co., L. R., 9 Q. B. 468. Where the carrier carries on a special contract exempting him from liability for loss unless the goods are declared, and extra charge paid, felony by his servant will not deprive him of this protection unless there be also gross negligence ; Shaw v. Ot. W. By. Co., (1894) 1 Q. B. 373, following Butt v. Gt. W. By. Co., 11 C. B. 140 ; 20 L. J., C. P. 241, which case is explained in Gt. W. By. Co. v. Bimmell, 18 C. B. 575 ; 27 L. J., 0. P. 201 ; and in Metcalfe v. L. & Brighton By. Co., 4 C. B., N. S. 307 ; 27 L. J., C. P. 205, as not, in fact, being a case under the Carriers Act at all ; negligence is the material point when there is a special contract ; felony, when the statute is set up as a defence. S. CC. A specific notice repudiating liability in certain cases, and served on the customer, as to which see further, ante, p. 632, is not a public notice or declaration within sect. 4, and it may, if he assent to it, or do not dissent, amount to a special contract, or be evidence of one for the jury, within sect. 6. Walker v. York & N. Midland By. Co., 2 E. & B. 750; 23 L. J., Q. B. 73. It has, however, been held that sect. 6 applies only to contracts, the pro- visions of which are inconsistent with the exemption claimed by the carriers under sect. 1. Baxendale v. Gt. E. By. Co., L. R., 4 Q. B. 244, Ex. Ch. Baihuay and Canal Traffic Act, 1854, 17 ,fc 18 V. c. 31.] By this Act, very important provisions are made respecting the traffic on railways and canals. " Traffic " includes not only passengers and their luggage, and goods, animals and other things conveyed by any railway or canal company, but also carriages, waggons, trucks, boats, and vehicles of every description adapted for running or passing on the railway or canal of any such company ; and "railway company " or "canal company" includes as well lessees and contractors working railways or canals as the companies or owners, and all navigations whereon tolls are levied by Act of Parliament. Sect. 1. The Act provides against neglect of any company to afford facilities for traffic, or undue preference being shown by such company in favour of certain persons or traffic ; sect. 2 ; and gave certain special remedies by application to the Court of C. P. in case of alleged breach of the enactment. Sects. 3 — 5. No proceedings shall be taken for any violation of the above enactment except in the manner provided by the Act, but nothing therein is to take away any right, remedy, or privilege of any person against such company. Sect. 6. Hence it has been held that no action lies for the breach of the provisions of sect. 2 : Manchester, (fee, By. Co. v. Denahy Main Colliery Co., 14 Q. B. D. 209, C. A. ; Bhymney By. Co. v. Bhymney iron Co., 25 Q. B. D. 146, C. A. ; Lancashire, &c, By. Co. v. Greenwood, 21 Q. B. D. 215 ; except, perhaps, after an adjudication by the commission in which this jurisdiction of the <'. I'. is now vested (vide post, p. 641), that the company has been guilty of undue preference, for money subsequently extorted by the company. See /'/., p. 21'.) ; Manchester, &c, By. Co. v. Denahy Main Colliery Co., 11 Ap. Ca. 97, 112. In this case the judgment of the C. A., ubi supra, on this point was affirmed in D. P., on the ground that there had not, in fact, been undue preference. The section imjwses an obligation on the company to provide reasonable facilities for carrying animals and other classes of goods which they are not bound to convey as common carriers. See Dickson v. Gt. N. Railway and Canal Traffic Act, 1854. 641 By. Co., 18 Q. B. D. 176, C. A. ; Winsford Local Board v. Cheshire Lines Committee, 24 Q. B. D. 456. This Act has been extended to the steam vessels of a railway company, and the traffic carried on thereby, where the railway has been constructed by a special Act, passed after July 28th, 1863, incor- porating the Railway Clauses Act, 186:}, 26 & 27 V. c. 91. See Id. 31. See further as to equality provisions the Regulation of Railways Act, 1868, s. 16, post, p. 645, and Id. 1871, s. 12, post, p. 646. The Regulation of Railways Act, 1873 (36 & 37 V. c. 48), ss. 11 et seq., extended the provisions of 17 & 18 V. c. 31 ; and sect. 6 transferred the jurisdiction of the C. P. above mentioned to the Railway Commissioners appointed under sect. 4. By the Railway and Canal Traffic Act, 1888 (51 & 52 V. c. 25), the jurisdiction of these Commissioners has beeu, by sect. 8, transferred to the Railway and Canal Commission, established under sect. 3; and the jurisdiction is extended by sects. 9 — 16. By 17 & 18 V. c. 31, s. 7, every company, &c, shall be liable for loss of or injury to any horses, cattle or other animals, or to any articles, goods, or things, in receiving, forwarding, or delivering thereof, occasioned by the neglect or default of the compan} 7 or its servants, notwithstanding any notice, condition, or declaration made and given by such com pan j r contrary thereto, or in anywise limiting such liability ; and every such notice, condition, or declaration is declared to be null and void. Provided that nothing therein shall be construed to prevent such companies from making such conditions with respect to receiving, forwarding, and delivering such animals, articles, etc., as shall be adjudged by the court or judge before whom any question relating thereto shall be tried, to be just and reasonable. The section further provides certain limits to damages recoverable for loss or injury to any such animals (namely, a horse, 50Z. ; neat cattle, 151. each; sheep and pigs, 21. each), unless the person sending or delivering the same to the company shall, at the time of delivering, have declared them to be of higher value, in which case the company may charge a reasonable percentage on the excess of value above the limited sum, to be paid in addition to the ordinary charge, such percentage to be notified in the manner prescribed by the Carriers Act, s. 2 (ante, p. 637), and to be binding on the company as therein mentioned. Proof of the value and amount of injury is to lie on the claimant. No special contract between the company and the other parties respecting the receiving, forwarding, or delivering of any goods, &c., shall be binding on or affect such party, unless it be signed by him or the person delivering the goods for carriage. Nothing in the Act is to alter or affect the rights or liabilities of the company under the Carriers Act, with respect to the articles mentioned in that Act (ante, pp. 636, 637). Sect. 7 applies only to loss occasioned by the negligence of the company or default in the nature of negligence, or within the scope of the servant's employment. Theft by the company's servants, without negligence on the part of the company, is not within it. Slav" v. (It. W. By. Co., (1894) 1 Q. B. 373. The language of sect. 7 differs much from that of the Carriers Act. The word " public " is not inserted before the word " notice," but it is now s.ttli d that " general notices to limit the liability shall be null and void; but the parties may make special contracts with the companies, provided those con- tracts are adjudged by the court to be just and reasonable, and provided they be signed by the parties." Simons v. HI. II'. /,'//. Co., L8 < ■. I'.. so',, 829; 26 L. J., C.P. 25, 32, per Jervis, (!..!. Accord. WManus v. Lancashire . l'>. B. — VOL. I. T T i!.|-_> Action* against Common Carriers. 539. But whore t ho company contract to carry over their own as well as other lines, they must prove that the h>ss did not occur on their line, in order to avail themselves of a condition of non-liability. Kent v. Midland By. Co., L. R., 10 Q. B. 1. See also F/oivers v. S. E. By. Co., 16 L. T. 329, B. T. L867, Ex. In Simons v. Ct. W. By. Co., ante, p. 641, the Court held that a condition exempting a company from liability for loss, detention, or damage, if goods were improperly packed, was unreasonable. Accord. Carton v. Bristol & Exeter By. Co., 1 B. & S. 112 ; 30 L. J., Q. B. 273, where an action was held to lie for refusing to carry unless the plaintiff signed that condition. But a company may stipulate not to be liable for loss or damage, "however caused," in a contract to carry at a special or mileage rate. Simons v. Ot. W. By. Co., nith', p. 041. If the particular condition relied on by the company to protect them in the particular case he a reasonable one, the unreasonableness of other conditions in the contract, not relied on, is not material. Per Cur., S. C. The Act makes the question of reasonableness one of law, and not of fact. Per Cur., S. C; Ot. W. By. Co. v. McCarthy, 12 Ap. Ca. 218, D. P. A special contract professing to protect a company from damage to horses, "however occasioned," is not reasonable; M i Man us v. Lancashire if' York- shire By. Co., 4 H. & N. 327 ; 28 L. J., Ex. 353, Ex. Ch. ; M'Cance v. L. ,fr N. W. By. Co., 7 H. & N. 477 ; 31 L. J., Ex. 65 ; 3 H. & C. 343 ; 34 L. J., Ex. 311 ; Doolan v. Midland By. Co., 2 A p. Ca. 792, D. P. ; Ashendon v. L. Brighton & S. Coast By. Co., 5 Ex. I). 190. Conditions annexed by a railway company to its "cattle tickets," that the company should not be liable for damage to cattle from any cause whatever, "it being agreed that the animals are to be carried at the owner's risk, and that the owner of the cattle is to see to the efficiency of the waggon before his -stock is placed therein ; complaint to be made in writing to the company's officer before the waggon leaves the station," are not reasonable ; Gregory v. W. Midland ByTCo., 2 H. & C. 944 ; 33 L. J., Ex. 155 ; even though the owner is allowed a free pass for a man to take care of the cattle. Booth v. N. E. By. Co., L. R., 2 Ex. 173. But a declaration in such a contract that the horses sent there- under did uot exceed 107. in value, binds the sender. M'Cance v. L. & N. W. By. Co., supra. A railway company gave the plaintiff a printed notice, that it would only carry marbles, subject to the conditions therein stated, one of which w T as that it would not be responsible for any loss or injury unless the marbles were declared and insured according to their value. With know- ledge of these conditions the plaintiff instructed the company by letter, to forward them " not insured," which it did, and the marbles were injured, — it was held, though there was no wilful default or neglect found, that the company were liable, and that the condition was neither just nor reasonable, for the effect of such a condition would be to exempt the company from responsibility for injury, however caused, whether by its own negligence, or even by fraud or dishonesty on the part of its servants. Peek v. N. Staffordshire By. Co., 10 H. L. C. 473 ; 32 L. J., Q, B. 241. The conditions must be embodied in a special contract signed by the party, otherwise they will not bind him. Thus the above letter was held not to constitute a special contract in writing, the words " uot insured " being insufficient, either expressly or by reference, to embody the above condition. S. C. Where, however, the defendant has been in the habit of conveying the plaintiff's goods on certain printed conditions exempting the defendant from liability, and known as " owner's risk," vide ante, p. 633, a memorandum signed by the plaintiff, "Please receive and forward," &c. ; "owner's risk," is a sufficient contract, and evidence of the terms is admissible. Lewis v. Ot. W. By. Co., 3 Q. B. D. 195, C. A. Where an agent who is employed to deliver cattle to be sent by a railway company signs the consignment note, he must be taken Rail tray and Canal Traffic Act, 1854. 643 to have known the contents and thereby binds his principal. Kirby v. Gt. W. By. Co., 18 L. T. 658, Martin, B. ; Qt. W. By. Co. v. McCarthy, 12 Ap. Ca. 218, D. P. Where a special contract provided that the company should not he liable for damage to horses conveyed, and a horse was injured in consequence of its being left without food all night in a box at the station, there being no one to receive it on its arrival ; held, that the company was not liable; and semble, the damage being the fault of the sender or the consignee, in not providing for the reception of the horse, the defendants would not be responsible, independently of the special contract. Wise v. Gt. W. By. Co., 1 H. & N. 63 ; 25 L. J., Ex. 258. A condition exempting the company from liability " in respect of any loss or detention of or injury to cattle" in the receiving, forwarding, or delivery thereof, except on proof that it arose from the wilful misconduct of the company's servants, dues not protect the company from liability for a wrongful detention at the end of the transit under a mistaken claim for unpaid freight. Gordon v. Gt. II". Ry. Co., 8 Q. B. D. 44. Where cattle were accidentally smothered by the fall of the lid of a van in which they were carried on a railway, and the van was not objected to by the drover, who was allowed a free pass to accompany the cattle, it was held, that a special contract exempting the company from liability fur loss or damage from suffocation, or any other cause, was reason- able, and would protect them ; and semble, even without such contract, the company would not be liable under the above circumstances. Bardinytony. S. Wales By. Co., 1 II. & N. 392 ; 26 L. J., Ex. 105. On sending fish the plaintiff signed a condition, that, as to fish, the company should not be responsible under any circumstances for loss of market, or other loss or injury arising from delay or detention of trains, or from any other cause whatever, other than gross neglect or fraud ; the fish arrived too late for the market they were intended for, but the cause of the delay was not shown ; it was held that the condition was reasonable, and protected the defendants. Beal v. 8>. Devon By. Co., 5 H. & N. 875; 29 L. J., Ex. III. The decision was affirmed in Ex. Ch., 3 H. & 0. 337 ; the court holding the condition reason- able, as it left the company liable in all cases where carriers are liable for gross negligence, that is, for want of reasonable care, skill, and expedi- tion. So a condition that the company' should not as to meat, &c, be liable for loss of market, provided they were delivered within a reasonable time, was held reasonable. Lord v. Midland Ry. Co., L. II., 2 I '. I'. 339; see also White v. Gt. W. By. Co., 2 C. B., N. S. 7 ; 26 L. J., (I. 1'. 158. But a con- dition that the company should not be answerable for any consequences arising from over-carriage, detention, or delay in the conveying or delivering of cattle, however can sal, was held unreasonable. Allday v. til. II'. Ry, Co., 5 B. & S. 903 ; 34 L. J., Q. B. 5. In determining whether a condition is reasonable, the courts consider whether any reasonable alternative is offered to the customer, as of sending at a legal higher rate, not subject to the condition. In such case, even although the condition relieve the company from all liability, there is strong /" una facie ground for holding it to he reasonable. Brown v. Manchester, '>/. Co., 18 Q. B. D. 176, C. A. A condition as to risk of luggage on a passenger's ticket is within sect. 7. T T 2 644 Actions against Common Carriers. Cohen v. S. E. By. Co., 2 Ex. D. 253, C. A. (overruling Stewart v. L. & N. W. By. Co., 3 H. & C. 135 ; 33 L. J., Ex. 199); Wilkinson v. Lancashire, &c, By. Co., (1906) 2 K. B. 619; (1907) W. N. 117, C. A. Sect, 7 does not apply if the railway company does not receive the goods in the capacity of carriers, as where luggage was left at the defendants' cloak-room by a person who had been a passenger by the railway. Van Toll v. S. E. By. Co., 12 C. B., N. S. 75 ; 31 L. J., C. P. 241 ; and other cases cited post, pp. 648, 655. Most of the above cases are cases relating to injury, which have hap- pened after the contract for the carriage has been completely made ; but the statute goes further. Sect. 7, ante, p. 641, in terms, applies to injuries in the receiving, forwarding, or delivering, and protects railway companies, beyond a certain amount, unless the value of the animal is declared. Where injury was done to a horse at a railway station by the negligence of the company, before the declaration of value had been made, or ticket taken, or fare demanded, it was held that this was an injury in the receiving, and the owner could not recover more than 50/., even though it was the usual practice to put horses in their boxes before declaring their value or paying the fare. Hoalgman v. W. Midland By. Co., 5 B. & S. 173 ; 33 L. J., Q. B. 233 ; Ex. Ch. 6 B. & S. 560 ; 35 L. J., Q. B. 85. A railway company cannot repudiate a special contract on the ground that, it has not been signed by the consignor : the proviso in sect. 7 only applies to cases where the company seek to relieve themselves from liability, by reason of there being a special contract. Baxendale v. Qt. E. By. Co., L. R., 4 Q. B. 244. To entitle the company to demand the percentage under sect. 7, the sender must make a declaration of the value with the intention of paying the percentage ; but the company is bound to carry at the ordinary rate without increased risk if the sender require it, even though the company have notice of the higher value of the animals. Bobinson v. L. & 8. W. By. Co., 19 C. B., N. S. 51 ; 34 L. J., C. P. 234. The reasonableness of the percentage is a question for the jury. Harrison v. L. Brighton & 8. C. By. Co., 2 B. & S. 152, 167 ; 31 L. J., Q. B. 113, 119, per Erie, C. J., in Ex. Ch. The principle is not what profit it may be reasonable for the company to make, but what is reasonable to charge the party charged. See Canada Southern By. Co. v. International Bridge Co., 8 Ap. Ca. 723, J. C. See further as to percentage for risk, Dickson v. Qt. N. By. Co., ante, p. 643. The Begulation of Bailways Act, 1868, 31 & 32 V. c. 119, Part II] The interpretation clause, sect, 2, is as follows: — " The term ' railway ' means the whole or any portion of a railway or tramway, whether worked by steam or otherwise. " The term ' company ' means a company incorporated either before or after the passing of this Act for the purpose of constructing, maintaining, or working a railway in the United Kingdom (either alone or in conjunction with any other purpose) ; and includes, except when otherwise expres-sed, any individual or individuals not incorporated, who are owners or lessees of a railway in the United Kingdom, or parties to an agreement for working a railway in the United Kingdom. " The term ' person ' includes a body corporate." By sect. 14, where a company, by through booking, contracts to carry any animals, luggage or goods, from place to place, partly by railway and partly by sea, or partly by canal and partly by sea, a condition exempting the company from liability for any loss or damage which may arise during the carriage of such animals, &c, by sea, from the act of God, the king's enemies, fire, accidents from machinery, boilers and steam, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature Regulation of Bail-ways Act, 1868. 645 and kind soever, shall, if published in a conspicuous manner in the office where such through booking is effected, and if printed in a legible manner on the receipt or freight note which the company gives for such animals, &c, be valid as part of the contract between the consignor of such animals, &c, and the company, in the same manner as if the company had signed and delivered to the consignor a bill of lading containing such condition. For the purposes of this section the word " company " includes the owner, lessees or managers of any canal or other inland navigation. See The Stella, (1900) P. 161. By sect. 15, railway companies are to exhibit in their booking offices a table of the fares of passengers by the trains included in the time tables of the company, from that station to every place for which passenger tickets are there issued. By sect. 16, " where a company is authorized to build, or buy, or hire, and to use, maintain, and work, or to enter into arrangements for using, main- taining, or working steam vessels for the purpose of carrying on a communi- cation between any towns or ports, and to take tolls in respect of such steam vessels, then and iu every such case, tolls shall be at all times charged to all persons equally, and after the same rate, in respect of passengers conveyed in a like vessel, passing between the same places under like circumstances, and no reduction or advance in the tolls shall be made in favour of or against any person using the steam vessels, in consequence of his having travelled, or being about to travel, on the whole or any part of the company's railway, or not having travelled or not being about to travel, on any part thereof, or in favour of or against any person using the railway, in consequence of his having used or being about to use, or his not having used or not being about to use, the steam vessels ; and where an aggregate sum is charged by the company for conveyance of a passenger by a steam vessel and on the rail- way, the ticket shall have the amount of toll charged for conveyance by the steam vessel distinguished from the amount charged for conveyance on the railway." " The provisions of the Railway and Canal Traffic Act, 1854, so far as the same are applicable, shall extend to the steam vessels and to the traffic carried on thereby." This paragraph was repealed by 51 & 52 V. c. 25, s. 59. By sect. 17, " where any charge shall have been made by a company in respect of the conveyance of goods over their railway, on application in writing within one week after payment of the said charge, made to the secretary of the company, by the person by whom or on whose account the same has been paid, the company shall within fourteen days render an account to the person so applying for the same, distinguishing how much of the said charge is for the conveyance of the said goods on the railway, including therein tolls for the use of the railway, for the use of carriages and for locomotive power, and how much of such charge is for loading and un- loading, covering, collection, delivery, and fur other expenses, but without particularizing the several items of which the last-mentioned portion of the charge may consist." By sect. 18, "where two railways are worked by one company, then in the calculation of tolls and charges, for any distances in respect of traffic (whether passengers, animals, goods, carriages, or vehicles), conveyed on both railways, the distances traversed shall be reckoned continuously on such railways, as if they were one railway." This Act is extended by 34 & 35 V. c. 78, post, p. 646. The equality clauses did not, under 17 it 18 V. c. 31, ante, p. 640, originally apply to steamers worked by railway companies. Branley v. 8. E. By. Co., VI C. B., N. S. 63; 31 L. J., C. P. L'86. The Act was, 640 Actions against Common Carriers. however, extended to theui in certain cases by 26 & 27 V. c. 91, s. 31, ante, p. 641. The Regulation of Railways Act, 1871, 34 & 35 V. c. 78.] By sect. 12, where railway companies under contract to carry passengers or goods by sea, procure the same to be carried in a vessel not belonging to them, they are liable for loss or damage to the same extent as though the vessel had belonged to them. This section extends the provisions of 31 & 32 V. c. 119, s. 10, ante, p. 645, to the carriage of goods which the company contract to carry, but procure to be carried in ships not belonging to them. Who should he plaintiffJ] The proper person to sue, as plaintiff, is the person in whom the property was vested, wheu lost or damaged. Hence, the consignee is usually the proper plaintiff, because delivering of goods to the carrier commonly vests the property in the consignee. Dunlop v. Lambert, 6 CI. & P. 600; Fragano v. Long, 4 B. & C. 219 ; Dawes v. Peck, 8 T. R. 330. But where there is a special contract between the consignor aud carrier, the consignor may be plaintiff, and the ownership is immaterial. Dunlop v. Lambert, supra. See also Qt. W. Ry. Co. v. Bagge, 15 Q. B. D. 625. If the consignment do not change the property, as where goods are sent on approval, the consignor should sue ; Sivain v. Shepherd, 1 M. & Rob. 223 ; or where the sale is insufficient to bind the vendee under the Sale of Goods Act, 1893. Coats v. Chaplin, 3 Q. B. 483 ; Coombs v. Bristol & Exeter Ry. Co., 3 H. & N. 510 ; 27 L. J., Ex. 401. See cases cited ante, pp. 526 et seq. On the other hand, where there is a contract between the consignee and the carrier, so that the former is liable to the latter for the freight, the consignee may sue. Mead v. S. E. Ry. Co., 18 W. R. 735, E. T. 1870, C. P. Where a single box containing the separate property of A. and B. is delivered to the carrier by a joint agent, A. and B. may join in the action. Metcalfe v. L. & Brighton Ry. Co., 4 C. B., N. S. 317 ; 27 L. J., C. P. 333. A special property is sufficient to support the action. Thus, a laundress may sue a carrier employed by her, who loses the linen returned by her through him. Freeman v. Birch, 3 Q. B. 492, n. Where the contract is made with one railway company for carriage of goods over the lines of several other companies, vide ante, pp. 634, 635. Proof of delivery to defendant^ In an action against the proprietor of a stage coacli for the loss of a parcel, it is sufficient to prove the delivery of the parcel to the driver. Williams v. Cranston, 2 Stark. 82. A delivery of goods on the wharf, to some officer accredited for that purpose, as to the mate, binds the shipowner; Cobban, v. Downe, 5 Esp. 41 ; British Columbia, &c, Co. v. Neltlesltip, L. R., 3 C. P. 499; or if the master receive goods at the quay or beach, or send his boat for them, the shipowner's responsibility commences with the receipt; Abbott on Shipping, 14th ed. 503, citing Molloy, b. 2, c. 2, s. 2; unless it appears that the consignee does not intend t" trust the shipowner with the custody, as where he sends his own servant in charge of the goods, who has the exclusive management of them. E. India Co. v. Pullen, Str. 690. Where the only proof of delivery was, that the goods were left at an inn-yard where defendant and other carriers put up, it was held to be insufficient. Selway v. PLolloway, 1 Ld. Kaym. 46. So, leaving goods at a wharf piled up among other goods, without communication with any one there, is not a delivery to the wharfinger. Buckman v. Levi, •'I Camp. 414. Where the ordinary course of business, at a railway office, was to accept goods, with a special limitation of liability, in writing, and this Delivery to Defendant. — Non-delivery by Defendant. 647 was known to the plaintiff, who nevertheless caused his goods to be left with a railway porter at the station, without complying with the regular course, and the porter received them, and they were lost: held, that the company was not liable as on contract, the delivery not being in due course, and the porter not being shown to have, or to have professed to have, power to contract with the plaintiff otherwise than in the ordinary course. Slim, v. at. N. By. Co., 14 C. 13. 647 ; 23 L. J., C. P. 166. Proof of non-delivery by defendant.'] Very slight evidence of non-delivery is sufficient to call upon the defendant to prove delivery. Griffiths v. Lee, 1 C. & P. 110; Hawkes v. Smith, Car. & M. 72. Whether the carrier is bound to deliver at the residence of the cousignee, seems to depend on the circumstances of each particular case. In the absence of any express contract or usage, carriers by laud are bound to deliver the goods to, or at the house or, the consignee. See Ili/de v. Trent and Mersey Navigation Co., 5 T. R. 389; Storr v. Crowley, M'CL & Y. 129; Duffy. Budd, 3 B. & B. 182, citing Bodenham v. Bennett, 4 Price, 31. And if it be the carrier's course of trade to deliver goods at the consignee's residence, he is clearly bound to do so. Golden v. Manning, 2 W. Bl. 916. Where goods are conveyed by sea, it seems to be sufficient for the captain to deposit them in some place of safety, and give notice to the consignee. See Hyde v. Trent and Mersey Navigation Co., 5 T. R. 397. And he is bound to keep them a reasonable time until fetched, and is liable during that time. Bourne v. Gatliffe, 3 M. & Gr. 643 ; 7 M. & Gr. 850, D. P. Although the consignor of goods directs the carrier to deliver them at a certain place, the carrier may deliver them wherever he and the consignee agree ; L. & N. W. By. Co. v. Barlett, 7 H. & N 400; 31 L. J., Ex. 92 ; and in such a case the carrier is not liable to an action by the consignor for not delivering at such place, as the non- delivery was pursuant to the orders of the consignee. S. C. ; Cork Distilleries Co. v. Gt. S. & W. By. Co., L. R., 7 H. L. 269. But semble, where there is a special contract between the carrier and the consignor, he may sue the carrier for breach thereof. S. C. If the carrier deliver the goods at the place directed, in accordance with the ordinary usage, he has fulfilled his obligation, although he has delivered them to a person the sender did not intend. M'Keau v. M'lvor, L. R., 6 Ex. 36. If the consignee refuse to receive the goods, and the carrier put them into his warehouse, he is not bound as a carrier to give notice to the consignor of the refusal; it is a tpiestion for the jury " whether the carrier lias dune what is reasonable under the circumstances. " Hudson v. Baxendale, 2 II. & N. 575; 27 L. J., Ex. 93. Qucere, if the carrier be bound to keep possession of them after refusal. S. < !. In an action fur non-delivery of a parcel, it appeared that, on refusal of the plaintiff, the consignee, to pay the carriage, the company had sent it back forthwith to a distant terminus where it had been first delivered to them, and took no further step ; held, that they ought to have kept it for the consignee a reasonable tune, and that, on tender of tin- charges the next day, plaintiffs mi^ht sue defendants. Crouch v. Gt. W. By. Co., 2 II. & N. 191; 26 L. J., Ex. 41b; Ex. Ch., 3 H. & N. 183; li7 L. J., Ex. 345. Where the consignee makes default in receiving the i;oods, the carrier is entitled to recover from him the expenses reasonably incurred in taking care of thr goods, at. N. A'//. Co. v. Swaffield, L. R., 9 Ex. 132. The liability of a carrier continues till he delivers the goods or ceases to hold them, quh carrier. Therefore, where goods are detroyed by fire after they are deposited in Hi'' defendant's wharf, and before a reasonable time has elapsed for the plaintiff to fetch them, the defendant is liable. Bourne v. Gatliffe, Bee above. And where the question is whether the goods have been delivered by the defendant at London, evidence i.-, admissible to show CIS Actions against Common Carriers. what constitutes a delivery in London, according to the usage of that port ; and former dealings between the plaintiff and defendant are evidence of such usage. S. 0. ; and see ante, pp. 478, 049. Where there has been a delivery by the carrier, actual or constructive, though the goods remain on his premises, he is no longer liable as carrier, but only as warehouseman, or on any special terms of bailment which he may choose to impose on the customer. See Mitchell v. Lancashire & York- shire By. Co., L. 11., 10 Q. B. 256. Thus where cattle sent by railway were kept at the arrival station, by the direction of the owner's servant, until they could be removed according to the police regulations, the company were held not liable as carriers. Shepherd v. Bristol & Exeter By. Co., L. R. 3 Ex. 189. So where goods are carried, " to be left till called for," and the carrier does not know the consignee's address, and the consignee does not call for the goods within a reasonable time, the carrier becomes an involuntary bailee, and is liable only for negligence. Chapman v. Ct. W. By. Co., 5 Q. B. D. 278. So, after refusal of the goods at the consignee's address. Heugh v. L. & N. W. By. Co., L. R., 5 Ex. 51. As to the liability of a railway company in respect of goods deposited at a cloak-room at its station, vide post, p. 655. The declarations of the coachman respecting the loss of a parcel are evidence against the coach proprietor. Mayhew v. Nelson, 6 C. & P. 58. So where in an action for not delivering a parcel sent by rail to V., the plaintiff, to a plea of the Carriers Act, replied felony of the company's servants, the statements of the station-master at V. to the superintendent of police, with reference to the loss, and to the absconding of the parcel porter at V., are admissible in evidence. Kirkstall Brewery Co. v. Furness By. Co., L. R., 9 Q. B. 468. But the statements of a night inspector at a railway station as to the detention of goods, which would pass through the station, and there be under the inspector's charge, were held to be inadmissible against the company. Ct. W. By. Co. v. Willis, 18 C. B., N. S. 748 ; 34 L. J., 0. P. 195. If the carrier deliver the goods to a wrong person, he is liable in trover ; Stephenson v. Hart, 4 Bing. 476 ; aliter, if only lost ; Boss v. Johnson, 5 Burr. 2825. DamagesJ] Where goods are sent from A. to B. and are lost, the consignee is entitled to their value at B., as distinguished from the place where they were delivered to the carrier. Bice v. Baxendalc, 7 H. & N. 96; 30 L. J., Ex. 371. And in such case the measure of damages is, in general, the market value of the goods, at the place and time at which they ought to have been delivered ; and if there be no market for the sale of such goods at the place, the jury must ascertain their value, by taking their price at the place of manufacture, together with the cost of carriage, and a reasonable sum for importer's profits. O'Eanlan v. Gt. W. By. Co., 6 B. & S. 484 ; 34 L. J., Q. B. 154; Strains Bruks Aktie Bolay v. Hutchison, (1905) A. C. 515, D. P. The market value is to be estimated " independently of any circumstances peculiar to the plaintiff, and so independently of any contract made by him for the sale of the goods." Bodocanachi v. Milburn, 18 Q. B. D. . v. Nettleship, supra. And even in the case of the carriage of goods by ship, damages for loss of market arc recoverable where the state of the market at the time of arrival was a factor in the 650 Actions against Common Carriers. contract between the parties. Dunn v. Bucknatt Bros., (1902) 2 K. B. 614, C. A., explaining The Parana, 2 P. D. 118, C. A. See further, sub tit. Actions for not delivering (loads — Damages, ante, pp. 546 et seq. Where, by reason of a refusal to carry, or of non-delivery or delay by a railway company, a carrier, who uses the railway for his parcels, is injured in Ins own business as a carrier, such injury is too remote to be considered in damages. Semb. Crouch v. (U. N. By. Co., 11 Exch. 743; 25 L. J., Ex. 137. So the hotel expenses of the plaintiff, a commercial traveller, while he was waiting for the goods, which the defendants ought to have delivered, were held to be too remote to be recovered. Wbodger v. Ot. W. By. Co., L. R., 2 C. P. 318. See further, iwst, p. 654. A carrier, B., contracted with A. to carry A.'s goods, and B. sent them by an independent carrier, C, who injured them iu transit whereby B. was compelled to pay damages iu an action brought against bim by A. B. gave notice to C. of the claim and action, but C. declined to interfere. It was held that B. could not recover l'n mi C. the costs of that action. Baxendale v. L., Chatham & Dover By. Co., L. R., 10 Ex. 35, Ex. Ch. This decision has been explained on the ground that B.'s defence to the action against him was unreasonable. See Hammond v. Bussey, and The Millwall, ante, p. 492, and Agius v. Gt. W. Colliery Co., ante, p. 548. Where bales of rags were sent for carriage with- out notice to the carrier that they were damp, and, in consequence only of their being damp, delay in carriage caused them to heat, and become worth- less, the carrier was held liable to nominal damages only. Baldwin v. L., Chatham & Dover By. Co., 9 Q. B. D. 582. The cases on the measure of damages arc collected and discussed in the notes to Vicars v. Wilcocks, 2 Smith's L. C, 11th ed. 538. When the plaintiff has made a false declaration of the value of horses, in order to induce a railway company to carry them on lower terms, and they are injured by the company's negligence, he cannot recover more than the declared value. M'Cance v. L. & N. W. By. Co., 7 H. & N. 477 ; 31 L. J., Ex. 65 ; 3 H. & C. 343 ; 34 L. J., Ex. 39, Ex. Ch. The defendants had in this case admitted liability by payment into court; but quaere if they were liable at all? See cases collected, post, pp. 650, 651. Costs.'] As to the effect of the County Courts Act, 1888, s. 116, with reference to costs in actions against carriers, vide ante, p. 303. Defence. By Rules, 1883, 0. xix. r. 15, the defendant must plead specially all facts not previously stated, on which he relies, and must raise all such grounds of defence as, if not pleaded, would be likely to take the plaintiff by surprise ; and r. 17 provides that the defendant shall not deny generally the allegations in the statement, of claim. By r. 20, a bare denial denies the making of the contract in point of fact only, ami not its sufficiency in point of law. See the rules cited ante, pp. 309, 310. A defence arising under the Carriers Act, s. 1, ante, pp. 636, (J.'i7, must therefore be specially pleaded. Symsv. Chaplin, 5 Ad. & E. 634. A carrier may, by his defence, set up the title of a third person, who has claimed and retaken the ^oods. Sheridan v. New Quay Co., 4 C. B., N. S. 649, 650 ; 28 L. J., C. P. 58. See Clough v. L. & N. W. By. Co., L. R., Ex. 726, Ex. Ch. As to right of master of ship to sell cargo iu i <■ of necessity, vide ante, p. 178. Loss by plaintiff's own default.] It is questionable how far, and under what circumstances, it is a defence that a parcel was lost by the default of the plaintiff himself. It has been considered that where the gist of the Letter and Passenger Carriers.